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PETITIONER: BISWABANI (P.) LTD.

       Vs.

RESPONDENT: SANTOSH KUMAR DUTTA AND ORS.

DATE OF JUDGMENT14/09/1979

BENCH: DESAI, D.A. BENCH: DESAI, D.A. SARKARIA, RANJIT SINGH

CITATION:  1980 AIR  226            1980 SCR  (1) 650  1980 SCC  (1) 185  CITATOR INFO :  D          1991 SC2072  (21)

ACT:      Landlord  and   Tenant-Rent  Control   Proceedings  for fixation  of  standard  rent-Consent  decree-Company  to  be tenant for  five years,  indenture of  lease to be drawn and registered-Such lease  not  registered,  landlord  accepting standard rent  fixed  by  Rent  Controller-Expiry  of  lease period of  five years-Landlord  entering portion  of demised premises, locking  it up-Suit  by Company for declaration of status as tenant and for injunction-Company whether entitled to  protect   possession-Lease  being   void  for   want  of registration-Whether  has  effect  on  company’s  status  as tenant-Transfer of  Property Act,  s. 53A  and  West  Bengal Premises Tenancy Act, 1956.      Constitution  of   India,  1950,  Art.  133-Certificate merely stating  case fit  for appeal-Certificate  defective- Dismissal  of   such  appeal-Travesty  of  justice  where  a substantial question  of law  of general  public  importance raised.

HEADNOTE:      The third respondent took on lease the demised premises from respondents 1 and 2 under a registered lease deed dated September 11,  1948, the  lease  being  for  five  years  at monthly rent  of Rs. 2000/- with an option for renewal to be exercised by  a notice  two months  before the expiry of the lease.  Respondent  3  was  the  managing  director  of  the appellant company. During the period of the aforesaid lease, the appellant  company was accepted as tenant of the demised premises and  the Company  paid the  rent reserved under the lease being Rs. 2000/- per mensem. The period reserved under the lease  expired on August 31, 1953. But before the expiry of the  period an  application was made by the appellant for fixation of  standard rent of the demised premises under the West Bengal  Premises Rent  Control  (Temporary  Provisions) Act, 1950.  In October  1953, respondent  1 and 2 as lessors commenced an  ejectment action against the appellant and the third respondent  on the  ground that  the lease had expired and the  lessee  had  failed  to  exercise  the  option  for renewal. During  the pendency of the aforementioned actions, the parties  compromised and  the consent  decree inter alia

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provided that  the company  would be the tenant on a monthly rent of  Rs. 1000/-  from 1st  March, 1955 for a period of 5 years and  that, after  the period of five years there shall be no  renewal of  the lease, the lessee shall be treated as trespasser. An  indenture of  lease was  also to be drawn up and executed  by both  the parties  in terms  of the consent decree. On the expiry of the aforesaid term of five years on 29th February,  1960, respondents  1 and  2, lessors  having entered and locked up a portion of the demised premises, the company filed a suit on March 14, 1960 against respondents 1 and  2,   lessors  and  the  proforma  respondent  3  for  a declaration that  the company was the tenant of the premises and for  an injunction  restraining respondents 1 and 2 from interfering with its tenancy rights. 651      The suit  was contested  on the  contention that as the consent decree provided for a fresh lease of 5 years, it can only be  brought about by a registered instrument and as the consent decree  or the  document incorporating  the terms of the companies  was not  registered, the Company continued in possession under  a void  lease and therefore, on the expiry of the  period of  5 years  the Company was a trespasser and respondents 1  and 2  were entitled  to take over possession from such a trespasser.      The  trial  court  held  that  as  the  consent  decree provided for  a lease for a period of 5 years in the absence of registration  the lease  for a  period of 5 years did not come  into   existence,  but  if  the  tenant  entered  into possession under  an invalid lease and the landlord accepted rent, a  tenancy from  month to  month came  into  existence between the  lessors and  the lessee  and that such a lessee cannot be  evicted except after terminating the tenancy by a valid  notice   to  quit   and  in   the  absence   of  such determination the  lessee would  be a  lessee from  month to month  and  can  protect  its  possession  and  decreed  the appellant-plaintiff’s suit.      In appeal  by Respondents  1 and  2, the District Judge held that the lease being void, yet the lessors would not be entitled to  disturb the  possession of  the  tenant  for  a period of  5 years in view of the provisions contained in s. 53A of the Transfer of Property Act, but after the expiry of the period of 5 years the appellant became a rank trespasser and respondents  1 and 2 were entitled to take possession of the  property,   and  accordingly  allowed  the  appeal  and dismissed the company’s suit. The appellant company’s second appeal to the High Court was dismissed.      In the further appeal to this Court on the questions as to:      (a) The status and nature of possession of a person who was admittedly  a tenant  of premises  covered by  the local rent restriction  Act till  the date  of commencement  of  a fresh  lease  which  turns  out  to  be  void  for  want  of registration,  during  and  at  the  expiry  of  the  period purporting to be reserved by such a void lease;      (b) Would  such a  person be a tenant who could only be removed by  proper legal  proceedings or  a licensee without any interest  in the  premises and could be forcibly evicted by the  landlord of  the premises  entering the premises and locking the same;      (c) Could such a person defend its possession by a suit seeking declaration and mandatory injunction; and      (d) whether  the appeal  was liable  to be dismissed on the sole  ground that  the certificate  which the High Court granted was defective. ^

