Legal heirs of a deceased tenant collectively assume tenancy rights, making eviction notices effective even if some heirs are not directly joined in proceedings.

JUDGMENT

Appellant is the claimant in E.A.No.270/2019 in E.P.No.224/2017 in R.C.P.No.33/2011 on the file of Munsiff (Principal), Palakkad. Appellant/claim petitioner is one of the legal heirs of the deceased tenant.

2. The contention of the appellant/claim petitioner (hereinafter be referred as 'petitioner') is that the building was originally taken on rent in 1937 by Kunjumohammed, father of the appellant, from the then owner Ahammed Sha Rawther and by subsequent transfers, the present landlord became the owner of the tenanted premises. It is also contended that he has not been made a party in the Rent Control Petition and he is also a legal heir of the deceased tenant and hence the order passed in R.C.P.No.33/2011 will not bind him and hence, as per the order in the Rent Control Petition, he is not liable to be evicted.

3. Learned counsel for the first respondent/landlord, on the other hand would contend that, in the Rent Control Petition also, the respondents had taken up the very same contention of non-joinder of necessary party for not impleading the claim petitioner as a party in the Rent Control Petition and the learned Munsiff, following the principles inHC Pandey v. G.C.Paul : AIR 1989 SC 1470 as well as Mohanambal v. Veeramani : 1999 KHC 308 wherein it was held that decree passed against the persons impleaded as heirs is binding on the unimpleaded heirs in the absence of fraud or collusion, repelled the contentions of the respondent and found that there is substantial representation.

4. The matter was taken up in appeal. Before first appellate court also, the very same contention was raised and following the principles in Mohanambal v. Veeramani : 1999 KHC 308, first appellate court also found that there is substantial representation and the Rent Control Petition is not bad for non-

joinder of necessary parties. It is also contended that in Rent Control Appeal No.43/2012 dated 01.03.2014 the appellate court found against the landlord and order of eviction passed under Section 11(3) of the Kerala Building Lease and Rent Control Act (for short 'the Act') was set aside. Against which the landlord/the respondent herein approached this Court in Rent Control Revision No.202/2014 and as per the order dated 16.06.2017, this Court set aside the order of the first appellate court and eviction was ordered under Section 11(3) of the Act.

5. It is contended by the learned counsel that the contention regarding non-joinder or not impleading the petitioner herein as a party to the proceedings was not raised in the Rent Control Revision by the respondents/tenants and the finding made against the tenants by the Rent Control Court as well as the first appellate court that the Rent Control Petition is not bad for non-joinder of necessary parties has become final and hence, the petitioner, being one of the legal heirs of the deceased/tenant, is not legally entitled to file a petition for claim under Order XXI Rule 97. It is also her contention that while A.S.No.65/2022 which was filed against the dismissal of the claim petition was pending, the tenants approached this Court by filing O.P (R.C) No.212/2022 on the ground that application for stay filed by the appellants/tenants is not being taken up. While disposing that original petition, this Court directed the first appellate court to dispose the appeal itself within a period of three weeks and till that time, the delivery proceedings was kept in abeyance. It is also made clear by this Court that, in case the appeal is not considered in favour of the petitioner/tenant, immediate steps shall be taken to execute the order. According to the learned counsel, it is thereafter, delivery proceedings had been initiated and thereupon the petitioner came up before this Court with this second appeal and no substantial question of law emerges for consideration in this appeal.

6. The only argument advanced by the learned counsel for the appellant is that, as per Section 2(6) of the Act, tenant means