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PETITIONER: KRISHNA KUMAR KHEMKA

       Vs.

RESPONDENT: GRINDLAYS BANK P.L:C. AND ORS.

DATE OF JUDGMENT02/05/1990

BENCH: REDDY, K. JAYACHANDRA (J) BENCH: REDDY, K. JAYACHANDRA (J) PANDIAN, S.R. (J)

CITATION:  1991 AIR  899            1990 SCR  (2) 961  1990 SCC  (3) 669        JT 1990 (3)    58  1990 SCALE  (1)70

ACT:     Calcutta High Court Original Side Rules: Chapter 21 Rule 5(a)Receiver  of  immovable property--Whether has  power  to lease property for term exceeding three years.     Transfer of Property Act: Sections 5 and  205--’Transfer of  property,--,Conveys’--Interpretation--Surrender of  part of tenancy-- Does  not  amount to implied surrender  of  entire  tenancy- Increasely reduction of rent--Imports surrender of  existing lease and creation of new tenancy.     West Bengal Premises Tenancy Act: Sections 11, 13(1) and 88--Tenancy--Surrender of part----Does not amount to implied surrender   of   entire   tenancy--Increase   reduction   of rent--Imports  surrender of existing lease and  creation  of new tenancy.

HEADNOTE:     The  appellant  had filed a suit in the  High  Court  of Calcutta  for a declaration that the properties set  out  in the  schedule belonged to a joint family and that the  trust created by the father of the plaintiff/appellant in  respect of the said properties was void. Pending the suit, a Receiv- er  was  appointed  by Justice A.N. Sen.  While  making  the appointment the learned Judge had passed an order  restrain- ing  the Receiver from selling or ’ ’transferring’ ’ any  of the properties.      The  property  in  dispute is a  building  at  Alipore, Calcutta,  which  comprised of four  fiats.  Grindlays  Bank Ltd.,  respondent  No. 1, had taken all the  four  flats  on lease for 10 years from 1st June, 1958. After the expiry  of the  period of lease, Grindlays continued to be the  tenant. On  1st April, 1978 Grindlays surrendered a portion  of  the tenancy,  namely,  two  fiats i.e. fiats Nos. 1  and  2,  in favour of Tatas. The Receiver let out these two fiats to M/s Tata Finlay Ltd. with effect from February 1979.      Questioning the action of the Receiver, an  application was filed in the High Court contending that the Receiver had no authority to create 962 any tenancy, that he had virtually created two new tenancies after  terminating  the original tenancy of  Grindlays,  and

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that neither Grindlays nor Tatas was entitled to occupy  the premises  and they were liable to be evicted summarily.  The learned  Single  Judge  was not inclined  to  order  summary eviction  as  prayed  for. An appeal was  filed  before  the Division Bench. The Division Bench inter alia observed  that any  such  relief could be obtained in a suit but  the  same could  not be filed in the High Court inasmuch as  the  per- mises  in  question was situated outside the  Original  Side Jurisdiction of the High Court.     Before  this  Court it was contended on  behalf  of  the appellant that (i) the Receiver had only such powers as were expressly  granted  by the Court; (ii)  "transfer"  included lease  and  therefore the Receiver by creating a  new  lease i.e.  tenancy, had violated the injunction order  passed  by Justice  A.N. Sen; (iii) after the expiry of the  stipulated period  of lease in favour of Grindlays, the tenancy  turned to  be a monthly tenancy and therefore the entire  character of tenancy changed, and the monthly tenancy therefore was  a new tenancy; (iv) protection under the West Bengal  Premises Tenancy Act could not be extended to the tenant of a Receiv- er;  (v) the break up of the tenancy affected the  integrity of  the tenancy inasmuch as by virtue of this break  up  two new tenancies had come into existence; and (vi) the lease in favour  of Grindlays had expired and by creating  a  monthly tenancy  which may even go beyond three years, the  Receiver had created a new lease in violation of Chapter 21 Rule 5(a) of the Original Side Rules.     In  reply,  it was contended on behalf of Tatas  that  a monthly  tenancy in respect of the said two flats  had  been created in their favour and therefore they were entitled  to protection under the Tenancy Act.     On  behalf of Grindlays it was contended that after  the expiry  of the period of the original lease in  1968,  rela- tionship between Grindlays and the Trust continued to be  of landlord  and  tenant; that at all material times  they  re- tained  the  tenancy in respect of flats Nos. 3 and  4,  and were  governed  by the Tenancy Act; that  the  surrender  of flats  Nos. 1 and 2 by the Grindlays and their  continuation as tenants at reduced rent did not amount to a new lease  in respect of flats Nos. 3 and 4, and hence there was no trans- fer and no violation of the injunction.     Dismissing  the appeal as against respondent No.  1  and allowing it against respondent No. 2, this Court, HELD: (1) In the Transfer of Property Act, the word  ’trans- fer’ is 963 defined with reference to the word ’convey’. Similarly,  the term  ’transfer’ as used in Section 11 or Section 88 of  the Bengal Tenancy Act, included a lease, as a lease is a trans- fer  of an interest in immovable property. A  lease,  there- fore,    comes    within   the   meaning   of    the    word ’transfer’-[968A-B]     Hari Mohan alias Hari Charan Pal v. Atal Krishana Bose & Ors., XXIII Vol. Indian Cases 925, referred to.     (2)  Surrender of part of the tenancy did not amount  to implied  surrender of the entire tenancy. Likewise the  mere increase  or  reduction of rent also would  not  necessarily import a surrender of an existing lease and the creation  of a new tenancy. [972C-D]     Konijeti Venkayya & Anr. v. Thammana Peda Venkata Subba- rao & Anr. AIR 1957 A.P. 619 and N.M. Ponniah Nadar v.  Smt. Kamalakshmi Ammal, AIR 1989 S.C. 467, referred to.     (3)  The  Tenancy in favour of  Grindlays  continued  as monthly  tenancy for a period exceeding three years. It  was an  accretion to the old tenancy and not a new  tenancy-  It

