Maya Chanda v. Mandadhabi Sannamat — 1959 DIGILAW 63 (CAL)

JUDGMENT 1. THIS is a plaintiff's appeal in a suit for recovery of Khas possession on the ground that the defendants' lease has expired by efflux of time and that thereafter the defendant has been continuing in possession without any lease in writing. The subject matter of the appeal is an area or 6 cottahs of land in C. S. Plot No. 665 or Mouza Panza Sahapur. The facts which are relevant for the purposes of this appeal are not in dispute and they are as follows :-The Bhukailash Ward's Estate granted a registered lease to the defendant for a term of three years from the 1st Agrahan, 1345 (corresponding to 16th November, 1938) upto the 30th Kartick, 1348 (corresponding to the 15th November, 1941 ). On the 15th of August, 1944 the Bhukailash Estate was released by the Court of Wards and on 15th May, 1947 there was a partition amongst the co-owners of the Bhukailash Estate, as a result of which the land in dispute in this appeal together with certain other lands was allotted to the exclusive share of one Satyendra Ghosal. On the 15th October, 1947 Satyendra Ghosal sold the land in dispute to the plaintiff. It is admitted that though the term or the defendant's lease expired on the 15th of November, 1941 (corresponding to the 30th Kartick, 1348) rent was paid by the defendant and accepted by the lessor right upto the end of Aswin, 1354 (corresponding to the i3th October, 1947 ). On the 29th August, 1949 the plaintiff instituted the suit, cut of which this appeal arises without serving any notice to quit upon the defendant. 2. THE plaintiff's claim is that the defendant was in occupation of the land in dispute under the Bengal Non-Agricultural Tenancy (Temporary Provisions) Act of 1940 (Bengal Act IX of 1940) which placed a temporary bar upon the ejectment of non-agricultural tenants and that bar was removed on the 5th May, 1949 when the West Bengal Non-Agricultural Tenancy Act (Act XX of 1949) came into operation and since the latter Act does not require a notice to be served, the defendant is liable to be ejected without service of a notice to quit. The defendant contested the suit, inter alia, on the ground that alter the expiry of the registered lease executed in her favour by the Court of Wards she was holding over on payment of rent and as such had acquired a tenancy right without a lease in writing. Under section 9 (1) (b) (iii) of the West Bengal Non-Agricultural Tenancy Act (Act XX of 1949) the defendant was not liable to ejectment except on the ground that her tenancy had been determined by the lessor by a six months' notice in writing expiring with the end of the year of the tenancy. 3. BOTH the Courts below have dismissed the plaintiff's suit on the ground that the defendant is a non-agricultural tenant holding without a lease in writing and as such she is not liable to be ejected without a six months' notice as required by section 9 (1) (b) (iii ). Against that decree the plaintiff has filed this appeal. 4. THE primary point for the appeal is whether the case falls under section 9 (1) (a) or section 9 (1) (b) of the West Bengal Non-Agricultural Tenancy Act (Act XX of 1949 ). If it falls under section 9 (1) (b) there is no doubt that under the previsions of sub-clause (iii) the lessor is not entitled to eject without service of a six months' notice ending with the year of the tenancy. If on the other band the case is governed by section 9 (1) (a) no notice is required to be served. In order to determine the main point a second point has also to be considered and that is whether the defendant has acquired a tenancy right by holding over under the provisions of section 116 of the Transfer of Property Act. If the defendant has acquired the right of a monthly tenant by holding over, she must be regarded as a tenant holding without a lease in writing within the meaning of section 9 (1) (b) of the West Bengal Non-Agricultural Tenancy Act (Act XX of 1949 ). If on the other hand she has not acquired any right under section 116, Transfer of Property Act she must be held to be a tenant holding under a lease for more than one year but, less than 12 years within the meaning of section 9 (1) (a) of the same Act. If on the other hand she has not acquired any right under section 116, Transfer of Property Act she must be held to be a tenant holding under a lease for more than one year but, less than 12 years within the meaning of section 9 (1) (a) of the same Act. Since the applicability of clauses (a) and (b) of sub-section 1 of section 9 of the West Bengal Non-Agricultural Tenancy Act depends upon a decision on the question whether the defendant has acquired any right under section 116 of the Transfer of Property Act I shall take up the latter question first. The West Bengal Non-Agricultural Tenancy (Temporary Provisions) Act (Bengal Act IX of 1940) came into force on the 30th May, 1940 and though originally it was to continue in force for a period of two year from the date of its commencement its life was extended from time to time till it was repealed by section 91 of the West Bengal Non-Agricultural Tenancy Act (Act XX of 1949) which came into operation on the 5th of May, 1949. From the dates I have stated above it appears that the term of the defendant's tenancy expired on the 16th of November. 