Judgment : Application No.348 of 1989 was filed by the petitioners in Insolvency Petition No.9 of 1989, who were adjudicated as insolvents on their own petition to direct the Official Assignee to deliver the key of the shop to them so as to enable them to resume their business in No.30/2, Godown Street, Madras-1. .2. Application No.224 of 1989 was filed by B.Vedachalam who is the owner of the premises No.30/2, Godown Street, Madras to direct the Official Assignee to remove the movables that are available in the premises and deliver vacant possession of the above premises occupied by the first and second respondents (insolvents/tenants) the applicants in Application No.224 of 1989. The short facts are: Mr.B.Vedachalam is the owner of the premises No.30/2, Godown Street, Madras-1. The petitioners in Application No.348 of 1989 and in Insolvency Petition No.9 of 1989 are the partners of M/s.Satyanarayana and Company. They were carrying on the business in the above-premises. They were adjudicated as insolvents on their own petition by an order of this Court dated 2. 1989. They are brothers. They were carrying on wholesale business in textile goods. Their case is that as they have been adjudicated as insolvents their tenancy will not cease and that therefore they are entitled to possession of the shop and the key with the Official Assignee be delivered to them. The landlord Vedachalam has filed a petition for eviction against them in R.C.O.P.No.326 of 1989 on the file of Small Causes Court, Madras. 3. Mr.R.Krishnaswamy, learned counsel appearing for the insolvents/tenants submits that the landlord Vedachalam gave notice according to the terms of the agreement under which the lease had to exist for a period of ten years from 1. 1981 to 312. 1990 and had already taken action in accordance with the provisions of Tamil Nadu Buildings (Lease and Rent Control) Act, which fact has not been disputed by the learned counsel for the landlord. But according to him, notwithstanding the notice or the institution of the action in the Court of the Rent Controller for eviction of the appellants/tenants, the tenancy is still continued under the agreement as a fixed term tenancy and thus a contractual tenancy. 4. But according to him, notwithstanding the notice or the institution of the action in the Court of the Rent Controller for eviction of the appellants/tenants, the tenancy is still continued under the agreement as a fixed term tenancy and thus a contractual tenancy. 4. As stated above, B.Vedachalam, the landlord filed Application No.224 of 1989 for delivery of possession of the said premises back to him, while the tenants filed Application No.348 of 1989 for directing the Official Assignee to deliver the key of the premises to enable them to resume their business. .5. Abdul Hadi, J. however, passed an order on 11. 1989, rejecting the application taken out by the tenants on the ground that on the determination of insolvency in the main Insolvency Petition No.9 of 1989 by order dated 2. 1989, the properties belonging to them including their leasehold vested with the Official Assignee. Learned single Judge accordingly rejected Appln. No.348 of 1989. In Appln. No.224 of 1989, however, he took note of the stand of the Official Assignee that accrual of unnecessary rental liability would be avoided if the premises could be handed over to the landlord and allowed the said Application directing the Official Assignee to hand over possession of the above said premises to the landlord Vedachalam. Both the two applications were disposed of by Abdul Hadi, J. by a common order. Only one Appeal had been preferred under Sec.15 of the Letters Patent against the order of the learned single Judge. Learned Judges of the Division Bench overruled the objections that have been raised on behalf of the respondents in O.S.A.No.361 of 1989 and permitted the appellant to prosecute the appeal before them filed against the common order. The question that was raised before the Division Bench of this Court was whether the leasehold was a property that on adjudication of the petitioners in the Insolvency Petition vested with the Official Assignee. Abdul Hadi, J. has said that it was a property that vested with the Official Assignee, a finding which had been seriously challenged before the Division Bench. Abdul Hadi, J. has said that it was a property that vested with the Official Assignee, a finding which had been seriously challenged before the Division Bench. The Division Bench after hearing both parties, has however felt that there has been a serious error in the judgment because after noticing the fact that