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PETITIONER: SIVAYOGESWARA COTTON PRESS,DEVANGERE AND OTHERS

       Vs.

RESPONDENT: M.   PANCHAKSHARAPPA AND ANOTHER

DATE OF JUDGMENT: 27/09/1961

BENCH: SINHA, BHUVNESHWAR P.(CJ) BENCH: SINHA, BHUVNESHWAR P.(CJ) GAJENDRAGADKAR, P.B. DAYAL, RAGHUBAR

CITATION:  1962 AIR  413            1962 SCR  Supl. (3) 876  CITATOR INFO :  R          1966 SC 629  (9)  R          1971 SC1878  (9,10,14)

ACT: Lease-Construction-Lessee taking lease of agricultural  land for building purposes-Terms, if create a permanent tenancy.

HEADNOTE: The  material-terms  of the lease in.  controversy  provided that  for the first 20 years the lessee was to pay  a  fixed rent  of Rs. 350/- every year in advance and if  if  removed his  factory within that period be-would still have  to  pay the  ’said rent for the twenty years retaining his right  to possession; that thereafter he would be free to continue the lease,  as  long as he liked subject to the payment  of  the annual rent of Rs. 400/for the first 10 years and thereafter of  Rs.  500/- per year, with the right’ to  terminate  the, lease at any time and the lessor would not have the right to call  upon him to give up possession at any time as long  as if  wanted to, keep the land for his purposes observing  the terms of the agreement; that the lessee would be entitled to raise  buildings godowns, factories, bunglows or  any  other structures  as  he desired; that the lessor  would  pay  the annual  land  assessment to the Government  and  the  lessee would pay any fines and taxes imposed by the Government  for using....agricultural  land for building purposes; that  the lessee  would be free to sublet or relet  without  affecting the  terms and conditions of the lease and that  the  heirs, executors,  administrators,  successors and assigns  of  the lessee as much as those of the lessee would remain bound  by the lease. After  more than twenty years had elapsed since  the  lease, which  was a registered one, had been executed  between  the predecessors in-interest of the parties, the respondent  who succeeded to the original lessor’s title, brought the  suit, out of which the present appeal arose, for ejectment of  the assignee  of  the lessee’s interest on the ground  that  the lease  created  a tenancy at will and  stood  determined  on service of notice to quit. The  trial  court  and the court of first  appeal  found  in favour  of  the respondent and decreed the suit.   The  High

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Court in second appeal confirmed the decree but relying on a decision  of  the  Bombay High Court in  Bavasaheb  v.  West Patent Co, Ltd.  I.L.R. [1954] Bom 448, held that after  the lapse  of  the  twenty  years  the  lease  was  one  for  an indefinite  period and could enure only during the  lifetime of the lessee and such 877 assignees  as bad been accepted by the original  lessor  and since  the present assignee was not one of them he  acquired no right under the lease. Held, that the lease, read as whole and properly  construed, created a permanent tenancy and not a tenancy at will or one for  an indefinite period valid only during the life of  the lessee. It was not correct to say that the stipulation, granting the lessee  the right to surrender the lease at any  time  after the first twenty years gave to the lessor in the absence  of such  a  provision in the lease itself, the, right  to  call upon the lessee to at quit any time or that the  stipulation was inconsistent with a permanent tenancy.  The  presumption attaching  to  a lease for building purposes  for  no  fixed period, therefore, was not weakened in the instant case. Janaki Nath Boy v. Dina Nath Kundu, (1931) 35 C.W.N. 982 and Baboo  Lekhraj Boy v. Kunhya Singh, (1877) L.R. 4 I.A.  233, referred to. Babasaheb  v. West Patent Co., Ltd., I.L.R. 1954  Bom.  448, distinguished, Navalram v. Javerilal, (1905) 7 Bom.  L.R. 401, Promada Nath Roy v. Srigobind Choudhry (1905) I.L.R. 32 Cal. 648,  Forbes v. Hanuman Bhagat, (1923) I.L.R. 2 Pat. 452 and Commissioner of  Income-tax  v. Maharajadhiraj  Kumar  Visheshwar  Singh, (1939) I.L.R. 18 Pat. 805, discussed. Held,  further,  that it is always open to a lessee  of  any description  to  surrender his lease-hold  interest  to  the lessor  by mutual consent.  It is not necessary in law  that there should be such consent at the time when the  surrender is made. Since in the instant case, the surrender after the lapse  of twenty )-cars had in terms been agreed to by the parties and that stipulation was for the benefit of the lessee, it could not  be  construed  as  in derogation  of  his  right  to  a permanent tenancy.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 324 of 61. Appeal  by-special leave from the judgment and decree  dated December 23, 1960, of the Mysore High Court in Second Appeal No. 61 of 1954. C.   K.   Daphtary,  Solicitor-General  of  India,   J.   B. Dadachanji,  Ravinder  Narain  and O.  C.  Mathur,  for  the appellants. R. Ganapathy Iyer and G. Gopalakrishnan, for the  Respondent No. 1. 878 1961.   September  27.   The  Judgment  of  the  Court   was delivered by SINHA,  C. J.-This appeal by special leave granted  by  this Court on April 20, 1961, is directed against the  concurrent decisions of the courts below decreeing the plaintiff’s suit for  ejectment on the ground that the defendant is a  tenant at will and negativing the appellants’ claim to a  permanent tenancy.   The controversy between the parties depends  upon the  true construction of the lease dated October 26,  1914,

