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CASE NO.: Appeal (civil)  4732 of 2006

PETITIONER: M/S Hotel Kings & Ors

RESPONDENT: Sara Farhan Lukmani & Ors.

DATE OF JUDGMENT: 08/11/2006

BENCH: B.P. Singh & Altamas Kabir

JUDGMENT: J U D G M E N T

(Arising out of  SLP ) No.7186/2006) WITH Civil Appeal No.4733/2006 (Arising out of  SLP ) No.7400/2006) Yashdhir Hotels Pvt. Ltd.             ....Appellant Versus Sara Farhan Lukmani & Ors.            ...Respondents

ALTAMAS KABIR,J.

       Leave granted in both the special leave petitions.         Respondent Nos. 1 to 4 in both the special leave petitions  are the owners of a plot of land measuring about 2739.50  sq.yds. bearing survey No. 37, situated at Juhu, Greater  Bombay.  The said land was leased to one M/s.H. Bloch  Engineering Pvt. Ltd. by a registered deed of lease dated 3rd  November, 1966.  By a deed of assignment dated 8th June,  1970, the said lessee transferred and assigned the demised  property to M/s. Yashdhir Hotels Pvt. Ltd., a company    registered under the Companies Act.  The original lease was  for 98 years commencing from 1st November, 1966.  By virtue  of the deed of assignment dated 8th June, 1970, M/s.Yashdhir  Hotels Pvt. Ltd. became  the lessee of the said land for the  unexpired period of the lease and became a tenant under the  respondent Nos. 1 to 4.  The lease rent was initially fixed at  Rs.3,215/- per month, but was thereafter increased  to  Rs.3,450/- per month.  As M/s. Yashdhir Hotels Pvt. Ltd.   defaulted in payment of rent for more than  six months, the  respondent Nos. 1 to 4 issued a notice dated 1st February,  1983 to M/s. Yashdhir Hotels Pvt. Ltd..  It appears that on  receipt of the notice, M/s. Yashdhir Hotels Pvt. Ltd. tendered  rent to the  lessors     for  a  period of  fourteen months  but  the same was refused as the same did not constitute the entire  arrears of rent payable by the  lessees.  It was  also  the claim  of the lessors that the lessee had unlawfully sublet the  demised property.         Having refused to accept the rent for fourteen months  tendered by the lessee, the lessors filed a suit, being  R.A.E.No.732/2538/1983, claiming  possession on the ground  that the lessee had defaulted in payment of the rents.         Apart from the lessee, certain other parties were made  defendants in the suit on the allegation that the suit property   had been sublet by the lessee in their favour.  The defendants  filed  their  written statements and while admitting that  M/s.Yashdhir Hotels Pvt. Ltd. had become the  tenant of the  leasehold premises  by virtue of the deed of assignment,  denied that the lessee was in arrears of  rent as alleged.  

