A suit filed beyond 12 years of the determination of the lease is barred under Art.139 of the Indian Limitation Act, and a tenancy at will does not create a heritable right in the tenant.

P. Subramonian Poti, J.

1. By efflux of time the tenancy under Ex. A1 is said to have terminated and (later the tenants died. The suit to recover the property leased has been brought more than 12 years after the death of tenants and the action is against the legal representatives of the tenants. The question is whether the suit is barred by limitation.

2. The subject matter of the lease is a fairly substantial building. The "building and the property in Which it stood Was in the possession of one Cherootti, the predecessor in interest of the defendants as a tenant. A suit for recovery of possession with arrears of rent Was filed in the Munsiff's Court of Kozhikode as O.S. 1046 of 1941. and pursuant to the decree in that suit delivery was obtained. After such delivery of the property and the building a rent deed was taken from two of the defendants in that suit for the building alone and they were allowed to continue in occupation of the building. Ex. A1 is the rent deed and that was so taken on 16-1-1943. It provided for a term of three months and the rent payable therein was four annas per mensem. The period of three months expired. Apparently no rent was paid. At any rate, there is no proof of any payment of such rent. The tenants who had executed Ex. A1, Cheriyakkan and Gopalan, both of them died; the former on 2-4-1948 and the latter on 22-6-1948. The suit was instituted on 28-1-1961 for recovering possession.

3. What would be the Article of the Limitation Act which would apply to the suit would be the first question that I have to consider here. It is agreed that it is the Indian Limitation Act, 1908, that applied. The suit is to recover property leased on the allegation that even after the expiry of the period of the lease the lessees and after their death their legal representatives continued as tenants. The question whether the possession of the defendants in the suit was adverse to the plaintiff would arise only if the question of limitation falls to be decided under Art.144 of the Limitation Act. That Article would not be applicable if Art.139 which is the one specifically provided for recovery from lessees applies. If it is Art.139 which so applies to the suit, there is no necessity to consider whether possession of the defendants was adverse. The question of limitation which falls to be determined under Art.139 of the Indian Limitation Act 1908 does not depend upon the character of the possession of the defendants. Irrespective of the nature of such possession the suit would be barred under Art.139 once it is shown that it is brought beyond 12 years of the date when the tenancy is determined. Therefore the question for consideration would then be as to the date when the tenancy was determined. That is the question with which I am concerned here.

4. Though the reference in Art.139 is to a suit for recovery by a landlord against a tenant, apparently these terms refer to the quandom landlord and the quandom tenant because when once tenancy is determined there is no longer a landlord nor a tenant and to literally construe these terms would yield anomalous results.

5. When a lease for a term is granted, on the expiry of the term the lease determines. S.111 provided for circumstances under which a lease of immovable property would be determined. Sub-s.(a) provides that such lease determines by efflux of time limited by the lease. When a lease is so determined the continuance in possession of the lessee is no longer as a tenant. No doubt the term tenancy at sufferance is a well accepted concept under the English law. But into the scheme of the Transfer of Property Act 1882, it is not necessary to import this term. The plain terms of the Transfer of Property Act make it evident that if the lease be for a term and that term expires and nevertheless the lessee remains in possession thereafter he would continue on the same terms of lease provided the lessor or his legal representative accepts rent from the lessee or under