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executed between the predecessors-in-interest of the parties to the present litigation. The facts leading up to this appeal are as follows:- One  N.  J.  Gamodia  of Bombay took on  lease  a  piece  of agricultural  land measuring about 4-1/2 acres belonging  to one  Gurupadappa  of  Devangere  City  for  the  purpose  of erecting  a Ginning and Pressing Cotton Factory.  The  terms of  the registered lease deed dated October 26, 1914, in  so far  as  they  are material for the  determination  of  this appeal  are  better stated in the relevant portions  of  the deed itself:-               "1.   For the 1st period of 20 (twenty)  years               commencing  from  the 1st October,  1914,  and               ending on the 30th day of September, 1934, you               shall  pay to me Rs. 350/- (three hundred  and               fifty)  rupees being the annual rent  reserved               every  year  in  advance  and  obtain   proper               receipts of the payment from me. If before the               expiration  of the said period of 20  (twenty)               years  you will remove your factory  from  the               said  land hereby leased you are bound to  pay                             me  annually  the  rent of  Rs.  350/-  (three               hundred  and fifty rupees) for the  (torn)  20               (twenty) years but you are entitled to  retain               in  possession of and, the road till the  30th               September, 1934.                                    876               2.    After the expiration of the said  period               of  20  (twenty) years mentioned  in  the  1st               clause hereby you shall be at liberty to  con-               tinue the lease of the said land and the  said               road and keep the said land and the said  road               in  your possession as long as you may  desire               to  do.  In case of your thus  continuing  the               lease  of the said land and the said road  you               shall pay to me annually the sum of Rs.  400/-               (four hundred rupees) as rent of the said land               and the said road for 1st ten years  beginning               from the 1st October’, 1934, and ending on the               30th September, 1944, and after the expiration               of  the  period of ten years the  annual  rent               payable by you for the said land and the  said               road  will be Rs.500/- (five  hundred  rupees)               per  annum  but you shall always  be  at  full               liberty to give up the said land the said road               and  terminate this lease at any time you  may               desire  so to do after the 1st October,  1934,               and  the rent payable in respect of  the  said               land and the said road shall cease to be  paid               by you from the time you may give up the  said               land and the said road after the 1st  October,               1934.  But I agree and bind myself not to call               upon you at any time to give up the possession               of the said land and the said road as long  as               you  may  desire  to keep the  same  for  your               purposes   observing   the   terms   of   this               agreement.                3.........................................                4. ........................................               5.    You  are  at full liberty to  erect,  as               many buildings, godowns, factories,  bungalows               and other structures etc. as you may desire on               the  land hereby leased and to pull down,  re-               erect and make any alterations in the same  as               you  may  desire.   I  shall  not  raise   any