1941 at a time when the Bengal Non-Agricultural Tenancy (Temporary Provisions) Act of 1940 was in force. Section 3 of that Act provided that "all suits and proceedings in any Court for ejectment of a non-agricultural tenant. . . . . . shall be stayed for the period during which this Act continues in force. " The proviso to that section enacted that the execution of a decree for ejectment on account of non-payment of rent shall also be stayed if such tenant deposited in court the amount of the decree with the costs of the proceeding within thirty days from the date of the decree. Section 4 gave to a non-agricultural tenant who had been ejected in execution ox a decree for ejectment between the 30th January, 1940 and the date ox commencement of the Act a right to have the decree set aside without payment of court-fees upon certain terms and conditions. 5. Section 4 gave to a non-agricultural tenant who had been ejected in execution ox a decree for ejectment between the 30th January, 1940 and the date ox commencement of the Act a right to have the decree set aside without payment of court-fees upon certain terms and conditions. 5. BOTH the Courts below have held that since after the expiry of the original term of the lease the lessor had realised rent from the tenant for a period of nearly six years the defendant had acquired the right of a monthly tenant under section 116 of the Transfer of Property Act. Against that view Dr. Gupta has contended that section 116 of the Transfer of Property Act can have no possible application to the facts of this case because after the expiry of the lease the defendant continued in possession not under any voluntary act of the lessor but because under the Non-Agricultural Tenancy (Temporary Provisions) Act of 1940, the lessor had been temporarily deprived of the power to eject the non-agricultural tenant except on certain conditions which are not material for this case. This temporary restriction of the lessor's right to eject the non-agricultural tenant compelled the lessor against his will, according to Dr. Gupta, to go on realising rent from the respondent and as such the acceptance of rent cannot constitute homing over within the meaning of section 116, Transfer of Property Act. Now, according to the terms of section 116 acceptance of rent from the lessee is only a made of the lessor's assent to the continuation in possession of the lessee and the assent may be by acceptance of rent or otherwise. The power to assent postulates the power to dissent. In other words, the assent must be a voluntary act. When there is no power to dissent there can be no assent within the meaning of section 116 Transfer of Property Act. The question therefore is whether under the Bengal Non-Agricultural Tenancy (Temporary Provisions) Act of 1940 the lessor had lost his power to withhold his assent to the continuation in possession by the lessee. Mr. When there is no power to dissent there can be no assent within the meaning of section 116 Transfer of Property Act. The question therefore is whether under the Bengal Non-Agricultural Tenancy (Temporary Provisions) Act of 1940 the lessor had lost his power to withhold his assent to the continuation in possession by the lessee. Mr. Rai Chowdhury appearing for the respondent has contended that although the statute provided for the stay of suits and execution proceedings it did not in express terms enact any bar to the institution of a suit for ejectment and therefore there was no bar to the lessor's instituting a suit for ejectment although such a suit was bound to be stayed under section 3 of the Act. In my opinion it will be taking a very narrow view of the intention of the legislature if we hold that such intention was to require the lessor to institute suits for ejectment only for the purpose of giving an opportunity to the non-agricultural tenant for filing application for stay under section 3 of the Act which application was bound to be granted by the Court The true intention of the legislature in my opinion was this: "do not institute any suit for ejectment of a non-agricultural tenant except on the ground of non-payment of rent, if you do, such a suit will be stayed during the period for which this Act remains in force". This intention appears clear from the provisions of section 7 of the Act which provides as follows: "in computing the period provided by any law for the time being in force. . . . . . . . . . for the institution of a suit for the ejectment of a non-agricultural tenant the period during which this Act continues in force shall be excluded. " 6. THE exclusion of the period during which the Act continues in force in calculating the period of limitation