{"id":6683,"date":"1977-09-19T00:00:00","date_gmt":"1977-09-18T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/technicians-studio-private-ltd-vs-lila-ghosh-anr-on-19-september-1977"},"modified":"2019-03-06T20:37:01","modified_gmt":"2019-03-06T15:07:01","slug":"technicians-studio-private-ltd-vs-lila-ghosh-anr-on-19-september-1977","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/technicians-studio-private-ltd-vs-lila-ghosh-anr-on-19-september-1977","title":{"rendered":"Technicians Studio Private Ltd vs Lila Ghosh & Anr on 19 September, 1977"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Technicians Studio Private Ltd vs Lila Ghosh & Anr on 19 September, 1977<\/div>\n
Equivalent citations: 1977 AIR 2425, \t\t 1978 SCR (1) 516<\/div>\n
Author: A Gupta<\/div>\n
Bench: Gupta, A.C.<\/div>\n
           PETITIONER:\nTECHNICIANS STUDIO PRIVATE LTD.\n\n\tVs.\n\nRESPONDENT:\nLILA GHOSH & ANR.\n\nDATE OF JUDGMENT19\/09\/1977\n\nBENCH:\nGUPTA, A.C.\nBENCH:\nGUPTA, A.C.\nFAZALALI, SYED MURTAZA\n\nCITATION:\n 1977 AIR 2425\t\t  1978 SCR  (1) 516\n 1977 SCC  (4) 324\n CITATOR INFO :\n R\t    1980 SC 226\t (15)\n\n\nACT:\nTransfer of PropertyAct\t  (Act\tIV)  1882,  sec.   53A-\nDoctrine of Part Performance-Scope of.\nWest Bengal PremisesTenancy  Act 1956-Appellant\t coming\ninto possession of the premises as aresult     of      a\ncompromise  decree in the court-Terms of  compromise  decree\nnotregistered  and  no lease  deed  executed  subsequently\nWhether payment and acceptance of rent creates a monthlytenancy\nentitling protection   available  under\t  West\t Bengal\nPremises TenancyAct 1956.\n\n\n\nHEADNOTE:\nIn terms of the compromise petition filed in the HighCourt\nin an earlierejectment\t suit,\tit  was\t agreed\t  by   the\npredecessors-in-title ofthe  respondent that the  appellant\nwould  become \"a direct tenant under the first\trespondent's\nhusband\t and  his brother who were then the  owners  of\t the\nproperty at a monthly rent of Rs. 1000\/- and that the  lease\nwould  be  for a period of 16 years from May 19,  1954\twith\noption\tto the, appellant to terminate the lease earlier  on\ngiving 60 days' notice on the lessors.\" No deed of lease was\never executed nor the petition of compromise containing\t the\nterms  of  settlement  was registered  and  the\t appellant's\npossession  from  May  19,  1954 was on\t the  basis  of\t the\ncompromise.   Respondent No. 1 after the expiry of the\tsaid\nperiod of lease served a notice on the appellant to quit and\nvacate the premises and thereafter filed a title suit No. 59\nof  1970  on  May  22,\t1970  in  the  Third  Court  of\t the\nSubordinate Judge at Alipore for recovery of possession\t and\nmesne  profits.\t  The defence of the appellant was  that  by\npayment\t and acceptance of rent a monthly tenancy  has\tbeen\ncreated in their favour which was continuing even after\t the\nexpiry of the said period.  The trial court found that to be\neffective as a lease for 16 years the petition of compromise\nrequired registration and this not having been done it could\nnot  create any interest in favour of the appellant  in\t the\npremises  though  they were entitled to protect\t their\tpos-\nsession\t for  a\t period\t of 16 years under  s.\t53A  of\t the\nTransfer  of  Property Act.  It also held that\tpayment\t and\nacceptance  of\trent  made in terms.  of  the  unregistered,\ncompromise petition did not give rise to a right of  tenancy\nand  on\t the  expiry  of  the  said  period,  they  had\t no-\nprotection against eviction and thus decreed the suit.\tBoth\nthe  first  appellate  court and the High  Court  in  second\nappeal affirmed the findings of the trial court.