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             objection to your erecting any such structures               on the, land or to your use, and enjoyment of               880               the land in any way or for any purpose as  you               may desire.                6. ........................................               7.  I  hold myself liable, to pay  always  the               annual assessment of the land hereby leased to               Government  you shall not be liable  for  such               land  assessment.  But you shall be  liable’to               pay  all  fines  and  other  taxes  which  the               Government  will hereafter impose  for  having               converted the parable ’or cultivable land into                             land for factories and building purposes.               8. .........................................               9. .........................................               10. You shall be always entitled and have full               liberty  to  sublet or re-let  the  said  land               together with the said road for any purpose to               any other person or persons on any  conditions               you  like but without effecting in  the  least               any of the conditions or terms of this lease.               11. ................... ...................               12. .......................................               13. .......................................               14.   This  lease is binding on me, my  heirs,               executors,   administrators,  successors   and               assigns  as well as on your heirs,  executors,               administrators,  successors  and  assigns.   I               have  hereby by this writing granted you  this               lease  by  ;my own free will and  in  my  full               senses and I bind myself to abide by its terms               and conditions mentioned above". The  said lessee, N. J. Gamodia died in 1916 leaving a  will appointing  executors  to  look  after  his  affairs.    The executors  assigned  the  lease to  the   second  defendant, Gamodia Factories Limited by a deed dated November27,  1933. The  assignee like the original tenant continued to pay  the stipulated  rent’to the lessor Guru-padappa till  his  death which 881 occurred  in May, 1939.  ’The second defendant in  its  turn assigned its leasehold interest to the first defendant by  a deed  dated  May  30, 1944.  It is common  ground  that  the leasehold   property   contains   factory,   buildings   and residential  quarters.   After the lessor’s  death  his  two widows continued to receive rent from the lessees as  usual. The plaintiff is the adopted son of the original lessor  and was a minor till some time in 1949.  The plaintiff sought to terminate  the tenancy by issuing notices to the  defendants on,  the ground (1) that the lease bad created a tenancy  at will  in  the events. that had happened; and  (2)  that  the original  lessee  had in contravention of the terms  of  the lease,  assigned the benefits under the lease in  favour  of the  defendants.   As  the defendants  did  not  vacate  the premises and deliver possession of them to the plaintiff, in terms of the notice aforesaid, he instituted the suit giving rise  to  the  present appeal for  a  declaration  that  the defendants  were tenants at will and that  their  possession after service of notice was wrongful, The suit was. resisted by  the first defendant principally on the ground  that  the lease  created  not  a tenancy at will  as  claimed  by  the plaintiff  but  a  permanent  tenancy,  hence  there  is  no question  of  the  defendant being ejected  on  the  grounds alleged in the plaint.

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The  courts  below  have decreed the suit  and  ordered  the defendant-appellant  to  give up porsession.  In  the  trial court,  a number of issues were struck between the  parties. The  most  important  issue upon which  the  result  of  the litigation  largely  defended  was the one relating  to  the nature  of  the lease created by the lease  deed  aforesaid. The  trial  ’court  held that it was a lease  for  20  years certain,  ,and on the efflux of that period on October  26,_ 1934,  the second defendant became a tenant at will  and  as such  the tenancy could be terminated at the will of  either party,  the  second defendant and the first  defendant  were liable to be ejected on service of the 882 necessary  notice,  which  is found to  have  been  properly served.   In  the result, the plaintiff’s suit  was  decreed with costs and the defendants were directed to quit the land and the road annexed to the land. and to restore  possession of  the premises to the. plaintiff after removing  the  iron and steel machinery and other appurtenances of the  factory, but   leaving  intact  the  residential  quarters  and   the appurtenances   of  those  quarters.   On  appeal   by   the defendants,  the lower appellate court affirmed the  finding of  the  trial  court and dismissed  the  appeal  with  this modification  that  the defendants were given  six,  months’ time  to restore possession to the plaintiff after  removing their  machinery etc.  The lower appellate court  made  some other  modifications  also which are not  material  to  this appeal.   On second appeal by the first defendant, the  High Court  dismissed  the appeal with costs, but  modified.  the findings  of the two courts below in so far as it held  that after  the  lapse of the first 20 years of  the  lease,  the tenancy  was  not a tenancy at will, but a  tenancy  for  an indefinite  period which would be valid for the lifetime  of the lessee himself as also of the transferees of the  lessee namely the second defendant, which is the ’company  inasmuch as  the  original lessor in his lifetime  had  accepted  the assignment of the lease in favour of the second.  defendant. The  High Court also held that as the second  defendant  was admittedly  no longer in possession of the leasehold and  as there  has  been an assignment to the first  defendant,  the transfer was not binding on the plaintiff and therefore  the first  defendant did not become the plaintiff’s tenant.   In that  view  of the matter, the judgment and  decree  of  the courts  below were confirmed with the modification that  the appellants  were  given  four month’s  time  to  vacate  and deliver possession of the premises to the plaintiff The  first defendant made an application to’ the High  Court for  the necessary certificate of fitness for coming  up  in appeal to this court.. but the High Court by its order dated March 29, 1961, 883 refused  to  grant  the certificate.  As  time  was  running against the first defendant, he hurried up to this court  by a petition for special leave to appeal dated April 10, 1961. On  April  20,  1961, this court granted  special  leave  to appeal.  That is how the matter comes before us. The controversy between the parties must be determined on  a reference  to  the  terms  of the lease  deed  on  a  proper construction  of  which the rights and  obligations  of  the parties  must be determined.  If it is held that  after  the lapse  of  the first 20 years of the lease,  the  defendants became tenants at will, there is no answer to the claim  for Possession  of the premises.  If it is held, as it had  been held by the High Court, that the second defendants  interest as an assignee of the original lessee created a lease for an

