PETITIONER: TECHNICIANS STUDIO PRIVATE LTD. Vs. RESPONDENT: LILA GHOSH & ANR. DATE OF JUDGMENT19/09/1977 BENCH: GUPTA, A.C. BENCH: GUPTA, A.C. FAZALALI, SYED MURTAZA CITATION: 1977 AIR 2425 1978 SCR (1) 516 1977 SCC (4) 324 CITATOR INFO : R 1980 SC 226 (15) ACT: Transfer of PropertyAct (Act IV) 1882, sec. 53A- Doctrine of Part Performance-Scope of. West Bengal PremisesTenancy Act 1956-Appellant coming into possession of the premises as aresult of a compromise decree in the court-Terms of compromise decree notregistered and no lease deed executed subsequently Whether payment and acceptance of rent creates a monthlytenancy entitling protection available under West Bengal Premises TenancyAct 1956. HEADNOTE: In terms of the compromise petition filed in the HighCourt in an earlierejectment suit, it was agreed by the predecessors-in-title ofthe respondent that the appellant would become "a direct tenant under the first respondent's husband and his brother who were then the owners of the property at a monthly rent of Rs. 1000/- and that the lease would be for a period of 16 years from May 19, 1954 with option to the, appellant to terminate the lease earlier on giving 60 days' notice on the lessors." No deed of lease was ever executed nor the petition of compromise containing the terms of settlement was registered and the appellant's possession from May 19, 1954 was on the basis of the compromise. Respondent No. 1 after the expiry of the said period of lease served a notice on the appellant to quit and vacate the premises and thereafter filed a title suit No. 59 of 1970 on May 22, 1970 in the Third Court of the Subordinate Judge at Alipore for recovery of possession and mesne profits. The defence of the appellant was that by payment and acceptance of rent a monthly tenancy has been created in their favour which was continuing even after the expiry of the said period. The trial court found that to be effective as a lease for 16 years the petition of compromise required registration and this not having been done it could not create any interest in favour of the appellant in the premises though they were entitled to protect their pos- session for a period of 16 years under s. 53A of the Transfer of Property Act. It also held that payment and acceptance of rent made in terms. of the unregistered, compromise petition did not give rise to a right of tenancy and on the expiry of the said period, they had no- protection against eviction and thus decreed the suit. Both the first appellate court and the High Court in second appeal affirmed the findings of the trial court. Dismissing the appeal by special leave, the Court, HELD : (1) Section 53A confers no active title on the transferee in possession. It only imposes statutory bar on the transferor. A person who is let into possession on the strength of a void lease does not acquire any interest in the property but gets under s. 53A only a right to defend his possession. In the instant case under the petition of compromise the appellant had to pay a monthly sum of Rs. 1000/- as rent during the period of intended lease which the appellant did. These monthly payments brought the appellant under the coverage of section 53A but from this fact alone that the appellant had performed his part of the contract it is not possible to conclude that a tenancy was brought into existence. Acceptance of the payments tendered as rent is not decisive of a tenancy. [520 A-C] Probodh Kumar Das and Ors. v. Danymara Tea Co. Ltd. and Ors. 66 I.A. 293 and State of Punjab v. British India Corporation Ltd. [1964] (2) SCR 114(123), referred. to. (2) Whether the relationship of landlord and tenant exists between the parties depends on whether the parties intended to create a tenancy and the intention has to be gathered from the facts and circumstances of the case. It is possible to find on the facts of a given case that payment made by a trans- 517 feree in possession were really not in terms of the contract but independent of it and this might justify an inference of tenancy in his favour. In the instant case the payment of a monthly sum as rent by the appellant to the plaintiff- respondent who accepted the same did not create any tenancy. The question is ultimately one of fact: [520 E-F] Ram Kumar Das v. Jagadish Chandra Deb & Anr. [1952] SCR 269, held not applicable. (3) Part performance in this country does not give rise to an equity as in England but to a statutory right which is comparatively a restricted right in that it is available only as a defence. Section 53A of the Transfer of Property Act is only a partial importation in the statute law of India of the English doctrine of part performance. [519 H, 520 A] Sheth Maneklal Mansukhbhai v. M/s. Hormusji Jamshedii Ginwalla and sons. [1950] SCR 75, reiterated. (4) The petition of compromise seeking to create a lease for 16 years was required to be registered and not being registered it did not affect the immovable property to which it relates and could not be received as evidence of any ,transaction affecting the, property though it was admissible as evidence of- part performance of a contract for the purpose of s. 53A of the Transfer of Property Act or as evidence of any collateral transaction not required to be effected by registered instrument. [519 A-B] JUDGMENT:
CIVIL APPELLATE JURISDICTION Civil Appeal No. 352 of
1977.