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According to the defendants, the lease rent, which was initially  fixed at Rs.3,215/- per month and was thereafter enhanced to  Rs.3,450/- per month,  was payable after  every six months  and not monthly as claimed by the lessors.  It was also  contended that although the rent  had been tendered by  cheque along with a letter dated 23rd April, 1983, the same  had been wrongly refused by the lessors.  It was also  contended that since the  period of lease was 98 years  which  was still subsisting, and  there was no breach of  any of the  terms and conditions of the lease, the lessors were not entitled   to  get possession of the suit property.  It was the specific case  of the defendant Nos. 2 to 5 that under the deed of lease, the  lessee was entitled to let out the structure erected on the  leasehold property or any part thereof.         The learned trial judge, on an assessment of the evidence  adduced by the parties, came to the conclusion that the rent  of the suit property was payable every six months.   Consequently,  even if the defendants were in arrears of rent  for more than  six months on the date of the notice dated 1st  February, 1983, the lessors were not entitled to possession in  view of the provisions of  Section 12 (3) (a) of  the Bombay  Rents, Hotel and Lodging House Rates (Control) Act, 1947,  (hereinafter referred to as the "Bombay Rent Act.")  On the  basis of the aforesaid finding, the learned trial court dismissed  the lessors’ suit for possession.         The lessors  preferred an appeal against the said order of  the learned trial judge which was numbered as Appeal  No.76/1997.  In the appeal, the Appellate Bench of the Small  Causes Court, Bombay, came to a conclusion that the rent for  the demised premises was payable every month and not after  six months as held by the trial court.  Holding further that the  notice terminating the defendants’ tenancy was legal and  valid, the appellate court decreed the suit for possession on  the ground mentioned in Section 12 (3) (a) of the Bombay Rent  Act.         Aggrieved by the order of the Appellate Bench of the  Small Causes Court, Bombay, the lessee filed a Writ Petition,  being No.6812/2005.   Other defendant Nos. 2 to 5  also filed  a separate Writ Petition, being No. 6813/2005. As both the  writ petitions arose out of the same judgment, they were taken  up together  for disposal by the Bombay High Court and were  disposed of by a common judgment dated  8th February, 2006,  which is the subject matter of challenge in both these appeals.                  After looking into the various provisions of the lease, the  High Court  affirmed  the view of  the Appellate Bench of the  Small Causes Court that the rent  was payable each month  and not after every six months and that the finding in this  regard was unassailable.  The High Court was also of the view  that since the lessee had  committed  breach of the conditions  of the lease deed and had become  a defaulter, it was not  entitled to the protection of Section 114 of the Transfer of  Property Act, 1882.         These appeals  have been filed by the lessee and the  defendant Nos. 2 to 5.  M/s.Yashdhir Hotels Pvt. Ltd. has filed  Civil Appeal arising out of SLP ) No. 7400/2006 and  defendant Nos. 2 to 5 have filed Civil Appeal arising out of SLP  ) No.7186/2006.         Since both the appeals  arise out of a common judgment  passed by the High Court, with the consent  of the parties,  they have been taken up together for hearing and disposal.         Appearing on behalf of the lessee-M/s. Yashdhir Hotels  Pvt.Ltd., Mr.R.F. Nariman, senior advocate, urged that both  the Appellate Bench of the Small Causes Court at Bombay, as  also  the High Court, had committed a grave error in holding

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that the rents for the demised premises  were payable on a  monthly basis and not after every six months.  His main  contention was based on the definition of "rent" in Section 105  of the Transfer of Property Act, 1882, which provides as  follows:-             

"105. Lease Defined.\027A lease of   immovable property is a transfer of a  right to enjoy  such property, made for a  certain time, express or implied, or in  perpetuity, in consideration of a price  paid or promised, or of money, a share of  crops, service or any other thing of value,  to be rendered periodically or on specified  occasions to the transferor by the  transferee, who accepts the transfer on  such terms.

Lessor, lessee, premium and rent  defined.--  The transferor is  called the  lessor, the transferee, is called the lessee,  the price is called the premium, and the  money, share, service or other thing to be  so rendered is called the rent."  

It was urged that the aforesaid definition was very wide and  included payment of consideration of various kinds.  It was  urged that in clause (a) of paragraph 3 of the terms  and  conditions  of the lease, it has been  categorically indicated  that in addition to the  monthly  rents, the lessee is required to  pay and discharge  all existing and future rates,  and   municipal taxes, dues, duties, development, betterment and  other charges of any  nature whatsoever for the time being  payable  either  by the landlord or  the tenants in respect of  the lands and premises or any building or structure for the  time being standing thereon or on any part thereof.   It was  also indicated that the ground rent would be a net payment to  the lessors without any deduction whatsoever and the lessors  would not in any event be liable to pay any rates, taxes and  assessment and/or outgoings whatsoever at any time during  the continuance of the lease.  It was contended that the said  condition clearly indicates that the rates and taxes and other  outgoings in respect of the demised premises and the building   to be erected thereon formed  part of the rent payable by the  lessee in respect of the demised premises.  According to Mr.  Nariman, the rent stipulated under the lease deed and the  rates and taxes payable  in respect of the demised premises   formed the components of the rent payable in respect of the  demised premises.   Mr. Nariman urged that while no amount above the  standard rent could  be claimed by the landlord in respect of a  premises let out, the Act  made provision for certain   "permitted increases" which has been defined in Section 5 (7)   of the said Act.   In this  regard, reference  was made to  Section 10 of the Act which provided for increase in the rents  above the standard rent on account of increase in rates, cess,  charges, tax, land assessment, ground rent, land or any other  levy on lands and buildings.   Section 10 (3) indicates that  the  amount  of the increase in rent would be recoverable from  each tenant in proportion to the rent payable by them.   Reference was also made to Section 11 (2) of the said Act  which provides  that if there is any dispute between  the  landlord  and the tenant regarding the amount  of permitted  increase, the Court may determine such amount.  It was

