TMI Blog1995 (10) TMI 249X X X X Extracts X X X X X X X X Extracts X X X X ..... session of the demised premises within three months of the date of the death of the lessee unconditionally and without any objection whatever. They shall have no right to hold over the demised premises after the said period under any circumstances. The lessee died on 16.12.1970. His heirs did not deliver possession. This necessitated filing of Suit No. 704 of 1971 for eviction of the defendants. The principal defence raised in the written statement was that the original lessee Lall Behari Mullick having died on 16.12.1970, the registered lease deed dated 11.7.1966 will fall under category of a lease for less than five years by operation of statute. Therefore, the matter will be governed by West Bengal Premises Tenancy Act, 1956 (hereinafter referred to as 'the Act'). The defendants who were residing in the said suit premises with the said Lall Behari Mullick during his lifetime have become monthly tenants under the plaintiffs, by operation of law. They are still residing therein as monthly tenants. After the death of Lall Behari Mullick, the rent for the suit premises was sent to appellant No. 1 by money order by defendant No. 1. On his refusal to accept die same, the defen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ong as he observes the conditions of his tenancy and of the statute. In supporting the submissions, reliance is placed on Anand Nivas Private Ltd. v. Anandji Kalyanji Pedhi and Ors. [1964]4SCR892 and Kanji Manji v. Trustees of Port of Bombay AIR1963SC468 . 7. This Court in The Management of Orissa Transport Co. v. The workmen AIR1976SC2229 has held that a statutory tenant has an heritable interest in the premises. A person continuing in possession after the determination of his tenancy is a tenant unless a decree or order for eviction has been made against him. Therefore, he has to be on a par with the person whose contractual tenancy still subsists. The incidents of such tenancy and contractual tenancy must, therefore, be the same. 8. The statutory definition is not subject to any contract between the parties. It is a provision made in the interest of public for the protection of tenants. Therefore, such a benefit cannot be waived by the tenant nor can the parties contract themselves out of it. In support of this submission, reliance is placed on Halsbury's Laws of England - Fourth Edition, Volume 27, paras 590-591, Amrit Bhikaji v. Kashinath Janardan [1983]3SCR237 and M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 66. To the similar effect an observation is found in Hill and Redman's Law of Landlord and Tenant, (Butterworth 16th Edition) at page 57 wherein it is categorically stated that duration of term of tenancy must be fixed by specifying the number of years, in the first instants, or expressed by reference to a collateral matter. However, the maximum duration of the term must be known when the lease commences. Thus, it is submitted that lease deed must itself show that the period thereof is less than 20 years. 13. It is essential that on the date of lease, it must be known whether the Act applies or the Transfer of Property Act applies. It cannot be contended that the Transfer of Property Act applies for the first five years when the tenant was alive and from the sixth year onward after the death of tenant, the Act applies. 14. Section 2 (h) of the Act is a definition section. It can confer no right, not being an operative section. There must be a lease deed to attract this definition. In this case, it is clearly stipulated that on the death of tenant, heirs in possession cannot continue. There being no heritable right, Section 2 (h) of the Act has no application. 15. If th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 18. The important question to be decided in the light of the above provisions is, whether the appellants will fall within the definition of Section 2 (h) of the Act or whether the lease in question is covered by the proviso to Section 3 of the Act. To determine the same, we will have to look at Clause (1) of the lease deed dated 11.7.1966. That runs as under: That in consideration of the rent hereby reserved and the covenants hereinafter referred and contained and to be paid and to be performed by the lessee the lessor both beery demise unto the lessee all that the entire first and second floor with accommodation for garage and servant and courtyard and one bathroom on the ground floor of premises No. 266A, Chittaranjan Avenue, Calcutta more particularly mentioned and described in the schedule here under and hereinafter referred to as the demised premises to have and to hold the same unto the term during the term of his natural life commencing from the date of these presents yielding and paying the rent of Rs. 160 (Rupees one hundred sixty) monthly and every month and payable before the fifteenth day of each month for the month of immediately proceeding according to the English ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ally or on specified occasions, to the transferor by the transferee, who accepts the transfer on such terms. Lessor, lessee, premium and rent defined. The transferor is called the lessor, the transferee is called the lessee, the price is called the premium, and the money, share, service or other thing to be so rendered is called the rent. 23. A lease, therefore, is not a mere contract, but is a transfer of an interest of immovable property. This means the lessee has a right to enjoy the property for a term in consideration of the payment in money or kind by the transferee to the transferor. 24. One of the essential attributes of a lease is that transfer must be made for a certain time expressed or implied or in perpetuity. The question is, the word 'tenant' under Section 105 of the Transfer of Property Act, whether means really certain or capable of being made certain on a future date? Is it sufficient if the period is fixed with reference to a future event on the happening of which the lease will be determined and the period of their lease will become certain, although, on the date of the lease, it may not be possible to say when that event will happen? In Foa& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terest to his heirs unless there are some words showing an intention to grant an hereditary interest. That rule of construction does not apply if the term for which the grant is made is fixed or can be definitely ascertained. 