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indefinite  period  in favour of the  assignee  which  would enure for the life of the assignee namely the company,  then the  further  question will arise whether or not  the  first defendant appellant before us had acquired the same interest by virtue of the transfer in his favour.  That is one of the alternative  arguments raised on behalf of the appellant  by his learned counsel.  The learned counsel for the  appellant also  mentioned the ground founded on the provisions of  the Mysore Rent Act ; but as that defence has not been raised in the  pleadings  of the defendant and as that point  has  not been canvassed in the High Court, we ruled that we shall not permit   that  contention  to  be  raised  here.   But   the substantial  ground  on which this appeal has  been  pressed upon  us  is that by virtue of the lease deed. of  the  year 1914,  on a proper construction of that grant,  a  permanent tenancy  was  created.  If that is so, it is  common  ground that  the  suit must fail.  Naturally  therefore,  the  main argument  at the bar on both sides has been devoted  to  the question,  whether  or  not  the  lease  deed  evidences   a perpetual  grant to the lessee on the terms  and  conditions contained in the lease deed. 884 Addressing  ourselves  to that Question, it is  clear  on  a construction of the document Ex-I that it was a lease of the demised premises for a term of 20 years certain, on  payment of  Rs. 350/- annua rent in advance, even though the  lessee may not continue to occupy the demised land; that the lessee had  been  granted  a right to continue  the  lease  of  the demised  premises as long as the lessee desired to do  so  ; that on his choosing to continue to enjoy the leasehold, the lessee was obliged to pay annually the enhanced rent of  Rs. 400/-  for  the next ten years after October  1,  1934,  and after  the expiration of the ten years aforesaid,  the  rent was  further  enhanced to the sum of Rs. 500/- per  annum  ; that the lessee was given the option to give up the lease at any  time  after  October  1,  1934,  without  any   further liability  for  payment of the stipulated rent ;  that  (and this  is  a  very important stipulation)  the  lessor  bound himself  not to call upon the lessee at any time to give  up possession  of  the  ease-hold as long  as  the  lessee  was prepared to observe the terms of the lease, that the  lessee was fully authorised "to erect, as many buildings,  godowns, factories, bungalows and other structures etc.." as also  to pull  down  and re-erect structures or to make  any  altera- tions, as desired by him ; that the lessor undertook not  to raise any objection to the lessee making those structures or his  using  or  enjoying  the land in any  way  or  for  any purposes according to his desire; that the lessor  undertook to pay the annual assessment to Government in respect of the demised premises but the lessee was obliged to pay all fines and  other taxes which Government might impose for  granting permission  to convert the culturable land into  land  meant for building factories and other structures as  contemplated between  the  parties, that if the lessee chose to  give  up possession of the demised premises, he shall be entitled’ to take away all machinery, iron and steel, wood works etc.  of the  factories, buildings and other structures that  may  be standing,  that in the event of a default in the payment  of the annual rent fixed as aforesaid                             885 upon  notice of demand served upon the lessee, the  reserved the  right to re-take possession of the demised  land.   The lessee  was  also declared by para. 10 quoted  above  to  be always entitled to sub-let or re-let the demised land to any person  and on any terms.  As the lease was  apparently  for