\nDismissing the appeal by special leave, the Court,\nHELD  :\t (1)  Section 53A confers no  active  title  on\t the\ntransferee in possession.  It only imposes statutory bar  on\nthe transferor.\t A person who is let into possession on\t the\nstrength  of a void lease does not acquire any\tinterest  in\nthe  property but gets under s. 53A only a right  to  defend\nhis  possession.  In the instant case under the petition  of\ncompromise  the\t appellant had to pay a monthly sum  of\t Rs.\n1000\/- as rent during the period of intended lease which the\nappellant did.\tThese monthly payments brought the appellant\nunder  the coverage of section 53A but from this fact  alone\nthat the appellant had performed his part of the contract it\nis not possible to conclude that a tenancy was brought\tinto\nexistence.   Acceptance of the payments tendered as rent  is\nnot decisive of a tenancy. [520 A-C]\nProbodh Kumar Das and Ors. v. Danymara Tea Co. Ltd. and Ors.\n66 I.A. 293 and State of Punjab v. British India Corporation\nLtd.<\/a> [1964] (2) SCR 114(123), referred. to.\n(2)  Whether the relationship of landlord and tenant  exists\nbetween the parties depends on whether the parties intended\nto  create  a tenancy and the intention has to\tbe  gathered\nfrom  the  facts  and  circumstances of\t the  case.   It  is\npossible  to find on the facts of a given case that  payment\nmade by a trans-\n517\nferee in possession were really not in terms of the contract\nbut independent of it and this might justify an inference of\ntenancy in his favour.\tIn the instant case the payment of a\nmonthly\t sum  as  rent by the appellant\t to  the  plaintiff-\nrespondent who accepted the same did not create any tenancy.\nThe question is ultimately one of fact: [520 E-F]\nRam Kumar Das v. Jagadish Chandra Deb & Anr.<\/a> [1952] SCR 269,\nheld not applicable.\n(3)  Part performance in this country does not give rise  to\nan equity as in England\t but  to a statutory right which  is\ncomparatively a restricted right in that it  is\t   available\nonly as a defence.  Section 53A of the Transfer of  Property\nAct  is\t only a partial importation in the  statute  law  of\nIndia  of the English doctrine of part performance. [519  H,\n520 A]\nSheth  Maneklal\t Mansukhbhai  v.  M\/s.\t Hormusji  Jamshedii\nGinwalla and<\/a> sons. [1950] SCR 75, reiterated.\n(4)  The  petition of compromise seeking to create  a  lease\nfor  16\t years was required to be registered and  not  being\nregistered it did not affect the immovable property to which\nit  relates  and could not be received as  evidence  of\t any\n,transaction   affecting   the,\t property  though   it\t was\nadmissible  as evidence of- part performance of\t a  contract\nfor the purpose of s. 53A of the Transfer of Property Act or\nas evidence of any collateral transaction not required to be\neffected by registered instrument. [519 A-B]\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION\t     Civil Appeal No. 352 of
\n1977.\n<\/p>\n
Appeal by Special Leave from the Judgment and order dated 6-
\n5-1976\tof the Calcutta High Court in Appeal from  Appellate
\nDecree No. 1557 of 1973.\n<\/p>\n
K. Sen, Sankar Ghosh and Rathin Das for the Appellant.
\nLal  Narain Sinha, Tapash Chandra Ray, S. C. Agarwal, V.  J.
\nFrancis, Sunil Kumar Bhattacharyya and Umma Prasad Mukherjee
\nfor the Respondent No. 1.\n<\/p>\n
The Judgment of the Court was delivered by
\nGUPTA, J. This is an appeal by special leave from a judgment
\nof  the\t Calcutta High Court disposing of  a  second  appeal
\nwhich  arose  out  of  a suit  for  recovery  of  possession
\ninstituted  against the appellant by the  first\t respondent.
