Holding

The lease, though of uncertain duration at inception, becomes certain upon death and is therefore governed by the Act, but the express non‑heritable covenant excludes the heirs from the definition of ‘tenant’ under Section 2(h), and the parties may contract out of Section 13, so the heirs have no statutory protection.

Summary

The appellant owned premises leased in 1966 to Lall Behari Mullick for his natural life, with a covenant that his heirs must vacate within three months of his death and have no right to hold over. Mullick died within three years, but his heirs remained in possession. The appellant sought eviction, arguing that the lease fell under the West Bengal Premises Tenancy Act, 1956 and that the heirs were statutory tenants under Section 2(h). The High Court held the lease was non‑heritable and the Act did not apply; the Supreme Court affirmed this, holding that although the lease term becomes certain on death (so Section 3 proviso does not apply), the express clause denying heritable rights prevents the heirs from being deemed tenants under Section 2(h) and parties may contract out of the protection in Section 13. Consequently, the heirs have no statutory protection and the appeal was dismissed.

Issues considered

The lease for the lessee's lifetime, with a clause requiring heirs to vacate, is covered by the proviso to Section 3 of the West Bengal Premises Tenancy Act, 1956.
Whether the heirs of a deceased lessee fall within the definition of ‘tenant’ under Section 2(h) of the Act.
Whether the parties can contract out of the statutory protection afforded by Section 13 of the Act.

Legislation cited

Transfer of Property Act, 1882s. 105, s. 106, s. 107, s. 108
West Bengal Premises Tenancy Act, 1956s. 13, s. 2(h), s. 3, s. 34(4)

Subjects

leaselife tenancyWest Bengal Premises Tenancy Actstatutory tenantheritable rightscontract out of statuteevictionTransfer of Property Act

Judgment

SMT. JUTHIKA MULICK AND ANR. A
v.
DR. MAHENDRA YASHWANT BAL AND ORS.

OCTOBER 28, 1994

[S. MOHAN AND M.K. MUKHERJEE, JJ.] B

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
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 ofpremises-Whether lease in question is covered by proviso to
Section 3-Held, No-Act will govern rights ofparties-Whether heirs will
fall within definition ofSection 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
A
250 SUPREME COURT REPORTS

It was submitted by the appellants that the findings recorded by
-
[1994)SUPP. 5 S.C.R.

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.

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
D 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
E 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
F 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, they can not
succeed. It is submitted that in order to attract the provisions or Section
3 of the Act, the lease deed must provide that it was for a period of 20
G years and the period limited by such lease Is not terminable before its ·
expiration, at_ t_be option by either party. The period of lease must be
ascertainable on the date of lease. In this case, it is clearly stipulated
that on the death of tenant, heir! in piis.session can not continue. There
being no heritable right, Section 2 (b) of the Act bas no application. If
the fotention of the parties was not to confer heritable right, such a
H . ·contract is not overridden by the Act.
JUTHIKA MULICK v. M. Y. BAL 251

Dismissing the appeal, this Court A
HELD : 1.1. Section 105 of the Transfer of Property Act defines a
lease. 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 whether the word 'tenant' u/s 105 of the Transfer of
Property Act, means really certain or capable of being made certain on B
a future date, and whether it would be 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. (258-G, 259-D) C
1.2. The word 'certain' cannot mean certain on the date of the
lease. It is enough if it is capable of being made certain on a future date.
In the instant case, no doubt, the lease deed does not stipulate any term.
Nevertheless, it is capable of being made certain because nothing is
more certain than death. (265-C) D
1.3. The period of lease need not be certain on the date of lease.
Either by the terms of actual contract or by implication of law it is
enough if it can be made certain on a future date. In the on hand, case CS
admittedly the lessee died within the period of three yean. Therefore,
Section 3 proviso will not apply. It means that Act will govern the E
rights of the parties. (266-G)