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    HELD: 1. The High Court was in error in holding that if on the  expiry of  the agreed  period of  lease there  was a covenant for not getting any renewal of the lease the tenant would  be   a  trespasser,  wholly  over-looking  the  legal position that  on the  expiry of the contractual tenancy the tenant continues  as a  statutory  tenant  except  where  he surrenders possession  or  is  evicted  under  the  enabling provisions of the relevant Rent Restriction Act. [666 B] 652      2. The  appellant was  a tenant  and continued  to be a tenant  and  was  entitled  to  protect  its  possession  by appropriate proceeding  unless evicted in due course of law. [666 C]      3. The appellant as tenant would be entitled to protect its possession  unless evicted  in due  course of law and in order to  protect its  possession it  can legitimately  sue, there being  no bar  in law, for a declaration of its status as tenant  and  for  an  injunction  either  prohibitory  or mandatory. [665 F]      4. The  indenture of  first lease  granted an option to the lessee  which would  be none  other than  the  appellant company, to  claim renewal  of lease.  This option  was  not exercised. Notwithstanding the non-exercise of the option on the date  of expiry  of the  lease the  contractual  tenancy having come  to an end, the tenant would be a tenant holding over if  requirements of  s. 116 of the Transfer of Property Act are  satisfied.  However,  on  the  date  of  expiry  of contractual tenancy,  the West  Bengal Premises Rent Control (Temporary Provisions)  Act, 1950,  was  in  force  and  was applicable  to   the  premises   and,  therefore,   on   the determination of contractual tenancy by efflux of time right of re-entry would be subject to the over-riding provision of the Rent  Act and  the rights  of such a person remaining in possession are  governed by the statute alone. He is loosely described as  statutory tenant  which is  another  name  for status of irremovability. [658 C-D]      Anand Nivas P. Ltd. v. Anandji Kalyanji Pedhi and Ors., [1964] 4 S.C.R. 892; referred to.      5. There  is no  bar  in  law  to  a  statutory  tenant entering into a fresh contract of tenancy with the landlord. In the instant case this was attempted by the consent decree but the lease was void for want of requisition. However from this undisputed  position an  inference of  tenancy  can  be reasonably made. [658 G]      6. If  the lease  is  void  for  want  of  registration neither party  to the indenture can take advantage of any of the terms  of the  lease. At best the provision contained in s. 53A  of the  Transfer of  Property Act which incorporated the English  equitable doctrine  of part performance can, if the terms  thereof are  satisfied, be relied upon to protect possession for  the period reserved under such a void lease. But no  other terms  of such  an indenture  inadmissible for want of registration can be the basis for a relief. [659 B]      7. Section  53A of  the Transfer of Property Act is not at all  attracted in  the facts  of this  case. The suit was filed by the appellant who sought to protect its possession. The equitable  doctrine of part performance can be used as a shield and  not as  a sword.  It can  be used  to defend and protect one’s possession. [659 G]      Probodh Kumar  Das &  Ors. v. Dantmara Tea Co. Ltd. and Ors., 66 I.A. 293; referred to.      In the instant case the appellant had come to the court for a  declaration of  its tenancy rights seeking to protect its possession not under the doctrine of part performance as incorporated in s. 53A, but with specific allegation

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653 that the  appellant is  a tenant  and it be so declared, and for an  injunction   restraining respondents  1 and  2  from interfering or  disturbing the  appellants possession of the premises as a tenant. [660 B-C]      8. If  the appellant  was already  in possession  as  a tenant of  the premises, an unsuccessful attempt to create a fresh lease would not change the nature of his possession as from a tenant to one in part performance under a void lease. The appellant continues to be in possession as tenant and no cloud is  created over  its title to remain in possession as tenant merely  because the appellant and respondents 1 and 2 attempted to  enter into  a fresh lease which did not become effective. [661 B-C]      Ram Kumar Das v. Jagdish Chandra Deb Dhabal Deb & Anr., [1952] S.C.R. 269 at 280; referred to.      Technicians Studio P. Ltd. v. Lila Ghosh & Anr., [1978] 1 SCR 516; explained and distinguished.      9. An  incomplete and ineffective attempt at creating a fresh lease  would have  no impact  on a  tenant who  was in possession as  tenant at  the commencement  of such  a  void lease and  he would continue to be the tenant because s. 53A would not  be attracted  as he  is not  put in possession in part performance of an agreement of lease not registered and it would  be unwise to hold that the payment of the standard rent fixed  by the  Rent Controller  having jurisdiction  as payment under such an agreement of lease. [664 F-G]      10. A person remaining in occupation of premises let to him after  the determination  of or  expiry of the period of the tenancy  is commonly,  though  in  law  not  accurately, called  a  statutory  tenant.  He  acquires  the  status  of irremovability. Statutory  tenant being  a person who enjoys the status  of irremovability, would enjoy the protection of the statute  until he is evicted from the premises under the enabling provisions  of the  statute.  A  statutory  tenancy would, therefore,  come to an end on either the surrender of premises by  such a  tenant or  if a  decree of  eviction is passed against him. [664 H-665 B]      Hiralal Vallabhram  v. Kastorbhai Lalbhai & Ors. [1967] 3 SCR 343 referred to.      11.  A  still  born  attempt  not  clothed  with  legal formality cannot  destroy the  existing status.  The  second lease never came into existence for want of registration and more particularly  the appellant  was not  put in possession under the purported second lease which turns out to be void. The paradoxical approach manifested is that if a valid lease had come  into existence  on the  expiry of it the appellant tenant  would   have  continued   in  possession  under  the protection of the relevant Rent Restriction Act. However, if such an attempt at creating a fresh lease was ineffective or infructuous, how  can such  an inchoate exercise destroy the existing rights.  The High Court was therefore in error when it held  the existing rights to have been destroyed ignoring the very existence of the West Bengal Premises Tenancy Act, 654      12. A.  certificate that it is a fit case for appeal to the Supreme  Court which  the  High  Court  grants  must  be supported by  adequate reasons.  It is  obligatory upon  the High Court  to set  out the  questions of  public or private importance which  in its  opinion falls  to be determined in the proposed  appeal. A  certificate will be defective if it does not  set out  the substantial  question of law which in the view  of the  High Court  falls to  be determined by the Supreme Court.  An appeal  is liable  to be dismissed if the certificate is defective. [666 G-667 B]