for institution of suits for ejectment of a non-agricultural tenant is attributable only to an intention that the legislature was imposing a temporary bar to the institution of suits for ejectment against a non-agricultural tenant. I accordingly hold that the Act temporarily took away the lessor's right to withhold his assent to a non-agricultural tenant's continuing in possession after the expiry of the term of the lease. I accordingly hold that the Act temporarily took away the lessor's right to withhold his assent to a non-agricultural tenant's continuing in possession after the expiry of the term of the lease. Consequently the assent required by section 116, Transfer of Property Act which in my opinion must be a voluntary assent was not and could not be present in the circumstances of the present case. The learned Subordinate Judge has held that section 71 of the West Bengal Non-Agricultural Tenancy Act (Act XX of 1949) provides that the provisions of the Transfer of Property Act in so far as they arc not inconsistent with the provisions of the Non-Agricultural Tenancy Act, shall continue to apply to all tenancies which are governed by the provisions of the Non-Agricultural Tenancy Act. He accordingly holds that since there is no bar to the applicability of section 116. Transfer of Property Act, that section will apply to the present case and govern the rights of the parties. This point of view has also been stressed before us by Mr. Roy Chowdhury appearing for the respondent. It is true that in view of the provisions of section 71 it cannot be laid down as a general rule that section 116. Transfer of Property Act does not apply to a tenancy governed by the Non-Agricultural Tenancy Act; but it is equally true that section 116, Transfer of Property Act is inherently inapplicable to a case where the assent required by that section is not a voluntary assent. Acceptance of rent would constitute an assent within the meaning of section 116, Transfer of Property Act, if the lessor had the power to get Khas possession after the expiry of the term of the lease. Where as here the lessor has no right to get khas possession under the statute acceptance of rent cannot in my opinion constitute an assent within the meaning of section 116, Transfer of Property Act, because the legislature can fry no means be said to have intended that the lessor shall have no right to eject a non-agricultural tenant and at the same time shall have no right to realise rent from him. Mr. Mr. Roy Chowdhury appearing for the respondent contended before us that the plaintiff's vendor Satyendra Ghosal had stated in his evidence that he sold the superior interest to the plaintiff together with tenancy right and he accordingly argued that this tenancy right was recognised by the plaintiff's vendor and as such it is binding on the plaintiff. It is nowhere stated in the evidence of Satyendra Ghosal that he had recognised the tenancy right of the respondent after the expiry of the term of the lease. The referred to by him means the right of the tenant to continue in occupation after the expiry of the original lease. Consequently this statement affords no foundation for the conclusion that a new tenancy had come into existence after the expiry of the lease. It is true that acceptance of rent after the expiry of the terms is by itself ambiguous. It may be due to a desire on the part of the lessor to create a new tenancy or it may be due to a recognition of a new tenancy or it may be due to the fact that the lessor has no option but to accept it as he is bound by law to allow the non-agricultural tenant to continue in possession. In the present case the only plea of the defendant respondent in her written statement was that she had acquired a monthly tenancy by the operation of section 116, Transfer of Property Act. She did not make any case that even apart from section 116 Transfer of Property Act she had acquired a new tenancy by a fresh agreement, express or implied, between herself and the lessor. The argument put forward by Mr. Roy Chowdhury to the effect that even if section 116 does not apply a new tenancy had come into existence by a fresh agreement between the lessor and the lessee has no foundation in the pleading and it is not open to us to allow this case to be made for the first time in second appeal. Consequently I am bound to hold that the respondent had not acquired a new tenancy by the acceptance of rent by the lessor after the expiry of the term of the original lease. 7. IT now remains for me to consider the authorities cited on the point. Consequently I am bound to hold that the respondent had not acquired a new tenancy by the acceptance of rent by the lessor after the expiry of the term of the original lease. 