Lekhraj Roy v. Kanhya Singh, Indian Appeals~ Vol 4, 1876;
Contonment Board v. W.1. Theatres Ltd, AIR (1954) Bom 256; Sree
Sankarachari Swamiar v. Varada Pal/ai, (1904) Indian Law Reports 27, F
Madras; Ram Chand Manchanda v. H.G. Lush, AIR (1936) Lahore 890;
Hamida Khatoon v. Shebananda, AIR (1954) Assam 58; Konijeti

- Ven/cawa Subbarao and Anr., AIR (1957) AP 619; Sicayoqowara Press
and Ors. v. M Panchaksharappa and Anr., [1962] 3 SCR 876 and
Chapsibhai v. Purushottam, AIR (1971) SC 1878, relied on.
G
2. The definition of 'tenant' in Section 2 (h) of the Act is inclusive
in nature. It confers the right of tenancy of specific heirs as would
ordinarily be residing with him at the time of his death. (266-H)

Biswabani (P) Ltd., v. Santosh Kumar Dutta and Ors., [1980] 1 SCR
650, relied on. H
252 SUPREME COURT REPORTS [1994] SUPP. S S.C.R.

A 3. 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'. This wording is peculiar unlike most of the Rent Control
Legislation where contract to the contrary is also enveloped in
affording protection to the tenants against eviction. In view of the
B lant;uage 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
stipulates that the heirs of lessee will have no right to hold after the
death of lessee and they have to deliver quiet, peaceful and vacant
possession within three months after the demise of the original lessee.
In other words, the right has been made specifically not heritable.
C (267-F-H)
4. By way of contrast if Section 34 (4) of the Act is referred to, it is
clear that this liberty to contract out of Section becomes clear. This sub
section has overriding effect over contracts as well, unlike Section 13 of
the West Bengal Tenancy Act. In the instant case, the appellants
D cannot claim tenancy right. (268-A, D)
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 8545 of
1983.
From the Judgment and Order dated 8.9.82 of the Calcutta High Court
in O.D. No. 105of1974.
E
A.K. Sen, S.B. Sanyal and S.B. Upadhyay for the Appellants.

Dr. Shankar Ghose and Ms. Radha Rangaswamy for the Respondents.

The Judgment of the Court was delivered by

F MOHAN, J. This appeal arises out of the certificate issued by the High
Court of Calcutta under Article 133 (a) and (b) of the Constitution oflndia.
The facts are simple. Being simple it is fascinating. However; the
fascination is only superficial, ultimately leading to a question of legal
complication.
G The predecessors of the respondents leased out a suit premises No.
266A, Chittaranjan Avenue, Calcutta in favour of Lall Behari Mullick
under a registered lease-deed dated 11. 7.1966. The monthly rent was fixed
at Rs. 160. 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
H vacant possession of the demised premises within three months of the date
JUTHIKA MULICK v. M. Y. BAL [MOHAN, J.] 253

of the death of the lessee unconditionally and without any objection A
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 B
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 C
Lall Behari Mullick, the rent for the suit premises was sent to appellant No.
1 by money order by defendant No. l. On his refusal to accept the same, the
defendants have been duly depositing the rent for the suit premises month
by month with the Rent Controller, Calcutta.

By judgment dated 16.1.1973, the Trial Court dismissed the suit. D
Aggrieved by that dismissal, Title Appeal No. 105of1974 was filed by the
respondents before the High Court of Calcutta. The said appeal was allowed
by impugned judgment dated 20.12.1977. The High Court came to be
conclusi('n that under the terms of the lease deed, the lease was not
heritable. Section 2 (h) of the Act defines the tenant as 'the heir who
generally resides with the deceased tenant'. In the present case, the lease E
deed makes it clear that the lease is not heritable. There is also an obligation
that the heirs of the lessee's heirs to yield up and deliver peaceful
possession within three months after the death of the lessee. Therefore, the
defendants would not fall within the definition of tenant under Section 2 (h)
of the Act. The statutory protection would not be available to the
defendants. In this view, it allowed the appeal. F
Mr. Ashok Sen, learned Senior Counsel appearing on behalf of the
appellants draws our attention to Clause I in the lease deed dated 11.7.1966.
The High Court has rendered the following findings:

(a) The period of lease is uncertain as the death of tenant was uncertain ( 1
at the time of the execution of the lease. Therefore, Section 3 of the Act
does not come into play and the tenant's right could not be heritable under
the Act;

(b) Reliance is placed on (1849) Dunford and East's Reports 462 = 3
Terms Reports 462 to hold against the appellants. H
254 SUPREME COURT REPORTS [1994] SUPP. 5 S.C.R.

A These findings are not correct. Section 2 (h) of the Act defines 'the
tenant'. As the definition is inclusive talcing within it all persons as tenants
who continue in possession after the termination of tenancy in their favour
and also persons who have been the heirs of the deceased tenant who have
been originally residing with ·the tenant at the time of the death and who
have been continuing in possession of the premises in question. The
B concept of a statutory tenant is cardinal in all rent control legislations. The
whole object of rent control legislation is to protect the tenant from eviction
notwithstanding the termination of his tenancy. The right of statutory tenant
is a personal right granted by the statute. He has a right to continue in
possession so long as he observes the conditions of his tenancy and of the
c statute. In supporting the submissions, reliance is placed on Anand Nivas
Private Ltd v. Anandji Kalyanji Pedhi and Others., AIR (1965) SC 414
and Kanji Manjiv. Trustees ofPort ofBombay, AIR (1963) SC.468 at 471.

This Court in The Management of Orissa Transport Co. v. The
workmen, AIR (1976) SC 2229 has held that a statutory tenant has an
D 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 !.le on a par with
the person whose contractual tenancy still subsists. The incidents of such
tenancy and contractual tenancy must, therefore, be the same.

E 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, AIR (1983) SC
p·
643 and Mur/idhar Agarwal and others v. State ofU.P., [1975) l SCR 575.

· The tenancy ~ question ~as determined in less than twenty years
within the meaning of Section 3 (2) proviso, the moment· death of the
original tenant occurred within the three years of the tenancy. On the
G happening of certain event, namely death, the period of lease becomes
certain and determined at the time of death of the tenant. What was
uncertain at the beginning of lease was rendered certain by the very event
contemplated by the lease deed namely the death of the tenant. Support is
derived for this submission from Ram Kumar Das v. Jagdish Chandra Deb
Dhabal Deb, [1952] SCR 269, Biswabani (P) Ltd. v.·santosh Kumar Dutta
H and others, [ 1980] l SCR 650 at page 658 and Indira Rani Ghosh v. Ashok
JUTHIKA MULICK v. M. Y. BAL (MOHAN, J.] 255

Kumar Ghosh, AIR (1932) P.C. 269 at page 272. Thus, it is subm~tted that A
the judgment of the High Court is liable to be set-aside.

In meeting these submissions, Dr. Shankar Ghosh, learned Sr. Counsel
appearing for the respondents argues 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 no right to hold over or remain in the B
demised premises beyond a period of three months from the date of death
of the lessee.

In view of the above provision contained in the lease deed, the Act is
not attracted. Section 3 of the Act provides that the lease shall be for less C
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 establish that on the date of the lease, it was for less
than 20 years, they cannot succeed.

Section 3 of the Act will be attracted if the lease is for a period of not D
less than 20 years and the period limited by such lease is not terminable
before its expiration, at the option by either party. Therefore, in order to
attract this provision, the lease must provide that it was for a period of 20
years and the period of lease must be limited by the lease deed itself. It is·
well-settled that the period of lease must be ascertainable on the date of
lease. It is also clear if reference is made to Foa's Landlord and Tenants, E
6th Edition, para 115. The passage therein has been approved by the
Division Bench of the Bombay High Court in Ramchandra Ba/want Tilak
v. Narasinha Chintaman Kelkar, AIR (1931) Bombay 466. 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 F
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.
G
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. H
256 SUPREME COURT REPORTS [1994] SUPP. 5 S.C.R.

