The main legal point established in the judgment is that the right of all the heirs of the deceased tenant would jointly devolve upon them and such right therefore cannot be surrendered by any one of the heirs without consent of other heirs.

Ashwani Kumar Mishra, J.

Plaintiffs-appellants have instituted a suit for injunction on the ground that the property in dispute, which was a shop, had been let out to the father of the defendants-respondents, who died, and that consequent upon death of tenant, the tenancy was continued with eldest son of the deceased occupying the premises and after having remained in possession for a period of almost one year, the tenancy was surrendered by the eldest son after accepting a sum of Rs.25,000/-. The surrender deed is also alleged to have been executed. It was stated that even thereafter, the other members of the family, particularly defendant no.2 (respondent no.1 in the present appeal) was again trying to get in possession over the suit property, and therefore, the suit for injunction was instituted.

2. The suit was contested by the defendant no.2 with the allegation that the tenancy upon the death of original tenant developed upon all heirs, who became joint tenants, and therefore, it was not open for defendant no.1 (respondent no.2 in the present appeal) alone to surrender the tenancy. A case of will was also set up by the defendant no.2, on the basis of which it was also stated that she became entitled to inherit the tenancy exclusively. A counter claim also filed by the defendant no.2 seeking restitution of possession over the disputed shop on the ground that eviction was unlawfully made, and therefore, restitution was also sought.

3. Parties led oral and documentary evidence in support of their claim. Trial court decreed plaintiffs-appellants' suit with the finding that once the tenancy had been surrendered by eldest son, the other members of the family would be bound by such act of the eldest son.

4. Aggrieved against the judgment and decree of the trial court, defendant no.2 preferred an appeal under section 96 of the Code of Civil Procedure. The lower appellate court has allowed the appeal by holding that once the original tenant has died, the tenancy would devolve upon all members of the family and it was not open for one of the family members to surrender the tenancy without there being consent of other members. The lower appellate court relied upon the decision of the Hon'ble Supreme Court in the case of Harish Tandon vs. Addl. District Magistarate, Allahabad, U.P. reported in (1995) 1 SCC 537 : 1995 (1) ARC 221 to hold that consequent upon death of the original tenant, all heirs became joint tenant and in such circumstances, it was not open for the defendant no.1 to have executed surrender deed without consent of others. The suit was ultimately dismissed by the lower appellate court and the counter claim was allowed with the finding that the defendant no.2 was entitled to restitution of possession as she had not been legally evicted from the premises and the surrender of tenancy by one of the members of family would not be binding upon other members of the family. However, claim of exclusive tenancy pursuant to will in favour of defendant no.2 was rejected, holding that tenancy cannot be bequeathed.

5. Aggrieved by the judgment and decree of the lower appellate court, plaintiffs-appellants have filed the instant second appeal.

6. Learned counsel appearing for the plaintiffs-appellants submits that after death of the deceased tenant, the tenancy was inherited only by the eldest son, who continued to remain in occupation of shop and after about a year, he surrendered the tenancy after accepting a sum of Rs.25,000/-. The surrender deed was also executed. According to learned counsel, such act on behalf of eldest son of the deceased tenant would bind other members of the family. Reliance has been placed upon para 21-23 of the judgment of the Harish Tandon (supra), in order to contend that the view taken by the lower appellate court is perverse.

7. The judgment of the lower appellate court, on the other hand, is defended by the learned counsel appearing for the defendants-respondents, who submits that an act of s