7. IT now remains for me to consider the authorities cited on the point. the leading English case which has been approved by the Federal Court of our country is the decision by the Court of Appeal in the case of Morrison v. Jacobs (1) (1945) 1 KB. page 577. The facts of that case are very similar to the facts of the case before us. There a lease for a term of years expired by efflux of time at a time when the Rent and Mortgage, Interest Restrictions Acts had come into operation and the tenant continued in possession and the lessor accepted rent after the expiration of the contractual tenancy. It was held that the acceptance of rent by the lessor afforded no foundation for the conclusion that the lessor had consented to a new contractual tenancy and the lessor was not required to serve any notice to quit on the tenant before suing for recovery of possession. In that case Mackinnon L. J. observed at page 582 as follows :- "at common law if at the expiration of a tenancy a landlord has acquired a right to claim possession against the tenant and instead of exercising that right he allows him to remain in possession in the house and accepts rent from him as before, the parties by their conduct may, with reason, be held to have entered into a new contract of demise. But the essential factor in those circumstances is that the landlord voluntarily abstains from turning the tenant out. When the tenant remains in Possession not by reason of any such abstention by the landlord, but because the Rent and Mortgage, Interest, Restriction Acts deprive the landlord of his former power of eviction no such inference can properly be drawn. " 8. THE last portion of these observations applies word for word, to the facts of the present case with only this difference that in the place of the Rent and Mortgage, Interest Restriction Acts one will have to substitute the Bengal Non-Agricultural Tenancy (Temporary Provisions) Act. " 8. THE last portion of these observations applies word for word, to the facts of the present case with only this difference that in the place of the Rent and Mortgage, Interest Restriction Acts one will have to substitute the Bengal Non-Agricultural Tenancy (Temporary Provisions) Act. This case as I have already said was approved by the Federal Court of our country in the case of Kai Khushroo v. Bai Jerbai H. Warden (2) 11 F. C. R. 262. That was a case where the plaintiff landlord let out the entire premises to defendant No. 1 for a term which expired on the 31st August, 1942 by efflux of time. During the currency of the term the defendant No. 1 sublet two portions of the premises to two different persons who were defendants Nos. 2 and 3. The landlord plaintiff by a notice in writing required defendant No. 1 to deliver up possession on the expiry of the month of August and the defendant No. 1 forwarded that notice to defendants 2 and 3. The sublessees, defendants 2 and 3 claimed possession under the Bombay Rent Act and did not vacate on the expiry of the month of August The defendant No. 1 communicated his inability to eject the sublessees to the plaintiff landlord. Sometime thereafter the two sublessees sent the rents due from them directly to the landlord specifying the period for which they wanted those rents to be appropriated. The plaintiff landlord accepted the sums sent to him not as rent but as partial deposits for his claim for compensation for illegal use and occupation by the sublessees and without prejudice to his rights. The landlord thereafter instituted a suit for ejectment of the sublessees without service of any notice to quit upon them. The Federal Court held that the plaintiff was not entitled to succeed without a fresh notice to quit upon the sublessees because when the sublessees had sent the money with an express intimation that it was to be applied towards the rent for a particular period and the lesson received and appropriated it he could not be allowed to say that he took it on some other account. The Federal Court further pointed out that the ordinary legal consequence of acceptance of rule under section 116 would follow. The Federal Court further pointed out that the ordinary legal consequence of acceptance of rule under section 116 would follow. In deciding that case Mukherjea, J. dwelt at some length on the question of holding over within the meaning of section 116, Transfer of Property Act. At page 270 His Lordship dealt with the ordinary incident of holding over and pointed out that "on the determination of a lease it is the duty of the lessee to deliver up possession of the demise premises to the lessor and if the landlord accepts rent from such a person or otherwise expresses assent to the continuance of his possession a new tenancy comes into existence as is contemplated by section 116, Transfer of Property Act. " At page 272 Mukherjea J. was considering the question whether acceptance of rent would bring into existence a new tenancy under section 116, Transfer of Property Act in a case where the Rent Restriction Acts apply and His Lordship made the following observations: "in cases of tenancy relating to dwelling house to which the Rent Restriction Acts apply the tenant may enjoy a statutory immunity from eviction even after the lease has expired and the