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T.P.Act – S.111 – Demised property belongs to Wakf – father (original tenant) died – suit filed against and suit notice issued to only one of the sons leaving other legal heirs – Maintainability of the suit on the face of non-joinder of all the legal heirs. Implied surrender of possession raised – Mere abandonment of possession does not satisfy doctrine of surrender. Whether there is need to issue quit notices separately to each of the legal heirs – On the death of original tenant, tenancy rights devolve on his heirs and all of them will be joint tenants under a single tenancy – Quit notice issued to one of them as also suit against him is good. >HELD: A tenancy can be determined in accordance with Section 111 of the Transfer of Property Act. According to clauses (f) & (g) of Sectgion 111 of T.P.Act, a lease of immovable property can be determined by express surrender or by implied surrender. Whether there has been implied surrender on the part of the other legal heirs of the deceased tenant or not is the moot question.

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THE HON'BLE SRI JUSTICE T.CH.SURYA RAO 
SECOND APPEAL NO.490 OF 1999 

 10/03/2000

S.A.Wali Quadri 

petitioner

Sadar Anjuman-e-Islamia, 
Rep. By its Secretary

respondent 

<T.P.Act - S.111 - Demised property belongs to Wakf - father (original tenant)
died - suit filed against and suit notice issued to only one of the sons leaving
other legal heirs - Maintainability of the suit on the face of non-joinder of
all the legal heirs.

Implied surrender of possession raised - Mere abandonment of possession does not 
satisfy doctrine of surrender.

Whether there is need to issue quit notices separately to each of the legal
heirs - On the death of original tenant, tenancy rights devolve on his heirs and
all of them will be joint tenants under a single tenancy - Quit notice issued to
one of them as also suit against him is good.

>HELD: 

 A tenancy can be determined in accordance with Section 111 of the Transfer of
Property Act. According to clauses (f) & (g) of Sectgion 111 of T.P.Act, a
lease of immovable property can be determined by express surrender or by implied
surrender. Whether there has been implied surrender on the part of the other
legal heirs of the deceased tenant or not is the moot question.

 Obviously DW1 (General Power of Attorney holder of defendant) seems to have
evinced interest in the dispute. It is an insignia of evincing no interest on
the part of the other legal heirs except DW1. DW1 admitted in his evidence that
his other two brothers have gone abroad. Notwithstanding the fact that they
have not been paying the rents and that they have relinquished the tenancy
right, in the absence of clear evidence to the effect that possession of the
premises was taken by the lessor pursuant thereto, no valid implied surrender
can be inferred from out of the same. Mere abandonment of possession by the
tenant does not ipso facto amount to surrender unless accompanied by the
acceptance on the part of the lessor. The necessary intention must be on the
part of either of the parties.

The burden of proof lies on the 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.

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. 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.

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. Notice to determine lease to one of the joint tenants is
sufficient and the suit for ejectment against one of the tenants was also good.

I am of the considered view that after the demise of late S.A.Khayum (original
tenant) his heirs succeed to the tenancy as joint tenants. There is no evidence
here to show that all the legal heirs have been sharing the rents amongst
themselves or there has been division of the property amongst themselves. The
incidents of tenancy prevailing during the time of late S.A.Khayum are the same
even after his death. It is being a single tenancy qua the respondent
institution it's a clear case of joint tenancy. When that position is obvious a
quit notice issued to the appellant in exclusion of the other joint
tenants/legal heirs of the deceased tenant is a valid quit notice. In that view
of the matter, the suit cannot be held to be bad for non-joinder of the other
legal heirs.

Counsel for Appellant: Mr.Vilas V.Afzulpurkar

Counsel for Respondent: Mr.Mohd.Ghulam Hussain 

:J U D G M E N T: 

This Second Appeal arises out of a Judgment and Decree dated 06.12.1994 passed 
by the learned X Asst. Judge, City Civil Court, Hyderabad, in O.S.No.4491 of
1990 and the Judgment and Decree dated 25.02.1999 passed by the learned V Add. 
Chief Judge, City Civil Court, Hyderabad, in A.S.No.21 of 1995 preferred against
the same. 