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submitted that  since the municipal  rates and taxes were  payable after every six months and the same formed an  integral component of rent, it must also be held that the rents  for the demised premises were also payable after every six  months.   Mr. Nariman referred to the decision of this Court in the  case of  Raju Kakara Shetty vs.  Ramesh Prataprao Shirole  And Anr., (1991) 1 SCC 570, wherein the provisions  of Section  12 (3)  (a) of the Bombay Rent Act in relation to permitted  increases and payment of education cess was under  consideration.   In the said decision, the permitted increases  referred to the education cess payable  by the tenant in  addition to the standard rent inasmuch as   under the  Maharashtra Education (Cess) Act, 1962, payment of  education cess was an annual liability to be paid by the  landlord but  with the  right to recover the same from his  tenant in addition to the standard rent.  In the said decision, it  was held that since education cess was specifically recoverable  as rent, by virtue  of Section 13 of the 1962 Act, it was  a    part of ’rent’ within  the meaning of the Bombay Rent Act and  when the  same is claimed  in addition to the   contractual  or  standard rent, it constitutes a ’permitted increase’ within the  meaning of Section 5 (7) of the Bombay Rent Act.  It was also  held that since the cess was payable on year to year basis  and  a part of the rent became payable annually, the rent  ceased to  be payable by the month within the meaning of Section 12 (3)   (a) of the Bombay Rent Act.   Mr. Nariman contended that  his contention  was further  strengthened  by the definition of  "standard rent" in Section  5 (10) of the Bombay Rent  Act which made reference to  Section 11 which  included  various components such as  "permitted increases"    which were related to the increase in  municipal rates and taxes  and other outgoings in respect of  the demised premises.  Mr. Nariman submitted that the same  was in consonance with the concept of ’rent’ as understood in  Section 105 of the Transfer of Property Act wherein the same   has been referred to as the "consideration." Referring to the terms of the lease deed  executed in  favour of the original   lessee M/s. H. Bloch Engineering Pvt.  Ltd., Mr, Nariman pointed out that the premises had been  leased with the specific intention  that the lessees would be  entitled  to erect and construct buildings and structures  thereon for residential purposes and for garages and while  there was a  provision  in the deed of lease that the lessee  would not be entitled to assign, transfer, mortgage underlet or  otherwise part with it interest in the demised premises or the  building or building erected thereon without the prior  consent  in writing  of the lessors, the same  was subject to  the  provisions of clause 6  which, on the other hand, provided that  the lessee  would after the buildings and/or structures are  completed, be at liberty to assign the demised premises to co- operative housing societies and/or  limited company or any  person whatsoever.  Mr. Nariman urged that since assignment  had been specifically permitted  under the aforesaid provision  of the lease deed, the induction of the respondent Nos. 2 to 5  was in accordance with the provisions of the lease deed and  could not be faulted or made a  ground for eviction of the  lessee.  Though reference was made to the definition of the  expression "tenant" in Section 5 (11) (aa) of the  Bombay Rent  Act, the same does not appear to be relevant for deciding the  present civil appeals.        Mr. Soli J. Sorabjee, Sr. advocate, who also appeared  for  the appellants, reiterated  Mr. Nariman’s submission that   ’permitted increases’ under the Act became part of the rent  and  was, therefore, a component of  the rent  itself.  Mr.