Appeal by Special Leave from the Judgment and order dated 6-
5-1976 of the Calcutta High Court in Appeal from Appellate
Decree No. 1557 of 1973.
K. Sen, Sankar Ghosh and Rathin Das for the Appellant.
Lal Narain Sinha, Tapash Chandra Ray, S. C. Agarwal, V. J.
Francis, Sunil Kumar Bhattacharyya and Umma Prasad Mukherjee
for the Respondent No. 1.
The Judgment of the Court was delivered by
GUPTA, J. This is an appeal by special leave from a judgment
of the Calcutta High Court disposing of a second appeal
which arose out of a suit for recovery of possession
instituted against the appellant by the first respondent.
The property in dispute consists of land measuring, 11
bighas 17 kathas and 17 sq. ft. with structures thereon,
being premises No. 1, Babu Ram Ghosh Road, Calcutta,
previously numbered as premises Nos. 2, 3 and 4, Babu Ram
Ghosh Road. Earlier, in 1952 the predecessors-in-interest
of the first respondent had brought a suit for ejectment of
the lessees of the property impleading the appellant, a
private limited company who were the sub-lessees, also as a
defendant. That suit was decreed against all the defendants
some time in 1954. The appellant applied for review of the
judgment decreeing the suit. The review petition having
been dismissed, the appellant moved the High Court in
revision. The revision case was ultimately disposed of in
terms of a petition of compromise. The relevant terms of
the compromise were-
(i) the appellant would become a direct
tenant under the first respondent’s husband
and his brother, who were
518
then the owners of the property, at a monthly
rent of Rs. 1000/-;
(ii) the lease would be for a period of
sixteen years from May 19, 1954 with option to
the appellant to terminate the lease earlier
on giving sixty days’ notice on the lessors.
No deed of lease was however executed, nor the petition of
compromise containing the terms of settlement was
registered. There is some dispute as to whether the
appellant had been dispossessed in execution of the
ejectment decree or continued in possession, but it is clear
that their possession on and from May 19, 1954 was on the
basis of the compromise.
The property ultimately devolved on the first respondent as
sole owner who on the expiry of the period of the lease
mentioned in the compromise petition served a notice on the
appellant to quit and vacate the premises. As the appellant
did not comply with the notice, the first respondent
instituted title suit No. 59 of 1970 on May 22, 1970 in the
Third Court of the Subordinate Judge at Alipore for recovery
of possession and mesne profits on a declaration that the
appellant were trespassers and in wrongful occupation of the
premises after the period mentioned in the petition of
compromise had expired. The appellant’s case in their
written statement was that by payment and acceptance of rent
a monthly tenancy had been created in their favour which was
continuing even after the expiry of the said period. The
trial court found that to be effective as a lease for
sixteen years the petition of compromise required
registration, and this not having been done it could not
create any interest in favour of the appellant in the
premises though they were entitled to protect their
possession for a period of sixteen years under section 53A
or the Transfer of Property Act. It was further held that
payment and acceptance of rent made in terms of the
unregistered compromise petition did not give rise to a
right of tenancy and on the expiry of the said period they
had no-protection against eviction. The trial court
accordingly decreed the suit. The first appellate court
having dismissed the appeal preferred against this
decision, the appellant took a second appeal to the High
Court. The High Court dismissed the second appeal affirming
the findings of the courts below.
The contention of the appellant in this Court ‘also is that
as the first respondent and her predecessors-in-interest
before her had accepted the rent paid month by month duly
granting receipts, a monthly tenancy had been created in
favour of the appellant independent of the protection they
had under section 53A of the Transfer of Property Act’ It is
claimed that this was a tenancy governed by the West Bengal
Premises Tenancy Act, 1956 which protected them against
eviction, Was the High Court wrong on the facts found by the
courts below in rejecting this contention ?
Admittedly there was an ejectment decree against the
appellant before the petition of compromise was filed in the
High Court. By the compromise the decree was not set aside
but a lease for sixteen
519
years was sought to be Created in favour of the appellant.