\nThe  property  in  dispute consists of\tland  measuring,  11
\nbighas\t17  kathas and 17 sq. ft. with\tstructures  thereon,
\nbeing  premises\t No.  1,  Babu\tRam  Ghosh  Road,  Calcutta,
\npreviously  numbered as premises Nos. 2, 3 and 4,  Babu\t Ram
\nGhosh  Road.  Earlier, in 1952 the  predecessors-in-interest
\nof the first respondent had brought a suit for ejectment  of
\nthe  lessees  of the property impleading  the  appellant,  a
\nprivate limited company who were the sub-lessees, also as  a
\ndefendant.  That suit was decreed against all the defendants
\nsome time in 1954.  The appellant applied for review of\t the
\njudgment  decreeing  the suit.\tThe review  petition  having
\nbeen  dismissed,  the  appellant moved\tthe  High  Court  in
\nrevision.  The revision case was ultimately disposed of\t in
\nterms  of a petition of compromise.  The relevant  terms  of
\nthe compromise were-\n<\/p>\n
\t      (i)   the\t appellant  would  become  a  direct
\n\t      tenant  under the first  respondent’s  husband
\n\t      and his brother, who were
\n\t      518<\/span>
\n\t      then the owners of the property, at a  monthly
\n\t      rent of Rs. 1000\/-;\n<\/p><\/blockquote>\n
\t      (ii)  the\t lease\twould  be for  a  period  of
\n\t      sixteen years from May 19, 1954 with option to
\n\t      the  appellant to terminate the lease  earlier
\n\t      on giving sixty days’ notice on the lessors.\n<\/p><\/blockquote>\n
No  deed of lease was however executed, nor the petition  of
\ncompromise   containing\t  the  terms   of   settlement\t was
\nregistered.   There  is\t some  dispute\tas  to\twhether\t the
\nappellant   had\t been  dispossessed  in\t execution  of\t the
\nejectment decree or continued in possession, but it is clear
\nthat  their possession on and from May 19, 1954 was  on\t the
\nbasis of the compromise.\n<\/p>\n
The property ultimately devolved on the first respondent  as
\nsole  owner  who on the expiry of the period  of  the  lease
\nmentioned in the compromise petition served a notice on\t the
\nappellant to quit and vacate the premises.  As the appellant
\ndid  not  comply  with\tthe  notice,  the  first  respondent
\ninstituted title suit No. 59 of 1970 on May 22, 1970 in\t the
\nThird Court of the Subordinate Judge at Alipore for recovery
\nof  possession and mesne profits on a declaration  that\t the
\nappellant were trespassers and in wrongful occupation of the
\npremises  after\t the  period mentioned in  the\tpetition  of
\ncompromise  had\t expired.   The appellant’s  case  in  their
\nwritten statement was that by payment and acceptance of rent
\na monthly tenancy had been created in their favour which was
\ncontinuing  even after the expiry of the said  period.\t The
\ntrial  court  found  that to be effective  as  a  lease\t for
\nsixteen\t  years\t  the  petition\t  of   compromise   required
\nregistration,  and  this not having been done it  could\t not
\ncreate\tany  interest  in favour of  the  appellant  in\t the
\npremises   though  they\t were  entitled\t to  protect   their
\npossession  for a period of sixteen years under section\t 53A
\nor  the Transfer of Property Act.  It was further held\tthat
\npayment\t and  acceptance  of  rent  made  in  terms  of\t the
\nunregistered  compromise  petition did not give\t rise  to  a
\nright  of tenancy and on the expiry of the said period\tthey
\nhad   no-protection  against  eviction.\t  The  trial   court
\naccordingly  decreed  the suit.\t The first  appellate  court
\nhaving\t dismissed  the\t appeal\t preferred against   this
\ndecision,  the\tappellant took a second appeal to  the\tHigh
\nCourt.\tThe High Court dismissed the second appeal affirming
\nthe findings of the courts below.\n<\/p>\n
The contention of the appellant in this Court ‘also is\tthat
\nas  the\t first respondent and  her  predecessors-in-interest
\nbefore\ther had accepted the rent paid month by\t month\tduly
\ngranting  receipts,  a monthly tenancy had been\t created  in
\nfavour\tof the appellant independent of the protection\tthey
\nhad under section 53A of the Transfer of Property Act’ It is
\nclaimed that this was a tenancy governed by the West  Bengal
\nPremises  Tenancy  Act, 1956 which  protected  them  against
\neviction, Was the High Court wrong on the facts found by the
\ncourts below in rejecting this contention ?