the tenancy had already been determined by a notice and action to evict the tenant had already been initiated, there were circumstances to bring the case of the appellants within the ambit of the principles of law as stated in the judgment of the learned single Judge. The Division Bench felt that this particular aspect of the case was never brought to the notice of the learned single Judge. Any determination of this will primarily be a determination of an issue of fact and that its consequence will be substantial as in the case of a contractual tenancy, the appellants/tenants may not be allowed to plead that there is no property right in the leasehold that could vest with the Official Assignee in the case of the tenancy already determined as alleged and action brought in the court, it would be necessary to find out whether the appellants had become statutory tenants and that if they had become statutory tenants, whether the Official Assignee could take possession of the leasehold right. Holding so, the Division Bench allowed the appeal and set aside the Judgment of the learned single Judge and remitted back the above two applications for rehearing and disposal in accordance with law. The Division Bench has also held that it will be required in any event to be examined whether any restitution can be granted to a tenant against the landlord. After remand, the matter came up before me and I have heard the arguments of Mr.R.Krishnaswamy the learned counsel appearing on behalf of the tenants and Mr.T.Ramakrishna, learned counsel appearing for the legal representatives of the landlord and the learned Official Assignee. 6. The only point that arises for determination in the above two applications is ‘whether the petitioners (insolvents) in the main Insolvency Petition (viz., A.Pandurangan and A.Hari, partners of M/s.Satyanarayana and Company) had become the statutory tenants and if so whether the Official Assignee can take possession of the leasehold right. 6. The only point that arises for determination in the above two applications is ‘whether the petitioners (insolvents) in the main Insolvency Petition (viz., A.Pandurangan and A.Hari, partners of M/s.Satyanarayana and Company) had become the statutory tenants and if so whether the Official Assignee can take possession of the leasehold right. Before I proceed to deal with the matter on merits, it is useful to refer certain clauses in the lease deed that has been entered into between the landlord Vedachalam and the tenants A.Pandurangan and A.Hari, partners of M/s.Satyanarayana and Company. The lease deed was entered into at Madras on 13. 1987. The lease deed was registered as document No.153 of 1987 on 19.3 1987 before the Sub Registrar, Madras. The lessees were carrying on business under the name and style of M/s.Satyanarayana and Company. They requested the lessor to extend the lease for a further period of four years from 1. 1987 to 312. 1990 and the lessor has also agreed to grant the lease of the portions mentioned in the schedule to the lessees subject to certain terms and conditions. The salient features of the terms and conditions which are relevant for the purpose of this case are 1. The portion was let out for nonresidential purpose, 2. The tenancy is a monthly one calculated according to English calendar month, 4. The monthly rent for the said portion is at the rate of Rs.500 per month. 5. The rent is due and payable on or before the 5th day of the succeeding English Calendar month for which the rent has become due and payable and 5. The lease is for a period of four years with effect from 1. 1987 i.e., from 1. 1987 to 312. 1990. Clause 17 of the Agreement provides that if the tenants fail to surrender vacant possession at the expiry of the period mentioned therein or if they fail and neglect to pay rents for the three consecutive months or if they contravene the covenants contained in Clauses 9 to 13 the lessor is entitled to take necessary proceedings to evict the lessees without any notice and recover the costs and expenses from the lessee. 7. Prior to the institution of the eviction proceedings in R.C.O.P.No.326 of 1989, before the Small Causes Court, Madras Mr.P.Murugaiyan Advocate for the landlord issued a notice on 12. 1988 to the tenants viz., l.APandurangan and 2. 7. Prior to the institution of the eviction proceedings in R.C.O.P.No.326 of 1989, before the Small Causes Court, Madras Mr.P.Murugaiyan Advocate for the landlord issued a notice on 12. 