( 1 ) THE following two questions have been referred to for our opinion:- 1 Whether the decision of the Division Bench in Nanumal Rajumal v. Lilaram Vensimal and Anr. (1977) 18 Guj. L. R. 858 is a good law in view of the decision of the Supreme Court in Damadilal and Others v. Parashram and Others (1976) 4 SCC 855 ?

( 2 ) IF a statutory tenant has also an estate and is heritable and transferable would it require a notice for determination of that estate as prescribed under sec. 106 of the Transfer of Property Act ? 2 The above two questions arise in the following circumstances:-THE deceased father of the plaintiff-landlords who are the petitioners before us filed H. R. P. suit No. 5218 of 1965 out of which Civil Revision Application No. 348 of 1975 arises in the Small Cause Court at Ahmedabad against the defendant-tenants who are the respondents herein for possession of the residential premises bearing municipal census Nos. 2926 and 2926/1 situate in Zaveriwad Kalupur Ahmedabad which were taken on lease by the deceased Ratilal Shah the father of respondents No. 1 to 4 and husband of respondent No. 5 in 1943-44 A. D. at a monthly rent of Rs. 21/including municipal taxes on the sole ground that the tenants were in arrears of rent to the tune of Rs. 609/for the period commencing from 1-7-63 to 30-11-1965 and have failed to pay the rent in arrears within one month of the notice to quit. The original tenant Ratilal Shah died in the year 1956 while the original plaintiff died during the pendency of the suit on April 5 1966 with the result that the) present petitioners were brought on record of the suit as heirs and legal representatives.

( 3 ) THE Small Cause Court dismissed the suit by its judgment and order of November 10 1968 since it was of the view that the case of the tenants fell within the terms of sec. 12 (3) (b) of the Bombay Rents Hotel Lodging and Boarding House Rates Control Act 1947 (hereinafter called the Bombay Rent Act) since there was a dispute between the landlords and the tenants about the standard rent of the premises in question. The trial Court also found that the respondent-tenants have paid all the rents then due at the time of the first hearing of the suit and therefore they were not tenants in default. The tenancy in question according to the trial Court was not terminated since the notice was not served in the manner prescribed under sec. 106 of the Transfer of Property Act and therefore also the suit was not competent for want of notice.

( 4 ) THE Appellate Bench of the Small Cause Court confirmed this view of the trial Court in Civil Appeal No. 200 of 1969 and affirmed the order dismissing the suit by its judgment and order of January 18 1974 The plaintiff-landlords have therefore challenged the said order in this revision application.

( 5 ) B. K. Mehta J. before whom this revision application was called out for hearing upheld the two contentions urged on behalf of the plaintifflandlords viz. (i) that there was no necessity of serving statutory notice as the contractual tenancy had been determined by afflux of time and the defendant-tenants were holding the premises in question as statutory tenants only; and (ii) the trial Court as well as the Appellate Court committed a legal error inasmuch as they held that on the facts of the case sec. 12 (3) (b) of the Bombay Rent Act was attracted and the tenants were not in arrears since they had paid all the rents then due before the first hearing of the suit obviously bacause no dispute regarding standard rent was raised and pending between the landlords and the tenants. However the suit of the plaintiff-landlords would not be competent in view of the decision of a Division Bench of this Court consisting of D. A. Desai and A. M. Ahmadi JJ in Nanumals case (supra) which in effect ruled that suit for possession by a landlord would be premature against the heirs of a deceased tenant in absence of an agreement between them or decision by a Civil Court