A 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.

B If the intention of the parties was not to confer heritable right, such a
contract is not overridden by the Act. Section 13 of the Act mentions only
"notwithstanding anything to the contrary in any other law.": It does not
override the contract. If this Section is contrasted with Section 34 (4) of the
. Act in respect of recovery of possession, it is clear that the contract is not
overridden. Thus, under the terms of the contract, if the heirs are denied the
C heritable right, that will prevail.

In order to appreciate the respective contentions, we will now refer to
the relevant provisions of the Act, Section 2 is the definition Section.
Clause (h) defines the teriant as follows :

D "'tenant' [means any person] by whom or on whose account
or behalf, the rent of any premises is, or but for a special
contract would be, payable and [includes any person
continuing in possession after the termination of his tenancy
or in the event of such person's death, such of his heirs as
were ordinarily residing with him at the time of his death,]
E but shall not include any person against whom any decree
or order for eviction has been made by a Court of
competent j~risdiction."

Section 3 of the Act provides for inapplicability of the Act to certain
leases. That is as under:
F
"[(I)] The provisions relating to rent and the provisions of
Sections 31 and 36 shall apply to any premises held under a
lease for residential purpose of the lessee himself and
registered under the India11 Registration Act, 1908, where -

G (a) such lease is for a period of not more than 20 years, and
save as aforesaid nothing in this Act shall apply to any
premises held under a lease for a period of not less than 15
years.

(2) Notwithstanding anything to the contrary contained in
H sub-section (I} but subject to sub-section (3) of Section I,
JUTHIKA MUtICK v. M. Y. BAL [MOHAN, J.] 257

, this Act shall apply to all premises held under a lease which A
has been entered into after the commencement of the West
Bengal Premises Tenancy (Amendment) Ordinance, 1965;

Provided that if any such lease is for a period of not less
than 20 years and the period limited by such lease is not
expressed to be terminable before its expiration at the B
option either of the landlord or of the tenant, nothing in this
Act, other than the provisions relating to rent and the
provisions of Sections 31 and 36, shall apply to any
premises held under such lease."

The important question to be decided in the light of the above C
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 D
covenants hereinafter referred and contained and to be paid
and to be performed by the lessee the lessor both berey
demise unto the lessee all that the entire first and second
floor with accommodation for garrage and servant and
courtyard and one bathroom on the ground floor of
premises No. 266A, Chittaranjan Avenue, Calcutta more E
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 F
before the fifteenth day of each· month for the month of
immediately proceeding according to the English calendar
month without any deduction or abatement whatsoever
inclusive of both shares of Municipal Taxes and all other
outgoings the lessee with interest that the obligations will G
continue throughout the term hereby granted doth hence by
conversants with the lessor as follows (a) to pay the rent
hereby reserved on the day and in the manner aforesaid (b)
. The lessor's heirs executors administrators representatives
and assigns must yield up and deliver quiet placeful and
vacant possessions of the demised premises within three H
258 SUPREME COURT REPORTS (19941 SUPP. S S.C.R.

A months of the date of death of the lessee unconditionally
and without any objection whatsoever and they shall have
no right to hold out the demised premises after the said
period for any length of time under any circumstances (e)
Not to sublet. assign or transfer the whole or any part of the
4emised premises exclusively for lessees for lessee's
B residential purposes only and not to use the same for any
other purpose for any length of time."