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could  not therefore be said that the Receiver  had  created tenancy  for a period exceeding three years in violation  of Chapter  21  Rule 5(a) of the Original  Side  Rules.  Merely because  there  was change in the character  of  a  tenancy, namely  that  it had become a monthly  tenancy, it  did  not amount to a new tenancy. [972G-H]     Utility  Articles  Manufacturing  Co.  v.  Raja  Bahadur Motilal Bombay Mills Ltd., AIR 1943 Bom. 306, referred to.     (4)  A clear injuction order was passed by Justice  A.N. Sen specifically restraining the Receiver from creating  any new tenancy. But the injunction did not apply to the tenancy in  favour  of Grindlays in respect of fiats Nos.  3  and  4 inasmuch  as it was an old tenancy though in a  modification form.  The Grindlays were therefore entitled to the  protec- tion under the provisions of the Tenancy Act. [974G-H; 975A, C]     Damadilal  & Ors. v. Parshram & Ors., [1976]  Supp.  SCR 645 and Biswabani (P) Ltd. v. Santosh Kumar Dutta, [1980]  1 SCR 650, referred to.      Smt. Ashrafi Devi & Anr. v. Satyapal Gupta & Ors., Suit No.  966  58 dated 9th Sept. 1977. Calcutta High  Court  and Armugha  Gounder  v.  Ardhanari Mudaliar &  Ors.,  AIR  1975 Madras 231, distinguished. 964     (5)  In the case of Tatas, it was a new tenancy. Such  a lease  came within the meaning of ’transfer’ and in view  of the injunction order passed by Justice A.N. Sen, creation of such  a  new tenancy was legally  barred.  Consequently  the Tatas could not claim any protection under the provisions of the Act and were liable to be evicted. [978C]     Kanhaiyalal v. Dr. D.R. Banaji, AIR 1958 S.C. 725 at  p. 729;  Smt.  Ashrafi Devi & Anr. v. Satyapal  Gupta  &  Ors., (supra) and Armugha Gounder v. Ardhanari Mudalier,  (supra), referred to.

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 2072  of 1990.     From  the  Judgment and Order dated 13.5.  1986  of  the Calcutta High Court in Suit No. 2479 of 1967.     M.K. Banerjee, Subrat Rai Choudhary, Gopal  Subramanium, N.P. Aggarwala, Anil Aggarwala, P.C. Sharma, L.P. Aggarwala, Ms. Indira Banerjee, R.N. Jhunjhunwala, Praveen Kumar,  C.S. Vaidyanathan,  P.R.  Seetharaman, D.N. Mukherjee,  Raj  Kumr Gupta and P.C. Kapur for the appearing parties. The Judgment of the Court was delivered by K. JAYACHANDRA REDDY, J. Leave granted.     This  appeal is directed against the order of the  Divi- sion Bench of the High Court of Calcutta. The appellant  was transposed  as the plaintiff in the Original  Side  suit-No. 2479/67  in the High Court of Calcutta. The suit  was  filed for a declaration that the various properties set out in the Schedule  belonged  and  still belong to  the  joint  family consisting  of the members mentioned in the plaint.  Pending the  suit  an  application was filed for  appointment  of  a receiver  for the various properties mentioned  in  Schedule ’A’  annexed to the petition, for injunction and  for  other reliefs.  One  Mr.  S.C. Sen was appointed  as  Receiver.  A declaration was also sought in the suit that the trust dated October  20th,  1948 created by late  Gopi  Krishna  Khemka, father of the plaintiff, is void and for cancellation of the same. Premises No. 38, New Road, Alipore, building with open space  was  one of the properties belonging  to  the  trust.