\nAdmittedly  there  was\tan  ejectment  decree  against\t the
\nappellant before the petition of compromise was filed in the
\nHigh Court.  By the compromise the decree was not set  aside
\nbut a lease for sixteen
\n519<\/span>
\nyears  was sought to be Created in favour of the  appellant.
\nThus  whatever\tinterest the appellant may have had  in\t the
\nproperty  was extinguished after the passing of\t the  decree
\nand even if they, continued in possession after the  decree
\nwas  passed the subsequent possession in order to  be  valid
\nmust be referable to the compromise.  Clearly, the  petition
\nof  compromise seeking to create a lease for  sixteen  years
\nwas  required to be registered and not being  registered  it
\ndid  not affect the immovable property to which\t it  relates
\nand  could  not be received as evidence of  any\t transaction
\naffecting the ‘property though it was admissible as evidence
\nof  part  performance  of ‘a contract for  the\tpurposes  of
\nsection 53A of the Transfer of Property ,Act or as  evidence
\nof any collateral transaction not required to be effected by
\nregistered  instrument.\t  In  order to be  entitled  to\t the
\nprotection  of section 53A, the transferee must\t perform  or
\nmust  be  willing to perform his part of the  contract.\t  In
\nthis case one of the terms in the petition of compromise was
\nthat  the appellant would pay a monthly rent of\t Rs.  1000\/-
\nand  there is no dispute that this sum was paid every  month
\nfor  the period of sixteen years.  It has not been found  or
\neven  claimed that any such sum was paid and accepted  after
\nthe expiry of that period.  Mr. A. K. Sen appearing for\t the
\nappellant  contends  that  as  a  result  of  these  monthly
\npayments  not  Only  the protection under  section  53A\t was
\navailable to the appellant, but a monthly tenancy also\tcame
\ninto  existence which subsisted after the period of  sixteen
\nyears  mentioned in the petition of compromise had  expired.
\nIn support of his contention Mr. Sen relies mainly on  their
\ndecision of this Court in Ram Kumar Das v. Jagadish  Chandra
\nDeb  Dhabal  Deb and<\/a> another.(1) We do not  think  that\t Ram
\nKumar’s case is an authority for the proposition Mr. Sen was
\ncontending for that in every case where a person enters into
\npossession  on\tthe  strength of an invalid  lease  and\t the
\nlandlord  accepts ‘rent’ in terms of that invalid  lease,  a
\nmonthly\t tenancy is created by implication of law.   In\t Ram
\nKumar’s case it was admitted that in the beginning there was
\na  relationship of landlord and tenant between the  parties,
\nand  the only question that arose for decision\twas  whether
\nthe  defendant\twas  in\t fact a\t monthly  tenant  under\t the
\nplaintiff  at  the date when the notice to quit\t was  served
\nupon  him.  The Court speaking through Mukherjea J. came  to
\nthe conclusion that “on the facts of this case, it would  be
\nquite proper to hold that the. tenancy of the defendant\t was
\none from month to month since its inception in 1924”.  It is
\nnot necessary to refer to the other cases cited by Mr.\tSen;
\nthese  are  the decisions of several High Courts  which\t are
\neither based on an incorrect reading of Ram Kumar’s case  or
\nin  which  the contention Mr. Sen has raised  here  did\t not
\narise  for  consideration.   If Mr.  Sen’s  contention\twere
\ncorrect, then it was unnecessary to enact section 53A.