1988 to the tenants viz., l.APandurangan and 2. Sri A.Hari, partners of M/s.Satvanarayana and Company. In paragraph 2 of the said notice it is stated as under: "...The tenancy is a monthly one calculated according to the English calendar month." It is further stated in the said notice: "Even though the said lease deed prescribed a period of lease for four years ending with 312. 1990 my client for the foregoing reasons terminate your tenancy ending with 31. 1989 an call upon you to surrender vacant possession on 2. 1989." 8.. Before the Rent Controller, Madras R.C.O.P.No.326 of 1989 under Sec.10(2)(iii) of the Act 18 of 1960 as amended by Act 23 of 1973 was filed against the tenants. In paragraphs 3 and 6, it is stated as follows: "The petitioner states that the respondent above-named are tenants under him in respect of a shop portion in ground floor of premises bearing Door No.30/2, Godown Street, George Town, Madras-1, as partnership firm under the name and style of Sri Satyanarayana and Company, on a monthly rent of Rs.500 electricity charges extra. The tenancy is a monthly one calculated according to the English Calendar month." ...The petitioner further submits that on account of the cause of waste committed by the respondents as aforesaid the petitioner has no other option to terminate the tenancy of the respondents ending with 31. 1989 and call upon them to surrender vacant possession on 2. 1989, by his Advocate’s notice dated 12. 1988." It is seen from the lease deed, notice issued prior to the filing of R.C.O.P. and the petition filed by the landlord for eviction that even though the lease period was extended for a period of favour years from 2. 1987 to 312. 1990, the tenancy was treated as a monthly one calculated according to English Calendar month. Hence it is for this Court to see whether the tenancy in question is a contractual tenancy for a fixed term or a monthly tenancy as has been understood by the landlord. It is an admitted fact that the landlord has initiated proceedings before the Rent Controller against the tenants treating him as a statutory tenant for eviction on the grounds mentioned therein. It is an admitted fact that the landlord has initiated proceedings before the Rent Controller against the tenants treating him as a statutory tenant for eviction on the grounds mentioned therein. Even before the institution of the Rent Control Proceedings, the landlord had given notice according to the terms of the agreement under which the lease period had to exist for a period of ten years from 1. 1981 to 312. 1990 and already taken action in accordance with the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act which fact has also not been disputed by the learned counsel for the landlord. But according to him, notwithstanding the notice or the institution of the action in the Court of the Rent Controller for eviction of the tenants, the tenancy is still continued under the agreement as a fixed term tenancy and thus a contractual tenancy. It is also for this Court to decide whether the leasehold was a property and that on adjudication of the tenants as insolvents vested with the Official Assignee. Admittedly under the lease deed entered into on 13. 1987 which was registered as Document No.153 of 1987 on 13. 1987 the lease is for a period of four years from 1. 1987 to 312. 1990. The lease is subject to Clause 17 which empowered the landlord to take proceedings for evicting the tenant on the happening of the events set out in the said clause, even during the currency of the lease. It is also not in dispute that the landlord determined the tenancy with effect from 31. 1989 and called upon the insolvents-tenants to surrender vacant possession on 2. 1989. It is thereafter the landlord had filed R.C.O.P.No.326 of 1989 before the Court of Small Causes at Madras under Sec. 10(2)(iii) of the Act XVIII of 1960. Therefore, the landlord has exercised his powers under Clause 17 of the registered lease deed dated 13. 1987 and has called upon the insolvents 10 surrender vacant possession. Thus on and from 2. 1989 the insolvents/tenants tenancy has ceased to be a contractual one and the insolvents have become a statutory tenant entitled to the protection of Tamil Nadu Act 18 of 1960. 9. 1987 and has called upon the insolvents 10 surrender vacant possession. Thus on and from 2. 1989 the insolvents/tenants tenancy has ceased to be a contractual one and the insolvents have become a statutory tenant entitled to the protection of Tamil Nadu Act 18 of 1960. 