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Grindlays  Bank Limited (’Grindlays’ for short),  respondent No. 1 herein was the original tenant and they were occupying four  flats  and they surrendered a portion of  the  tenancy namely  two  flats i.e. Flats Nos. 1 and 2 which  came  into effect from 1st 965 April,  1978.  The receiver let out these two flats  to  M/s Tata Finlay Ltd. (’Tatas’ for short) with Effect from Febru- ary 7, 1979 pursuant to a letter written by Tatas. Question- ing  the action of the receiver an application was filed  in the High Court contending that the receiver had no authority to  create any tenancy and that the receiver  has  virtually created  two new tenancies terminating the original  tenancy of Grindlays and it was contended before the learned  Single Judge of the Calcutta High Court that neither Grindlays  nor Tatas  were  entitled to occupy the premises  and  they  are liable to be evicted summarily. The learned Single Judge was not  inclined to order summary eviction as prayed  for  but, however,  observed  that the respective contentions  of  the parties as to the validity of the tenancy created in  favour of Tatas have not been finally decided by the High Court and that the parties are at liberty to agitate the same  grounds in any action that they may be advised to proceed for  evic- tion  of  Tatas and Grindlays. As against the order  of  the learned Single Judge, an appeal was filed before a  Division Bench. It was contended before the Division Bench that  upon surrender  of  Flats Nos. 1 and 2 by the Grindlays  a  fresh tenancy was created by the receiver from 1st April, 1978 and the other tenancy in favour of Tatas is beyond the powers of the  receiver  and  that the receiver had  no  authority  to create  any tenancy either in favour of Grindlays or  Tatas. Various  contentions were raised before the  Division  Bench and  ultimately  the Division Bench  having  considered  the several  submissions passed an order, the operative  portion of which reads as follows: "Therefore,  the petitioner is entitled to get a decree  for possession  on any ground mentioned in Section 13(1) of  the said  Act  and such relief can be obtained in a  suit  which cannot  be filed in this court inasmuch as the  premises  in question is situated outside the original side  jurisdiction of this Court." More  or less the same contentions are advanced  before  us. Firstly  it is submitted that the receiver had no  right  or authority  to create any lease or tenancy in respect of  the said  flats for a term exceeding three years at a  time  and such creation of a tenancy should be deemed to be only for a period of three years’ terminable on the expiry of the  said period.  In this context a further submission is  that  upon surrender of Flat Nos. 1 and 2 by Grindlays a fresh  tenancy was  created by the receiver from 1st April, 1978 for  which he had no authority. Therefore, the High Court ought to have ordered summary eviction of Tatas, and Grindlays. 966     It is not in dispute that the tenancy in respect of Flat Nos.  1 and 2 was surrendered by the Grindlays and from  1st April,  1978 Tatas was inducted as tenant in respect of  the said  two  flats at a monthly rent of Rs. 1200  and  service charge at the rate of Rs.600 per month and since then  Tatas is a monthly tenant in respect of the said two flats. It  is the  case  of the Tatas that the terms of the  tenancy  were reduced  into  writing as recorded in the letter  dated  7th February, 1979 and the receiver adopted the same and did not raise  any objection thereto, and it claimed to be  still  a monthly  tenant and therefore, they are entitled to  protec- tion  under  West  Bengal Premises Tenancy  Act  (’Act’  for