 The unsuccessful defendant throughout is the appellant. The suit schedule
property is a house bearing No.16-4-2 and 16-4-3 and belongs to the respondent
institution and it is a wakf property. On 12.09.1968 it was let out originally
to one Syed Abdul Qayyum under a rent deed of even date. The said Syed Abdul 
Quyum died subsequently. After the death of said Abdul Qayyum his son S.A.Wali 
Khadri was continuing in the house as a tenant. He enhanced the rent from
Rs.250/- to Rs.400/- per month excluding electricity and water charges. He was
thus paying the rent accordingly. A quit notice dated 15.08.1990 was issued to
him on behalf of the respondent institution on the premise that he committed
default in paying the rents from the month of March, 1989 and unauthorisedly
inducted his nephews Syed Imamuddin Ahmed Quadri, Syed Salahuddin Ahmed Quadri 
and Syed Nizamuddin Ahmed Quadri who had been residing in the suit house with 
their families, calling upon him to vacate the suit house on 01.10.1990 and to
pay the arrears of rent from March, 1989 to September, 1990 for a period of 19
months in an aggregate sum of Rs.7,600/-. The appellant having received the
same did not choose to issue any reply. Later the respondent filed the suit for
recovery of the possession of the suit house, for arrears of rent and for mesne
profits.

The appellant resisted the suit mentioning inter alia in his written statement
that the suit was not maintainable since no permission from the A.P.Wakf Board
was obtained for filing the suit and as the Wakf Board was not added as a party
thereto. It was further pleaded that after the death of his father his
brothers, sisters were also residing in the suit house as tenants and unless
they were impleaded as parties, the suit was not maintainable. It was also his
plea that Syed Imamuddin Ahmed Quadri, Syed Salahuddin Ahmed Quadri and Syed 
Nizamuddin Ahmed Quadri were residing along with their mother in the suit house,
and therefore, there was no question of any sub-letting the suit house and all
of them are necessary parties to the suit.

The trial court framed the following issues for trial at the time of settlement
of issues.

1. Whether the plaintiff is entitled for delivery of possession of house No.15-
4-2, 3?

2. Whether the plaintiff is entitled for rent to a tune of Rs.7,600/- towards
arrears of rent?

3. Whether the plaintiff is entitled for mesne profits at Rs.550/-?

4. Whether the notice is validly issued?

5. Whether the suit is bad for non-joinder of necessary party?

6. To what relief?

During the course of trial, one witness was examined on the side of the
respondent-plaintiff and the documents Exs.A1 to A7 were got marked. One Syed 
Saluddin Ahmed Quadri representing the appellant/defendant under the general
power of attorney was examined as D.W.1 besides getting marked the G.P.A. dated 
26.04.1994 as Ex.B1. Upon considering the evidence both oral and documentary, 
the trial court found that all other legal heirs of the original tenant late
S.A.Khayum had surrendered their tenancy by necessary implication and the 
tenancy in favour of the appellant/defendant was terminated under a valid quit
notice-Ex.A6, and therefore, the respondent was entitled to recover possession,
arrears of rent in an amount of Rs.7,600/- and mesne profits at the rate of
Rs.200/- from 01.10.1990 till 11.10.1990 and thereafter Rs.600/- per month.

In the appeal filed against the said Judgment and decree the appellate court
framed three points for determination after having heard both sides.
1. Whether the suit is bad for non-joinder of the said necessary parties;

2. Whether the defendant alone is the tenant of the building and the findings of
the lower court in that regard are correct?

3. Whether the lower court appreciated the evidence properly and came to a
correct conclusion with regard to the points raised in the appeal and
accordingly, the Judgment and the decree passed by it are tenable or not?

The appellate court ultimately concurred with the trial court in having found
that there was implied surrender of tenancy by the other heirs of the original
tenant, and therefore, the suit was not bad for non-joinder of the necessary
parties. On all the issues it concurred with the trial court and it ultimately
dismissed the appeal.

