JUDGMENT B.D. Agrawal, J. - This appeal is directed against the judgment and decree of the Additional District Judge, Kanpur dated October 14, 1966. 2. The dispute relates to a portion of house No. 15/68, Parmat (Civil Lines), Kanpur. The suit giving rise to this appeal was instituted on September 3, 1960. The allegations in so far as relevant are that Babu Nandan was the tenant of this portion of payment of rent at the rate of Rs. 63/- per month. The premises was purchased by the plaintiff on October 22, 1955. Babu Nandan died in February, 1958. Thereafter his widow remained in occupation as the tenant. The rent was in arrear since November 23, 1955. A combined notice under Section 3(1)(a) of the U.P. (Temporary) Control of Rent and Eviction Act, 1947, (thereinafter referred to as the Act No. III of 1947) read with Section 106 of the Transfer of Property Act was given by the plaintiff other under registered cover on December, 1, 1959 which was duly served. The relief sought is ejectment besides recovery of arrears of rent commencing from 1.12.1959 and damages for use and occupation. The defendant No. 1 widow of Babu Nandan aforesaid contested the suit pleading that Babu Nandan was admitted to the entire premises as a Thekedar and it is not correct that he was the tenant of a portion only of the building. According to her, the husband was authorised to realise rent from other tenants in the premises and to admit them as such. The rent was admitted to be in arrears but it was asserted that the plaintiff had restrained the sub-tenants from making payment on account of which arrears could not be cleared. The notice aforesaid was said to be invalid since this pertains only to a portion of the premises. 3. The trial Court came to the finding that Kali Charan - father-in-law of the defendant No. 1 was the original tenant of the portion in dispute. Upon his death, the tenancy developed on his four sons. The other heirs, however, relinquished their interest in favour of the landlord prior to October 22, 1955 when the plaintiff made the purchase of the building. Babu Nandan was the exclusive tenant of the portion in dispute only during his life time. Upon his death, the tenancy developed on his four sons. The other heirs, however, relinquished their interest in favour of the landlord prior to October 22, 1955 when the plaintiff made the purchase of the building. Babu Nandan was the exclusive tenant of the portion in dispute only during his life time. His tenancy was determined by a notice under Section 106 of the Transfer of Property Act dated November 15, 1957. In the opinion of the trial Court, it was immaterial that notice was not given to his other heirs except the defendant No. 1. The defendant No. 1 had made default in payment of rent within the meaning of Section 3(1)(a) of U.P. Act No. III of 1947 and hence she was liable to ejectment. The suit was decreed accordingly on January 1, 1965 for her ejectment besides recovery of arrears of rent and damages for use and occupation. 4. The defendant No. 1 alone preferred an appeal against the decree passed by the trial Court. the lower appellate Court observed that the decision In O.S. No. 1684 of 1959 filed by the plaintiff against the defendant No. 1 operated as res judicata on the point that she was the exclusive tenant of the portion in dispute. It further held that on the basis of the admission made by the defendant No. 1, it was established otherwise as well that she was the exclusive tenant and thus the tenancy was legally determined by notice served upon her. The decree passed by the trial Court was, therefore, confirmed on October 14, 1966. 5. Aggrieved, the defendant has preferred this second appeal. None of the other defendants including the heirs of Babu Nandan deceased who were impleaded as parties on the subsequent pleadings of the defendant No. 1, have come in appeal. 6. The sole contention of Sri S.N. Agarwal, learned counsel for the appellant is that notice dated December 1, 1959 (Ex. 1) was not valid under Section 106 of the Transfer of Property Act. Kali Charan was the father-in-law of the defendant-appellant. He died leaving four sons including Babu Nandan and the husband of the defendant-appellant. The learned counsel does not dispute that upon the death of Kali Charan, Babu Nandan became the sole tenant. 