KARIYA BELCHAPPADA v. VISHNU SHANBHOGUE — 1971 DIGILAW 58 (KER)

Judgment :- 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. 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'. 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 in law not accurately, called a "statutory tenant". Such a person is not a tenant at all: he has no estate or interest in the premises occupied by him. He has merely the protection of the stature in that he cannot be turned out so long as he pays the standard rent and permitted increases, if any, and performs the other conditions of the tenancy. His right to remain in possession after the determination of the contractual tenancy is personal: it is not capable of being transferred or assigned, and devolves on his death only in the manner provided by the statute. The right of a lessee from a landlord on the other hand is an estate or interest in the premises and in the absence of a contract to the contrary is transferable and the premises may be sublet by him. But with the determination of the lease, unless the tenant acquires the right of a tenant holding over, by, acceptance of rent or by assent to his continuing in possession by the landlord, the terms and conditions of the lease are extinguished, and the rights of such a person remaining in possession are governed by the statute alone." It will be clear from the above passage that a statutory tenant continues in possession not with the consent of the landlord but by reason of the protection afforded to him by the statute. The mere acceptance of rent in such cases would not amount to the assent of the landlord and the question that would arise for consideration is whether the tenant is continuing in possession as a result of the assent of the landlord or by reason of the protection afforded to him by the statute. 4. Mr. The mere acceptance of rent in such cases would not amount to the assent of the landlord and the question that would arise for consideration is whether the tenant is continuing in possession as a result of the assent of the landlord or by reason of the protection afforded to him by the statute. 4. Mr. Venkiteswara Iyer for the respondent has brought to my notice a decision of this Court (unreported) in C. R. P. Nos. 924 and 961 of 1968, where it has been held that when a contractual lease is determined by one of the modes contemplated by the Transfer of Property Act, at a time when the tenant is protected by the Rent Control Act, mere acceptance of rent by the landlord will not bring into existence a tenancy holding over on the same terms and that on the other hand after the determination of the contractual lease, a statutory tenancy comes into existence. For the appellants, however, it is argued that there are clear and unmistakable indications in the conduct of the respondent-landlord that the tenant was holding over after the expiry of the term of the lease and that it was not open to the landlord now to contend that the possession after the determination of the lease was that of a statutory tenant. In Para.3 of the plaint the definite allegation is that the tenant was holding over after the expiry of the term of the lease. The following sentence makes the position clear: "Even though the term of the said Badigechit has expired long ago, the said Ayyappa was continuing in possession of the said shop building as a tenant holding over on the strength of the said Badigechit." In the notice Ext. A-2 also the landlord has made a definite allegation that the tenant is holding over after the expiry of the term of the lease. The respondent's counsel sought to contend that the recitals in the plaint and the notice were made in a loose sense and that there was no intention to admit by the use of those words that the tenancy was one under S.116 of the Transfer of Property Act. I am unable to agree with this submission of the respondent's counsel. The respondent's counsel sought to contend that the recitals in the plaint and the notice were made in a loose sense and that there was no intention to admit by the use of those words that the tenancy was one under S.116 of the Transfer of Property Act. I am unable to agree with this submission of the respondent's counsel. The expression 'holding over' is well understood and it connotes a tenant who after the expiry of the term of the lease has, been permitted to continue in possession as a tenant by the landlord. The admission both in the plaint as also in the notice for eviction that deceased Ayyappa was holding over as a tenant after the expiry of the term of the lease is only capable of being construed as one in favour of the appellants. It is no doubt true that if the landlord had merely accepted the rent after the expiry of the term it would have been perfectly open to him to contend that he did so because of the legislation relating to the eviction of tenant and that he had no intention of assenting to the continuance of tenant in possession. Such a contention is, however, not open to the landlord in view of the specific recitals in the plaint and in the notice. 5. The next question for consideration is whether what would happen on the death of Ayyappa regarding his tenancy right if he was a tenant holding over under S.116 of the Transfer of Property Act. Anwarali v. Jamini Lal Roy, AIR. 1940 Calcutta 89 and Ram Nath v. Neta AIR. 1962 Allahabad 604 are authorities for the proposition that such a lease must be taken to be from month to month under S.116 of the Transfer of Property Act and that the lease is not extinguished by the death of the lessee and would devolve on his heirs like any other interest in immovable property. That is the essential difference between a tenant holding over and a tenant at will. A tenancy at will is determined by the death of either the tenant or the landlord but in the case of a tenant holding over his interest is heritable and alienable. The decision in Raman Lal v. Bhagwun Das AIR. 1950 Allahabad 583 also affirms the same position. 6. In Kai Khushroo v. Bai Jerbai, AIR. A tenancy at will is determined by the death of either the tenant or the landlord but in the case of a tenant holding over his interest is heritable and alienable. The decision in Raman Lal v. Bhagwun Das AIR. 1950 Allahabad 583 also affirms the same position. 6. In Kai Khushroo v. Bai Jerbai, AIR. 1949 F. C. 124, it has been held "that the tenancy which is created by the 'holding over' of a lessee or under-lessee is new tenancy in law even though many of the terms of the old lease might be continued in it by implication " The result is that since deceased Ayyappa was a tenant holding over, his tenancy rights devolved on his legal representatives the appellants on his death, and they cannot be considered as trespassers remaining in possession without any legal right whatsoever. The Courts below were clearly in error in holding that the appellants bad no legal right to remain in possession of the property. 7. It is conceded that if the appellants are tenants holding over, there is no proper notice terminating their tenancy as required by law and that the landlord is not entitled to take possession. The Courts below have proceeded on the basis that the respondent is entitled to recover possession on the strength of his title. It is therefore clear that the decree for recovery of possession cannot be upheld. 8. The second appeal is allowed and the decisions of the Courts below are set aside and the suit for recovery cf possession is dismissed. In the circumstances, however, the parties are directed to suffer their costs in all the Courts.