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    Sohanlal Naraindas  v. Laxmidas Raghunath Gadit, [1971] 1 SCC  275, Railway  Board, Govt.  of India v. M/s. Observer Publication (P) Ltd., [1972] 3 SCR 865; Nund & Samont Co. P. Ltd. v. Commissioner of Income Tax, Bihar and Orissa, [1970] 78 I.T.R. 268 India Machinery Stores P. Ltd. v. Commissioner of Income  Tax, Bihar  and  Orissa,  [1970]  78  I.T.R.  50; referred to.      In the  instant case,  the certificate  granted by  the High Court  leaves much to be desired. It merely states that it is  a fit  case for  appeal to the Supreme Court, without specifying whether  the certificate  was under  Article  133 (a), (b)  or (c) as it stood at the relevant time. As a very substantial question  of law of general public importance is raised, it  would be  a travesty of justice if the appeal is dismissed  on  the  sole  ground  that  the  certificate  is defective. It would have been open to grant special leave on the question  raised. The  preliminary  objection  that  the certificate granted  by the  High Court  being invalid,  the appeal must fail on that account alone over-ruled. [666 E-F, 667 C]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 2450 of 1969.      From the  judgment and  decree  dated  14-8-63  of  the Calcutta High  Court in  Appeal from  Appellate  Decree  No. 632/63.      L. N.  Sinha, A.  N.  Sinha  and  Rathin  Das  for  the Appellant.      A.K. Sen,  D. N.  Mukherjee and  N.  R.  Chaudhary  for Respondents 1, 2-7 and 9.      D. Mookerjee and P. K. Mukherjee for Respondent No. 3.      The Judgment of the Court was delivered by      DESAI, J.  Kalpana Theatre  with  its  furnishings  and fixtures  situated  at  61,  Chintamoni  Dey  Road,  Howrah, belonging to  respondents 1  and 2  is the subject matter of dispute between its landlords and tenant awaiting resolution for the  last two  decades. Under  a registered  lease  deed dated 11th  September 1948  respondent 3  Kanti Bhusan Bose, took this  Theatre on  lease for  a period  of 5  years with effect from 1st September 1948. Respondent 3 is the Managing Director of the appellant Biswabani Pvt. Ltd. (’company’ for short).  It   appears  that   during  the  period  of  lease respondents 1 and 2, the owners of the Theatre, accepted the appellant company  as  their  tenant  and  in  token  of  it accepted rent from the company at the rate of 655 Rs. 2,000/-  p.m. On  the expiry  of the  period of  5 years disputes arose  between the lessors and the lessee whereupon respondents 1 and 2 lessors commenced an action in ejectment against the  company on 5th October 1953 in the Court of the First Subordinate  Judge, Howrah.  In August  1953 appellant company as  lessee filed  an  application  before  the  Rent Controller under  the  West  Bengal  Premises  Rent  Control (Temporary Provisions)  Act, 1950,  for fixation of standard rent of the demised premises. Ultimately the parties arrived at a compromise and the consent terms were filed in T.S. No. 68 of 1953 instituted by the lessors respondents 1 and 2 for eviction of  the company and the Court was invited to pass a decree in  terms thereof.  The consent  decree,  inter  alia provided that  the company  would be  the tenant  of Kalpana Theatre ona  monthly rent of Rs. 1,000/- from 1st March 1955 for a  period of 5 years and that the third respondent Kanti

