JUDGMENT 1. THIS appeal from appellate decree at the instance of two of the substituted heirs and legal representatives of the sole deceased defendant tenant arises out of a suit for eviction admittedly governed by the provisions of the West Bengal Premises Tenancy Act, 1956 (hereinafter referred to as the said Act. The tenant defendant having died pending the suit, the plaintiff landlord brought on record by substitution well within the time prescribed by law, such of his heirs and legal representatives as were ordinarily residing with the tenant defendant at the time of his death. The plaintiff landlord however left out two of the sons and two of the daughters of the deceased tenant defendant not so residing with him at the time of his death. The heirs and legal representatives so substituted made all attempts to delay the proceeding in various manners and on the expiry of 90 days from the date of death of the tenant defendant raised an objection that some of the heirs and legal representatives of the deceased tenant defendant having been left out and the time for substituting them having expired, the suit has abated not only against them but as a whole. The objection so raised prevailed with the learned Subordinate judge in the trial court who by his order dated October 3, 1972, disposed of the suit by recording abatement of the suit as a whole. 2. THE plaintiff landlord preferred an appeal. The learned Judge in the court of appeal below on March 14, 1973, set aside the decision of the trial court in terms of the judgment delivered by him and remanded the suit for trial. He held that on the provisions of the said Act such of the heirs and legal representatives of the tenant defendant as were not ordinarily residing with the tenant defendant at the time of his death and as such were left out from substitution, are not necessary parties to the suit and were not required to be brought on record by substitution at all. So he held that the suit had not abated and the substitution as effected by the plaintiff landlord is sufficient and is in accordance with law. The learned judge held as such in view of the amended definition of the tenant as in section 2 (h) of the said Act on its 1965 amendment. So he held that the suit had not abated and the substitution as effected by the plaintiff landlord is sufficient and is in accordance with law. The learned judge held as such in view of the amended definition of the tenant as in section 2 (h) of the said Act on its 1965 amendment. Two of the substituted heirs and legal representatives have now preferred the above second appeal to this court disputing the correctness of the decision of the lower appellate court. 3. MR. Ganguly, learned counsel appearing in support of this appeal has raised two points. In the first place he has contended that the trial court having only recorded the factum of abatement on the plaintiffs failure to bring on record in time all the heirs and legal representatives of the deceased tenant defendant and when such a result follows as a matter of course in law under the provisions of Order 22 Rule 4 of the Code of Civil Procedure, no appeal lay before the lower appellate court so that the appellate decision is wholly without jurisdiction. Secondly on merits Mr. Ganguly has contended that in a suit for eviction on the death of the tenant defendant all his heirs and legal representatives are required to be brought on record by substitution in as much as the lease in favour of the tenant created an interest in the property which is heritable by all the heirs and legal representatives in case the tenant dies intestate as in the present case. According to Mr. Ganguly, provisions of the said Act do not alter the position in this respect in any way. Hence, accordingly to Mr. Ganguly, the lower appellate court was in error in law in holding that the suit for eviction can still proceed even when some of the heirs and legal representatives who do not ordinarily reside with the tenant at the time of his death had not been substituted. 4. THE point so raised by Mr. Ganguly have been contested by Mr. Mukherjee learned counsel appearing for the plaintiffs-respondents. According to Mr. Mookerjee, the order recording abatement of the suit as a whole really amounted to dismissal of the suit and as such the said order constitutes a decree appealable as such. It has been next contended by Mr. 4. THE point so raised by Mr. Ganguly have been contested by Mr. Mukherjee learned counsel appearing for the plaintiffs-respondents. According to Mr. Mookerjee, the order recording abatement of the suit as a whole really amounted to dismissal of the suit and as such the said order constitutes a decree appealable as such. It has been next contended by Mr. Mookerjee that when the tenant defendant died the contractual tenancy had already been determined and he remained on the suit premises only as a statutory tenant, Statutory tenancy, according to Mr. Mookerjee, created no interest in the property in favour of the deceased tenant but merely conferred certain, personal rights on the tenant which are not heritable but can only be claimed by such of the heirs and legal representatives as are authorised by the statute creating such statutory tenancy itself. Hereunder the provisions of the said Act when only such of the heirs and legal representatives of the deceased tenant defendant who were ordinarily residing with the tenant at the time of his death are entitled to such rights and privileges as are conferred by the said Act, Mr. Mookerjee contends, they alone are required to be substituted and not all the heirs and legal representatives as was rightly held by the lower appellate court. So far as the first point raised by Mr. Ganguly is concerned, the same can be disposed of shortly. Judicial pronouncements on the question whether an order recording abatement is appealable or not are not uniform. Of course in many cases an adjudication as to whether a suit or an appeal has abated as a whole or not and an order recording such abatement has been held to amount to a decree and is appealable as such. More so where, as in the present case, there has been an adjudication as to whether the right to sue survives against some of the heirs and legal representatives or not. See rami Reddy v. Bom Krishna Reddy a. I. R. 1949 Mad 404, Brij Jivanlal v. Shiam Lal A. I. R. 1950 All 57 and Sabitri Debi v. Jugal Kishore A. I. R. 1938 cal. 639. See rami Reddy v. Bom Krishna Reddy a. I. R. 1949 Mad 404, Brij Jivanlal v. Shiam Lal A. I. R. 1950 All 57 and Sabitri Debi v. Jugal Kishore A. I. R. 1938 cal. 639. But even if the appeal before the lower appellate court be not maintainable, when the matter is now before us, the order for reasons given hereinafter being one clearly made on an erroneous exercise of jurisdiction by the learned judge in the trial court nothing would prevent us form setting aside the said order at least in exercise of re visional powers. 