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short)  and  the  appellant has no right  to  demand  vacant possession of the said flats from the Tatas. The stand taken by the Grindlays is that the premises in question  comprised of four flats and they took all the four flats for 10  years on lease from 1st June, 1958. After the expiry of the period of  the  said lease relationship between Grindlays  and  the Trust  continued to be that of landlord and tenant  governed by  the Act, and that in 1977 they agreed to surrender  Flat Nos. 1 and 2 by the letters dated 10th March, 1978 and  29th March,  1978 addressed to the receiver in favour  of  Tatas. However, at all material times they retained the tenancy  in respect  of Flat Nos. 3 and 4 and continued to be tenant  in respect  of  those flats and they are also governed  by  the act. In the letters written it is also stated by the  Grind- lays that their continuation as tenant of flat Nos. 3 and  4 was  acknowledged by the receiver by his letter  dated  15th May,  1978. It is contended on behalf of the appellant  that after  the expiry of the lease the receiver had no power  to grant a lease for a period exceeding three years without the leave of this Court as envisaged in Chapter 21 Rule 5(a)  of the Original side Rules and that in the instant case without obtaining any such leave receiver’s granting monthly  tenan- cies is illegal. Reliance was also placed on the  injunction order  passed by Justice A.N. Sen sitting on  original  Side while  appointing the receiver. The learned Judge passed  an order restraining the tenants from selling or "transferring" any  of the properties mentioned in Schedule ’A’.  According to the appellants the transfer includes lease and therefore, the  Receiver by creating a new lease i.e. tenancy has  vio- lated  the  injunction  order and on that  ground  also  the action  of the receiver should be held to be illegal.  First we  shall dispose of this contention and then advert to  the rest. Order 40 C.P.C. which provides for the appointment  of Receivers  empowers the court to confer upon  the  Receivers all such powers, as to bringing and defending suits and  for the  realization, management, protection,  preservation  and improvement  of  the property. In Satyanarayan  Banerji  and Ors. v. Kalyani Prosad Singh Deo Bahadur and Ors., AIR  1945 calcutta  387,  a  Division Bench held that  the  object  of appointment of 967 Receiver  is not to divest the rightful owner of  the  title but  only to protect the property and an  appointment  might operate to change possession but cannot affect the title  to the  property, which remains in those in whom it was  vested when the appointment was made. In Ratnasami Pillai v. Sabap- athy  Pillai and Ors., AIR 1925 Madras 318, it is held  that the  Receiver has only such powers as expressly  granted  by the Court.     Relying  on these two decisions the learned counsel  for the  appellants submitted that in the instant case  the  Re- ceiver has acted in such a manner affecting the title to the property and to the detriment of the interest of the  right- ful owner. Section 5 of the Transfer of Property Act defines the  meaning  of  ’transfer of property’ and it  is  in  the following terms: "In  the following sections "transfer of property" means  an act by which a living person conveys property, in present or in  future, to one or more other living persons, or to  him- self, or to himself and one or more other living persons and "to transfer property" is to perform such act.           In this Section "living person" includes a company or association or body of individuals, whether  incorporated or  not, but nothing herein contained shall affect  any  law for the time being in force relating to transfer of property

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to or by companies, associations or bodies of individuals." In  Mulla  Transfer of Property Act, 7th Edition,  page  48, there is a passage in this respect which reads thus: "The  word "transfer" is defined with reference to the  word "convey". This word in English Law in its narrower and  more usual sense refers to the transfer of an estate in hand; but it  is sometimes used in a much wider sense to  include  any form  of  an assurance inter vivos. The definition  in  Sec. 205(1)(ii) of the Law of Property is "conveyance includes  a mortgage, charge, lease, assent, vesting declaration, vest-. ing instrument, disclaimer, release of every other assurance of  property  or of any interest therein by  any  instrument except a will." This is a special definition adopted for the purposes  of the Law of Property Act, 1925. The  word  "con- veys"  in Sec. 5 of the Indian act is obviously used in  the wider sense referred to above. Transferor must have an 968 interest  in the property. He cannot serve himself  from  it and yet convey it." The  word  ’transfer’  is defined  with  reference  to  word ’convey’.     In Hari Mohan alias Hari Charan Pal v. Atal Krishna Bose and  Ors., XXIII Vol. Indian Cases 925, a Division Bench  of the  Calcutta High Court held that "the term  ’transfer’  as used in Section 11 or Section 88 of the Bengal Tenancy  Act, includes a lease, as a lease is a transfer of an interest in immovable  property". It is, therefore, clear that  a  lease comes within the meaning of the word ’transfer’ but in  this case  the  matter  does not stop  there.  According  to  the learned  counsel  for the respondents the receiver  has  not created any new tenancy and the continuation of Grindlays as tenants in respect of Flats Nos. 3 and 4 does not amount  to a  new  lease and, therefore, there is no  transfer.  Conse- quently there is no violation of the injunction order passed by  Justice A.N. Sen. Learned counsel for  the  respondents. referred to various documents mostly in the form of  letters between  the  receiver and the Grindlays.  We  have  perused these  letters. They go to show that the  Grindlays  surren- dered  those two flats with the consent of the receiver  but the  stand  taken  by them is. that  their  continuation  as tenants of Flat Nos. 3 and 4 was acknowledged by the receiv- er and the same cannot be treated as a new lease. One of the questions  is whether mere surrender of Flats Nos. 1  and  2 affects the Grindlays’ tenancy of Flats Nos. 3 and 4.     It  is  also contended by the learned  counsel  for  the appellant that after the expiry of the stipulated period the tenancy  in  question turned to be a  monthly  tenancy  and, therefore,  the entire character of tenancy got changed.  In Utility  Articles Manufacturing Co. v. Raja Bahadur  Motilal Bombay  Mills  Ltd., AIR 1943 Bombay 306, a  Division  Bench consisting  of Beaumont, C.J. and Kania, J.  explaining  the nature  of  the monthly tenancy observed  in  the  following terms: "A  characteristic of a periodical tenancy is that  as  each period  commences, it is not a new tenancy, it is really  an accretion to the old tenancy. A monthly tenancy, that is,  a tenancy  subject to a month’s notice, creates in  the  first instance  a tenancy for two months certain. But as  soon  as the  third  month commences, that is not a new  tenancy;  it turns the original tenancy into a three months’ tenancy, and when  the  fourth month begins, the tenancy becomes  a  four months’ tenancy, and so on so long as the tenancy 969 continues, until that is to say, notice to quit is given." Relying  on the above passage the learned counsel  contended