Thus whatever interest the appellant may have had in the
property was extinguished after the passing of the decree
and even if they, continued in possession after the decree
was passed the subsequent possession in order to be valid
must be referable to the compromise. Clearly, the petition
of compromise seeking to create a lease for sixteen years
was required to be registered and not being registered it
did not affect the immovable property to which it relates
and could not be received as evidence of any transaction
affecting the ‘property though it was admissible as evidence
of part performance of ‘a contract for the purposes of
section 53A of the Transfer of Property ,Act or as evidence
of any collateral transaction not required to be effected by
registered instrument. In order to be entitled to the
protection of section 53A, the transferee must perform or
must be willing to perform his part of the contract. In
this case one of the terms in the petition of compromise was
that the appellant would pay a monthly rent of Rs. 1000/-
and there is no dispute that this sum was paid every month
for the period of sixteen years. It has not been found or
even claimed that any such sum was paid and accepted after
the expiry of that period. Mr. A. K. Sen appearing for the
appellant contends that as a result of these monthly
payments not Only the protection under section 53A was
available to the appellant, but a monthly tenancy also came
into existence which subsisted after the period of sixteen
years mentioned in the petition of compromise had expired.
In support of his contention Mr. Sen relies mainly on their
decision of this Court in Ram Kumar Das v. Jagadish Chandra
Deb Dhabal Deb and another.(1) We do not think that Ram
Kumar’s case is an authority for the proposition Mr. Sen was
contending for that in every case where a person enters into
possession on the strength of an invalid lease and the
landlord accepts ‘rent’ in terms of that invalid lease, a
monthly tenancy is created by implication of law. In Ram
Kumar’s case it was admitted that in the beginning there was
a relationship of landlord and tenant between the parties,
and the only question that arose for decision was whether
the defendant was in fact a monthly tenant under the
plaintiff at the date when the notice to quit was served
upon him. The Court speaking through Mukherjea J. came to
the conclusion that “on the facts of this case, it would be
quite proper to hold that the. tenancy of the defendant was
one from month to month since its inception in 1924”. It is
not necessary to refer to the other cases cited by Mr. Sen;
these are the decisions of several High Courts which are
either based on an incorrect reading of Ram Kumar’s case or
in which the contention Mr. Sen has raised here did not
arise for consideration. If Mr. Sen’s contention were
correct, then it was unnecessary to enact section 53A.
Mr. Sen has also referred to the law in England according to
which a tenancy at will is implied when a person enters into
possession under a void lease. But part performance in this
country does not give rise to an equity as in England but to
a statutory right which is comparatively a restricted right
in that it is, available only as a defence. It has, been
held that section 53A is only a partial importation in the
520
statute law of India of the English doctrine of part
performance. see Sheth Maneklal Mansukhbhai v. Messrs
Hormusji Jamshedii Ginwalla and sons(1). It is well settled
that section 53A confers no active title on the transferee
in possession, it only imposes a statutory bar on the
transferor. (see Probodh Kumar Das and others v. Dantmara
Tea Company Limited and others (2). Thus a person who is
let into possession on the strength of a void lease does not
acquire any interest in the property but gets under section
53A only a right, to defend his possession. As the section
says, this right is subject to the condition that the
transferee has performed or is willing to perform his part
of the contract. In this case under the petition of
compromise the appellant had to pay a monthly sum of Rs.
1000/as rent during the period of the intended lease which
the appellant did. These monthly payments brought the
appellant under the coverage of section 53A, but from this
fact alone that the appellant had performed his part of the
contract, it is not possible to conclude that a tenancy was
brought into existence. Even the acceptance of these
payments tendered as rent is not decisive of a tenancy. “In
its wider sense rent means any payment made for the use of
land or buildings. In its narrower sense it means payment
made by tenant to landlord for property demised to him.”
(State of Punjab v. British India Corporation Ltd.) (3).
Here the payments can be explained, as the courts have done,
as evidence of the appellant’s willingness to perform their
part of the contract. This does not mean however that there
cannot be a relationship of landlord and tenant in any case
where the transferee has taken possession of the property
under a void lease or in part performance of a contract and
is entitled to protection under section 53A of the Transfer
of Property Act. Such a view would be incorrect and
encourage attempts to circumbet the protection of the Rent
Acts given to the tenants. Whether the relationship of
landlord and tenant exists between the parties depends on
whether the parties intended to create a tenancy, and the
intention has to be gathered from the facts and
circumstances of the case. It is possible to find on the
facts of a given case that payments made by a transferee in
possession were really not in terms of the contract but
independent of it, and this might justify an inference of
tenancy in his favour. The question is ultimately one of
fact. In the present case the High Court has found in
agreement with the courts below that the “payment of rent by
the appellant to the plaintiff respondent who accepted the
same did not create any tenancy in favour of the appellant
inasmuch as the said payments were made in part performance
of the said contract of lease contained in the compromise
petition”. We cannot go behind this finding of fact on
which the appeal turns. The appellant’s plea of tenancy
cannot therefore be accepted.
The appeal is dismissed with costs.
S.R.
Appeal dismissed
(1) [1950] S.C.R.75. (2) 66 I.A. 293.
(3) [1964] 2 S.C.R. 114,123.
521
