JUDGMENT

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 of India.

2. The facts are simple. Being simple it is fascinating. However, the fascination is only superficial, ultimately leading to question of legal complication.

3. 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 lifetime 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 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 the same, the defendants have been duly depositing the rent for the suit premises month by month with the Rent Controller, Calcutta.

4. By judgment dated 16-1-1973, the Trial Court dismissed the suit. Aggrieved by that dismissal, Title Appeal No. 105 of 1974 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 the conclusion 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 deed makes it clear that the lease is not heritable. There is also an obligation that the heirs of the lessees 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.

5. 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 at the time of the execution of the lease. Therefore, Section 3 of the Act does not come into play and the tenants right could not be heritable under the Act;

(b) Reliance is placed on (1849) Dunford and Easts Report 462:3 Terms Reports 462 to hold against the appellants.

6. These findings are not correct. Section 2(h) of the Act defines the tenant. As the definition is inclusive taking 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 who have been continuing in possession of the premises in question. The concept of a statutory tenant is cardial in all