The following emerge by reading of the above clause.

i) The lessee was to hold the demised premises during his life;
c ii) The heirs, executors, administrators, .representatives and assigtis of
the lessee must yield up and deliver quiet and vacant possession within
three months of the date of the death of the lessee unconditionally and
without any objection;

D iii) They shall have no right to hold demised premises after the said
period for any length of time under any circumstances;

iv) Lease is residential in nature;

v) The lessee has no right to sublet, assign or transfer either the w1¥>le
or any part of the demised premises thereof.
E
What is the nature of this lease? Is it for a period of more than. 20 years

a) because it states that lessee can hold the demised premises during his
natural life or less than 20 years;

F b). because the lessee died within three years from the date of lease
deed dated 11.7 .1966.

The applicability of the definition under Section 2 (h) will depend upon
the answer to the above question.

G Section 105 of the Transfer of Property Act defines a lease as under :

"A lease of immovable property is a transfer of a right to
enjoy such property, made for a certain time, express or
implied, or in perpetuity, in consideration of a price paid or
promised, or of money, a share of crops, service or any
H other thing of value, to be rendered periodically or on
JUTHIKA MULICK v. M. Y. BAL [MOHAN, J.] 259

specified occasions, to the transferor by the transferee, who A
accepts the transfer on such tenns.

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, B
share, service or other thing to be so rendered is called the
rent."

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 tenn in consideration of the payment in money or kind by the C
transferee to the transferor.

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 D
sufficient if the period is fixed with reference to a future event on the
happenmg 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 's Landlord and
Tenants, 6th Edition, paragraph 115 occurs the following passage [which
has found approval at the hands of Bombay High Court in Ramchtindra E
Chintaman Kelkar's case (supra)]:

"The habendum in a lease must point out the period during
which the enjoyment of the premises is to be had; so that
the duration as well as the commencement of the tem1 must
be stated. The certainty of a lease as to its continuance must F
be ascertained either by the express limitation of the parties
at the time the lease is made, or by reference to some
collateral act which may, with equal certainty, measure the
continuance of it, otherwise it is void. If the term be fixed
by reference to some collateral matter, such matter must G
either be itself certain (e.g. a demise to hold for "as: may
years as A. as in the manner of B."), or capable before the
lease takes effect of being rendered so."

In Hill and Redman 's Law of Landlord and Tenant Butterworth 's 16th
Edition, page 57, it is stated: ij
260 SUPREME COURT REPORTS [1994] SUPP. 5 S.C.R.

A "Duration of term - The maximum duration of the term
must be either fixed by specifying the number of years in
the first instance, or expressed by reference to a collateral
matter which can, at the time when the lease takes effect, be ·
lo.oked to in order to ascertain precisely the latest date on
which the term must end"
B

c "It is sufficient, however, if the maximum duration of the
term is known when the lease commences."

, Now we will come to case law. As to construing a grant, the Privy
Council held in Lekhraf Roy v. Kanhya Singh, Indian Appeals, Volume 4,
D 1876, 223 at page 225 as under: ·

"If a grant be made to a man for an indefinite period, it
ensures," generally speaking, for his lifetime, and passes no
interest to his heirs unless there are some words showing an
intention to grant an hereditary interest. That ruie of
E constructions does not apply if the term for which the grant
is made is fixed or can be definitely ascertained."

In c;antonment Board, Poona v. W.l Theatres Ltd, 'AIR (1954)
Bombay 256, it wa5 held at page 261 as under:

F "It if can be ascertained definitely what that term (of the
lease) is, the rule of construction that a grant of an indefinite
na~re ensures only for the life of the grantee would not
apply. If a grant be made to a man for an indefinite period,
it ensures, generally speaking, for his life-time, ana passes
no interest to his heirs unless there are' some words showing
G 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." .
'

In Sree Sankarachair Swamiar v. Varada Pallai, 1904 Indian Law
H Reports, 27 Madras 332 at page 336, it was held : ·
JUTHIKA MULICK v. M. Y. BAL [MOHAN, J.] 261

"And it is scarcely necessary to say that in 1~etermining A
objections founded on the alleged uncertainty of a term in a
contract, the test to be applied would be not whether the
tenn is in itself certain but whether it is capable of being
made certain. Id cerium est quod reddi certum potest."

