In the absence of all the heirs of the deceased contractual tenant, a suit for eviction is not maintainable.

1. AS prayed for by Mr. Chatterjee, learned Advocate-on-record for the appellants, he is permitted to correct the cause title of the Memorandum of the Appeal in S. A.T. No. 3489 of 2005.

2. THESE two second appeals arise out of a suit for eviction and are directed against a judgment of reversal.

The only question that arises for determination in these two second appeals is whether in the absence of all the heirs of the deceased contractual tenant, a suit for eviction is maintainable by impleading some of the heirs.

3. IN the present cases, there is no dispute that on the death of the original tenant some of the heirs have been made parties excluding two of his daughters. The plaintiffs in the plaint have not even made out a case that after the death of the contractual tenant, all his heirs surrendered the tenancy and any new tenancy was created in favour of the defendants alone. The plaint proceeded as if on the death of the contractual tenant the defendants alone inherited the property; but ultimately at the time of hearing, as pointed out by those defendants, it has been established that two of the daughters were not made parties.

4. THE learned First Appellate Court below, in such a situation, came to the conclusion that in the absence of those two daughters, the suit was not maintainable.

Being dissatisfied, the landlords have come up with the present two second appeals.

5. MR. Tandon, the learned Advocate for the appellants, has laboriously contended before us that the learned Court of Appeal below committed substantial error of law in dismissing the suit on the ground that in the absence of two of the daughters of the deceased tenant the suit was not maintainable by overlooking the fact that the estate of the deceased tenant was sufficiently represented by the other heirs already on record.

6. IN support of such contention, Mr. Tandon has relied upon the following decisions of the Supreme Court:

(i) Kanji Manji vs. Trustees for the Port of Bombay and Ors., reported in AIR 1963 SC 468; (ii) H.C. Pandey vs. G.C. Pal, reported in AIR 1989 SC 1470; (iii) Surayya Begum vs. Md. Usman and Ors., reported in 1991(3) SCC 114; (iv) Gopal Chandra Das vs. Saraswati Basak, reported in 2003(1) CHN 287; (v) Amal Krishna Aditya vs. Ganesh Chandra Das, reported in 1998(1) CHN 521; (vi) Sumilita Bhattacharya and Anr. vs. Nila Chatterjee, reported in 1989(2) CLJ 351.

After hearing Mr. Tandon, the learned Advocate for the appellants and after going through the decisions cited by him, we find that there are conflicting decisions of the Supreme Court on the aforesaid question. A Bench consisting of three Judges in Textile Association (India), Bombay Unit vs. Balmohan Gopal Kurup and Anr., reported in AIR 1990 SC 2053 came to the conclusion that on the death of a contractual tenant, the tenancy is inherited by all the heirs and in the absence of all the heirs, a landlord cannot get recovery of possession of the tenanted premises.

7. IN a subsequent decision of a Bench consisting of two Judges in the case of Kumar Jagadish Chandra Sinha and Ors. vs. Eileen K. Patricia D' Rozaric (Mrs.), reported in 1995(1) SCC 164 it was held that notwithstanding the definition of a tenant in the West Bengal Premises Tenancy Act, all the heirs of the deceased tenant, whether such heirs ordinarily reside with the tenant at the time of death, inherit the tenancy right and such heirs are entitled to be heard before the landlord gets possession of the tenanted premises.

8. THERE is, however, a subsequent decision of the Bench consisting of two Judges in the case of Ashok Chintamoni Juker vs. Kishore Pandurang Mantri and Anr., reported in AIR 2001 SC 2251 where the said Bench by relying upon the decisions of the Supreme Court in the cases of H. C. Pandey vs. G. C. Pal (supra), Kanji Manji vs. Trustees for the Port of Bombay (supra) and Ganapat Ladha vs. Sashikant Vishnu Shinde, reported in AIR 1978 SC 955, came to the conclusion that in case of death of a tena