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Sorabjee, in support of his contention, referred to the decision  of this Court in  The Bombay Municipal Corporation vs. The  Life Insurance Corporation of India, Bombay, reported in  (1970) 1 SCC 791, wherein the question arose as to whether  the levy of educational cess should be taken  into  consideration in fixing the annual valuation of  a building.   While considering the said question, this Court was also called  upon to consider the issue as to whether a permitted increase  under Section 5 (7) of the Bombay Rent Act,  would be  part of  the rent which the landlord is entitled to receive from the  tenant.  On the second issue, this Court  inter alia held as  follows:-

"It is quite clear that Section 7 does not  prohibit the recovery of the increase to  which landlord may be entitled under the  provisions of the Act in addition to the  standard rent.  The obvious  implication  of  the definition  of "permitted  increases"  in Section 5 (7) is that such   an increase  becomes a part of the rent.   The language which has been employed   in Sections 9, 10 and 10\027AA seems to  indicate that the  Legislature treated the   permitted increase as a part of the rent  which the landlord would be entitled to  receive from the tenant."

Appearing for the private respondents who had been  inducted into the premises  by the lessee, Mr. M.L. Verma, Sr.  advocate, pointed out that all the forums  had failed to take  note of the fact that a certain amount  of money had been kept  in deposit with the lessors which ought to have been adjusted   against the arrears of rent but had not been taken  note of in  the  notice demanding the arrears of rent.   Reference was  made to the decision of this Court in  Kranti Swaroop Machine  Tools Pvt. Ltd. And Anr. vs.  Kanta Bai Asawa (Smt.) And Ors.,   (1994) 2 SCC 289  and it was contended  that the notice  demanding arrears of rent was in itself   illegal  to the  provisions of  Section 12 (3) (a) of the Bombay Rent Act,  inasmuch as, there were no arrears  of rent for a period of  six  months or more, if  the said amount was taken into  consideration towards adjustment of the arrears of dues.  It  was contended  in such circumstances the relief for eviction  ought not to have been granted to the lessors. A somewhat similar view was expressed in M/s. Sarwan  Kumar  Onkar Nath vs.  Subhas Kumar Agarwalla,  (1987) 4  SCC 546, wherein this Court held that since the rent for two  months had been paid in advance by the tenant to the  landlord on the understanding that the advance amount  would be liable to be  adjusted  towards arrears of rent  whenever necessary or required, the tenant could not be  evicted on the ground of default in payment of rent of two   months even if the tenant failed to  ask the landlord to make  adjustment of the advance amount. A submission was made that a lawful sub-tenant who  had    been inducted under the terms  and conditions  of the  lease also became  the lessee of a portion of  a proportionate  area of  the land under the structure and decree for eviction  obtained against the lessee would not bind the lawful sub- tenant.  Reference was  made to a decision of the Bombay  High Court  in Dinkar S. Vaidya vs. Ganpat S.  Gore And Ors.,  AIR 1981 Bombay 190, wherein in paragraph 37 it was  explained that the defendants who were tenants or  owners in  respect of the  structures only must be deemed to be sub-