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Bhusan Bose  had to  offer security by deposit of G.P. Notes of the  face value  of Rs.  20,000/- with  the lessors.  The lease was  to be for a period of 5 years commencing from 1st March 1955.  An indenture  of lease  was to  be drawn up and executed by both the parties in terms of the consent decree. The company was given permission to sublet the premises with prior  approval   of  the   lessors.  There   is  a  furious controversy about  one of  the terms  of the  consent decree which reads as under:           "After the  period of five years there shall be no      renewal of  the lease,  the lessee  shall be treated as      trespasser". On the  expiry of  the term  of five  years on 29th February 1960 it appears that respondents 1 and 2 lessors locked up a portion of  the demised premises whereupon the company filed a suit  on 14th  March 1960  against  respondents  1  and  2 lessors and the proforma respondent 3 for a declaration that the company  was the  tenant of  the  premises,  and  for  a permanent injunction  restraining respondents  1 and  2 from interfering with its tenancy rights. There was also a prayer for a  mandatory injunction directing respondents 1 and 2 to remove the  locks put by them on some portion of the demised premises and for reliefs incidental and ancillary thereto.      The suit  was, inter  alia, contested  on a  contention that as  the consent  decree provided  for a  fresh lease of five years  such  a  lease  can  only  be  valid  if  it  is registered  and  as  the  consent  decree  or  the  document incorporating the  terms of  compromise was  not registered, the company  continued in possession under a void lease and, therefore, on  the expiry  of the  period of  five years the company was a trespasser 656 and  respondents   1  and  2  were  entitled  to  take  over possession from  such a  trespasser. It  was also  contended that on  the expiry  of the  period of  five years  on  29th February 1960  the company  handed over  peaceful and vacant possession to  respondents 1  and 2  in terms of the consent decree.      The  trial  court  held  that  as  the  consent  decree provided for  a lease  for a  period of  five years  in  the absence of registration the lease for a period of five years did not  come into  existence but if the tenant entered into possession under  an invalid lease and the landlord accepted rent a  tenancy from  month to  month  came  into  existence between the  lessors and  the lessee  and that such a lessee cannot be  evicted except after terminating the tenancy by a valid notice to quitand in the absence of such determination the lessee  would be  a lessee  from month  to month and can protect its  possession. In accordance with this finding the trial  court   decreed   the   appellant-plaintiff’s   suit. Respondents 1  and 2  appealed  to  the  District  Court  at Howrah. The  learned Additional District Judge held that the lease being  void, yet  the lessors would not be entitled to disturb the possession of the tenant for a period of 5 years under the  provisions of  s. 53A of the Transfer of Property Act but  after the  expiry of  the period  of five years the appellant became a rank trespasser and the respondents 1 and 2  were   entitled  to  take  possession  of  the  property. Accordingly the  appeal was  allowed and  the company’s suit was dismissed. The appellant company preferred second appeal to the  High Court.  The High  Court broadly agreed with the findings of the learned Addl. Distt. Judge and dismissed the appeal. The  High Court  granted a certificate unfortunately very vague  without specifying  whether the  certificate was under Article 133(a), (b) or (c) as it stood at the relevant

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time.      The undisputed  facts are  that Kanti  Bhusan Bose, 3rd respondent took  on  lease  the  demised  premises  under  a registered lease  need dated 11th September 1948, the period reserved under  the lease being 5 years at a monthly rent of Rs. 2,000/-  with an option for renewal to be exercised by a notice two  months before  the expiry  of the  lease. It  is equally undisputed  that during  this period  of 5 years the appellant company  was accepted  as tenant  of  the  demised premises and  the company  paid the  rent reserved under the lease being  Rs. 2,000/-  p.m. The period reserved under the lease expired  on 31st August 1953. But before the expiry of the period  an application  was made  by the  appellant  for fixation of  standard rent of the demised premises under the West Bengal  Premises Rent  Control  (Temporary  Provisions) Act, 1950. In October 1953 respondents 657 1 and 2 as lessors commenced an ejectment action against the appellant and third respondent on the ground that the period reserved under  the lease  has expired  and the  lessee  has failed to  exercise  the  option  for  renewal.  During  the pendency of  the aforementioned  actions the parties entered into a  compromise and  the consent  terms were filed in the suit instituted  by respondents 1 and 2 lessors inviting the Court to  pass a  decree in  terms thereof,  and  a  consent decree was passed which has been referred to in the evidence as ’solenama’.  It, inter  alia, provides  for a lease for a further period  of 5 years commencing from 1st March 1955 on a monthly  rent of Rs. 1,000/- p.m. made up of a rent of Rs. 500/- for the premises and a rent of Rs. 500/- for furniture and fixtures  and the lessee would have no further option of renewal of  the lease  on the  expiry of the period reserved under the lease. This consent decree incorporating the terms of a  fresh lease  to be effective as a valid lease required registration in  view of  the provisions contained in s. 107 of the Transfer of Property Act read with s. 17(1)(d) of the Registration Act,  1908, because  the period  reserved under the lease was exceeding one year. It is an admitted position that the  instrument containing  terms of lease, i.e. either the consent  terms or  the consent decree was not registered as required  by law.  However, it  is  equally  an  admitted position that  the company  continued in possession and paid rent which was accepted by the lessors from the company from month to  month. It appears that on 29th February 1960, i.e. the last day on which would expire the lease for a period of 5 years,  the lessors  respondents 1  and 2 entered into the demised premises and locked a portion thereof.      The questions  that emerge  for consideration  in  this appeal are:-      1.   What would  be the status and nature of possession           of  a  person  who  was  admittedly  a  tenant  of           premises covered by the local rent restriction Act           till the  date of  commencement of  a fresh  lease           which  turns   out  to   be  void   for  want   of           registration, during  and at  the  expiry  of  the           period purporting  to be  reserved by  such a void           lease ?      2.   Would such  a person be a tenant who could only be           removed by  proper legal  proceeding or a licensee           without any  interest in the premises and could be           forcibly evicted  by the landlords of the premises           entering the premises and locking the same ?      3.   Could such  a person  defend his  possession by  a           suit   seeking   a   declaration   and   mandatory           injunction ?