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that  the monthly tenancy, therefore, is new  tenancy.  Even otherwise, according to the learned counsel the integrity of the tenancy is broken up and on that score also it is a  new tenancy. Reliance is placed on Badri Narain Jha and Ors.  v. Rarneshwar  Dayal Singh and Ors., [1951] SCR 153 it  is  ob- served: "An interse partition of the mokarrari interest amongst  the mokarraridars as alleged by the plaintiffs could not  affect their liability qua the lessor for the payment of the  whole rent, as several tenants of a tenancy in law constitute  but a  single tenant, and qua the landlord they  constitute  one person,  each constituent part of which  .possesses  certain common rights in the whole and is liable to discharge common obligations in its entirety." In  White v. Tyndall, 13 Appeal Cases 263 it is stated  that the  parties  to whom a demise is made hold  as  tenants  in common  but what they covenant to pay is one rent,  not  two rents and not each to pay is one rent, not two rents and not each to pay half a rent but one rent. There is a privity  of the estate between the tenant and the landlord in the  whole of  the  leasehold and he is liable for  all  the  covenants running with the land.     According to the appellant, in the instant case, if this principle is followed, the break up of the tenancy  affected the  integrity of the tenancy inasmuch as by virtue of  this break  up two new tenancies have come into existence  paying separate rents and, therefore, in that view also it is a new tenancy. Yet another submission of the appellant is that the act  of the receiver in leasing out in favour  of  Grindlays and  Tatas for a period of more than three years was bad  in view  of  Chapter 21 Rule 5(a) of the Original  Side  Rules. Though this point appears to have been abandoned before  the Division  Bench yet it is also canvassed before us.  Chapter 21 of the Calcutta High Court Original Side Rules deals with Receivers. Relevant part of the Rule 5 reads thus: "5.  In every order directing the appointment of a  Receiver of  immovable  property, there shall, unless  otherwise  or- dered, be inserted the following directions: (a) that the Receiver shall have all the powers provided for 970 in  Order  XL, rule 1(d) of the Code, except that  he  shall not,  without the leave of the Court (1) grant leases for  a term exceeding three years. The  submission is that the act of the Receiver  in  leasing out  the flats in the above manner beyond three years is  in violation of this Rule and in that view of the matter  lease should  be  cancelled and the tenants  should  summarily  be evicted.     Learned counsel for the respondents, on the other  hand, submitted  that  there was no new tenancy and  surrender  of flats  Nos. 1 and 2 by the Grindlays and retaining two  more flats  does  not amount to a new tenancy atleast so  far  as Grindlays is concerned and a reduction of rent also does not create new tenancy inasmuch as the rent that they had to pay was  only  for two flats in respect of  each  their  tenancy continue.     In Woodfall’s Law of Landlord and Tenant, 25th Edn. Page 969, paragraph 2079 reads as under: "2079. Implied surrender of part only. If a lessee for years accept a new lease by indenture of part of the lands, it  is a  surrender for that part only, and not for the whole  (k); and though a contract for years cannot be so divided, as  to be  avoided  for part of the years and to  subsist  for  the residue,  either by act of the party or act in law; yet  the land itself may be divided, and the tenant may surrender one

