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The Counsel for the defendants relied upon the judgment reported in (1989) AIR (SC) 1470 (H.C. Pandey Vs. G.C. Paul) and relied upon paragraph 4 of the said judgment which reads as follows:-

"4. It is now well settled that on the death of the original tenant, subject to any provision to the contrary either negativing or limiting the succession, the tenancy rights devolve on the heirs of the deceased tenant. The incidence of the tenancy are the same as those enjoyed by the original tenant. It is a single tenancy which devolves on the heirs. There is no division of the premises or of the rent payable therefor. That is the position as between the landlord and the heirs of the deceased tenant. In other words, the heirs succeed to the tenancy as joint tenants. In the present case it appears that the respondent acted on behalf of the tenants, that he paid rent on behalf of all and he accepted notice also on behalf of all. In the circumstances, the notice served on the respondent was sufficient. It seems to us that the view taken in Ramesh Chand Bose (supra) is erroneous where the High Court lays down that the heirs of the deceased tenant succeed as tenants in common. In our opinion, the notice u/s 106 of the Transfer of Property Act served by the appellant on the respondent is a valid notice and therefore the suit must succeed."

The Counsel for the defendants further relied upon the judgment reported in (1978) AIR (Allahabad) 88 (Budh Sen -Vs- Sheel Chandra Agarwal & Ors.) paragraph 10 and 11 which read as follows:-

"10. It is well-settled that tenancy rights are heritable and devolve upon all the heirs of the deceased irrespective of the question as to whether some of them are in occupation of the demised premises or not. The mere fact that some of the heirs are not in actual occupation of the leased premises cannot operate to put an end to tenancy rights to which they have succeeded as a result of the demise of their predecessor-in-interest. In the instant case, there is a clear finding recorded by the court below that there was nothing on record to indicate that defendants Nos. 2 to 5 had at any stage surrendered their tenancy rights. Thus the mere fact that defendants Nos. 2 to 5 had no interest or took no part in the business of their father carried on by Sheel Chandra Agrawal, defendant No. 1, (the suit premises) could not operate to put an end to the tenancy rights succeeded to by defendants Nos. 2 to 5 as the heirs of the erstwhile sub-tenant who had died.