Having been aggrieved by the same, the appellant filed the present Second Appeal
setting out the following substantial questions of law in the memorandum of
appeal grounds.

1. Whether the termination of tenancy of only one of the legal heirs of
original tenant is sufficient to terminate the tenancy of other legal heirs as
well?

2. Whether the courts below were justified in decreeing the eviction suit of the
respondent by assuming implied surrender of tenancy by the other legal heirs of
the original tenant?

3. Whether the Courts below can presume an implied surrender of tenancy by other
legal heirs in spite of the fact that they are not impleaded and were not heard
in defence?

4. Whether the suit as framed and filed by the respondent is maintainable under
the Wakf Act? 

The following facts would emerge from out of the record: Late S.A.Khayum was
the tenant of the suit house having been inducted under Ex.A1 lease deed. He
used to pay the rent at the rate of Rs.250/- per month. He died in the year
1969 leaving behind him five sons and three daughters including the appellant-
defendant. The appellant under Ex.A2 letter enhanced the rent from Rs.250/- to
Rs.400/- per month excluding electricity and water charges. Thereafter he paid
the rents continuously upto March 1989 under Exs.A3, A4 and A5-counterfoils of
the rent receipts. His nephews Syed Imamuddin Ahmed Quadri, Sayed Salahuddin 
Ahmed Quadri and Syed Nizamuddin Ahmed Quadri along with their families have 
been residing in the suit house. While it is the case of the respondent
institution that the appellant committed default in paying the rents from March,
1989; it is the case of the appellant that he tendered the rents to the
Secretary of the respondent institution who refused to receive the same. On the
issues pertaining to the arrears of rent and profits, the trial court answered
them in the positive. The appellate court had concurred with the said findings.
In view of the concurrent findings of both the courts below and they being the
issues of fact they need not be adverted to in this appeal. Both the courts
proceeded on the assumption that there was an implied surrender of tenancy by
the other legal heirs of late S.A.Khayum and on that premise the suit was held
to be maintainable even in the absence of the other legal heirs of late
S.A.Khayum. Even the issue pertaining to validity of the quit notice was
answered in the positive in favour of the respondent-plaintiff. Since the suit
schedule property was admittedly a Wakf property the civil suit was held to be
maintainable.

In view of the respective contentions of both the learned counsel the main
controversy centres around the non-joinder of the other legal heirs of the
deceased tenant S.A.Khayum and not issuing a valid quit notice terminating the
tenancy.

As aforediscussed, both the courts below proceeded on the assumption of implied
surrender by the other legal heirs of the deceased-tenant. It was the view of
both the courts below that they were not necessary parties and Ex.A2 quit notice
issued to the appellant alone was sufficient.

