All Legal Heirs Of Deceased Tenant Need Not Be Impleaded In Eviction Proceedings; One Co-Tenant Can Represent Entire Tenancy: Allahabad High Court
The Allahabad High Court has held that impleadment of every legal heir of a deceased tenant is not mandatory in eviction proceedings. It held that the tenancy of a deceased tenant devolves upon the heirs as a joint and indivisible unit, and effective representation of the tenancy by one co-tenant in possession suffices. It held that non-joinder of the remaining heirs not being fatal to...
The Allahabad High Court has held that impleadment of every legal heir of a deceased tenant is not mandatory in eviction proceedings. It held that the tenancy of a deceased tenant devolves upon the heirs as a joint and indivisible unit, and effective representation of the tenancy by one co-tenant in possession suffices. It held that non-joinder of the remaining heirs not being fatal to the proceedings.
Justice Dr. Yogendra Kumar Srivastava held,
“…upon the death of a tenant, the tenancy devolves upon the legal heirs as a joint and indivisible tenancy, retaining its unity vis-à-vis the landlord. In such a situation, any one of the joint tenants who is in possession or otherwise effectively representing the tenancy is deemed in law to represent the entire body of co-tenants. Consequently, impleadment of all legal heirs is not a sine qua non for the maintainability or validity of eviction or release proceedings, and proceedings instituted against one or more such joint tenants are maintainable and binding upon all, unless a case of distinct, independent, or severed tenancy rights is specifically pleaded and established.”
Examining the requirement of substitution and representation of the estate of the deceased under Order XXII of the Code of Civil Procedure, 1908, the Court observed,
“It is trite that the requirement in law is one of effective representation and not exhaustive impleadment.”
Plaintiff-respondent had instituted a suit in 2014 seeking eviction, recovery of arrears of rent and damages in respect of the disputed non-residential premises. The original tenant, Krishna Gopal Gupta, contested the suit by filing a written statement but died during its pendency in 2019. On the plaintiff's substitution application, the petitioner, Ashish Kumar Agrawal, was impleaded as the sole legal representative of the deceased tenant by order dated 18.02.2021.
After the Trial Court proceeded ex-parte against the defendants, the petitioner filed a recall application contending that all the legal heirs of the deceased tenant had not been impleaded and proper service had not been effected. The Trial Court set aside the ex-parte proceedings but declined to recall the substitution order. The revision preferred against that order was dismissed by the revisional court.
Aggrieved, the petitioner approached the High Court.
The Court held that the test is one of effective and adequate representation of the tenancy and the estate of the deceased, and not exhaustive impleadment. It held that a decree passed against a joint tenant in possession binds all co-tenants unless a distinct, independent or severed tenancy right is specifically pleaded and established.
Referring to Order XXII of the Code of Civil Procedure, 1908, the Court held,
“a three-fold test has been evolved to determine the adequacy of such representation: (i) bona fide conduct — whether the litigation has been prosecuted or defended honestly and with due diligence by the parties on record; (ii) identity of interest — whether the interest of the non-impleaded party is identical to, and not in conflict with, that of the party representing the estate; and (iii) absence of prejudice — whether the omission to implead a particular heir has resulted in any failure of justice or a distorted or one-sided presentation of the case.”
The Court observed that while the heirs may hold rights inter se as tenants-in-common with separate shares, their position vis-à-vis the landlord stands on a different footing, the tenancy remaining joint and indivisible. It held that the petitioner's argument that each heir possessed an independent and indivisible right requiring mandatory impleadment overlooked this settled distinction.
The Court differentiated between a necessary party, in whose absence no effective decree can be passed, and a proper party, whose impleadment is discretionary. It held that in a joint tenancy one joint tenant is sufficient for the passing of an effective decree, and the other heirs fall within the category of proper parties.
Holding that tenancy passes down as joint and indivisible tenancy, the Court held,
“A decree or order passed against one or more joint tenants, particularly those in possession or effectively representing the tenancy, enures to the benefit of and binds all co-tenants, unless a case of distinct, independent, or severed tenancy rights is specifically pleaded and established.”
The Court held that burden to prove that non-impleaded was a necessary party was on the person raising such objection. It held that while such co-tenant can seek impleadment, it cannot be made mandatory.
“Thus, the jurisprudential distinction lies between what is indispensable and what is merely facilitative—while the presence of all heirs is not a legal necessity, the door remains open for their participation where they choose to assert an interest.”
The Court observed that both the Trial Court and the Revisional Court had found that the petitioner was actively carrying on the business in the tenanted premises and was in effective control and possession. They had noted that the widow and daughters were neither participating in the business nor shown to be in possession. It held that these concurrent findings of fact had not been shown to be perverse.
The Court noted that no independent application had been filed by Smt. Neelam Agarwal or any other alleged co-heir and the plea for impleadment had been raised only by the petitioner, who was already on record and representing the tenancy.
Finding no illegality, perversity or jurisdictional error in the impugned orders warranting interference in exercise of supervisory jurisdiction under Article 227, the Court dismissed the petition. It directed the trial court to proceed with the suit expeditiously and endeavour to conclude it, preferably within a period of six months.
Case Title: Ashish Kumar Agrawal v. Shri Chitrakoot Ramlila Samiti And 2 Others 2026 LiveLaw (AB) 443
Case citation: 2026 LiveLaw (AB) 443
Counsel for Petitioner :- Ashok Kumar Upadhyay, Triloki Nath
Counsel for Respondent :- Ritvik Upadhya