28. In Sree Sankarachair Swamiar v. Vdrada Pallai, ILR 1904 Mad 332, it was held : And it is scarcely necessary to say that in determining objections founded on the alleged uncertainty of a term in a contract, the test to be applied would be not whether the term is in itself certain but whether it is capable of being made certain in certum est queered certum potest. 29. In Ram Chand Manchana v. H.G. Lush AIR (1936) Lah 890, it was held as under: It is not necessary that the term should be for a fixed period so long as it is definite. It is settled law that the term is definite, if it is defined either by express limitation or by reference to some event which will afterwards fix its exact Q length. In this connection reference may be made to Mulla's Transfer of Property Act, Page 523, Gour's Law of Transfer, Edn. 6, Vol. 3, para 3462, 7 Bom LR 772 and 133 I C 839. 30. In Hamida Khatoon v. Shibananda AIR (1954) Ass 58, it was held at page ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecreed the suit which was confirmed in appeal. On further appeal, the High Court was of the view that after the lapse of twenty years, the lease was one for an indefinite period and could ensure only during the lifetime of the lessee. The lease will not enure to the benefit of the assignee since it has not been accepted by the original lessor. This Court held as follows: That the lessee, read as whole and properly construed, created a permanent tenancy and not a tenancy at will or one for an indefinite period valid only during the life of the lessee. It was not correct to say that the stipulation granting the lessee the right to surrender the lease at any time after the first twenty years gave to the lessor, in the absence of such a provision in the lease itself, the right to call upon the lessee to at quit any time or that the stipulation was inconsistent with a permanent tenancy. The presumption attaching to a lease for building purposes for no fixed period, therefore, was not weakened in the instant case. Janaki Nath Roy v. Dina Nath Kundu (1931) 35 C.W.N. 982 and Baboo Lekhrqj Roy v. Kanhya Singh (1877) L.R. 4 I.A 233 referred to. Babasaheb v. West Patent Co. Ltd. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... right to remove the structures on the death of the lessee. In either event the right provided for is the right to remove the structures. It is not a provision for the lease being heritable and its being consequently a permanent lease. Thus, the lease is for a period certain, i.e., 30 years and on the expiry of that period if the lessee still were to continue to pay the rent, for his lifetime. In the event of his dying before that period, the benefit of the lease would ensure to his heirs till the completion of 30 years. They would be entitled to remove the structures either at the end of the 30 years if the lessee were to die before the expiry of that period or at the end of the lessee's life were to continue to be in possession of the leased property after the expiry of 30 years. But the lease did not create hereditary rights so that on the death of the lessee his heirs could succeed to them. In this connection, it is necessary to note that, as translated in English, it would appear as if the document uses the pronoun 'I', meaning as if the lessee, in the earlier part and the pronoun we , meaning the lessee and his heirs, in the latter part. Such a translation, how ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n be made certain. Herbert Broom says in 'A selection of legal maxims' 10th Edition at pages 422-423 as under: Certum Est Quod Certum Reddi Potest (Noy, Max., 9th G Ed. 265) - That is sufficiently certain which can be made certain. This maxim, which sets forth a rule of logic as well as of law, is peculiarly applicable in construing a written instrument. For instance, although every estate for years must have a certain beginning and a certain end, albeit there appear no certainty of years in the lease, yet, if by reference to a certainty it may be made certain, it sufficeth . Therefore, if a man make a lease for so many years as J. shall name, this is a good lease for years; for though it is at present uncertain, yet when J. hath named the years, it is reduced to a certainty. So, if a person make a lease for twenty years, if he shall so long live and continue person, it is good, for there is a certain period fixed, beyond which it cannot last, though it may determine sooner on the lessor's death or his ceasing to be person. Such a lease, if granted at a rent or in consideration of a fine, whenever made, now however takes effect as a lease for ninety years determ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not subject to any contract between the parties. It is a provision made in the interest of public for protection of tenants. Such a provision cannot be waived by the tenants nor can the parties contract themselves out of it. 41. Section 13 (1) of the Act reads as under: Notwithstanding anything to the contrary in any other law, no order or decree for the recovery of possession of any premises shall be made by any Court in favour of the landlord against a tenant except on one or more of the following grounds. 42. As general proposition of law, there can be no demur that there is no estoppel against a statute. The language of Section 13 of the Act makes it clear that only if anything is found contrary in any other law an order or decree for the recovery of possession of any premises shall be made by any Court in favour of the landlord against a tenant. This wording is peculiar unlike most of the Rent Control Legislations where contract to the contrary is also enveloped in affording protection to the tenants against eviction. In view of the language of Section 13 (1) of the Act, the parties have freedom to contract out of Section. In this case Clause (1) of the lease-deed e ..... 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