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tenants in respect of the land and since no notice had been  given to them under Section 12 (2)  by the plaintiff-landlord,  demanding  all the arrears of rent, no decree for eviction could  be passed  against them  to hand over vacant and peaceful  possession of the  land to the plaintiff. It was urged that, in any event, since the private  respondents had been lawfully inducted into the premises in  respect of the portion of the structure thereon and the lease  was still subsisting, they had acquired  a right to remain in  the premises under the lease deed itself  and, were not,  therefore, bound by the eviction decree passed against the  lessee. On behalf of the lessors it was denied that the lessee was  not a  monthly tenant and was required to pay rents after  every six months.  Mr. Sundaram, Sr. advocate, urged that the  said case was  an innovation and had not been argued before  the courts below.  Referring to the provisions of the lease deed  wherein it had been made clear that during the term of the  lease, the  lessees were required to pay the monthly rent  reserved  therein, Mr. Sundaram urged that this new plea was  being introduced on behalf of the respondents in order to  avoid  the consequences of Section 12 (3) (a) of the Bombay  Rent Act.  It was urged that such a plea had been made only  to be rejected in view of the categorical provisions of  the lease  deed itself. It was further urged that on an erroneous  interpretation of the relevant provisions of the lease deed, the  trial court had arrived at the conclusion that the present case  would be governed under Section 12 (3) (b) of the Bombay  Rent Act, 1947, prior to its amendment in 1987 and not under  Section 12 (3) (a) thereof.  However, the Appellate Bench of the  Small Causes Court at Bombay had rectified the error and had  correctly held that the case being made out orally on behalf of  the lessee that the rent was payable  after an  interval of every  six months could not be accepted having regard to the written  document in which it had been stipulated that the rents were  payable on a monthly basis. The High Court supported the view taken by the  Appellate Bench of the Small Causes Court at Bombay and   granted the defendants time till  31st May, 2006 to vacate the  suit property.  On the question of default, it was pointed out by Mr.  Sundaram that the trial court had come to a finding that the  entire arrears of rents had not been sent by the lessee to the  lessors prior to  7th March, 1983 and since only a part of the  rent in arrears had been offered to the lessors by  cheque, the  same had been returned  back to the lessee.  Despite such  finding, the trial court on an erroneous interpretation that the  lease was governed under Section 12 (3) (b) of the Bombay  Rent Act, dismissed the suit for eviction.  The said position  was  reversed by the Appellate Bench of the Small Causes  Court which allowed the appeal and set aside the judgment  and order of the trial court and further decreed the suit for  possession as well as for arrears and mesne profits. It was then argued that  the  interpretation sought to be  given to the expression "permitted increases"  as being part  of the rent payable by the tenant was fallacious,  as would be  evident from Section 10 of  the Bombay Rent Act.  Sub-section  (1)  of Section 10 of the said Act reads as follows:-    "10. Increase in rent on account of  payment of rates etc. (1)  On and after  the commencement of the Bombay Rents,  Hotel and Lodging House Rates Control  (Amendment) Act, 1986, where a landlord  is required to pay to Government or to  any local authority or statutory authority,

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in respect of any premises any fresh rate,  cess, charges, tax, land assessment,  ground rent of land or any other levy on  lands and buildings, or increase in rate,  cess, charges, tax, land assessment,  ground  rent of land or any other levy on  lands and buildings, he shall,  notwithstanding anything contained in  any other provisions of this Act but save  as otherwise expressly provided in any  other law for the time being in force, be  entitled to make  an increase in the rent  of such premises.

Provided that, the increase in rent shall  not exceed the amount of any such rate,  cess, charges, tax, land assessment,  ground rent of land or any other levy on  lands and buildings, as the case may be."

Mr. Sundaram  submitted that  the wording of the above  provision would indicate that  on account of  increase in  the  rates, cess, charges, tax, land assessment, ground rent of land  or any other levy payable by the landlord to the government or  any local authority or statutory authority,  he would be  entitled  to make an increase in the rent of such premises.   Mr. Sundaram submitted that it had not been indicated that  the increase in rates and taxes would themselves become part  of the rent and the suit had been rightly decreed by the  Appellate Bench of the Small Causes Court at Bombay for  possession, arrears of rent and mesne profits.  Mr. Ranjit Kumar, learned Sr. counsel who appeared for  the lessors in Civil Appeal arising out of SLP ) No.7186/06  assailed the judgment both of the Appellate Bench of the Small  Causes Court and that of the High Court in so far as they   related to the  appellants  in the said appeal who had been  inducted into the premises by the lessee.  Referring to the  Deed of Lease, Mr. Ranjit Kumar submitted that though by  virtue of  clause 6 thereof  the   right to assign  the buildings   and structures  to be erected on the demised premises had  been given  to the lessee, the same could not be  read in  isolation  of clause 3 (o) which makes it clear  that the lessee  would not be entitled   to assign, transfer, mortgage, under-let  or otherwise part with its interest in the demised premises or  the building or buildings thereon without the prior  consent in  writing  of the lessors. Reference was also  made to Section 14 of the Bombay  Rent Act which provides as follows:-

"Certain sub-tenants and licensees to  become tenant on determination of  tenancy.