landlord cannot eject him except on specified grounds mentioned in the Acts themselves. In such circumstances acceptance of rent by the landlord from his statutory tenant whose lease has actually expired could not be regarded as evidence of a new agreement, of tenancy". As an authority for this proposition His Lordship cited the case of Morrison v. Jacobs (1) which I have already discussed. In the case before the Federal Court the sublessees were not statutory tenants and consequently the ordinary principles of holding over under section 116, Transfer of Property Act; applied to that case. This decision of the Federal Court is a clear authority for two propositions. (1) In a case where the lessor enjoys full powers of ejectment acceptance of rent from the tenant would bring into existence a new tenancy under section 116, Transfer of Property Act. (2) In a case where the lessor's right to eject is wholly or partially curtailed by any statute the ordinary principle of holding over under section 116, Transfer of Property Act will not be applicable. Mr. Roy Chowdhury appearing for the respondent placed reliance upon the first proposition. In my opinion, the argument of Mr. (2) In a case where the lessor's right to eject is wholly or partially curtailed by any statute the ordinary principle of holding over under section 116, Transfer of Property Act will not be applicable. Mr. Roy Chowdhury appearing for the respondent placed reliance upon the first proposition. In my opinion, the argument of Mr. Roy Chowdhury is without substance because upon the facts of the case before us the second proposition enunciated by the Federal Court will govern the rights of the parties, and not the first; since this is a case where the lessor's right to recover possession was partially curtailed by the Bengal Non-Agricultural Tenancy (Temporary Provisions) Act of 1940. In the case of Haralal Das and Anr. v. Pasupati Charan Biswas and ors. (3) 58 C. W. N. 696, Guha J. and myself applied the second proposition laid down by the Federal Court in the case of a tenancy governed by the West Bengal Premises Real Control (Temporary Provisions) Act of 1950 and this decision was followed by S. R. Das Gupta and Guha JJ. in the case of Kartick Chandra Das and Ors. v. Gangadutt Murarka (4) 59 C. W. N. 827. Strong reliance was placed by the respondent on the case of Kali Charan Malik v. Han Nath Chatterjee (5) 60 C. W. N. 1092 decided by S. R. Das Gupta and Mallick JJ. and it was contended that in this decision a contrary proposition has been laid down by their Lordships. It would be truly surprising if S. R. Das Gupta J. who was a party to both the decisions could be said to have laid down contrary propositions in two cases. On closer examination of the facts of the case in (5) 60 C. W. N. 1092 it appears however that this is not so. It is true that the case of Kali Charan Malik v. Hari Nath Chatterjee (5) 60 C. W. N. 1092 is a case which deals with the rights of lessor and lessee under the Bengal Non-Agricultural Tenancy (Temporary Provisions) Act of 1940; but in that case the question that arose for the decision of the Court was entirely different. It is true that the case of Kali Charan Malik v. Hari Nath Chatterjee (5) 60 C. W. N. 1092 is a case which deals with the rights of lessor and lessee under the Bengal Non-Agricultural Tenancy (Temporary Provisions) Act of 1940; but in that case the question that arose for the decision of the Court was entirely different. In that case the lesser instituted a suit for ejectment of the tenant on service of a 15 days' notice to quit upon the tenant and the question was whether that notice was sufficient in law to determine the tenancy in that case the lessor himself instituted the suit on the footing that though the term of the original lease had expired the lessee had acquired a new tenancy by holding over and that new tenancy had been validly determined by service of a 15 days' notice to quit. It was pointed out by Mallick J. who delivered the judgment of the Division Bench that when section 9 (1) (b) (iii) of West Bengal Non-Agricultural Tenancy Act, 1949 required a six months' notice terminating with the year of the tenancy the tenancy was not validly determined by service of a 15 days' notice. Upon the facts of that case there could be no doubt that the tenant was holding without a lease in writing within the meaning of section 9 (1) (b) of the West Bengal Non-Agricultural Tenancy Act of 1949. Consequently no exception can be taken to the view taken by Mallick J. In the case before us however the plaintiff lessor bases her entire claim on the footing that the lessee had acquired no right by holding over and the entire argument put forward by the lessor in the Courts below and also before us was and is to the effect that section 116 can have no possible application to the case. I therefore, hold that the principle laid down by S. R. Das Gupta and Mallick JJ. in the case of Kali Charan Malik v. Hari Nath Chatterjee (5) 60 C. W. N. 1092 is wholly irrelevant for the purpose of deciding the question which has arisen before us. I therefore, hold that the principle laid down by S. R. Das Gupta and Mallick JJ. in the case of Kali Charan Malik v. Hari Nath Chatterjee (5) 60 C. W. N. 1092 is wholly irrelevant for the purpose of deciding the question which has arisen before us. I further hold that the conclusion I have reached as to the applicability of section 116, Transfer of Property Act is supported by the second proposition laid down by the Federal Court in the case of Kai Khushroo v. Bai Jerbai (2) 11 F. C. R. page 262 and the cases of Haralal Das and Anr. v. Pasupati Charan Biswas and ors. (3) 53 C. W. N. 696 and Kartick Chandra v. Gangadutt (4) 59 C. W. N. 827. 