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or  two  acres, either expressly or by act of law,  and  the lease for the residue will stand good and untouched." In Halsbury’s Laws of England, 4th Edn. Volume 27, paragraph 449 read as under: "449. Surrender by change in nature of tenant’s  occupation. A surrender is implied when the tenant remains in occupation of  the premises in a capacity inconsistent with  his  being tenant,  where,  for  instance, he  becomes  the  landlord’s employee,  or where the parties agree that the tenant is  in future  to  occupy  the premsises rent free for  life  as  a licensee. An agreement by the tenant to purchase the  rever- sion does not of itself effect a surrender, as the  purchase is conditional on a good title being made by the Landlord." 971 In Foa’s General Law of Landlord and Tenant, 7th Edition  by Judge Forbes, paragraph 991 reads thus: "991.  Lease of part, & c--It has been held that  acceptance of a new lease of part only of the demised premises operates as  a  surrender of that part and no more (b); but  any  ar- rangement  between landlord and tenant which operates  as  a fresh  demise will work a surrender of the old tenancy,  and this  may  result from an agreement under which  the  tenant gives up part of the premises and pays a diminished rent for the remainder--and it may result from the mere alteration in the  amount  of rent payable (c). Where one only of  two  or more lessees accepts a new lease, it is a surrender only  of his share (d)." In  Hill and Redman’s Law of Landlord and Tenant, 16th  Edn. on page 45 1, it is observed: "Any  arrangement  between  the landlord  and  tenant  which operates as a fresh demise will work a surrender of the  old tenancy;  and this may result from an agreement under  which the  tenant gives up part of the premises and pays a  dimin- ished rent for the remainder, provided a substantial differ- ence is thereby made in the conditions of the tenancy. But a surrender does not follow from a mere agreement made  during the tenancy for the reduction or increase of rent, or  other variation of its terms, unless there is some special  reason to  infer  a new tenancy, where, for instance,  the  parties make  the  change  in the rent in the belief  that  the  old tenancy is at an end." From the above passage it can be inferred that surrender  of a  part does not amount to implied surrender of  the  entire tenancy and the rest of the tenancy remains untouched. We  shall now examine the cases cited. In Konijeti  Venkayya and  Another v. Thammana Peda Venkata Subbarao and  Another, AIR  1957 A.P. 6 19, Viswanatha Sastri, J. referred  to  the above mentioned passage from Woodfall’s Law of Landlord  and Tenant  and  observed that the principle of  law  is  stated correctly.     It  can therefore be seen that surrender of the part  of the lease does not amount to surrender of the whole. In N.M. Ponniah Nadar v. 972 Smt. Kamalakshmi Ammal, AIR 1989 SC 467 it is held: "A  mere increase or reduction of rent will not  necessarily import  a surrender of an existing lease and the grant of  a new  tenancy. So also if on account of the variation in  the quantum  of rent any consequential change is made  regarding the  time  and manner of the payment of the rent  it  cannot have  the effect of graver consequences being imported  into the  change of rent than what the parties had  intended  and warrant a finding by the Court, that the parties had intend- ed  to create a new tenancy in supersession of  the  earlier one or that by operation of law a new tenancy had come  into

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existence." From what has been considered above it emerges that  surren- der  of part of the tenancy does not amount to implied  sur- render of the entire tenancy. Likewise the mere increase  or reduction of rent also will not necessarily import a surren- der of an existing lease and the creation of a new  tenancy. We  have noticed above that the transfer  includes  ’lease’. Therefore  it  becomes necessary at this stage  to  consider whether  there has been violation of injunction  granted  by Justice A.N. Sen which formed part of the appointment  order of  the Receiver. So far as the Grindlays are  concerned  we are unable to accede to the contention that a new tenancy is created.     It  is true that Justice A.N. Sen issued  an  injunction restraining the defendants from selling or transferring  any of the properties. There is some force in the submission  of the  learned  counsel for the appellant that  the  lease  in favour  of Tatas amounts to transfer but the same cannot  be said  of Grindlays. Therefore the question of evicting  them summarily  on this ground does not arise. However, the  sub- mission  of  the learned counsel is that even the  lease  in favour  of the Grindlays expired and by creating  a  monthly tenancy it may even go beyond three years, and therefore  it is not only creating a new lease but also is in violation of Rule 5 of the Original Side Rules. We think we need not deal with  this  question  elaborately in view of  the  main  and important question regarding the applicability of the provi- sions  of the Act. However, we have already  considered  and held  that  no new tenancy is created so far  Grindlays  are concerned. Regarding the contention of infraction of Rule  5 it  must  be  noted that the tenancy  continued  as  monthly tenancy and it cannot be said that the Receiver has  created tenancy  for a period exceeding three years and as  observed in Utility’s case it is an accretion to the old tenancy  and not a new 973 tenancy. Merely because there is change in a tenancy  namely that it has become a monthly tenancy, it does not amount  to a new tenancy as contended by the appellant so far as Grind- lays are concerned.     It is also submitted on behalf of the Grindlays that  no new  lease  has been created by the Receiver and  they  come within the meaning of ’tenants’-and therefore they cannot be evicted except as provided under the provisions of the  Act. Section 2(h) of the Act reads thus: "tenant"  means  any person by whom or on whose  account  or behalf,  the rent of any premises is, or but for  a  special contract would be, payable and includes any person  continu- ing in possesion after the termination of his tenancy or  in the event of such person’s death, such of his heirs as  were ordinarily  residing with him at the time of his  death  but shall  not  include any person against whom  any  decree  or order  for  eviction has been made by a Court  of  competent jurisdiction." In  Darnadilal  and Others v. Parashram and  Others,  [1976] Suppl. SCR 645 Section 2(i) of the Madhya Pradesh Accommoda- tion Control Act, 1961 which is analogous to Section 2(h) of the Act has been considered and it is held: "Tenancy  has  its origin in contract. There is  no  dispute that  a contractual tenant has an estate or property in  the subject matter of the tenancy, and heritability is an  inci- dent  of  the tenancy. It cannot be assumed,  however,  that with the determination of the tenancy the estate must neces- sarily  disappear  and  the statute can  only  preserve  his status  of irremovability and not the estate he had  in  the

