Mahendra Yashwant Bal v. Juthika Mullick — 1977 DIGILAW 407 (CAL)

JUDGMENT Pradyot Kumar Banerjee, J. 1. This appeal arises out of a suit for eviction of the defendant from the suit premises No. 266A. Chittaranjan Avenue, Calcutta. The plaintiffs are the owners of the suit premises. Yashwant Waman Bal died leaving behind the plaintiffs as his heirs and legal representatives. The predecessor-in-interest of the plaintiffs leased out to one Lall Behari Mullick the suit premises by a registered deed of lease dated 11.7.1966 at a monthly rent of Rs. 160/-. The laid lease, inter alia, contained the lessee's covenant that the lease was for the life time of the lessee and that the lessee's heirs, executors, administrators, representatives and assigns must yield up and delivered quiet, peaceful and vacant possession of the demised premises within 3 months of the date of the death of the lessee, unconditionally and without any objection whatsoever and they shall have no right to hold over the demised premises after the said period for any length of time under any circumstances. The lessee having died on 16.12.1970 and the defendant not having delivered quiet and peaceful possession to the lessor's heirs, the suit was brought for khas possession of the premises. The case of the defendant as set out in paragraph 11 is as follows:- "11. The defendants specifically state that Lall Behari Mullick having died on 16.12.1970 the Registered lease dated 11.7.1966 has come to the category of a lease for less than 5 years by operation of statutory Jaw and so the matter is governed by the West Bengal Premises Tenancy Act, 1956. The defendants who resided in the suit premises with said Lall Behari Mullick during his life time, have become monthly tenants under the plaintiffs by operation of law and they are still residing therein as monthly tenants. After the death of Lall Behari Mullick the rent for the suit premises was tendered to the plaintiff No.1 by postal money order by the defendant No.1. On refusal to accept the said tender of rent the defendants have been duly dispositing their rent for the suit premises month by month with the Rent Controller, Calcutta." Admittedly the lease was registered and executed on 11.7.1967. It is also admitted that Lull Behari Mullick died on 16.12.1970. In this case the question for adjudication is whether the West Bengal Premises Tenancy Act applies or not. It is also admitted that Lull Behari Mullick died on 16.12.1970. In this case the question for adjudication is whether the West Bengal Premises Tenancy Act applies or not. The Court below held that as the lessee died within 5 years, the lease must be held to be for a period less than 20 years and in view of the proviso to section 3 sub-section (2) of the West Bengal Premises Tenancy Act, 1956, the Act is applicable. 2. Mr. B.C. Dutt on behalf of the appellant contended that the lease for life is a lease for an indefinite period and is governed by section 111(b) of the Transfer of Property Act and is determined with the demise of the lessee and the defendant's heirs have no right, title and interest in the lease. The lease for life is not a lease for either 5 years or 20 years and cannot come within the mischief of section 3 of the West Bengal Premises Tenancy Act. 3. Mr. Saha on behalf of the defendant-respondent relied upon the case reported in (1849) Volume III of Durnford & East's Reports, 462 and contended that with the death of the lessee the term of the lease will be for a definite period. The point for determination is whether the lease for a life is a lease within the meaning of section 3 sub-section (2) of the West Bengal Premises Tenancy Act. The lease for life is a lease for an indefinite period. 4. In a case reported in Ashutosh Lahiri vs. Chandi Charan Mitra, 31 CWN 46, on which Mr. Dutt relied, it has been held that where a lease was to the effect that the land was settled with the lessee at an annual rent and the lessee was to enjoy and posses the same by constructing a homestead and residing therein, regularly paying the rent and there was no term of inheritance in the lease. Dutt relied, it has been held that where a lease was to the effect that the land was settled with the lessee at an annual rent and the lessee was to enjoy and posses the same by constructing a homestead and residing therein, regularly paying the rent and there was no term of inheritance in the lease. It was also held that the interest created by the lease which was neither for a definite term nor one expressly for perpetuity was not that of a tenant at will or of a yearly tenant and it would be right to apply to it the general rule of construction which is to the effect that if a grant was made to a man for an indefinite period it enures generally speaking at least for the life-time of the grantee unless there were some words showing the intention that a heritable grant was made. In the case Chandi Charan Mitra vs. Ashutosh Lahiri, 40 CWN 52, it has been held that a lease of immovable property is determined by efflux of time limited thereby. No definite period has been mentioned in the lease. It was argued by the appellant in that case that if no period is specifically mentioned in a lease, it must be a perpetual lease. It was held by Their Lordships that if no period is definitely stated, it does not necessarily follow that the lease is a perpetual lease. A lease is a transfer of a right to enjoy for a certain term, express or implied or in perpetuity. A lease for life is a lease for a certain period, for it terminates with the death of the lessee. If a grant be made to a man for an indefinite period, it enures, generally speaking, for his life-time