\nMr. Sen has also referred to the law in England according to
\nwhich a tenancy at will is implied when a person enters into
\npossession under a void lease.\tBut part performance in this
\ncountry does not give rise to an equity as in England but to
\na statutory right which is comparatively a restricted  right
\nin  that it is, available only as a defence.  It  has,\tbeen
\nheld that section 53A is only a partial importation in the
\n520<\/span>
\nstatute\t law  of  India\t of the\t English  doctrine  of\tpart
\nperformance.  see  Sheth  Maneklal  Mansukhbhai\t v.   Messrs
\nHormusji Jamshedii Ginwalla and<\/a> sons(1).  It is well settled
\nthat  section 53A confers no active title on the  transferee
\nin  possession,\t it  only imposes a  statutory\tbar  on\t the
\ntransferor.  (see Probodh Kumar Das and others\tv.  Dantmara
\nTea  Company Limited and others (2).  Thus a person  who  is
\nlet into possession on the strength of a void lease does not
\nacquire any interest in the property but gets under  section
\n53A only a right, to defend his possession.  As the  section
\nsays,  this  right  is subject to  the\tcondition  that\t the
\ntransferee  has performed or is willing to perform his\tpart
\nof  the\t contract.   In\t this case  under  the\tpetition  of
\ncompromise  the\t appellant had to pay a monthly sum  of\t Rs.
\n1000\/as\t rent during the period of the intended lease  which
\nthe  appellant\tdid.   These monthly  payments\tbrought\t the
\nappellant  under the coverage of section 53A, but from\tthis
\nfact alone that the appellant had performed his part of\t the
\ncontract, it is not possible to conclude that a tenancy\t was
\nbrought\t into  existence.   Even  the  acceptance  of  these
\npayments tendered as rent is not decisive of a tenancy.\t “In
\nits  wider sense rent means any payment made for the use  of
\nland  or buildings.  In its narrower sense it means  payment
\nmade  by  tenant to landlord for property demised  to  him.”
\n(State\tof  Punjab v. British India Corporation\t Ltd.)<\/a>\t(3).
\nHere the payments can be explained, as the courts have done,
\nas evidence of the appellant’s willingness to perform  their
\npart of the contract.  This does not mean however that there
\ncannot be a relationship of landlord and tenant in any\tcase
\nwhere  the transferee has taken possession of  the  property
\nunder a void lease or in part performance of a contract\t and
\nis entitled to protection under section 53A of the  Transfer
\nof  Property  Act.   Such  a view  would  be  incorrect\t and
\nencourage  attempts to circumbet the protection of the\tRent
\nActs  given  to the tenants.  Whether  the  relationship  of
\nlandlord  and tenant exists between the parties\t depends  on
\nwhether\t the parties intended to create a tenancy,  and\t the
\nintention   has\t  to  be  gathered  from   the\t facts\t and
\ncircumstances  of the case.  It is possible to find  on\t the
\nfacts of a given case that payments made by a transferee  in
\npossession  were  really not in terms of  the  contract\t but
\nindependent  of it, and this might justify an  inference  of
\ntenancy\t in his favour.\t The question is ultimately  one  of
\nfact.\tIn  the\t present case the High Court  has  found  in
\nagreement with the courts below that the “payment of rent by
\nthe  appellant to the plaintiff respondent who accepted\t the
\nsame  did not create any tenancy in favour of the  appellant
\ninasmuch as the said payments were made in part\t performance
\nof  the said contract of lease contained in  the  compromise
\npetition”.   We\t cannot go behind this finding\tof  fact  on
\nwhich  the  appeal turns.  The appellant’s plea\t of  tenancy
\ncannot therefore be accepted.\n<\/p>\n
The appeal is dismissed with costs.\n<\/p>\n
S.R.\n<\/p>\n
Appeal dismissed
\n(1) [1950] S.C.R.75.\t\t       (2) 66 I.A. 293.\n<\/p>\n
(3)  [1964] 2 S.C.R. 114,123.\n<\/p>\n
521<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Technicians Studio Private Ltd vs Lila Ghosh & Anr on 19 September, 1977 Equivalent citations: 1977 AIR 2425, 1978 SCR (1) 516 Author: A Gupta Bench: Gupta, A.C. 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-6683","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nTechnicians Studio Private Ltd vs Lila Ghosh & Anr on 19 September, 1977 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/technicians-studio-private-ltd-vs-lila-ghosh-anr-on-19-september-1977\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Technicians Studio Private Ltd vs Lila Ghosh & Anr on 19 September, 1977 - 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