N.N. Mithal, J. - (1.) THIS is a second appeal by the defendants in a suit brought against them by the plaintiffs for ejectment. The case set up in the plaint was that the defendants were tenants of two shops at the rate of Rs.14.50 per month. The defendants did not pay the rent from 1.10-1961 and, therefore a notice was served on them demand ing the arrears of rent and also for the termination of their tenancy on 7-4-1964. The defendants having failed to comply with the same, the present suit was filed. The defendants raised a number of pleas but the relevant ones are that the tenancy of Prem Prakash originally was not in his individual capacity but the same was in his capacity as the Karta of the family and since the notice has not been served on his brothers who constituted coparcenery with him, the suit was not maintainable. The second ground was that Akhilesh Prakash, defendant No. 4, was a minor and the notice addressed to him did not make a mention that he was a minor or that he was under the guardianship of his mother and as such the notice was invalid. It was also alleged that the notice was also otherwise invalid. The suit was decreed by the trial court and the appeal was also dismissed. The defendants No. 1 to 3 and 5 and 6 have now come up before this Court in second appeal. The learned counsel for the appellants has argued the following four points: - 1. That the lower appellate court has not considered the grounds taken in defence that the tenancy of Prem Prakash was in his capacity as the Karta of the family.
(2.) THAT Akhilesh Prakash was a minor and the notice addressed to him without mentioning that he was a minor under the guardianship of his mother was invalid. It was further argued that even on the mother the service was by refusal and that cannot be taken as a valid service. That the notice under S. 106, T. P. Act, apart from being addressed to all the persons holding tenancy rights must also be served on all of them. That Akhilesh Kumar was a minor and the suit against him was filed as a major as such the decree against him is a nullity and, therefore, the whole decree has become a nullity because part of the decree cannot be terminated. As regards the first point, it has been pointed out that no such ground had been taken by the appellants in the grounds of appeal. In fact ground No. 1 of the memo of appeal is suggestive of the fact that Prem Prakash himself had acquired the tenancy rights as his self-acquisition. It is, there fore, not possible to allow the appellants to change the very basis of the defence now and to contend that what Prem Prakash had acquired was tenancy rights in his capacity as Karta of the family and not as his self- acquisition. This argument, therefore, has to be repelled on this ground alone. It has been argued that the purpose of a notice under Sec. 106, T.P. Act as also of Sec. 3(i)(a) of the U. P. Act No. III of 1947 demanding the arrears of rent was to give an opportunity to the tenants to pay the arrears. From this, it should follow that the defendants must be made aware of the demand that was being made against them. The learned counsel for the appellants, therefore, argued that a notice which is sought to be served on a minor must be through some guardian so that the concerned guardian may take proper steps to safeguard the interest of the minor. I do not agree with this contention. There is no provision in the Transfer of Property Act for service of the notice on or through a guardian. The provision, on the contrary, is that the notice has to be sent to the person who is intended to be bound by it. Therefore, by its very requirement, the notice has to be addressed to the tenant, whether he be a major or a child in the lap. If there is any guardian looking after the interest of such a minor, he should himself act in the interest of the minor and take necessary steps to avoid any harm likely to be caused to the interest of the minor. However, if in any case some harm does happen to the minor it may be open to him to assail the proceedings on his attaining majority if he be entitled to take any such step. The argument that even a notice under Sec. 106, T.P. Act should be served on the minor through the guardian is not correct and cannot be accepted. The next contention of the learned counsel for the appellants was that the notice to all the tenants-in- common should not only be addressed to all of them but should also be served on each and every person who is intended to be bound by the notice. According to him, in a Division Bench decision of this Court in Ramesh Chandra Bose v. Gopeshwer Prasad Sharma 1976(2) ALR 711 = 1976 A.W.C. 301, it has been held that the tenancy rights are property rights and are heritable. It was also held that after the death of the original tenant the tenancy rights were inherited by the heirs and they would inherit the tenancy rights as tenants-in-common and not as joint tenants. On the basis of this ruling it was sought to be argued that although there is unity of possession among the tenants-in-common but there is no unity of title. Each individual member who is the tenant-in-common has his own specific share and the tenancy could, therefore, have been terminated only by the termination of the entire tenancy rights of the various members. This argument was further advanced by submitting that for this purpose it was necessary that the notice addressed to the various tenants-in-common must also be actually served on them. If, under Sec. 106, T.P. Act it was necessary that a notice under that section would be served on every individual tenant then it would follow that all individuals holding tenancy rights in common must also be individually served. The argument advanced by the learned counsel for the appellants has, however, been fully considered in the case of Vidyawati v. Har Pyari 1977 A.W.C. 12. In this case the decision in Ramesh Chandra Bose v. Gopeshwar Prasad Sharma (Supra) was followed and it was held that where a nodes is addressed to all the tenants but is sent to only one of them and is served upon him it would be service of notice on all. It was further held that it was not necessary that there should be as many separate notices as there are tenants-in-common. What was material was that the notice must be addressed to all showing manifest intention of the landlord that he intends to terminate the tenancy of all of them at the same time. This very view was reiterated in Prema Bai v. Ram Gopal 1978 U.P.Rent Control Cases 363 and it was held that in the case of tenants-in-common a notice addressed to all of them but served on only one of them would be deemed to have been served on all of them. In deference to the above view it is to be held that the notice in this case was duly served. The last argument advanced by the learned counsel for the appellants was that Akhilesh Prakash was a minor and the decree against him was a nullity. I do not think the controversy really arises in this appeal because the appeal has been filed only at the instance of other defendants and Akhilesh Prakash has been made a defendants-respondent. The appellants would, therefore, normally be not entitled to urge this point. However, it may be stated that the interest of the appellants and that of the defendant Akhilesh Prakash are not different and it cannot be said that he is, in any manner, being prejudiced by the trial of the suit treating him as a major. From the record, it appears that at one stage he had filed an application for setting aside the ex parte decree but that application was rejected and the matter came up in revision before this Court and it was disposed of by order dated 25th January 1971. The learned counsel for the appellants has, however, tried to argue that the court in the revision has merely considered the restoration application ' and other points sought to be raised were left open. As I have already observed above, the appellants are not holding brief of the respondent No. 11. Therefore, points sought to be raised on his behalf cannot be allowed to be raised. In view of the above I do not find any merit in this appeal and the same is dismissed with costs. The learned counsel for appellants prays for and the appellant is granted three months' time to vacate the shop in dispute.;