(1)     When the interest of a tenant of any  premises is determined for any reason,  any sub-tenant to whom the premises or  any part thereof have been lawfully sub- let before the 1st day of February 1973  shall subject to the provisions of this Act,  be deemed to become the tenant of the  landlord on the same terms and  conditions as he would  have held from  the tenant, if the tenancy had continued.

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(2)     Where the interest of a licensor, who  is a tenant of any premises is determined  for any reason, the licensee, who by  section 15A is deemed to be a tenant  shall, subject to the provisions of this  Act, be deemed to become the tenant of  the landlord on the terms  and conditions  of the agreement  consistent with the  provisions of this Act."

Mr. Ranjit Kumar urged that there is no pleading to  indicate  whether the appellants had been inducted into the  premises prior to 1st February, 1973, to  entitle them to the  benefit of the aforesaid provision.  On the other hand, Section  15 of the said Act disentitled a tenant from sub-letting or  assigning his interest in the tenanted premises.  Mr. Ranjit Kumar urged that in such circumstances  both the Appellate Bench  of the Small Causes Court as well  as the High Court were correct  in directing the appellants in  Civil Appeal arising out of SLP ) 7186/06 to vacate the  premises along with the lessee. Responding to the submissions made by Mr. Sundaram  and Mr. Ranjit Kumar, Mr. Nariman reiterated his earlier  submissions and referred to a decision of this Court in   Karnani Properties Ltd. vs. Augustin, (1957) SCR 20  which  was followed in the case of  Puspa Sen Gupta vs. Susma  Ghose,  (1990)  2 SCC 651 holding that  where certain  special  amenities were to be provided by the landlord, the same could   be    taken into consideration for fixation of the standard rent.   In other words, the same would form part of the  consideration  contemplated in Section 105  of the Transfer of Property Act to  be a component of the expression "rent". The fate of the Civil Appeal arising out of SLP  )   7400/06 hinges on the question  as to whether despite the  specific provisions of the lease deed for payment of the lease  rents on a monthly basis in advance on or before the 5th  day  of  each and every  English calendar month, whether the trial  judge was right in holding that in effect  having regard to the  provisions relating to payment of  rates and taxes and other  outgoings by the lessee, the lease would  be governed under  Section 12 (3) (b)  and not  12 (3) (a) of  the Bombay Rent Act. The fate of Civil Appeal arising out of SLP (c) 7186/06  will depend on the question as to whether the  appellants  therein had been lawfully inducted into the demised premises  and, if so, whether  they would be bound by the decree for  possession passed against the  appellant in Civil Appeal  arising out of SLP (c) 7400/06. Having given our anxious consideration to the  submissions urged on behalf of the respective parties and the  provisions of the Bombay Rent Act and the various decisions  cited, we are of the view that the decision of the Appellate  Bench of the Small Causes Court at Bombay as affirmed by  the High Court holding that the lease was governed under  Section 12 (3) (a)  of the Bombay Rent Act was correct. The  lease deed makes it  abundantly clear that the  lease rent was  required to be paid on a monthly basis.  In fact, in paragraph  1 of the terms and conditions of the lease deed it has, inter  alia,  been indicated as follows:-

".........TO HOLD THE DEMISED  PREMISES unto the Lessee for the term  of 98 years commencing from the 1st day  of November, 1966 but renewable and  determinable as hereinafter provided

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yielding and paying therefore  for the  period ending on the 31st day of October,  1968 a token rent of Rupees one per  month  and from the  1st day of  November, 1968 yielding and  paying  during the remainder of the said term of  98 years the monthly rent of Rs.3,215/-  (Rupees three thousand two hundred and  fifteen) payable in advance regularly or   before the 5th day of each and every   English Calendar month the first of such  monthly payments to be made on or  before the 5th day of November, 1968 and  subsequent payments to be made on the  corresponding day of each succeeding  month during the remainder of the term  hereby granted..............."

