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Mr. Raut has taken us through the evidence of the defendant to show that the defendant, in fact, had admitted during his cross-examination that his mother consciously had put her signature in the registered deed of partition relinquishing her right in the property. Chandra Nath and Biswanath were the joint tenants in respect of the property in question and the mother of the defendant Ana bela Halder had no connection with the tenancy right. It is thus argued that on such consideration, the right of the plaintiff to recover possession of the property in question could not have been denied by the learned Trial Judge. Per contra, Mr. Tanmoy Mukherjee, the learned Counsel on behalf of the defendant, submits that the concept of joint tenancy is unknown in Hindu Law unless the parties are governed by the Mitakshara School of Hindu Law. In view of the fact that parties are governed by the Dayabhaga School of Hindu Law, the tenancy right devolves upon all the heirs of Biswanath Chandra, upon his death. It is submitted that in view of the partition deed, which has been conveniently suppressed in the plaint, there is a split of the tenancy between the two brothers and on the death of Biswanath, succession in relation to the shares of Biswanath opens. Since Biswanath died a bachelor, the mother of the plaintiff was entitled to succeed to such tenancy rights. The learned Counsel further submits that the plaintiff had suppressed the partition deed in tracing his right to the tenancy. The deed clearly shows that the plaintiff has no interest over the entirety of the shop room. The plaintiff has not even pleaded surrender of tenancy by any of the legal heirs in favour of the plaintiff in respect of the suit premises after the death of Biswanath. It is submitted that except in the case of Hindu joint coparcenary governed by the Mitakshara School of Hindu Law, the tenancy is considered as tenancy-in-common and not as joint tenancy and, in case of tenancy-in-common, the right of the mother of the defendant to inherit the tenancy right upon the death of Biswanath could not be denied. In this regard the learned counsel has relied upon judgments in the case of Kumar Jagdish Chandra Sinha & Ors. vs. Eileen K. Patricia D'Rozarie (Mrs.), reported in (1995) 1 SCC 164, Amar Nath Pramanick vs. Sanjib Das Gupta & Ors., reported in (2008) 3 CHN 962 and Krishna Dhone Pramnick vs. Ram Palat Sahoo, reported in 1980 (1) Cal LJ 346.

However, the question arises whether upon the death of Biswanath the legal heirs of Biswanath would inherit the tenancy rights or it would devolve upon Chandranath being the only survivor of the joint tenancy. The argument of Mr. Rout is based on the principle that by reason of the death of Biswanath his interest is extinguished and Chandranath being only survivor of the joint tenancy should be held to be seized or possessed of the whole tenancy.

The judgments cited at the bar are primarily on the issue as to whether all the legal heirs of the deceased original tenant would be required to be served with the notice of eviction irrespective of the fact that some of the heirs of the original tenant may not be residing with the original tenant at the time of his death. In deciding the said issues, the Courts have discussed the effect and consequence of death of the original tenant in relation to his legal heirs. In deciding such issue, the Courts have discussed whether such legal heirs should be treated as joint tenants or tenants-in-common.

"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 is erroneous where the High Court lays down that the heirs of the deceased tenant succeed as tenants-in-common. [In the Transfer of Property Act notice] served by the appellant on the respondent is a valid notice and therefore the suit must succeed."

The most prominent feature of a joint tenancy is the incident of survivorship called jus accrescendi: that on the death of one of the joint tenants, his interest is extinguished and the survivors continue as joint tenants. If there is ultimately one survivor, he becomes seized of the whole interest. On the death of the last survivor, the whole land devolves on his heirs or by devise. In a tenancy-in-common, each tenant holds an undivided share, not necessarily equal in respect of which he is precisely in possession of the ownership of that share. On the death of a tenant-in-common, his estate does not pass to the survivors but devolves on his heir or passes under his will.