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premises in his occupation." It is also further observed that: "The  definition  makes a person  continuing  in  possession after  the  determination of his tenancy a tenant  unless  a decree or order for eviction has been made against him, thus putting  him on par with a person whose contractual  tenancy still subsists." In  Biswabani  (P)  Ltd. v. Santosh Kumar  Dutta  and  Ors., [1980] 1 SCR 650 it is observed that: 974 "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  merely because  the appellant and respondents 1 and 2 attempted  to enter into a fresh lease which did not become effective." Their Lordships referred to a passage in Woodfall on  ’Land- lord  and Tenant’ Vol. 1, 27th Edn. page 187 para 446  which reads thus: "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 an unreported judgment of the Calcutta High Court in Smt. Ashrafi  Devi  and Anr. v. Satyapal Gupta & Ors.,  Suit  No. 966/58 dated 9th Sept., 1977 Justice Sabyasachi Mukharji, as he  then  was,  dealt with the question  of  cancelling  the tenancy of lease created in respect of a room and kitchen by the  Official Receiver. In that case it was found  that  the Official  Receiver  violating the order  of  the  injunction granted  lease which the Court found it to be illegal.  Then the learned Judge proceeded further to consider whether such an illegality can be rectified in the proceedings before the Court  and it was held that "Therefore, by acting in  viola- tion of the order of the court, no right, in my opinion, can be created in favour of a third party. Indeed the court  has not  acted.  The action was in breach of the  order  of  the court."     The  learned  counsel for the appellant relied  on  this judgment in support of his submission that the lease in  the instant case created by the Official Receiver is also  ille- gal. From the facts of that case we find a clear  injunction order  was  passed specially restraining the  Receiver  from creating  any  new tenancy and in gross  violation  of  that order.  But, in the instant case, the facts  are  different. The injunction granted 975 by A .N. Sen, J. does not apply to the tenancy in favour  of Grindlays in respect of flats Nos. 3 and 4 inasmuch as it is an old tenancy though in a modified form. In Ashrafi Devi’s, case as a matter of fact, the learned Judge observed: "There was no question of the lease being given without  the power  by the Receiver or in derogation or in  violation  of the order of the court. The lease within the competency of a Receiver  cannot  be impeached or affected  in  the  summary manner as was contended."

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We have already noted that the Grindlays were the tenants in respect of the four flats. They surrendered two flats.  This partial surrender does not put an end to the tenancy and  we are satisfied that in respect of the Grindlays no new tenan- cy  is created by the Receiver and they continued to be  the tenant  and  they are entitled to the protection  under  the Act.     Shri Vaidyanathan, learned counsel appearing for one  of the  respondents, relying on the Full Bench decision of  the Madras High Court in Arumugha Gounder v. Ardhanari  Mudaliar and Others, AIR 1975 Madras 23 1 contended that the  protec- tion  under  the Act cannot be extended to the tenant  of  a Receiver. In that case the tenant was let into possession of a land by Receiver appointed by the Court pending the  suit. The question was whether the provisions of Tamil Nadu Culti- vating Tenants Protection Act, 1955 can be extended to  such a tenant. It was observed in para 6 that: "So then the act of the Receiver in letting out the land  in the  suit  is an act of the Court itself and it is  done  on behalf  of the Court, the whole purpose of the Court  taking possession  through the Receiver appointed by it is to  pro- tect the property for the benefit of the ultimate successful party. If that is the essence and purpose of appointment  of a Receiver, as we hold it is, it will be difficult to  agree that by a literal application of the Tamil Nadu  Cultivating Tenants Protection Act, it could be put beyond the reach  of the Court to give relief to the successful party entitled to possession." Before  arriving  at this conclusion, the Full Bench,  as  a matter of fact, also observed in para 3: 976 "If  literal application of the Tamil Nadu Cultivating  Ten- ants Protection Act is made, it may prima facie appear  that a tenant let into possession by a Receiver would be entitled to statutory protection under the Act. A cultivating  tenant in  relation to any land has been defined to mean  a  person who  carries  on personal cultivation on such land  under  a tenancy  agreement,  express, or implied.  A  "landlord"  in relation  to a holding or part thereof is defined to mean  a person  entitled  to evict a cultivating  tenant  from  such holding or part. A tenant let into possession by a  Receiver appointed by Court literally appears to satisfy the  defini- tion  of "cultivating tenant" and the Receiver, the  defini- tion  of "Landlord" because the former carried  on  personal cultivating under a tenancy agreement." The  Full  Bench  however took the view  that  the  Receiver appointed  by the Court acts as an Officer of the Court  and he  cannot  create a lease which takes  the  pending  matter beyond the purview of the Court and anyone who gets  posses- sion  through  such an act could only do so subject  to  the directions and orders of the Court. In our view the  princi- ple laid down by the Full Bench does not apply to the  facts in  the instant case atleast to the case of Grindlays as  in our view on new tenancy is created in their favour. Even  by the  time the Receiver was appointed the Grindlays were  the tenants  in respect of the four flats and they continued  to be  so. It is only later after due correspondence that  they made a partial surrender and those two flats were let out to Tatas after due negotiations in respect of the rent.  Grind- lays’  affidavit shows that they have also sent rent by  way of Bank pay orders and they have been received by the  Land- lord.  It  is only for the first time on  26.7.88  that  the tenant was informed to stop the payment of rent. Further the receiver has not acted in any manner affecting the title.     Now  coming to the case of Tatas we agree with the  High