and passes no interest to his heirs unless there are some words showing an intention to grant a hereditary interest. This rule of construction, however, does not apply, if the period for which the grant is made can be definitely ascertained from the other terms of the instrument. Though the lessor and the lessee were members of the legal profession, no words of inheritance such as Mourashi, Kaimi, etc. which are ordinarily used in a permanent lease are to be found in the patta. Though the lessor and the lessee were members of the legal profession, no words of inheritance such as Mourashi, Kaimi, etc. which are ordinarily used in a permanent lease are to be found in the patta. In the facts of the case it was held that the lease is not a perpetual one but a tenancy for life time. In the case reported in Md. Sadaktul Bari vs. Maulia Raziuddin Md. Idris Khan, 43 CWN 794, it has been held following Baboo Lekhraj Ray vs. Kunhya Lal, (1877) LR 4 IA 223, that if a grant be made to a man for an indefinite period, it enures generally speaking for his life-time and passes no interest to his heirs, unless there are some words showing an intention to grant an hereditary interest. 5. In the facts of the present case, from the lease document which is Ext.1, it is clear that the lease is not heritable. Under section 2(h) of the West Bengal Premises Tenancy Act, tenant has been defined and it appears from the definition of the tenant that the heirs who were ordinarily resident with the deceased tenant at the time of his death comes within the definition of the tenant but in any case a tenant must be an heir in possession. In the present case, the lease deed makes it clear that tenancy created under the lease is not heritable. Therefore on the definition of the tenant, as appears from the West Bengal Premises Tenancy Act, the defendant cannot be tenant by any stretch of imagination in respect of the premises because it has been specifically provided that the heirs of the deceased lessee will have no right, title and interest in the demised premises. On the other hand, it has been stated therein that the lessor's heirs will yield up and deliver peaceful possession within 3 months after the death of the lessee. In the lease, Ext.1, the lessor's interest includes his heirs, representatives and assignees but the lessee does not include them at all. It has been specifically provided that the lease will be determinated with the death of the lessee. Therefore the defendant cannot be regarded as a tenant within the meaning of the Act at all. In Shah Mathuradas Maganlal & Co. It has been specifically provided that the lease will be determinated with the death of the lessee. Therefore the defendant cannot be regarded as a tenant within the meaning of the Act at all. In Shah Mathuradas Maganlal & Co. vs. Nagappa Shankarappa Malage, 1976 (3) SCC 660 , it has been provided that the Rent Restriction Act is not applicable where the mortgagee is in possession. In our opinion, Mr. Dutt is right when he drew the analogy in the facts of the present case. In this case, in our opinion, the lease was for life time and with the death of the lessee, the defendant has no right, title and interest in respect of the same. We are of the opinion that section 3 of the West Bengal Premises Tenancy Act envisages lease for definite periods mentioned in the section which must be mentioned in the lease itself. If the lease is not for a particular period section 3 will not come into play. Unless the lease is for a particular period of not less than 20 years and if the period is limited by the lease, proviso to section 3 of the West Bengal Premises Tenancy Act will not apply or in the other words the lease itself will provide the commencement of the term and also when the lease must expire. If the lease is for a period of time of not less than 20 years, then of course, section 3(2) of the Act will come into play. In the present case we have seen that the lease commenced from the particular time but the period is uncertain and the period is not limited. In such lease, happening of a subsequent event cannot be taken unless the period is limited. In this case as no period has been mentioned and the happening of a particular event is uncertain, section 3 of the West Bengal Premises Tenancy Act does not come into play and the West Bengal Premises Tenancy Act will also not apply in such lease as the tenant holds the property under a lease and the tenant's right is not heritable. 6. In our opinion, the lease is not for a fixed period and the period is uncertain. The case reported in 1789(3) Durnford & East's Reports 462, in our opinion, is not at all applicable in this case. 6. In our opinion, the lease is not for a fixed period and the period is uncertain. The case reported in 1789(3) Durnford & East's Reports 462, in our opinion, is not at all applicable in this case. In the said case the lease was for a particular time and on happening of a certain event, the lease was sought to be extended. Lord Kenyon, J. on the facts of that case held that on happening of a certain event the period of lease became certain. In the facts of this case when the particular definition of a tenant has been given, we cannot hold that the said case applies to the facts of the present case, more so, when it is made clear by section 3 of the West Bengal Premises Tenancy Act. 7. In the circumstances, therefore, in our opinion, Mr. Dutt is right in his contention and the appeal must be allowed. The judgment and decree of the Court below are set aside. The suit is decreed. The defendant must vacate the premises within 3 months from the date. In default, the appellant may execute the decree.