1) was not valid under Section 106 of the Transfer of Property Act. Kali Charan was the father-in-law of the defendant-appellant. He died leaving four sons including Babu Nandan and the husband of the defendant-appellant. The learned counsel does not dispute that upon the death of Kali Charan, Babu Nandan became the sole tenant. It is argued, however, that upon the death of Babu Nandan, the tenancy devolved on his two sons and two daughters as well in addition to the widow; they became tenants in common; notice was given to the appellant alone and hence it was invalid. The submission is that the lower appellate Court has based its decision on the basis that the judgment in O.S. No. 1684 of 1959 dated December 9, 1961 (Ex. 10) operates as res judicata on the point and this assumption is erroneous in law. 7. It may be mentioned at the outset that in order to determine the tenancy of the defendant No. 1 appellant, it was necessary for the plaintiff landlord to have given notice under Section 106 of the Transfer of Property Act. The tenancy existing earlier in favour of her husband did not determine by efflux of time. The tenancy in his favour was not for a fixed term and it is not a case where the tenancy may be said to have come to an end under Section 3 of the Transfer of Property Act on that account. It is true that a notice under Section 106 of the Transfer of Property Act coupled with Section 3(1) of the U.P. Act No. III of 1947 was given to Babu Nandan by the landlord on 15.11.1957 wherein a claim was made to rent for the period commencing on November 23, 1955, but the fact still is that this was followed by O.S. No. 1684 of 1959 instituted by the plaintiff landlord against the defendant No. 1 since Babu Nandan died in the meantime in February, 1958. In the suit, the plaintiff landlord stated that the defendant No. 1 was in occupation as the tenant after the death of her husband and laid claim to rent alone for the period of November 23, 1955 to November 30, 1959, out of which the rent upto 30.11.1956 was admitted to be barred by limitation. In the suit, the plaintiff landlord stated that the defendant No. 1 was in occupation as the tenant after the death of her husband and laid claim to rent alone for the period of November 23, 1955 to November 30, 1959, out of which the rent upto 30.11.1956 was admitted to be barred by limitation. In other words, the defendant No. 1 was admitted to be continuing as tenant subsequent to the death of her husband and a claim was also made for rent from her for the period subsequent to the expiry of the notice that was given to Babu Nandan on 15.11.1957. It is difficult on this account to agree with the trial Court in its observation that the notice given to Babu Nandan was not waived that it was not necessary to determine the tenancy afresh by another notice under Section 106 of the Transfer of Property Act. 8. On November 30, 1959, it would appear the plaintiff landlord brought the aforesaid suit No. 1684 of 1959 against the defendant No. 1 appellant in the Court of Munsif City, Kanpur claiming Rs. 2268/- as arrears of rent. This was the only relief claimed in the plaint vide Ex. 6. the Judgment dated 9.2.1961 (Ex. 10) shows that there was no issue raised on the point whether the defendant No. 1 was the exclusive tenant upon the death of her husband. There is force in the contention of learned counsel for the appellant that under the liability for payment of rent being joint and several under the law, the landlord could claim arrears of rent from any one of the tenants in common and hence that judgment cannot be taken to operate as res judicata so as to conclude that there was non-else as tenant besides the defendant No. 1. This is, however, not the end of the matter as would appear from the discussion following. 9. The decision of the lower appellate Court is based also upon the admission of the defendant No. 1 appellant and this does not suffer from any legal infirmity. In paragraph 2 of the plaint of the suit giving rise to this appeal, the plaintiff stated that on the death of Babu Nandan, the defendant No. 1 has continued as the exclusive tenant of the portion in dispute. In paragraph 2 of the plaint of the suit giving rise to this appeal, the plaintiff stated that on the death of Babu Nandan, the defendant No. 1 has continued as the exclusive tenant of the portion in dispute. In proceeding para 2 of the written statement filed by her on November 14, 1960, the defendant No. 1 pleaded that on his death the answering defendant has inherited his rights as a tenant is admitted. Paragraphs 14 and 15 of her written statement denote that the only ground on which the notice under Section 106 of the Transfer of Property Act was assailed was that the same pertained to only to a portion of the accommodation under tenancy. That ground no longer avails the appellant in view of the definite finding o the fact of the Courts below concurrently that there was no other portion held under tenancy at any stage. It is settled that the defendant who challenges the notice under Section 106 of the Transfer of Property Act as invalid has to establish the ground for the said challenge. On May 3, 1962, the defendant No. 1 appellant sought amendment in the written statement vide application 211-A. Therein it was alleged that Babu Nandan was the licensee and that upon his death she was in occupation in