In Ram Chand Manchana v. HG. Lush, AIR (1936) Lahore 890, it was B
held as under:

"It is not necessary that the tenn should be for a fixed
period so long as it is definite. It is settled law that the tenn
is definite, if it is defined either by express limitation or by
reference to some event which will afterwards fix its exact C
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 Born LR 772 (1) and
133 IC 839 (2)."

In Hamida Khatoon v. Shibananda, AIR (1954) Assam 58, it was held D
at page 59:

"It is contended that a lease from year to year or a lease
reserving yearly rent is not a lease for a certain time. This
argument is due to misapprehension. Section 105 T.P. Act
does. not require that the tenn or period of the lease should E
be certain on the date of the lease. The period of the lease
can be expressed or implied. A provision for a period
implied by law or usage would be enough. This is clear
. from the language of Section 106 T.P. Act which provides
that in the· absence of a contract or local law or usage to the
fOntrary, a lease will be deemed to be from year to year, if F
it is for agricultural or manufacturing purposes, a:nd from
month to month if it is for other purposes. The agre1ement of
lease in this case is not outside the scope of Section I 05
T.P. Act and is hit by Section 107 by reason of the absence
of a registered deed of lease."
G
In Konijeti Venkayya and another v. Thammana Peda Venkata
Subbarao and another, AIR ( 1957) Andhra Pradesh 619 at page 621 it is
observed:

"The period is 'certain' if it can be made certain on a future
date, on the principle . id certum est quod certum reddi H
262 SUPREME COURT.REPORTS [1994] SUPP. S S.C.R.

A potest. A lease for the lifetime of the lessor or lessee or of
any other living person will be valid in law."

Two decisions of this Court which have a bearing on this question may
now be seen. In Sivayogeswara Press, Devangere and others v. M
Panchaksharappa and another, (1962] 3 SCR 876, where the lease-deed
B provided for the first 20 years the lessee was to pay a fixed rent of Rs. 350
every in year in advance and if he removed his factory within that period he
would still have to pay the said rent for the twenty years retaining his right
to possession; that thereafter he would be free to continue the lease as long
as he liked subject to the payment of the annual rent of Rs. 400 for the first
10 years and thereafter of Rs. 500 per year, with the right to terminate the
c lease at any time. The lessor would not have the right to call upon him to
give up possession at any time as long as he wanted to keep the land for his
purposes observing the te~s of the agreement.

After a lapse of more than twenty years, the respondent who succeeded
to the original lessor's interest, brought the suit for ejectment of the
D assignee of the lessee's interest on the ground that a tenancy was one at will
and stood determined on the service of notice to quit. The trial court
decreed 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
E 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.
F
It was not cgrrect to say that the stipulation granting the
lessee the t(ght 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
G inconsistent with a pennanent 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 Lekhraj Roy v. Kanhya Singh, (1877) L.R. 4
H I.A. 233 referred to.
JUTHIKA MULICK v. M. Y. BAL [MOHAN, J.] 263

Babasaheb v. West Patent Co. Ltd, l.L.R. 1954 Bombay A
448 distinguished.

Nava/ram v. Javerila/, (1905) 7 Bombay L.R. 401,
Promoada Nath Roy v. Srigobind Chowdhry, (1905) l.L.R.
32 Cal. 648, Forbes v. Hanuman Bhagat, (1923) l.L.R. 2
Pat. 452 and Commissioner of Income Tax v. B
Maharajadhiraj Kumar Visheshwar Singh, (1939) 1.L.R. 18
Pat. 805, discussed.

Held, further that it is always open to a lessee of any
description to surrender his lease-hold interest to the lessor
by mutual consent. It is not necessary in law that there C
should be such consent at the time when the surrender is
made.