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658      Appellant was accepted as tenant by respondents 1 and 2 even though the indenture of lease dated 11th September 1948 (referred to as ’the first lease’) was executed by the third respondent who  was the  Managing Director  of the appellant company. Indisputably  when the  first lease expired on 31st August 1953  the appellant  was the  tenant of  the  demised premises, a  fact  demonstrably  established  and  expressly accepted by  respondents 1  and 2  and  evidenced  by  their conduct of  accepting rent  from the  appellant company. The indenture of  first lease  granted an  option to  the lessee which would  be none  other than  the appellant  company, to claim renewal  of lease.  This  option  was  not  exercised. Notwithstanding the  non-exercise of  the option on the date of expiry  of the  lease the contractual tenancy having come to an  end, the  tenant would  be a  tenant holding  over if requirements of  s. 116  of the Transfer of Property Act are satisfied. However,  on the  date of  expiry of  contractual tenancy the  West Bengal  Premises  Rent  Control  Temporary Provisions) Act,  1950, was  in force  and was applicable to the  premises   and,  therefore,  on  the  determination  of contractual  tenancy   by  efflux  of  time  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.  He is  loosely described as statutory tenant which is  another name  for status  of  irremovability  (see Anand  Nivas  Private  Ltd.  v.  Anandji  Kalyanji  Pedhi  & Ors.(1).      It must  be recalled  here that the first lease expired on 31st  August 1953.  Respondents 1  and 2 filed Title Suit No. 68 of 1953 in October 1953. This suit ended in a consent decree as aforementioned and the appellant and respondents 1 and 2  agreed to  enter into a fresh lease for a period of 5 years commencing  from 1st  March 1955  on a monthly rent of Rs. 1,000/-.  It is  not in  dispute that from 1st September 1953 to  28th February  1955 rent  was paid by the appellant and the  same was  accepted by respondents 1 and 2. There is no bar  in law  to a  statutory tenant entering into a fresh contract of  tenancy with  the landlords which was attempted by the  consent decree.  From this  undisputed  position  an inference of  tenancy can be reasonably made. Accordingly it must be  held that  when the  parties agreed to enter into a fresh lease  (referred to  as ’the second lease’) commencing from 1st  March 1955,  appellant  company  was  a  statutory tenant in possession of the demised premises.      By the consent decree appellant and respondents 1 and 2 entered into a fresh lease for a period of 5 years. The High Court 659 has found this lease to be void for want of registration and this position  was not  disputed before  us.  The  appellant continued in  possession for  a period  of 5  years and paid rent as agreed to between the parties in the consent decree. Now, if  the lease  is void for want of registration neither party to  the indenture  can take  advantage of  any of  the terms of  the lease.  At best  the provision contained in s. 53A of  the Transfer  of Property Act which incorporated the English equitable  doctrine of  part performance can, if the terms thereof  are satisfied,  be  relied  upon  to  protect possession for  the period reserved under such a void lease. But no  other terms  of such  an indenture  inadmissible for want of  registration can be the basis for a relief. In this case respondents  1 and  2 rely  upon  a  provision  in  the consent decree  that there was not to be any further renewal of the  lease and  the High Court was so much impressed with

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this provision  when it  observed: "Here  is a party who has solemnly entered  into an agreement, has enjoyed the benefit of it, has committed a flagrant breach of it, and now wishes the law  to come  to his  aid and  protect him from the evil consequence.... If  the appellant  succeeds it  will be most unhappy state  of affairs".  This observation  appears to be provoked by  the High  Court looking  into that  part of the consent decree  which provides for no further renewal of the lease, which  being a  term in an indenture inadmissible for want of  registration, could  not have been looked into. And this feeling of righteous indignation completely ignores the overriding provisions  of the  relevant Rent Restriction Act which came  to the  aid of  every  tenant  in  its  area  of operation on  the determination  of contractual  tenancy. At its commencement  every lease  world have  its origin  in  a bilateral contract  which except  for lease  for  indefinite period or  permanent  lease  would  be  for  some  specified duration. On  the expiry  of the  period the  solemn implied promise or  assurance is  to return  possession. If  such  a promise is  to be  enforced  overlooking  or  ignoring  Rent Restriction Act  it  would  make  a  mockery  of  protection extended by Rent Restriction Act.      It must  further be  made clear  that  s.  53A  of  the Transfer of  Property Act  is not  at all  attracted in  the facts of  this case. The suit was field by the appellant who sought to  protect its possession. The equitable doctrine of part performance can be used as a shield and not as a sword. It can  be used to defend and protect one’s possession, (see Probodh Kumar  Das  &  Ors.  v.  Dantmara  Tea  Co.  Ltd.  & Ors.).(1) In  fact, any discussion of s. 53A in the facts of this case 660 would be  entirely beside the point. It was so made clear by the learned  counsel appearing  for  the  present  appellant before the  High Court  but somehow  or the  other the  High Court has  practically put into forefront the application of s. 53A.  We must  accordingly steer  clear of  this position that neither  the appellant  relies on s. 53A to protect its possession nor  would it be of any use or assistance because it can be a sheath and not a sword as the appellant has come to the  Court for  a  declaration  of  its  tenancy  rights, seeking to  protect its possession not under the doctrine of part performance as incorporated in s. 53A but with specific allegation that  the appellant  is a  tenant and  it  be  so declared, and  for an  injunction restraining  respondents 1 and  2   landlords  from   interfering  or   disturbing  the appellant’s possession of the premises as tenant.      If, as  it clearly  transpires from  the facts  of this case, the  appellant was  a tenant  on the date on which the second lease,  which is  found to  be void,  was to commence what would  be the  nature of  possession of  the  appellant during the  period of  5 years,  the  period  sought  to  be reserved under  the second  lease and  on the  expiration of such period  ? If  the appellant was put into possession for the first  time under  a void lease the appellant could have protected its  possession under  s. 53A. But it must be made distinctly clear that the appellant was in possession on the date on  which the  second  lease  now  found  void  was  to commence. Would  this attempt  inchoate  or  still  born  of entering  into   a  fresh   contractual  tenancy   make  any difference in  the position  of the appellant and the nature of his  possession ? If the second lease is void or inchoate or ineffective  or still born it is not all effective. If it is not  effective it does not impinge upon the nature of the appellant’s possession  which was that of a tenant. In other