the same capacity and that there was no relationship of landlord and tenant. This has been given up later and on February 11, 1963 about 3 years subsequent to the institution of the suit, she came up with yet another application for amendment in the written statement vide 326-A wherein it was asserted for the first time that Kali Charan had been the tenant; that he died leaving four sons including Babu Nandan; that Babu Nandan died in February, 1958 and that consequently all the heirs of Kali Charan and those of Babu Nandan were the tenants of the entire premises. This was clearly based upon an after thought and detracts materially from the admission contained in the written statement filed by the defendant No. 1 originally on her personal knowledge. In the absence of anything to account for the departure thus made, the trial Court was not justified in permitting this amendment to incorporated in the written statement. 10. Despite this amendment in the pleading, the position has not improved so far as the defendant No. 1 appellant is concerned. In the absence of anything to account for the departure thus made, the trial Court was not justified in permitting this amendment to incorporated in the written statement. 10. Despite this amendment in the pleading, the position has not improved so far as the defendant No. 1 appellant is concerned. In the written statement dated February 1, 1960 (Exhibit 7) filed by her in O.S. No. 1684 of 1958 her version was "Babu Nandan died on February 27, 1958 with consequent evolution of his tenancy rights on his widow the answering defendant." This undoubtedly is suggestive in the context in which it appears that out of all the heirs of Babu Nandan, she alone told to be the landlord. An admission is decisive though not conclusive. The appellant is unable to explain the stand taken by her earlier on this subject. In deed, in her deposition before the trial Court in the present case, she stated in express terms that she was the exclusive tenant of the accommodation in dispute and further that her sons etc. or the nephews of her deceased husband have not interest therein. The counsel for the appellant has had nothing to submit against this part of her testimony. P.W. 3 Ram Nath Misra, the Chief Labour Officer of the plaintiff Company incharge of the management of the property deposed also on personal knowledge that subsequent to the death of Babu Nandan, his widow came to him and there was afresh agreement of tenancy arrived which in other words means that defendant appellant attorned exclusively to the landlord and this is precisely what she herself has deposed. In face of the admission of the defendant appellant, the challenge to the notice given to her determining the tenancy is proved to be groundless. 11. Learned counsel urged that tenancy rights are heritable and devolve upon all the heirs of the deceased irrespective of the question as to whether some of them are in occupation of the demised premises or not. In support, he cited the decision reported in Budh Sen v. Sheel Chandra Agarwal, 1978 ALJ 88 : 1977 Alld. Rent Cases 384 and Ramesh Chand Bose v. Gopeshwar Prasad Sharma, 1977 ALJ 38. This proposition is not in dispute. In support, he cited the decision reported in Budh Sen v. Sheel Chandra Agarwal, 1978 ALJ 88 : 1977 Alld. Rent Cases 384 and Ramesh Chand Bose v. Gopeshwar Prasad Sharma, 1977 ALJ 38. This proposition is not in dispute. The question on the contrary is whether on the facts and circumstances of the case, it can be legitimately inferred that the other heirs of Babu Nandan deceased impliedly surrendered their tenancy and there was attornment as between the appellant and the landlord. The answer to this is affirmative having regard to the admission of the appellant in her pleadings and the statements recorded on oath as discussed above. And this makes the vital different. In Ramesh Chand Bose (supra) the evidence of the defendant which the Court accepted was "that the tenancy had continued and all the heirs were tenant". In Budh Sen (supra) there was clear finding recorded by the Court below that there was nothing on record to indicate that defendant Nos. 2 to 5 had at any stage surrendered their tenancy rights. These were some of the distinguishing features on facts in those cases. It is not without considerable significance that none of the other heirs of Babu Nandan (impleaded as defendant Nos. 9 to 12) has assailed the decree for eviction of the defendant No. 1. In face of the stand which the defendant No. 1 has taken and the admission made by her, it cannot be said to lie in her mouth at this stage to say that the decree divides the tenancy or that she was not the exclusive tenant. 12. For reasons in the foregoing, the appeal is devoid of merit and is hereby dismissed. Costs on parties. The appellant shall have six months' time to vacate.