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4. The defendant/appellant contested the suit by filing written statement denying and disputing the allegations of the plaintiff/respondent as made out in the plaint. In the written statement, it was stated inter alia, that the tenancy of the suit premises previously belonged to Sri Mahindra Nath Aditya, the father of the defendant/appellant and on his death, the said tenancy devolved upon his heirs and legal representatives namely, Amal Kanti Aditya, Kamal Kanti Aditya, Mukul Aditya and Chanchal Aditya and since the death of Manindra Nath Aditya, the said heirs are holding the disputed tenancy, as joint tenants. The defendant/appellant also denied the plaintiff/ respondent's plea of reasonable requirement of the suit premises and further stated that the occupation available to the plaintiff/respondent in the same premises was more than sufficient. The defendant/appellant also alleged that the ejectment notice was bad in law and the suit as framed was also not maintainable.

19. The said decision of the Supreme Court came up for consideration before a Bench Decision of this Hon'ble Court in the case of Sunila Sundari Dassi (ILR (1966) 1 Cal 252) (supra). In that case, one Hari Charan Dey was a tenant under the plaintiff/respondent in respect of the suit premises. On the death of Hari Charan the tenancy devolved upon his heirs namely, sons, daughters, and widow including the respondent in the above case. Sailendra, who was one of the sons of late Hari Charan, however, appeared to have taken out a tenancy in his own name and had been paying rent on account of that tenancy by himself alone although he along with some of the heirs of Hari Charan were actually occupying the disputed premises. The landlords filed a suit for eviction against Sailendra alone determining his tenancy by a joint notice to quit under Section 106 of Transfer of Property Act and Section 13(6) of West Bengal Premises Tenancy Act, 1956. Sailendra, however, in his written statement took the plea that the old tenancy of his deceased-father which devolved upon his heirs including Sailendra had not been terminated and was continuing, and as such, the landlords were not entitled to get a decree against Sailendra alone. The Division Bench in the said decision, qbserved inter alia, that Sailendra's new tenancy, if any, taken inclusively by him, had been duly terminated by the notice but so long as Haricharan's tenancy, which substituted in his heirs, was not determined, the landlords would not be entitled to get a decree for khas possession.

20. So far as the decision of the Supreme Court in Kanji Manji's case (supra) was concerned, the Division Bench explained the said decision in the following manner:

"We do not also think that, fairly read, the said decision can be said to support the view that, in all cases of joint tenancies, a suit against any of the joint tenants would be enough to entitle the landlord to a decree for eviction. The least that can be said from this point of view as regards the aforesaid decision is to point out that the statements of facts there are, at any rate, insufficient to support any such extreme contention. Apart from all considerations, there can be no doubt that, in the instant case, the notice of ejectment did not relate at all to the old tenancy of Haricharan nor was it addressed to all the joint tenants and, upon that simple ground, the present suit must fail as the said tenancy cannot be said to have been validly terminated. We have already pointed out that the new tenancy of Sailendra, if any, has been duly determined but, in spite of that, the plaintiffs' instant suit must fail on the ground that the old tenancy of Haricharan, which devolved on his heirs, including Sailendra, is still subsisting."

34. The Supreme Court further observed in the said decision that in Mohammedan Law, the doctrine of partial partition is not applicable because the heirs are tenants-in-common and the heirs of the deceased Muslim succeed to the definite fraction of every part of his estate.

35. The Supreme Court, however, in its latter decision in the case of H.C. Pandey v. G. C, Paul, , has given a contrary view as would appear from paragraph 4 at page 1471 of its said decision which is quoted below :--

"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 was 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 under Section 106 of the Transfer of Property Act served by the appellant on the respondent is a valid notice and, therefore, the suit must succeed."