5. THE second point urged by Mr. Ganguly however raises an important question of law. We feel no hesitation in agreeing with Mr. Mookerjee that a person having the status commonly known as that of a statutory tenant has no estate or interest in the property he occupies after the determination of the lease in his favour. He has merely the protection' of the statute like the said Act as in the present case in that he cannot be evicted so long he fulfils certain obligations laid down by the statute or is not made liable to be evicted except on making out of one or more of the grounds on which eviction is permissible under the statute. Rights so enjoyed are personal to such a tenant and to such of his heirs and legal representatives or assigns as may be enjoined by the statute itself. Such a person not having any estate or interest in the property, he can neither assign nor transfer any estate or interest and such personal rights enjoyed by him do not also pass by inheritance on the death of such a person. This is now a settled principle in view of the decision of the Supreme Court in the cases of Ananda Nivas v. Anandajit A. I. R. 1965 SC. 414 and Calcutta Credit Corporation ltd. v. Happy Home A. I. R. 1968 S. C. 471. 6. BUT this principle does not lead to the other conclusion contended for by Mr. This is now a settled principle in view of the decision of the Supreme Court in the cases of Ananda Nivas v. Anandajit A. I. R. 1965 SC. 414 and Calcutta Credit Corporation ltd. v. Happy Home A. I. R. 1968 S. C. 471. 6. BUT this principle does not lead to the other conclusion contended for by Mr. Mookerjee and arrived at by the learned judge in the court of appeal below, namely, that because of such a principle when a tenant dies after the alleged determination of the lease while he remains in possession only as a statutory tenant, all his heirs and legal representatives are not necessary parties and are not required to be brought on record in a suit for eviction pending against such a tenant. A suit for eviction not only involves adjudication of an issue as to whether a tenant whose tenancy had been validly determined is still protected under the provisions of the statute conferring him the rights of a statutory tenant but also involves adjudication as to whether there had been a valid determination of the lease so that the tenant has ceased to have the interest in the property created by the lease in his favour. A decision on the latter issue adversely against the lessor would only mean that the lease is still subsisting so also the tenant's interest in the property. A defense in this respect in every suit for eviction would be open not only to the tenant but also to all his heirs and legal representatives in case the tenant dies intestate under the provisions of Order 22 Rule 4 (2) of the Code of civil Procedure. Such a defense can be raised by all the heirs and legal representatives irrespective of whether they are also entitled to the rights, privileges and protection of a statutory tenant. On the amended definition of 'tenant' as in section 2 (h) of the said act. the legislators may have intended to extend the benefits and protections under the said Act to the actual tenant and such of his heirs and legal representatives only as may ordinarily be rending with the tenant at the time of his death so that the heirs and legal representatives not so residing would not be entitled to such statutory benefits or protections. But that provision does not affect the ordinary legal position. But that provision does not affect the ordinary legal position. When a lessor institutes a suit for eviction of a lessee on the allegation that the lease having been validly determined under the provisions of the transfer of Property Act he is entitled to recover possession from the lessee, he can succeed only on proof of valid determination of the lease so that in the suit it is an much open to the lessee as to all his heirs and legal representatives to claim and establish that there having been no valid determination of the lease, their right to continue in occupation as a lessee and not merely as a statutory tenant still subsists. There is no provision in the said Act which derogates from this right of a lessee and his heirs and legal representatives. Therefore when a tenant dies pending a suit for his eviction, all his heirs and legal representatives in case he dies in estate become necessary parties and they are required to be substituted in place of the deceased tenant although all such heirs and legal representatives may not have been given rights, privileges and protections of a statutory tenant under the said Act. 7. THIS court in the case of sunil Sundari Dassi v. Sailendra math De, I. L. R. 1966 (1) Cal. 252 pointed out that a suit for ejectment is not maintainable against one of the heirs only. It was laid down that where the tenant dies and the estate is inherited by several heirs, the landlord in order to get a decree for khas possession must not only serve a notice of ejectment addressed to all the heirs but must institute the suit against all such heirs. The position is in no way altered so far as the frame of the suit is concerned only because the tenant has died pending the suit. Plaintiff's right to sue within the meaning of Order 22 rule 4 of the Code of Civil Procedure does not survive only against such heirs and legal representatives as become entitled to the protections of the statutory tenant but it so survives against all the heirs and legal representatives of the deceased tenant defendant. All such heirs and legal representatives again under the same provision become entitled to take any defence appropriate to their character as legal representatives of the deceased tenant defendant. All such heirs and legal representatives again under the same provision become entitled to take any defence appropriate to their character as legal representatives of the deceased tenant defendant. For example in tie present case, it is open to all the heirs and legal representatives to defend the suit by claiming that there having. been no determination of the lease by any valid notice their right to remain in occupation and enjoyment of the suit premises as a lessee still continues. 