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"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 view of both the Courts below that there has been implied surrender cannot, therefore, be upheld for paucity of evidence, clearly bringing home the factum of implied surrender.

13. The burden of proof lies on the respondent-landlord to prove the doctrine of surrender. Both the lessor and lessee must be parties to any arrangement from which the implied surrender can be culled out. In view of the facts and circumstances of the case, I am of the considered view that no implied surrender can be culled out on the part of the other legal heirs of the deceased-tenant who indeed are not parties to the suit even.

14. Ex.A6 quit notice was issued to the appellant terminating the tenancy by 1-10-1990. The learned Counsel appearing for the respondent contends that the other legal heirs of late S.A, Khayum being the joint tenants along with the appellant, there is no need to issue separate quit notices to them. The learned Counsel seeks to place reliance upon the judgment of the Apex Court in H.C. Pandey's case (supra). The Apex Court has categorically held in the said judgment thus:

"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. Therefore when on the death of the original tenant the tenancy rights devolved upon the sons, daughters and wife of the original tenant and the notice terminating tenancy under Section 106 was addressed to and served upon one of the sons of the original tenant who paid rent on behalf of all and acted on behalf of all the heirs of the original tenant, the notice to only one of the joint tenants could not be said to be insufficient."

There was no provision contrary to the said proposition of law enunciated by the Apex Court in Muslim Personal Law as the parties herein profess Muslim religion. It is no doubt true that Section 41 of the Principles of Mohammedan Law reads that in the event a Muslim dies intestate, his heirs are independent owners of their specific shares simultaneously in the estate and debts of the deceased and they succeed to the estate as tenants in common. In fact, it has been held so by the Apex Court in P.N. Veetil Nalrayani v. Pathumma Beevi, . But that principle cannot be invoked in the case of a lease. A fortiori the provisions of the T.P. Act are uniformly applicable to the leases between the parties belonging to various religions. As can be seen from Section 2 and Section 129 of the Transfer of Property Act the provisions of the T.P. Act incorporated in the second chapter and the provisions pertaining to gift, which cannot be deemed to affect any Rule of Mohammedan Law. The provisions pertaining to leases from Sections 105 to 117 incorporated in Chapter-V of the said Act have not been excepted. Therefore, there is nothing, which is contrary to the well established principle that on the death of the original tenant the tenancy rights devolve on the heirs of the deceased tenant and they succeed to the tenancy as joint tenants, either negativing it or limiting the same. The Apex Court in Kanji Manji v. The Trustees of The Port of Bombay, , held that notice to determine lease to one of the joint tenants is sufficient and the suit for ejectment against one of the tenants was also held to be good. That was a case where the suit was fifed by the Trustees of Port of Bombay for ejectment of the tenant Kanji Manji, the appellant. In fact, the property was let out to Kanji Manji and one Rupji Jeraji. The latter died even before the suit was filed. Suit was filed for ejectment of the tenant from a plot belonging to the Port Trust and for possession. That suit was resisted by the appellant on a number of pleas including that the quit notice was invalid inasmuch as it had been served only upon one of the lessors and not upon the legal heirs of Rupji Jeraji and the suit was bad for nonjoinder of the heirs and legal representatives of Rupji Jeraji who were necessary parties. All these pleas were found against the appellant. The trial Court found that the tenancy was a joint tenancy and that a notice to one of the joint tenants was sufficient and that suit was also not bad for non-joinder of the legal representatives of Rupji Jeraji. The High Court confirmed the said findings; ultimately the Apex Court while upholding the said findings held as follows:

"The trial Court, therefore, rightly held them to be so. Once it is held that the tenancy was joint a notice to one of the joint tenants was sufficient and the suit for the same reason was also good."

It is no doubt true that the tenants took the premises as joint tenants under a deed of assignment which was approved and accepted by the Trustees of the Port and that was the reason why the trial Court held that the deceased tenant and the appellant must be regarded as joint tenants, which finding was upheld by a three Judge Bench of the Apex Court ultimately. The fact remains that even the legal representatives of the deceased tenant will have the same status. As against this the learned Counsel tor the appellant seeks to rely upon another judgment of the Apex Court in Textile Association (India) Bombay Unit v. Balmohan Gopal Kurup, . That was a case where the premises was let out to one Gopal Kurup. On his death he left behind his widow, two sons and daughters. After his death the landlord tiled an eviction petition on the grounds of bona fide requirement and default against all other heirs except the respondent - one of the sons. The suit was decreed ex parte and in execution thereof possession was also recovered. Later the respondent filed the suit for declaration that the ex parte decree passed against the other legal heirs was not binding upon him. The trial Court after having found that the respondent was also one of the tenants, who lived along with the deceased-tenant, decreed the suit. In the above judgment of Supreme Court the two judgments referred to above in Kanji Manji's v case (supra) and H.C. Pandey's case (supra) have been relied upon on behalf of the appellant. It was observed that both those cases relate to the validity of the notice issued to one of the joint tenants and ultimately it was held that the principle stated therein on the facts obtained in the case on hand are not relevant. The Supreme Court set aside the ex parte decree directing the respondent to be impleaded as a party to that suit and to decide the suit afresh on merits. A three Judge Bench again rendered mis judgment. Laying much emphasis on this judgment it is the contention of the learned Counsel for the appellant that the legal heirs of the deceased-lenant S.A. Khayum cannot be considered as the joint tenants. I am afraid I cannot accede to the said contention of the learned Counsel. In Textile Association (India) Bombay Unit's case (supra), no ratio decidendi has been enunciated and the judgment was rendered by the Apex Court basing on the facts and circumstances obtained in that case. But in the other two cases in Kanji Manji's case (supra) and H.C. Pandey's case (supra), the Supreme Court enunciated the principles of law, as can be seen from the excerpts extracted supra in the judgment that the tenancy is a single tenancy which devolved upon the legal heirs of the deceased tenant and there has been no division of the premises or the rent payable therefor. The incidents of tenancy are the same as those enjoyed by the original tenant late S.A. Khayum. Therefore on his death the tenancy rights devolved upon his sons and daughters and they succeed to the tenancy as joint tenants. The same principle has been enunciated by the Apex Court in Kanji Manji's case (supra) also. Kanji Manji's case (supra) is again a case rendered by a three Judge Bench. When on the principle of iaw the heirs of the tenants succeed as joint tenants and when once they are joint tenants a quit notice, issued to one of them is sufficient. In Kanji Manji's case (supra) it was further held that the suit filed against one of the legal heirs of the deceased tenant was good. It is no doubt an unenviable task of this Court to engage itself in deciding the case where two judgments of the Apex Court are coming in conflict with each other, I am of the considered view that since no ratio decidendi is involved in the latest judgment of the Apex Court and where the Apex Court has enunciated the principle of law in its earlier two judgments, out of which, one is rendered by a co-equal Bench can be preferred vis-a-vis the latest one. My above view is reinforced by a judgment of this Court, rendered by a Full Bench reported in M/s. Ushodaya Enterprises Limited, Visukhapatnam v, Commissioner of Commercial Taxes, A.P., Hyderabad, 1998 (3) ALD 78 = 1998 (3) ALT 96 (FB), wherein it was held as follows: