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In the given case it was held by the Division Bench of this Hon'ble Court that the factum of children of predeceased daughter living with their grandfather when he was alive does not ipso facto established that the other heirs had ever exercised their right of tenancy when such rights devolve on them after the death of the original contractual tenant. The heritable tenancy right may be accepted or abandoned or relinquished by the heirs of the original tenant. Such tenancy right may be surrendered either expressly or by conduct of the parties. In the cited case, the heirs of the predeceased daughter and the other married daughter of the original tenant had never exercised any right of joint tenancy in the disputed premises after the death of Ashwini Kumar Ghosh. On the contrary only the defendants asserted such right and claimed to be the tenants by way of inheritance of tenancy right who requested the plaintiff/landlady to issue rent receipts in their names and rent was also paid by them. The fact that the children of predeceased daughter of Ashwini never for a moment exercised the right of tenancy and their maternal uncle and aunt came to be recognized without any objection from them go a long way to show that the tenancy right of children of predeceased daughter was surrendered.

The learned Advocate for the respondent has relied on decision in case of H.C. Pandey and Sumilita Bhattacharya (supra) to contend that in the given facts of the case, the heirs of the deceased original tenant takes the tenancy as joint tenants and in view of settled principle of law the suit for eviction is maintainable upon the service of notice of eviction to one of the joint tenants and there is no necessity for such notice of eviction to all heirs of the original tenant.

In H.C. Pandey case, it has been clearly held that notice under Section 106 of the Transfer of Property Act served by the appellant on the respondent was a valid notice. 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 incidences of the tenancy are the same as enjoyed by the original tenant. It is single tenancy which devolves on the heirs. There is no division of the premises or of the rent payable therefor. The heirs thus succeed to the tenancy as joint tenants. In the cited case the respondent acted on behalf of the tenants, he paid rent on behalf of all and accepted notice also on behalf of all. In the circumstances, it was held that the notice served on the respondent was sufficient and therefore, the suit must succeed.

This Court, having regard to the catena of decisions in H.C. Pandey, Harish Tandon, Gyan Devi Anand, Md. Kamruddin, Sureh Kumar Kohli (supra) discussed above and also bearing in mind the decision in case of Sakuntala (supra), is of the conclusive view and hold accordingly, that now it is well settled that after the death of original tenant, subject to any provision to the contrary either negating or limiting the succession, the tenancy right devolve on the heirs of the deceased as joint tenants, as the incidence of the tenancy is the same as 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.