Since in the instant case, the surrender after the lapse of
twenty years had in terms been agreed to by the parties and
that stipulation was for the benefit of the lessee, it could not D
be construed as in derogation of his right to a permanent
tenancy."
)" .

After referring to this decision in Sivayogeswara Cotton Press case
(supra), distinguishing the same on the following grounds, it was held in
Chapsibhai v. Purshottam, AIR (1971) SC 1878 as under: E
"The effect of these. clauses is that the first part of the
document ensures that the lessor cannot charge rent higher
than the agreed rent even "if the lessee were to remain in
possession after the period of 30 years. That part is
consistent with the .lease being for an indefinite period, F
which means for the lifetime of the lessee. The next part
provides for the right to remove the structures "after the
lease period". The words after the lease period mean either
at the end of the 30 years or on· the death of the lessee,
because, it also says that if the lessee were to remove the
buildings before the expiry of 30 years, he would have to G
pay the rent for the remainder of that period. This part of
the documents does not show the intention that .the lease
was to be a permanent lease. It merely ensures the right to
remove the structures if the lessee or his heirs so desired on
the expiry of the lease period, i.e., either at the end of 30
years or after the lifetime of the lessee. The heirs are H
264 SUPREME COURT REPORTS [1994] SUPP. 5 S.C.R.

A mentioned here to provide for the contingency of the lessee
dying before the expiry of 30 years and also for the
contingency of his living beyond that period and continuing
to occupy the land. In the event of the first contingency, the
lessee's heirs·would continue in possession till the expiry of
30 years and then remove the structures if they wished. In
B the case of the second contingency, the heirs of the lessee
would have the right to remcive 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.,
c 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
D 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.
E 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 ~arlier part and
the pronoun "we'', meaning the lessee and his heirs, in the
latter part. Such a translation, however, is not correct. We
ascertained from Mr. Ratnaparkhi who after looking at the
F
original Marathi assured us that the pronoun used
throughout is ami, which means "we", a term often used in
documents written in regional language for the executant
instead of the singular 'I'.

G In our view the lease before us is clearly distinguishable
from that in the case of Sivayogeswara Cotton Press [ 1962]
3 SCR 876 where the leasehold rights were in clear terms
made heritable and where the Court held that cl. (14)
though placed last in the document, governed all its terms.
There is no provision in the present case comparable with
H such a clause. The lease was undoubtedly for an indefinite
JUTHIKA MULICK v. M. Y. BAL [MOHAN, J.] 265

period which only means that it was to ensure for the A
lessee's lifetime. Reference in it of the heirs of the lessee is
only for the limited purposes set out earlier and not for
making the leasehold interests heiitable. We do not find in
the document words such as those in Sivayogeswara Cotton
Press, which would compel us to the conclusion that the
lease was intended to be permanent" for the sake of B
completion only.

We are of the view that the word 'certain' cannot mean certain on the
date of the lease. It is enough if it is capable of being made certain on a
future date. In the instant case, no doubt, the lease-deed dated 11. 7.1966
does not stipulate any tenn. Nevertheless, it is capable of beiug made C
certain because nothing is more certain than death. In this connection, we
may also look at Sections 106 and l 07 of the Transfer of Prbperty Act.
They refer to lease from year to year. Section 108 (i) which refers to a lease ·
of uncertain duration. Section 11 l ofT.P. Act, reads as under:

"A lease of immoveable property determines - D
(a) by efflux of the time limited thereby.

(b) whether such time is limited conditionally on the
happening of some event-by the happening of such event.
E
Therefore, it is clear that this Section refers to a period of lease being
limited conditionally on the happening of certain event. The above
provision clearly indicates that the period of lease need not be certain on the
date of lease. Either by the term of actual contract or by implication of law
it is enough if it can be made certain on a future date.
F
The meaning of phrase •id certum .est quod certum reddi potest' is
"that is sufficiently certain which can 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 H
266 $UPREME COURT REPORTS (1994) SUPP. S S.C.R.

