ivil Appeal No 3342 of 1979
From the Judgment and Order dated 2841978 of the Allahabad High Court in Second Civil Appeal No 300 of 1975
OP Rana and Raju Ramachandran for the Appellant
Vivek Ghambir and Praveen Kumar for the Respondent
The Judgment of the Court was delivered by PATHAK CJ
This is a landlord s appeal by special leave arising out of a suit for ejectment
The respondent s father BM Paul was the tenant of the premises in question
On his death he left behind the re spondent his mother brothers and sisters who in herited the tenancy
A notice under section 106 of the terminating the tenancy was addressed to the respondent and was served on him
It was not addressed and served on the other tenants
A suit for ejectment was filed by the appellant against the respondent
The validity of the notice to quit was challenged by the respondent
It was contended that notice should have been addressed to all the members of the family and served on them and in the absence of notice to all the suit was incompetent
The trial court upheld the validity of the notice relying upon the decision of the Allahabad High Court in Shrimati Vishnawati vs Bhag wat Vithu Chowdhry on the footing that the defendants were joint tenants and constituted a single unit and therefore notice to one of the defendants was sufficient to determine the tenancy
The view proceeded on the basis that the heirs of the original tenant held the tenancy as joint tenants
When the matter ultimately came to the High Court in second appeal the High Court took the view that as heirs of the deceased tenant they held the tenancy as tenants in common and not as joint tenants
Accordingly the High Court said notice to quit should have been served on each one of the successor tenants
In that view the High Court allowed the appeal and 771 dismissed the suit
The High Court relied on Ramesh Chand Bose vs Gopeshwar Prasad Sharrna AIR 1977 Allahabad 38 where it was held that a tenancy was a heritable property right and the heirs of the deceased tenant became tenants themselves
In this appeal the entire question is whether the notice addressed to the respondent alone is a valid notice
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 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
In the present case it appears that the respondent acted on behalf of the ten ants that he paid rent on behalf of all and he accepted notice also on behalf of all
In the circumstances the notice served on the respondent was sufficient
It seems to us that the view taken in Ramesh Chand Bose supra is erroneous where the High Court lays down that the heirs of the deceased tenant succeed as tenants in common
In our opinion the notice under section 106 of the served by the appellant on the respondent is a valid notice and therefore the suit must succeed
In the result the appeal is allowed the judgment and decree of the High Court are set aside and the judgment and decree of the First Appellate Court are restored
There is no order as to costs
PSS Appeal allowed


Summary:
The assessee South Eastern Railway a registered dealer under the Bengal Finance Sales Tax Act 1941 disposing of unclaimed and unconnected goods for money consideration under Section 56 of the Indian Railways Act 1890 applied to the Commercial Tax Officer for cancellation of registra tion as a dealer
The Commercial Tax Officer rejected the application on the ground that the disposal of unclaimed goods for valuable consideration was a regular feature of the assessee s activ ities and therefore the assessee fell within the scope of the Bengal Finance Sales Tax Act 1941
Assessee s revision application was rejected by the Assistant Commissioner of Commercial Taxes on the ground that the sales effected by the assessee were sales under the Act and that the assessee was a dealer
A second revision of the assessee was also dismissed by the Additional Commis sioner of Sales Tax
On a further revision the Board of Revenue also con firmed the status of the assessee as a dealer holding that in the systematic and organised character of business of auctioning by the assessee a transfer of property was involved and therefore a sale of goods took place
At the instance of the assessee a reference was made to the High Court
The High Court answered the question in favour of the assessee by holding that the disposal of the goods did not indicate that the 778 Railway was carrying on business as a dealer liable to assessment under the Act
The assessee in the connected appeal Eastern Railway was engaged in selling scrap and unserviceable material and a similar order was passed by the High Court in its favour
Hence these appeals by the Revenue
Allowing the appeals and setting aside the judgments of the High Court this Court HELD 1
The assessee South Eastern Railway was a carri er of the goods and if at the stage of delivery goods remained unclaimed for a period the Railway was entitled to dispose them of
The activity of so disposing of the goods was adjunctive to the principal activity of the carriage of goods by the Railway
It is an activity which may be regard ed as necessarily incidental or ancillary to its business as carrier of the goods
Therefore the assessee South Eastern Railway was a dealer for the purposes of the Bengal Fi nance Sales Tax Act 1941
780G H 2
The assessee in the connected appeal Eastern Rail way who was disposing scrap and unserviceable material was also a dealer for the purposes of the Bengal Finance Sales Tax Act 1941
780H 781A District Controller of Stores Northern Rly Jodhpur vs The Assistant Commercial Taxation Officer  Anr 1976 37 STC 423 applied