On Death Of Person Continuing In Possession, His Tenancy Shall Firstly Devolve Upon His Surviving Spouse: Himachal Pradesh High Court

The Himachal Pradesh High Court clarified that in the event of death of a person or tenant continuing in possession, his tenancy shall firstly devolve upon his surviving spouse.

The Court was hearing a Regular Second Appeal preferred against the Judgment of the Additional District Judge (ADJ), by which the Judgment and Decree of the Sub-Judge First Class (II) was reversed.

A Single Bench of Justice Vivek Singh Thakur observed, “… it is quite clear that in the event of death of a person/tenant continuing in possession his tenancy shall firstly devolve upon his surviving spouse, and in absence of first, secondly upon his son and daughter or both if there is no surviving spouse or if the surviving spouse did not ordinarily live with the deceased person as a member of his family upto the date of his death; thirdly in absence of first and second, on parents and in absence of first, second and third, fourthly on daughter-in-law etc.”

The Bench reiterated that if there are co-owners or co-landlords of the suit premises, then any co-owner or co-landlord can file a suit for eviction against the tenant and it is not necessary that all owners/landlords should join in filing the eviction suit against the tenant.

Senior Advocate Bhupinder Gupta represented the Appellants, while Advocate Sumit Sood represented the Respondents.

Brief Facts

The Respondents in this case were the Plaintiffs and one among them was Rajesh Kumar Bhagra who was co-owner with the Plaintiffs. Dalip Chand Goel was tenant of portion of vacant land/property purchased by Kulbhushan Bhagra (predecessor of Plaintiffs) and Rajesh Kumar Bhagra, both sons of Kishori Lal Bhagra from one Anil Kumar Goel son of Hans Raj. After death of Dalip, Defendant namely Jwala Devi inherited the tenancy and rest of the Defendants except co-owner had no right, title or interest in their individual capacity to continue in possession, much less as tenant, and it was stated that they had been impleaded as party to avoid future legal objection that they were not heard before passing any Order/Judgment with respect to the suit property. In 1989, an award was passed vide which the property was acquired by the State for widening the road.

But later on, only a part of property was utilized by the State and remaining property was de-notified in 1991. It was alleged that Jwala Devi in connivance with other Defendants, raised two storeys upon the tenanted premises above the ground floor without permission of the Plaintiffs or co-owner as well as sanction from the Municipal Corporation. The Municipal Corporation took cognizance of the alleged unauthorized construction against which an Appeal was filed, which was dismissed. Mohan Lal filed a suit which was dismissed by the Sub-Judge First Class. Hence, the Plaintiffs filed a suit for mandatory injunction. The said suit was dismissed against which an Appeal was filed. The ADJ reversed the said Judgment and decreed the suit filed by Plaintiffs, directing the Defendants to demolish two storeys. This was under challenge before the High Court.

Reasoning

The High Court in view of the above facts, said, “Explanations clearly provide order of succession of tenancy. In the present case, Jawala Devi was alive and living with her husband upto the date of his death and therefore, she was only entitled for succession of tenancy and others legal heirs, mentioned in Clauses (b) (c) and (d) of Explanation-I, were not entitled for succession of tenancy of Dalip Chand. As per Explanation-II, right of every successor referred to in Explanation-I, shall be personal to him and on the death of said successor tenancy will not devolve upon his any legal heirs.”

The Court was of the view that the plea regarding necessity of issuing notice to all legal heirs of Dalip Chand and claim of them that they all are tenants, is not sustainable and, therefore, objection of Defendant disputing the locus of Plaintiff to file the suit is not sustainable.

“Above referred explanation-II, clearly mandates that right to succeed tenancy shall be personal to the successor and on death of successor, it shall not devolve on any of his legal heirs. … as settled by the Apex Court, present appeal is to be adjudicated with reference to right and liabilities of parties as existing on the date of institution. For above discussion, the plaintiffs had and have right to file and maintain the suit in reference”, it noted.

The Court observed that legal proceedings initiated by original owner can be continued even after selling the property in reference, either by original previous owner or subsequent owner.

“On selling of the suit property, particularly when there was no injunction against selling the property, does not disentitle the original owner or subsequent owner from continuing legal proceedings based on right, title and interest in the suit property”, it added.

The Court further said that availing of remedy under the Himachal Pradesh Urban Rent Control Act, 1985, does not debar or disentitle the Plaintiff from filing suit for removal of unauthorized construction against the person in unauthorized occupation after determination/termination of tenancy.

“In present case, though it has been alleged that suit property has been sold by the plaintiffs, but defendants have failed to connect the Sale Deeds with the tenanted premises, whereupon construction has been unauthorisedly raised by the defendants”, it remarked.

Conclusion

The Court also noted that the Defendants have no right to justify their unauthorised and illegal act on the ground that during the period 1989 to 1991, Plaintiffs had lost their title on the suit premises for acquisition thereof by the State.

“For doing substantive justice, impediments, which are purely technical in nature, shall not come in the way and issues of controversy between the parties should be decided by keeping in view that conclusion of the lis shall in consonance with common sense. … There is no illegality, irregularity or perversity in the impugned judgments passed by the first Appellate Court”, it concluded.

Accordingly, the High Court dismissed the Appeal.

Cause Title- Jwala Devi & Others v. Prabha Bhagra & Others (Neutral Citation: 2025:HHC:37873)

Appearance:

Appellants: Senior Advocate Bhupinder Gupta, Advocates Rinki Kashmiri, and Harshit Sharma.

Respondents: Advocates Sumit Sood, Meera Devi, Rahul Sharma, and Deepak Gupta.

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