8. THE view thus taken by us is well supported by the decision of the supreme Court in the case of J. C. Chatterjee v. S. C. Tandon. A. I. R. 1972, s. C. 2526. In that case the tenant died pending the suit for eviction in second appeal. Protections in favour of the statutory tenant under Rajas than Premises (Control of Rent and Eviction) Act., 1950 not having been extended to any of the heirs and legal reprise the Supreme Corn held that the landlord would be entitled to a decree for eviction on mere proof of valid termination of the tenancy and irrespective of the protection under the Rajas than premises (Control of Rent and Eviction)Act, 1950 but at the same time it was held "all contentions except those which are personal to the deceased were open to the legal representatives to put forward in the second appeal. The contention about the validity of the notice for termination of the tenancy was one such contention on which they could have supported the decision of the District Court. " On the principles so laid down it may be held that in the person case only such of the hens and legal representatives who were ordinarily residing with the tenant the time of his death would be entitled to the protections under the West Bengal Premises tenancy Act in view of the amide definition in section 2 (h) but that would not take away the legal right of all the heirs and legal representatives of the deceased tenant defendant from contesting the suit on grounds other than those based on the West Bengal premises Tenancy Act as are admissible in law to them. This being the position, we are unable to accept the contention of Mr. This being the position, we are unable to accept the contention of Mr. Mookerjee and we hold that the learned Additional District Judge of the court of appeal below was in error in holding that the left out heirs and legal representatives are not necessary parties and they need not be substituted in place of the deceased tenant. We agree on the other hand with Mr. Ganguly that in the present case the suit cannot proceed except after bringing on record all the heirs and legal representatives of the deceased tenant defendant Next we proceed to consider what order we should pass when the decision of the lower appellate court is not sustainable in law for reasons given by us hereinbefore. According to Mr. Ganguly, we must restore the decision of the learned Subordinate judge by holding that some of the heirs and legal representatives having been left out the entire suit must abate. We are afraid, the view so taken by the learned judge in the trial court is decision equally erroneous. Admittedly here some of the heirs and legal representatives of the deceased tenant had been brought on record and had been substituted in time. They had been so done by the plaintiff landlord on a bona fide belief that under the provisions of the West Bengal Premises Tenancy Act as amended they are the only heirs and legal representatives required to be substituted. The bona fides of their plea cannot be disputed, if not for any other reason, for the simple reason that the two courts below had differed in their views in this respect as to the effect of the amendment of section 2 (h) of the West Bengal Premises Tenancy Act. That being so, some of the heirs and legal representatives having been brought on record by substitution within time there would, in our opinion, be no abatement and it would now be open to the plaintiff landlord to add as party defendants the other heirs and legal re preservatives who had earlier been left out under a bona fide but mistaken idea that they are not necessary to be substituted. This position follows from the decision of this court in the case of Paresh Nath Chakraborty v. United bank 65 C. W. N. 540. This position follows from the decision of this court in the case of Paresh Nath Chakraborty v. United bank 65 C. W. N. 540. Therefore, we must overrule the view taken by the learned judge in the trial court and also set aside his decision to the effect that some of the heirs and legal representatives not having been brought on record the entire suit had abated. 9. ON the conclusions as above we allow this appeal and set aside the judgment and decree of both the courts below and send back the case to the trial court with this direction that the plaintiff landlord making an application to bring on record the other left out heirs and legal representatives of the deceased tenant the trial court would add them as parties defendants to the suit and then proceed with the suit in accordance with law. In the case of default on the part of the plaintiff landlord in this respect the trial court would proceed to dismiss the suit on the ground of defect of the parties as in the absence of the left out heirs and legal representatives of the deceased tenant defendant the plaintiff landlord would not be entitled in law to proceed with the suit. The money deposited by the appellants in terms of the orders of this court and since withdrawn by the plaintiff respondent is directed to be adjusted towards rents either in arrears or which would fall due hereinafter. There will be no order as to costs. Let the records be sent down as early as possible. Appeal Allowed.