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the  purpose  of converting agricultural land  into  factory premises   necessary  for  running  the  factory,   it   was specifically provided that if the Government refused Co give the  necessary permission for setting up the  factory,,  the lease  shall  be  deemed to be ,cancelled.   Para.  13  also contains  a  stipulation that the heirs and assigns  of  the lessor  shall  have.  no  right to  disturb  the  lessee  in peaceful possession of the demised premises, and that in the event of any such interference, the lessee shall be entitled to claim damages for the loss suffered by any action on  the part of the lessor or his heirs or successors.  Para. 14  is also a very important clause in the lease deed, which though coming as the last clause, must ’govern all the stipulations between  the parties.  Thus the terms and conditions of  the lease  which created the rights and obligations between  the lessor  and  the  lessee were specifically  declared  to  be binding  on  the  heirs and successors in  interest  of  the lessor and the lessee. It  is manifest, therefore, on a plain construction  of  the terms  aforesaid of the lease deed that the purpose  of  the transaction  was  a  building lease that  though  there  was liberty reserved for the lessee or his successor to give  up the  lease-hold  at  any  time after  October  1,  1934,  no corresponding right was reserved to the lessor.  Thus  there is  no room for the controversy which has occupied  a  large portion   of  the  judgments  of  the  courts  below,   that reservation  of  the  right  to  the  lessee  to   surrender possession  at any time, imported a corresponding  right  to the  lessor to call upon the lessee to give  up  possession. It  was  an advantage specifically reserved  to  the  lessee without  any  corers ponding benefit to the lessor.   It  is equally clear 886 that the lease was heritable and assignable.  Thus there  is no  difficulty  in holding that there if; no  room  for  the contention,  on  the terms of the lease,  that  the  parties intended  that after the lapse of the first 20 years of  the lease, the tenancy will be merely a tenancy at will.  It was clearly a tenancy for an indefinite period, at the least. The  contention  on  behalf of the appellant is  that  on  a proper construction of the lease deed, read as a whole,  the inference  is  clear that the parties intended it to  be,  a permanent  lease.   The  first argument in  support  of  the conclusion we are asked to arrive at is that it is clearly a lease for building purposes ; and it is rightly pointed  out that where the land is let out for building purposes without a  fixed period, the presumption is that it was intended  to create  a permanent tenancy.  Reliance, was placed upon  the leading case in Navalram v. Javerilal (1) where Sir Lawrence Jenkins, C. J., laid it down that a presumption in favour of a permanent tenancy arises on a transaction like the one  we have before us.  The terms of the grant in that case are set out in 11 at p. 402 and it is clear on a reference to  those terms that the deed was not as strong as we have in the  in- stant  case.  Only two things were explicit in the terms  of that document, namely, (1) that it was a lease for  building purposes and (2) that as long as the lessee continued to pay the  stipulated  rent, the lessor would not be  entitled  to call upon the lessee to quit. Reliance  was also placed upon the decision of the  Calcutta High  Court in Promada Nath Roy v. Srigobind  Chowdhry  (2). In that case the Kabuliat did not specify any period  during which the lease was to subsist. It had been stipulated  that the  land was to beheld from year to year at an annual  rent and that in the event of a masonry building being erected on