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Court  that it is a new tenancy. Such a lease  comes  within the  meaning  of ’transfer’ and in view  of  the  injunction order passed by A.N. Sen, J. creation of such a new  tenancy is legally barred. In Kerr on Receivers, 12th Edn. at p. 154 it is observed: "The  receiver  does not collect the rents  and  profits  by virtue  of  any estate vested in him, but by virtue  of  his position  as  an officer of the Court appointed  to  collect property upon the title of the parties to the action. 977          In appointing a receiver the Court deals with the possession only until the right is determined, if the  right be in dispute." It is also useful to note a passage from Sir John  Woodroffe book "on Receivers": "The  Receiver being the officer of the Court from which  he derives  his appointment, his possession is exclusively  the possession  of the Court, the property being regarded as  in the  custody of the law, in gremio legis for the benefit  of whoever   may  be  ultimately  determined  to  be   entitled thereto." In Kanhaiyalal v. Dr. D.R. Banali, AIR 1958 SC 725 at p. 729 it was observed: "A receiver appointed under 0.40 of the Code of Civil Proce- dure, unlike a receiver appointed under the insolvency  Act, does  not own the property or hold any interest  therein  by virtue of a title. He is only the agent of the Court for the safe custody and management of the property during the  time that the Court exercises jurisdiction over the litigation in respect of the property." In  such a situation the question is whether the  Tatas  can invoke  the  benefit of the provisions of the Act.  In  Smt. Ashrafi  Devi’s case this is precisely the question that  is decided, and we have already referred to some of the  obser- vations  made  therein.  Justice  Sabyasachi  Mukharji  held further: "On  behalf of the transferee of the said property,  it  was contended  that the West Bengal Tenancy Premises  Act,  1956 protects  such  transferee. If however, a valid lease  or  a tenancy  had been created then of course, such a lease or  a tenant would be protected but that, in my opinion, begs  the question. Secondly, it was contended that no party should be made  to suffer because of an Act of the Court, I  have  not been able to appreciate this contention. The court  specifi- cally prevented the transfer or creation of the tenancy. The tenancy which is created was in derogation and in  violation of the order of the court. Therefore, by acting in violation of the order of the court, no right, in my 978 opinion, can be created in favour of a third party.  Indeed, the  court  has not acted. The action was in breach  of  the order of the court."     Similarly  as  observed in Arumugha Gounder’s  case  any such  act of the Receiver done on behalf of the  Court  pen- dente  lite and anyone who gets possession through  such  an act could only do so subject to the directions and orders of the  Court. If we apply the above principles to the case  of Tatas the tenancy created in their favour by the Receiver is in  violation and contrary to the injunction order and  such an act is subject to the directions and orders of the  Court appointing  the Receiver. Therefore the tenancy  created  in favour of the Tatas was in breach of the order of the  court and consequently the Tatas cannot claim any protection under the provisions of the Act and they are liable to be evicted. In the counter affidavit filed on their behalf, it is

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no doubt stated that they were inducted into possession  and even sending the cheques. The case of the appellant is  that cheques were never encashed. In any event as observed above, the  new  tenancy created in their favour  contrary  to  the orders of the Court does not create a fight and is liable to be cancelled. Consequently the provisions of the Act  cannot be  invoked  by them. The appeal is therefore  dismissed  as against  respondent No. 1 Grindlays and allowed  as  against respondent  No. 2 Tatas. In the circumstances of  the  case, parties are directed to bear their own costs. R.S.S.                                          Appeal  dis- missed. 979