The main legal point established in the judgment is the interpretation and application of S.116 of the Transfer of Property Act in determining the rights of a tenant holding over and the concept of 'statutory tenancy'.

1. This second appeal arises out of a suit for recovery of possession of a shop building on the strength of the plaintiff's title with past and future mesne profits. The plaintiff, who is the respondent, alleged that the shop building had been leased under Ext. A-l. dated 217 57 on a monthly rent of Rs. 14/- to one Ayyappa, deceased son of the 1st defendant and the brother of defendants 2 and 3. According to the plaintiff, on the expiry of the lease which was for a period of 11 months, the lessee Ayyappa was holding over till his death in September 1964 and thereafter the appellants without any legal right trespassed into the shop building and had been keeping possession of it. The contention of the appellants was that the lease deed Ext. A-1 had not been executed by Ayyappa and he had not been in possession thereunder. According to them, the lease was in favour of Ayyappa and the 3rd defendant and they were having a joint trade in the shop. The rent agreed to be paid was Rs. 12/-. After the death of Ayyappa the appellants as legal representatives of Ayyappa and the 3rd appellant as a joint lessee continued in possession.

2. Both the Courts below held that Ayyappa had been in possession under the lease deed Ext. A-1 and that the lease had come to an end on the death of Ayyappa. In that view, the suit was decreed in favour of the respondent for recovery of possession with past mesne profits.

3. Mr. Chandrasekhara Menon, counsel for the appellants, contends that the Courts below were in error in holding that the lease in favour of Ayyappa terminated on his death, that really he was a tenant holding over and on his death his rights devolved on the appellants as his legal representatives and they were not liable to be evicted. The finding of the Courts below that deceased Ayyappa was holding the property on the strength of Ext. A-1 has not been challenged and we have to proceed on the basis that as per Ext. A-1 Ayyappa was in possession on lease for 11 months from 217 1957 on a monthly rental of Rs. 14/-per month. It is also admitted that after the expiry of the lease by efflux of time rent has been accepted by the landlord and the first question that arises for consideration is whether Ayyappa was a tenant holding over as contemplated by S.116 of the Transfer of Property Act. The trial Court addressed itself to this question by assuming that the tenancy after the expiry of the term under the lease deed was a statutory tenancy and on that premise came to the conclusion that on the death of the lessee the lease was determined and the legal representatives do not get any legal right to continue in possession. S 116 of the Transfer of Property Act provides that if a lessee or under-lessee of property remains in possession of a property after the determination of the lease granted and the lessor accepts rent or otherwise assents to his continuing in possession, the lease is renewed from year to year or from month to month, according to the purpose for which the property is leased. A distinction should be drawn between a tenant continuing in possession after the determination of the lease without the consent of the landlord and a tenant doing so with landlord's consent. The assent of the lessor may be inferred from the acceptance of rent or a demand for rent and other circumstances from which an inference can be drawn that the land-lord has permitted the tenant to continue in possession. A statutory tenant is, on the other hand, a person who continues in possession relying ob the statutory protection which prohibits him from being evicted. The Supreme Court in Anand Nivas (Private) Ltd. v. Anandji Kalayanji Pedhi & Others AIR. 1965 SC. 414 has clearly explained what is meant by the concept of 'statutory tenancy'. Shah J. (as he then was) speaking for the Court observed as follows:

"A person remaining in occupation of the premises let to him after the determina-tion of or expiry of the period of the tenancy is commonly though i