9. In the light of the above facts it has to be determined whether the right of occupation of the insolvent is proper or not within the meaning of Sec.17 of the Presidency Towns Insolvency Act, 1909. After bestowing my serious attention on this question it is my firm view that a statutory tenancy under the Tamil Nadu Lease and Rent Control Act is not property within the meaning of Sec.17 of the Presidency Towns Insolvency Act so as to vest in the Official Assignee. The expression ‘tenant’ is found in Sec.2(8) of the Tamil Nadu Act.18 of 1960 and it runs thus: "Tenant means any person by whom or on whose account rent is payable for a building and includes the surviving spouse, or any son, or daughter, or the legal representative of a deceased tenant who had been living with the tenant in the building as a member of the tenant’s family up to the death of the tenant and a person continuing in possession after the termination of the tenancy in his favour, but does not include a person placed in occupation of a building by its tenant or a person to whom the collection of rents or fees in a public market, cart stand or slaughter house or of rents for shops has been farmed out or leased by a Municipal Council for District Board or the Corporation of Madras." There is no scope for bringing in the Official Assignee within the ambit of the definition of a ‘tenant’. Therefore, the Official Assignee on whom the properties of the insolvents would vest under Sec.17 of the Presidency Towns Insolvency Act cannot become a tenant, as defined in Act.18 of 1960 as amended. 10. The insolvent’s right of occupation is only statutory under the provisions of Rent Control Act and is not property which can vest in the Official Assignee. 11. 10. The insolvent’s right of occupation is only statutory under the provisions of Rent Control Act and is not property which can vest in the Official Assignee. 11. In this connection, it is necessary to refer to the dictum in Sutton v. Dorf, (1932)2 K.B. 304, wherein it has been held that where the insolvent is in possession under statutory tenancy that right does not vest in the Official Assignee. The above proposition of law is also referred to and adopted by Williams on Bankruptcy 19th Edition, page 389, where he states: "Statutory tenancy under the Rent Restriction Act was held not to be the property of the statutory tenant within the meaning of Sec.167 and therefore did not pass to his trustee and could not be disclaimed." Similarly in Halsbury’s Law of England, IV Edition, paragraph 591 at page 474 it is stated as follows: "A statutory tenant has no interest to assign or transmit by Will or to his trustee in bankruptcy." Likewise Wood fall on landlord and tenant 27th Edition, page 1560, para 2762, it is stated as follows: "A statutory tenancy cannot be disposed of by Will and does not vest in the tenants personal representatives nor in his trustee in Bankruptcy. The fact of bankruptcy will not therefore affect the bankrupt’s personal right to continue living in the house as statutory tenant." 12.. I can also usefully refer to the decision of this Court in the case of Mohana Ranghiah Chetty v. Official Assignee, Madras, (1965)1 M.L.J. 221 , which was quoted with approval in the case of Viswanatha Chettiar v. Official Assignee, Madras, 89 L.W. 557, by a Division Bench of this Court consisting of Veeraswamy, C.J., and Natarajan, J. as they then were. 13. Therefore, I am of the view that the possession of the premises must be restored to the insolvents by the Official Assignee forthwith. However, it will be open to the landlord to take proceedings under the Rent Control Act for eviction of the insolvents/tenants in accordance with law. 14. 13. Therefore, I am of the view that the possession of the premises must be restored to the insolvents by the Official Assignee forthwith. However, it will be open to the landlord to take proceedings under the Rent Control Act for eviction of the insolvents/tenants in accordance with law. 14. As a necessary corollary it has to be held that Thangavelu who was inducted into possession during the pendency of O.S.A.No.361 of 1989 on the file of this Court and who was heard by me through his counsel Mr.P.K.Sivasubramaniam who also filed an affidavit, dated 30.3.1992 after receipt of notice from counsel for insolvents in these petitions should forthwith surrender possession to the Official Assignee who in turn shall hand over possession of the premises forthwith to the insolvents. If the insolvents desire to carry on the business in the premises in question they shall do so in accordance with the provisions of the Presidency Towns Insolvency Act. 15. In the result, Appln. No.348 of 1989 filed by the insolvents is allowed and Appln. No.224 of 1989 filed by the original landlord and continued by his legal representatives shall stand dismissed. No costs in both the applications.