The theory of implied surrender is now being assailed in this judgment. A
tenancy can be determined in accordance with Section 111 of the Transfer of
Property Act. According to clauses (f) & (g) of Sectgion 111 of T.P.Act, a
lease of immovable property can be determined by express surrender or by implied
surrender. There has been no express surrender in this case admittedly, and
therefore, it is not germane for consideration. Whether there has been implied
surrender on the part of the other legal heirs of the deceased tenant or not is
the moot question. The specific plea taken in the plaint is to the effect that
after the death of the original tenant, the appellant alone attorned the tenancy
after due negotiations with the secretary of the institution and he enhanced the
rent and had been paying the same, implying thereby that there was a fresh
tenancy in favour of the appellant. The facts ultimately disclose that the
other legal heirs including the three sons of one of the daughters of the
deceased tenant have been residing in the suit house along with the appellant,
shorn of other contentious fact in regard to the vacation of the suit house by
the appellant in or about the year 1988. The claim of DW1 that the appellant
vacated the premises in the year 1988 is inconsistent with the plea taken in the
written statement. The appellant has not chosen to come into the witness box to
give evidence on oath. Therefore, the claim of DW1 cannot be countenanced in
view of the absence of a specific plea in regard thereto and nay the
inconsistency between the plea and the evidence. Obviously DW1 seems to have 
evinced any interest in the dispute. Except the names of the three nephews of
the appellant, the names of the other brothers and sisters have not been
furnished in the written statement. It is an insignia of evincing no interest
on the part of the other legal heirs except DW1. DW1 admitted in his evidence
that his other two brothers have gone abroad. Notwithstanding the fact that
they have not been paying the rents and that they have relinquished the tenancy
right, in the absence of clear evidence to the effect that possession of the
premises was taken by the lessor pursuant thereto, no valid implied surrender
can be inferred from out of the same. Mere abandonment of possession by the
tenant does not ipso facto amount to surrender unless accompanied by the
acceptance on the part of the lessor. The necessary intention must be on the
part of either of the parties. The decision of the Allahabad High Court in SMT.
MADHUBALA..VS.. SMT.BUDHIYA [1] relied upon very much by the trial court in view 
of the above facts and circumstances, have no application. That was a case
where the parties to the suit asserted that they alone were the tenants to the
property in exclusion of the other heirs who were not made parties to the suit
and whose names were also not categorically stated by the other heirs and none
of them had paid any rent. The Allahabad High Court in the said judgment relied
upon its earlier judgment in RAMESH CHAND BOSE ..VS.. GOPESHWAR PRASAD SHARMA 
[2]. The judgment of the Allahabad High Court in RAMESH CHAND BOSE's case (2nd 
supra) was held to be not good law by the Apex Court in H.C.PANDEY ..VS.. 
G.C.PAUL [3]. The first appellate court relied upon the judgment of the
Calcutta High Court in AMAL KRISHNA ADITYA ..VS.. GANESH CHANDRA DAS [4]. 
Obviously, that was a case where all the brothers of the defendant-tenant had
categorically informed the landlord that rent receipts should be granted in the
name of the defendant after the death of their father and all of them are living
in America while only the defendant was living in the suit premises along with
his family. In the circumstances, it was held that by their own conduct the
other defendants could be taken to have relinquished their rights of tenancy.
It was also held that on the principle of representation the defendant could be
deemed to be representing the other co-tenants. Both the decisions, therefore,
have no application to the facts and circumstances of the instant case.

The learned counsel for the appellant relied upon a Judgment of the Delhi High
Court in INDRA SHARMA ..VS.. GOPAL DASS [5]. That was a case where the Delhi 
High Court held despite the fact that after the death of the tenant the letter
of attornment by Ministry of Labour, Employment and Rehabilitation was issued to
the widow, only as the tenant of the property, which would not bind the other
co-tenants who were the heirs of the original tenant. The court further held
that the fact that the legal heirs of the tenant (the co-tenants subsequently)
did not defend their rights by paying rents themselves to the landlord and
obtaining rent receipts in their own names prior to filing of written statement
was not relevant and will not amount to implied surrender in terms of Section
111 (f) of T.P.Act. The learned counsel for the appellant further relied upon
the Judgment of the Apex Court in T.K.LATHIKA ..VS.. SETH KARSANDAS JAMINADAS 
{6} wherein it was held that a mere alteration or improvement or even impairment
of a relationship of lessor and lessee would not ipso facto amount to implied
surrender of the lease. In para 12 the Supreme Court held as follows:

"The principle which governs the doctrine of implied surrender of a lease is
that when a certain relationship existed between two parties in respect of a
subject-matter and a new relationship has come into existence regarding the same
subject-matter, the two sets cannot coexist, being inconsistent and incompatible
between each other i.e. if the latter can come into effect only on termination
of the former, then it would be deemed to have been terminated in order to
enable the latter to operate. A mere alteration or improvement or even
impairment of the former relationship would not ipso facto amount to implied
surrender. It has to be ascertained on the terms of the new relationship vis--
vis the erstwhile demise and then judged whether there was termination of the
old jural relationship by implication"

