SMT. JUTHIKA MULICK AND ANR. versus DR. MAHENDRA YASHWANT BAL AND ORS.

Citation: [1994] SUPP. 5 S.C.R. 249 · Decided: 28-10-1994 · Supreme Court of India · Bench: S. MOHAN · Disposal: Dismissed

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Judgment (excerpt)

SMT. JUTHIKA MULICK AND ANR. 
v. 
DR. MAHENDRA YASHWANT BAL AND ORS. 
OCTOBER 28, 1994 
[S. MOHAN AND M.K. MUKHERJEE, JJ.] 
West Bengal Premises Tenancy Ac~. 1956-Sections 2 (h), 3 proviscr-
Nature of Lease-Lease for life time of lessee, not heritable-Lessee's heirs 
to yield up and deliver peaceful possession within three months after death 
A 
B 
of lessee-Lessee died within three years of tenancy-Heirs of deceased C 
tenant originally residing with tenant at time of his death continuing in 
possession of premises-Whether lease in question is covered by proviso to 
Section 3-Held, No-Act will govern rights of parties-Whether heirs will 
fall within definition of Section 2 (h) -Held, No. 
The predecessors of the respondents leased out a suit premises D 
under a registered lease dead .. The lease deed contained a covenant that 
the lease was for the life time of the lessee and his heirs, executors, 
administrators, representatives and assigns must yield up and deliver 
quiet, peaceful and vacant possession of the demised premises within 
three months of the date of the death of the lessee unconditionally and E 
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 within three years of tenancy. His heirs did not deliver 
possession. Lessor filed suit for eviction of the defendants. The 
principal defence raised was that the original lessee having died within 
three years, the lease deed will fall under category of a lease for less F 
than five years by operation of statute. Therefore, the matter would be 
governed by the West Bengal Premises Tenancy Act and the defendants 
who were residing in the suit premises with the lessee during the 
lifetime have become monthly tenants under the plaintiffs, by operation 
of law. The lessor filed suit for eviction which was dismissed. 
G 
On appeal, the High Court held that under the terms of the lease 
deed, the lease was not heritable. Therefore, the defendants would not 
fall within the definition of tenant u/s 2 (h) of the Act. The statutory 
protection would not be available to the defendants. This appeal had 
been filed by the defendants against the judgment of the High Court. 
H 
249 
250 
SUPREME COURT REPORTS 
[1994)SUPP. 5 S.C.R. -
A 
It was submitted by the appellants that the findings recorded by 
the High Court were not correct. The definition 'the tenant' u/s 2 (b) of 
the Act is Inclusive taking within_· it au ·persons as tenants who 
conti:lued in possession after the termination of tenancy in their favour 
and also persons who bad been the heirs of the deceased tenant who 
bad been originally residing with the tenant at the time of the death 
B · and who bad been continuing in possession of the premises'in question. 
It was alleged tha.t the right of statutory tenant was a personal right 
granted by the statute. He bad a right to continue in possession so long 
as be observed the conditions of bis tenancy and of the statute. The · 
statutory definition is not subject to any contract between the parties. 
It 'was a provision made in the interest of public for the protection of 
C 
tenants. Therefore, such a benefit can not be waived by the tenant nor 
can the parties contract themselves out of it. 
D 
E 
F 
G 
It was further submitted by the appellants that the tenancy in 
question was determined in less than twenty years within the meaning 
of Section 3 (2) proviso, the moment death of the original tenant 
occurred within three years oftbe tenancy. on' the happening of certain 
event, namely death, the period ·of lease becomes certain and 
determined at the time of death of the tenant. Thus, it is submitted that 
the judgment of the High Court is liable to be set aside. 
· 
The respondents argued that the lease deed provides that upon the 
death of lessee, the demise shall ·absolutely cease and· the legal 
representative of the lessee shall have noftgbt to bold over or remain In 
the demised premises beyond a period or three months from the date of 
death ortbe lessee. In view of this provision contained in the lease deed, 
the Act Is not attracted. Section 3 of the Act provides that the lease 
shall be for less than 20 years. On the date of the lease, it was for 
uncertain period namely, during the lifetime of the lessee, the period of 
which was uncertain. Unless and until the appellants established that 
OD the date of the lease, it Was for less than 20 years

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