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words, the  appellant continued  to remain  in possession of the demised  premises as  tenant because there was no impact of the  lease which  is found  to be  void. It  must be made distinctly  clear   that  the   appellant  was  not  put  in possession under  the lease  which turns  out to be void. In such a situation even during the period of 5 years for which the second  lease was  to be created the appellant continued to be  in possession  as tenant and this is evidenced by the further fact  that rent  was accepted  from the appellant by respondents 1  and 2. There is nothing to show that the rent was accepted  from month  to month  by respondents  1 and  2 under the  second lease  and not  what was determined by the Court in  rent fixation  case No. 114/53 wherein the parties had filed a consent precipe by which the parties invited the Rent Controller  to fix the standard rent of the premises at Rs. 500/-  p.m. and  Rs. 500/-  for use  of  the  machinery, furniture and 661 fixtures, in  all  Rs.  1,000/-  p.m.  In  this  connection, attention was drawn to Receipt Ext. 10 issued by respondents 1 and  2 on  1st January 1960 in which it is stated that the amount  is   accepted  as   per  terms   of  consent  decree (solenama), but  it could not be overlooked that this amount was determined  by consent  of parties in the case initiated by the  appellant before the Rent Controller for fixation of standard  rent.   If  thus  the  appellant  was  already  in possession as  a tenant  of  the  premises  an  unsuccessful attempt to  create a fresh lease would not change the nature of  his   possession  as  from  a  tenant  to  one  in  part performance under  a void  lease. The appellant continues to be in  possession as tenant and no cloud is created over its title to  remain in  possession as tenant merely because the appellant and  respondents 1 and 2 attempted to enter into a fresh lease which did not become effective.      Even if  it is  assumed that  the appellant  was put in possession for  the first time under a lease which turns out to be  void, the  appellant  came  into  possession  of  the premises with  the consent  of the  landlords and  paid rent from month  to month. As the lease was to be for a period of 5 years,  for want  of registration  no operative lease came into existence.  In almost  identical circumstances  in  Ram Kumar Das  v. Jagdish  Chandra Deb  Dhabal Deb & Anr.,(1) an inference of  tenancy was  made  and  the  duration  of  the tenancy in  such circumstances  was held to be from month to month.      Woodfall on ’Landlord and Tenant’, Volume 1, 27th Edn., p. 187 para 446, in this context states as under:           "Moreover, if  the tenant  enters into  possession      under a  void lease,  he thereupon  becomes tenant from      year to  year upon  the terms of the writing, so far as      they are  applicable to  and not  inconsistent  with  a      yearly tenancy.  Such tenancy  may be determined by the      usual notice  to quit  at the  end of  the first or any      subsequent year,  and it  will determine,  without  any      notice to quit, at the end of the term mentioned in the      writing. But  if the  lessee does not enter he will not      be liable  to an  action for not taking possession; nor      will an  action lie  against the  lessor for not giving      possession at  the time  appointed for the commencement      of the term but before the lease is executed".      In the  context of  fiction enacted  in s.  106 of  the Transfer of Property Act depending upon the nature of lease, namely, one of a 662 Theatre, the  person so  put in possession would be a tenant

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from month to month.      The Privy Council in Arif v. Jadunath,(1) in terms held that if  an indenture  of lease  is compulsorily registrable under s.  107 of  the Transfer  of Property Act such a lease can only  be made  by a  registered instrument and if not so made, is  void altogether. However, if from such a person in possession under  a void  lease the landlord accepts rent as held in  Ram Kumar  Das’s  case,  (supra)  an  inference  of tenancy would  follow. Mulla  in ’Transfer of Property Act’, 6th Edn.,  at p.  680 has  observed that  an oral  agreement accompanied by  delivery of possession, if for more than one year is  valid, by  delivery of  possession, for  the  first year, and  thereafter the  lessee continuing  in  possession with the  assent of  the lessor  becomes a tenant by holding over under  s. 116  of the  Transfer of Property Act. Such a lease being  created by  operation of  law is  binding  even though the provisions of s. 107 have not been complied with. It is also noted at p. 681 that though an unregistered lease is void  as a  permanent lease,  it can  be deemed  to be  a monthly lease terminable by 15 days’ notice.      Mr. Sen,  however, strenuously  urged that the ratio in Ram Kumar  Das’s case (supra) would have to be understood in the  light   of  the   recent  decision  of  this  Court  in Technicians Studio Pvt. Ltd. v. Lila Ghosh & Anr.(2) As this case was heavily relied upon to assert that it concludes the point raised  in the  present appeal, it warrants an indepth analysis. Much  before the  premises came to be owned by the respondent Lila Ghosh, her predecessors-in-title had brought a  suit  for  ejectment  of  the  lessees  of  the  property impleading the  appellant Technicians  Studio Pvt.  Ltd.,  a private limited  company who  were the sub-lessees also as a defendant. This  suit ended  in a  decree some time in 1954. The appellant applied for a review of the judgment which did not meet  with success.  Against this decision rejecting the review application  the sub-lessee  appellant moved the High Court in revision. This revision was disposed of in terms of a consent precipe. By the consent terms the appellant was to become  the  direct  tenant  under  the  first  respondent’s husband and his brother who had by then become the owners of the property  at a monthly rent of Rs. 1000/-. The lease was to be  for a period of 16 years from May 1954 with an option to the  appellant to  terminate the lease on giving 60 days’ notice to  the lessors. The indenture of lease, however, was not executed  nor the  consent decree was registered. On the expiry of the 663 period  of  16  years  the  first  respondent  commenced  an ejectment  action   alleging  that   the  appellant   was  a trespasser. The  appellant resisted the suit contending that it was  a monthly  tenant. Negativing  this contention  this Court, agreeing  with the High Court, held that the payments made by  the appellant  in that  case can  be  explained  as evidence of  appellant’s willingness  to perform its part of the contract  and that  a person  who is led into possession on, the  strength of  a void  lease  does  not  acquire  any interest in  the property  but gets  under s. 53A a right to defend his  possession. The decision in Ram Kumar Das’s case (supra) was  distinguished observing that in Ram Kumar Das’s case (supra) 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  infect  a  monthly  tenant  under  the plaintiff on  the date  when the  notice to  quit was served upon him. In the case before us, as pointed out earlier, the appellant was  admittedly a  tenant of  respondents 1  and 2