A 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
B 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
c however takes effect as a lease for ninety years
determinable by notice after the death of the person.

"It is true," said Lord Kenyon, "that there must be a
certainty in the lease as to the commencement and duration
of the term; but that certainty need not be ascertained at the
D time; for if, in the fluxion of time, a day will arrive which
will make it certain, that is sufficient. As, if a lease be
granted for twenty-one years, after three lives in being:
though it is uncertain at first when that term will
commence, because those lives are in being, yet when they
E die it is reduced to a certainty, and id certum est quod
certum reddi potest"." . (emphasis supplied)

Mr. Ashok Sen, learned Sr. Counsel contends exactly this while Dr.
~ ·Ghosh, Sr. Counsel for respondents would urge that on the date of
commencement of lease itself, the period must be certain. We are not able
F 1to accept the contention of Dr. Ghosh. We approve the rulings of the High
<?ourt referred to above which hold that it is enough ifthe period is capable
of being ascertained at a future date on the happening of a certain event. In
the case on hand, admittedly the lessee died on 16.12.1970, i.e. within the
period· of three years. Therefore, Section 3 proviso of the Act will not
apply. It means that Act will govern the rights of the parties. ...
G
· Now, we pass on to the applicability of Section 2 (h) of~ thct. This
defmition is inclusive in nature. It confers the right of tenancy specific
heirs as would ordinarily be residing with him at the time of' is death. In
BiSwabani (P) Ltd, v. Santosh Kumar Dutta and others., (1980] l SCR
650; .it was held at page 658 as under:
H
JUTHIKA MULICK v. M. Y. BAL [MOHAN, J.) 267

"However, on the date of expiry of contractual tenancy the A
West Bengal Premises (Rent Control Temporary
Provisions) Act, 1950 was in force and was applicable to
the premises and, therefore, on the determination of
contractual tenancy by efflux of time the terms and
conditions of the lease are extinguished and the rights of B
such a person remaining in possession are governed by the
statute alone. He is loosely described as statutory tenant
which is another name for status of irremovability (see
Anand Nivas Private Ltd. v. Anandji Ka/yanji and others,
[1964] 4 SCR 892."

In this background, the applicability of Section 13 of the Act will have
c
to be considered. It is the submission of Mr. Ashok Sen, learned Sr.
Counsel that the statutory definition under Section 2 (h) of the Act is 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. D
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 E
premises shall be made by any Court in favour of the
landlord against a tenant except on one or more of the
following grounds."

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 F
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 G
to contract out of Section. In this case clause (l) of the lease-deed extracted
above stipulates that the heirs of lessee will have no right to holli after the
death of lessee and they have to deliver quiet, peaceful and vacant
possession within three months after the demise of the original lessee. In
other words, the right has been made specifically not heritable. H
268 SUPREME COURT REPORTS [1994) SUPP. 5 S.C.R.

A By way of contrast, if Section 34 (4) of the Act is referred to, it is clear
that this liberty to contract out of section becomes clear: Section 34 (4)
reads as under:

"Where under the conditions of the tenancy, the tenant is
bound to make any repairs, but fails to do so, the Controller
B shall, on application made to him in this behalf by the
landlord of the premises, cause a notice to be served in the
prescribed manner on the tenant requiring him to make such
repairs within the time specified in the notice. If, after the
service of the notice, the tenant fails to show proper cause
or neglects to make such repairs within the time specified in
c the notice or allowed by the Controller, the landlord will be
entitled, notwithstanding anything contained in this Act or
in any contract, to sue the tenant for recovery of possession
of the premises and such cost of such repairs as may be
assessed by the Court."
D This sub-section has overriding effect over contracts as well, unlike
Section 13 of the Act. the effect of above discussion is that the appellants
cannot claim tenancy right. Accordingly the civil appeal is dismissed.
However, there shall be no order as to costs.

A.G. Appeal dismissed.