The said position has been further reiterated in  paragraph 3 (a) of the said deed of lease.   The argument advanced on behalf of the lessee that  notwithstanding the  said stipulation, since the lessee was  required to pay the rates and taxes which formed part of the  permitted increase and was, therefore, a part of the rent  payable, does not appeal to us.  The consequential submission  made in this regard that since the rates and taxes were  payable either annually or after every six months, and the  same formed part of the rent, it must be held that the rents  were payable not each month but after every six months, does  not also appeal to us. Notwithstanding the decisions in the  Bombay Municipal  Corporation case  and Raju Kakara Shetty (supra), the views  expressed therein are distinguishable on facts with the facts of  these two appeals.  Both the said judgments deal with  payment of education cess under the Maharashtra Educataion  (Cess) Act, 1962, under which the landlord is liable to pay  such  cess annually but has the right to recover the amount   so paid by him from the tenant in addition to the standard  rent as a part of the rent itself.  By operation of law education  cess has been made a component of the rent payable  by the  tenant in respect  of the tenanted premises.  In such a case,  the concept of ’permitted increase’ would include the cess  payable  as part of the rent itself.  In the instant case,  however, the lessee is required to pay the rates and taxes and   other outgoings for the demised premises in respect whereof   the landlord has been given the right to effect permitted  increase equivalent to the amount paid towards rates and  taxes.  The same does not, in our view, makes such payment a  part of the rent though it may be a consideration for the grant  of lease.  The ’permitted increase’ in the instant case  serves as  a yardstick for the landlord to increase the rents on account of  payment of rates and taxes by the landlord. Consequently, even though the lease deed  contained a  provision for payment of the rates and taxes exclusively by the  lessee and it is also  stipulated that the lessor will have no  liability  therefor, the lease will  still be governed  under  Section 12 (3) (a)  of the Bombay Rent Act as held by the   Appellate Bench of the Small Causes Court at Bombay and  affirmed by the High Court.  The expression "consideration"  indicated in Section 105 of the Transfer of Property Act has  been used in a generic sense to include the price paid or   promised or of money, a share of  crops, service or any other  thing of value.  On the other hand, the lease deed specifies the

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amount to be   paid as rent each month while the rates and  taxes  and  other  outgoings  are  treated  to  be    the   separate liability of the lessee, no doubt having regard to the  intention of  the  parties that a building was  to be erected by  the lessee on the demised land. Once we have arrived at the aforesaid conclusion, the  other submissions made on behalf of the  appellant in Civil  Appeal arising out of SLP ) No.7400/06 become  irrelevant. However, having regard to the provisions of the lease  deed, there can be little doubt that the decree for possession  passed against the lessee will not bind the appellants in the  Civil Appeal arising out of S.L.P. (C ) No. 7186 of 2006  who  have acquired an independent status under the provisions of  the deed of lease permitting  assignment of the structure to be  erected on the demised land.  In their case, the question of  induction prior to 1st February, 1973, would have no  application.  Although, it has been submitted by Mr. Ranjit  Kumar that the provisions of clause 6 of the lease deed must  be read with clause 3(o) thereof, the intention of the parties on  the reading of the lease deed as a whole appears to be that the  lessee would be entitled to make construction on the demised  premises which could be assigned by it to third parties who  would acquire an independent right therein subject to the  terms and conditions of the head lease.  Since the appellants  in the Civil Appeal arising out of S.L.P. (C ) No. 7186 of 2006  were lawfully inducted into the premises  by virtue of clause 6  of the lease deed  they will not be affected by the decree for  possession passed against the lessee.  Civil Appeal arising out of SLP  ) No.7400/06 is,  therefore, dismissed, while Civil Appeal arising out of SLP )  No. 7186/06 is allowed.  The judgment and decree of the  Appellate Bench of the Small   Causes Court as well as High  Court is affirmed as far as Civil Appeal arising out of SLP )  7400/06 is concerned, and is set aside as far as it relates to  the appellants in Civil Appeal arising out of  SLP ) 7186/06.   

In the facts of the case, the parties will bear their  respective costs.