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between 1948  and 1953.  Again, the  appellant was  a tenant from 1st  September 1953  to 1st  March 1955 when the second lease  was   to  commence.  In  the  case  under  discussion appellant was a sub-lessee and he was to acquire a status of direct lessee  or tenant  under the lease which was found to be void.  To be  precise, the  appellant Technicians  Studio Pvt. Ltd.  was not  the tenant  at the  commencement of  the lease  which   turned  out   to  be   void.  That   is   the distinguishing feature.  In the  present case  the appellant was the  tenant from  1948 to 1953 and till February 1955, a feature similar  to Ram  Kumar Das’s  (supra) and  which was considered decisive.  Therefore, the  case falls squarely in terms of  the ratio  in Ram  Kumar Das’s  case  wherein  the position was  admitted that  in the  beginning there  was  a relationship of  landlord and  tenant between  the  parties. This Court in Technicians Studio’s case (supra) did not once and for  ever conclude  the point  that a  person coming  in possession under  a void  lease can  never  claim  to  be  a tenant. On the contrary, it was in terms held that each case will have  to be  decided on  its own  facts.  This  becomes abundantly clear  from  a  pertinent  observation  extracted herein:           "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 circumvent the protection of      the  Rent  Acts  given  to  the  tenants.  Whether  the      relationship of land- 664      lord 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 this  case it  is unquestionably  established that at the commencement of  the lease  which turns out to be void, i.e. on 1st March 1955 appellant was a tenant of the premises and that on  its application  standard rent  in respect  of  the demised premises was determined and the same was accepted as the rent  to be  paid under the second lease. Payment has in fact been made and it would be twisting the language to hold that the payment was not made as rent but under the terms of the second  lease. In view of the statutory enactment of the equitable principle  of part performance as found in s. 53A, the equity  recognised in  Walsh v.  Lonsdale,(1) may not be attracted. However,  it would  not be correct to hold that a tenant who  was in  possession of  the demised  premises  as tenant and  who negotiated  a fresh  agreement of lease with the landlord for a period exceeding one year which, in order to be  legal, must  be by  a registered instrument and which turns out  to be  void for want of registration, would alter his position  from one as tenant at the commencement of such void lease  and would  render him  a licensee  continuing in possession under  the terms  of  a  lease  being  void  and, therefore, ineffective and that he ceases to be a tenant and could be forcibly removed at the end of the period which was reserved under  the  void  lease.  Such  an  incomplete  and ineffective attempt  at creating a fresh lease would have no

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impact on  a tenant  who was  in possession as tenant at the commencement of  such a  void lease and he would continue to be the tenant because s. 53A would not be attracted as he is not put in possession in part performance of an agreement of lease not  registered and  that it  would be  unwise to hold that the  payment of  the standard  rent fixed  by the  Rent Controller having  jurisdiction could  be by  any process of construction treated  as payment  under such an agreement of lease. Therefore, it would appear that the appellant company was a  tenant during the period 1948-53 and on the expiry of the contractual  tenancy on  31st August  1953 it  became  a statutory  tenant.  A  person  remaining  in  occupation  of premises let  to him after the determination of or expiry of the period of the tenancy is commonly, though in 665 law not  accurately, called  a statutory  tenant.  In  other words, he  acquires the  status of irremovability [see Anand Nivas (Private)  Ltd. case].(1)  Statutory  tenant  being  a person who  enjoys the status of irremovability, would enjoy the protection  of the  statute until he is evicted from the premises under  the enabling  provisions of  the statute.  A statutory tenancy would, therefore, come to an end on either the surrender of premises by such a tenant or if a decree of eviction is  passed against  him (See  Hiralal Vallabhram v. Kastorbhai Lalbhai  & Ors.) (2) As the period reserved under the first  lease expired  an 31st August 1953 and thereafter the tenant  continued in  possession, it  became a statutory tenant  under   the  West   Bengal  Premises   Rent  Control (Temporary  Provisions)   Act,  1950.   If   thereafter   an ineffective attempt  was made to enter into a fresh contract of tenancy  the status  of the  appellant as  tenant did not undergo any  change and it continued to be the tenant of the premises and  the statutory  tenancy would come to an end if it surrenders  possession or  is evicted  by due  process of law.      If the appellant thus continued to be a tenant it could not  be  forcibly  evicted.  If  the  premises  enjoyed  the protection of  the West  Bengal Premises  Tenancy Act, 1956, which was  in force  on 29th February 1960 when according to respondents 1 and 2 the period reserved under the void lease expired, respondents 1 and 2 cannot, ignoring the provisions of the relevant Rent Restriction law and merely treating the appellant as  licensee or trespasser, ignoring its status of irremovability,  take  over  forcible  possession.  In  such circumstances the  appellant as  tenant would be entitled to protect its  possession unless  evicted in due course of law and in  order to  protect its possession it can legitimately sue, there  being no  bar in  law, for  a declaration of its status as tenant and for an injunction either prohibitory or mandatory, as  the case may be. The High Court really missed the  core  problem  and  with  respect  misled  itself  into invoking the  provisions of s. 53A which the learned counsel appearing for  the present  appellant declined  to invoke in its favour  and came  to an  unsustainable  conclusion  that under the  consent decree  the parties  agreed that  the old tenancy would  be wiped  out and  a  new  tenancy  would  be created for a period of 5 years expiring in February 1960. A still born  attempt not  clothed with legal formality cannot destroy the  existing status.  The second  lease never  came into  existence   for  want   of   registration   and   more particularly the  appellant was  not put in possession under the purported  second lease  which turns out to be void. The paradoxical approach manifested in the approach is that if a valid lease had come into existence on the expiry of it the 666