The Supreme Court relied upon its earlier judgment in N.M.PONNIAH NADAR ..VS.. 
KAMALAKSHMI AMMAL [7], wherein it was held that an arrangement by which the rent 
of the building was increased in respect of the existing tenancy will not bring
an end to the pre-existing lease. Therefore, the fact that the appellant
enhanced the rent from Rs.250/- to Rs.400/- under Ex.A2 letter could not have
put an end to the pre-existing lease in favour of his late father, nor it can be
established a fresh lease in his favour. It follows therefore as a necessary
corollary that after the death of the original tenant late S.A.Khayum all his
legal heirs would be the tenants. In fact, the Apex Court in H.C.PANDEY's case
(3rd supra) held as follows:

"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.

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.

Ex.A6 quit notice was issued to the appellant terminating the tenancy by
01.10.1990. 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 (3 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 S.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 ..VS.. PATHUMMA BEEVI [8]. 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 of 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 ..VS.. THE TRUSTEES OF THE PORT OF BOMBAY [9] 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 filed 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 the
Rupji Jeraji and the suit was bad for non-joinder 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 for the appellant seeks to rely upon another
Judgment of the Apex Court in TEXTILE ASSOCIATION (INDIA) BOMBAY UNIT ..VS.. 
BALMOHAN GOPAL KURUP [10). 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 filed 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
Supreme Court the two judgements referred to above in Kanji Manji's case (9
supra) and H.C.PANDEY's case (3 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 this 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-tenant 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 (10th supra), no ratio descedendi 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 (9 supra) and
H.C.PANDEY's case (3 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 (9 supra) also. Kanji Manji's case (9 supra) is again a case
rendered by a three Judge Bench. When on the principle of law 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 (9 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 for 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 decedendi 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, the one is rendered by a co-equal bench can be preferred vis--vis
the latest one. My above view is reinforced by a judgment of this court,
rendered by a Full Bench reportedin M/s. USHODAYA ENTERPRISES LIMITED, 
VISAKHAPATNAM..VS..COMMISSIONER OF COMMERCIAL TAXES, A.P., HYDERABAD [ 11], 
wherein it was held as follows:

"Court is unable to persuade itself to subscribe to the view that the later
decision should be automatically followed despite the fact that it rests on a
conclusion based on an erroneous impression that an earlier decision took a
particular view which in fact it has not taken. By doing so, Court is neither
questioning the hierarchical superiority of the Supreme Court nor the higher
wisdom of the Hon'ble Judges of the Supreme Court. Court is preferring one
decision to the other - both rendered by Division Benches, for obvious reasons
so as to avoid an incongruity leading to travesty of justice."

For the foregoing reasons, I am of the considered view that after the demise of
late S.A.Khayum his heir succeed to the tenancy as joint tenants. There is no
evidence here to show that all the legal heirs have been sharing the rents
amongst themselves or there has been division of the property amongst
themselves. The incidents of tenancy prevailing during the time of late
S.A.Khayum are the same even after his death. It is being a single tenancy qua
the respondent institution it's a clear case of joint tenancy. When that
position is obvious a quit notice issued to the appellant in exclusion of the
other joint tenants/legal heirs of the deceased tenant is a valid quit notice.
In that view of the matter, the suit cannot be held to be bad for non-joinder of
the other legal heirs. The appeal, therefore, fails and is dismissed. Under the
circumstances of the case, there shall be no order as to costs.

?1 AIR 1980 ALLAHABAD 266 
2 AIR 1977 ALLHABAD 38 
3 AIR 1989 SUPREME COURT 1470 
4 AIR 1998 CALCUTTA 221 
5 AIR 1985 DELHI 118 
6 (1999) 6 SUPREME COURT CASES 632 
7 (1989) 1 SUPREME COURT CASES 64 
8 (1990) 4 SUPREME COURT CASES 672 
9 AIR 1963 SUPREME COURT 468 
10 AIR 1990 SUPREME COURT 2053 
11 1998(3) ALT 96 (F.B.)

View in AIR 1963 SC 468 RELIED UPON AS AGAINST 
 AIR 1990 SC 3053 

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