9. DR. Gupta appearing for the appellant also cited before us certain passages from Megarry on Rent Acts which lay down that a statutory tenant has no estate or property as a tenant but has a purely personal right to retain possession of the property (see page 194 of the seventh edition). This passage is based on the following observations of Bankes L. J. in the case of Keeves v. Dean (6) (1924) 1 K. B. 685. " I think it is a pity that that expression (statutory tenancy) was ever introduced. It is really a misnomer for he is not a tenant at all although he cannot be turned out of possession so long as he complies with the provisions of the statute; he has no estate or interest in the premises such as a tenant has His right is a purely personal one. " 10. IN that case Bankes L. J. was dealing with the question whether a statutory tenant has a right to assign his statutory position to another person and His Lordship came to the conclusion that unless the statute under which he remains in possession expressly authorises him to assign he has no such right. These observations were quoted with approval by Barry J. in the case of Brown v. Minister of Housing and Local Government (7) (1953) 1 W. L. R. page 1370. These observations were quoted with approval by Barry J. in the case of Brown v. Minister of Housing and Local Government (7) (1953) 1 W. L. R. page 1370. Upon these authorities it is clear that persons who remain in occupation under a right conferred by the statute against the will of the lessor continue to occupy under the terms imposed by the statute and cannot have any right which is not conferred by the statute. This brings me to the question whether the respondent in the present case was given any right to remain in possession under the West Bengal Non-Agricultural Tenancy Act (West Bengal Act XX of 1949) until her right to occupy was determined by any notice. As I have already said the section which is applicable to the facts of the present case is section 9 (1) of the Act. That sub-section consists of three clauses. The first clause applies when non-agricultural land has been held for a term of more than one year but less than twelve years under a lease in writing for a term of more than one year but less than twelve years. The second clause applies to a case where non-agricultural land has been held for a term of more than one year but less than twelve years without a lease in writing and the third clause applies to a case where non-agricultural land has been held for a term of more than one year but less than twelve years under a lease in writing but no term is specified in such lease. Sub-clause (iii) provides for a six months' notice expiring with the end of the year of the tenancy only in the case where non-agricultural land has been held for a term of more than one year but less than twelve years without a lease in writing. As 1 have held that the respondent had not acquired any right of tenancy by holding over under section 116 of the Transfer of Property Act it follows that the respondent cannot be said to have held the land for the required period without a lease in writing and the present case clearly comes under clause (a) of sub-section 1 or section 9. The statute requires no notice to be served upon a person who holds non-agricultural land under the first clause. The statute requires no notice to be served upon a person who holds non-agricultural land under the first clause. As the statute does not require any notice the lessor was under no obligation to serve a notice upon the respondent before instituting the suit for ejectment. 11. FOR the reasons given above I would accept this appeal and set aside the decrees made by the Courts below. As the tenant did not raise any other question in any of the Courts below the plaintiff's suit for ejectment will be decreed. The respondent will have two months' time from this date within which she must deliver up possession to the plaintiff provided however she pays the plaintiff compensation at the same rate at which she was paying rent prior to the institution of the suit. In default the plaintiff will have the right to execute the decree forthwith. In the circumstances of this case I would direct that the parties should bear their own costs throughout.