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appellant tenant  would have  continued in  possession under the  protection   of  the  relevant  Rent  Restriction  Act. However, if  such an  attempt at  creating a fresh lease was ineffective  or   infructuous,  how  can  such  an  inchoate exercise destroy  the existing  rights which  the High Court held to  have been  destroyed ignoring the very existence of West Bengal  Premises Tenancy Act, 1956 ? The High Court was further in  error in  holding that  if on  the expiry of the agreed period  of lease there was a covenant for not getting any renewal  of the  lease the tenant would be a trespasser, wholly  overlooking  the  legal  position  as  affirmatively established that  on the  expiry of  the contractual tenancy the tenant  continues as  a statutory tenant except where he surrenders possession  or  is  evicted  under  the  enabling provisions of the relevant Rent Restriction Act.      It thus  clearly transpires  that the  appellant was  a tenant and  continued to  be a  tenant and  was entitled  to protect its  possession  by  appropriate  proceeding  unless evicted in due course of law.      Before we  conclude it  is necessary  to dispose  of  a contention in  the form of a preliminary objection raised by Mr. Sen  for the respondents that the certificate granted by the High  Court being  invalid, the appeal must fail on that account alone.  Certificate granted by the High Court leaves much to  be desired.  It is  merely stated that it is a case fit for  appeal to  the Supreme Court. It may be pointed out that the  appellant  had  prayed  for  a  certificate  under Article 133(1)(a),  (b) and  (c) as it stood at the relevant time in  1969. In the application for the certificate it was stated that the subject-matter of the suit and appeal to the Supreme Court  will exceed Rs. 20,000/- and that judgment is one of  affirmance. It  was  also  stated  that  the  appeal involves  a  question  of  general  public  importance  and, therefore,  a  certificate  may  be  granted  under  Article 133(1)(a), (b)  and (c).  In the  affidavit in opposition on behalf of  respondents 1  and 2 it was stated that the value of the  subject-matter of dispute was less than Rs. 20,000/- and the  appeal does  not involve  any question  of  law  of general public  importance which had to be determined by the Supreme Court. With these two affidavits before it, the High Court granted  certificate that  it is a fit case for appeal to the  Supreme Court.  A certificate  which the  High Court grants  must   be  supported  by  adequate  reasons.  It  is obligatory upon  the High  Court to  set out the question of public or private importance which in their opinion falls to be determined in the proposed appeal (see Sohanlal Naraindas v. Laxmidas  Raghunath Gadit,(1) and Railway Board, Govt. of India v. M/s. Observer Publications (P) Ltd.(2) 667      In both  these cases  the appeals  were disposed  of on merits and  the preliminary  objection was  merely  noticed. However, in  Nund &  Samont Co. Pvt. Ltd. v. Commissioner of Income-tax, Bihar  &  Orissa,(1)  this  Court  held  that  a certificate of  fitness for  appeal  to  the  Supreme  Court issued by the High Court under s. 66A of the Income-tax Act, 1922,  will  be  defective  if  it  does  not  set  out  the substantial question  of law  which, in the view of the High Court, falls  to be  determined by  the Supreme  Court,  and following the  decision in India Machinery Stores P. Ltd. v. Commissioner of  Income-Tax, Bihar and Orissa,(2) the appeal was  liable  to  be  dismissed  in  view  of  the  defective certificate. However, in both the cases after observing that the certificate  was defective  the appeals were disposed of on merits.  In this  case a very substantial question of law of general  public importance  is raised  and it  would be a

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travesty of justice if we now dismiss the appeal on the sole ground that the certificate is defective. It would have been open to  us to  grant special  leave on  the question raised before us.  Therefore, the  preliminary  objection  must  be overruled.      This appeal accordingly succeeds and is allowed and the judgment and  decree of  the High  Court as  well as  of the first appellate  Court are  set aside  and the  judgment and decree  of   the  trial   court  are   restored  with  costs throughout. N.V.K.                                       Appeal allowed. 668