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the  land, rent was to be assessed at the  prevailing  rate. Eventually, the tenant (1) (1905) 7 Bom.  L.  401. (2) (1905) I. L. R. 32 Cal, 648                             887 built  the  structure  on the land.  It  was  held  by,  the Calcutta High Court that’ the parties contemplated the lease to  be for building purposes ’and that therefore  the  court could  presume that the lease was intended to be  permanent. The terms of the lease in that case also were not as telling an in the case’before us. Similar was the case of Forbes v. Hanuman ,Bhagat (1) decide by a Divison Bench of the Patna High Court which applied the decision of the Calcutta High Court in Promada Nath Roy v. Srigobind Chowdhry (1) to the case before it.  That case was followed  by  a  subsequent Division Bench in  the  case  of Commissioner   of   Income-tax   v.   Maharajadhiraj   Kumar Visheshwar’  singh(3).   Fazl Ali, J..,  who  delivered  the leading  judgment of the court relied upon the  decision  of their  Lordships  of the Judicial Committee  of  the  Pi-ivy Council  in the case of Janaki Nath Roy v. Dina  Nath  Kundu (4).   Mr.  Justice Fazl Ali particularly  relied  upon  two circumstances  which in his view supported the inference  of the  tenancy being permanent, namely., (1) that no term  had been  fixed  in  the  lease and  (2)  that  the  lease  deed contained  provisions for the exercise of certain rights  by the  heirs  of  the lessor and the lessee,  apart  from  the circumstance  that the building was for enabling the  lessee to build a gola     (ware-house)  and a platform for a  rice mill.  In all these cases  decided by the  Bombay,  Calcutta and Patna High  Courts  as also by the  Judicial  Committee, there was no fixed period as the term of the lease. But  it was contended on behalf of the plaintiff  respondent that  the  term expressly granting the lessee the  right  to give up possession at will was wholly inconsistent with  the permanency  of the tenancy.  In our opinion the  presumption raised by the fact that the lease was for building  purposes and  therefore intended to be permanent is not  weakened  by the fact that the lessee had stipulated (1) (1923) I. L. R.  2 Pat.  452. (2) (1905) I. L. R. 32 Cal.  648. (3) (1939) I. L. R.   18 Pat.  805. (4)(1931)35 C.W.N.982. 888 with the lessor to be entitled to give up, possession if and when he decided to do so. It is a, right reserved in  favour of  the lessee and did not confer, as already  pointed  out, any  corresponding  right, on the lessor.  Such a  right  in favour  of the lessee cannot be converted into a  disability or  an obligation which should detract from the grant  of  a permanent  tenancy.  Such a stipulation which gives a  right to  the  tenant to surrender the lease-hold at any  time  be decided  to  do,so, if it is coupled  with  a  corresponding right  in the landlord to serve notice of ejectment  at  any time  he  chose to do so may have the effect of  making  the tenancy,  a tenancy at will, but such a conclusion has  been negatived by the High Court and rightly enough. In this connection the following ’Observations of the  Privy Council in the case of Baboo Lekhraj Roy v. Kunhya Singh (1) may be quoted:               "If a grant be made to a man for an indefinite               period, it enures, generally speaking for  his               lifetime, and passes no interest to his  heirs               unless   there  are  some  words  shewing   an               intention  to  grant an  hereditary  interest.

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             That  rule of construction does not  apply  if               the term for which the grant is made is  fixed               or can be definitely ascertained". In  that case, a lease had been granted to the  respondents’ ancestor to continue during the term of the mokurruri of the grantor.   The  grantor’s term could be  terminated  by  the owner (in this case the Government) at the end of a year,  a power  which  had  never  been exercised.   In  a  suit  for ejectment by the successor in-title of the original  lessee, it was held by the Privy Council that the general rule  that a  lease of an indefinite nature enures for the life of  the grantee  did not apply to the case, because the interest  of the lessor itself had paused from generation to generation. In  this  case, it has been found by the  High  Court  that. after the lapse of the first 20 years of the (1)  (1877) L. R. 4 I.A. 223,252. 889 lease,  the  lease became one for an indefinite  term  Which meant  on the authority of the decision of the  Bombay  High Court in Babasaheb v. West Patent Co., Ltd.(,) to which  one of us sitting in the Bombay High Court (Gajendragadkar,  J.) was  a party, a lease for the lifetime of the  lessee.   The facts  of  that case were similar to those  of  the  present except  in  so far as there do not appear in the  lease  any such  terms as are contained in cl. 14 of the lease deed  in the  instant case.  The Bombay High Court therefore had  not to  consider the terms of a lease which could be said to  be in  pari materia with those of the present.  In  that  case, the  court  had  to choose between  two  rival  contentions, namely, (1) that the lease created a tenancy at will and (2) that  the lease was a lease good enough for the lifetime  of the  grantee, if it was not indeed a permanent tenancy.   We are in complete agreement with the following observations of the  court made in that case, which in our opinion apply  to the facts and circumstances of the case in hand               "The forms in which tenancy rights are created               in  India  are  not uniform and  they  do  not               conform to precedents known to conveyancing  ;               sometimes  the words used are not precise  and               it  is  not easy to understand from  the  said               words   the  intention  of  the   parties   in               executing  the  documents.  Leases  are  often               executed without legal assistance; and the aid               that  the  parties  obtain  from  professional               scribes does not always contribute to make the               terms  clear  or precise.  The nature  of  the               tenancy  created by any document  must  never-               theless be determined by construing the  docu-               ment  as  a whole.  If the tenancy  is  for  a               building  purpose,  prima  facie  it  may   be               arguable that it is intended for the life-time               of the lessee or may in certain cases be  even               a  permanent lease.  Prima facie such a  lease               is  not intended to be tenancy at  will.   But               whether  it  is  a  tenancy  for  life  or   a               permanent               (1)   I. L. R. [1954] Bom. 448, 4 50.               890               tenancy must ultimately depend upon the  terms               of the contract itself.  And in construing the               terms of ’such contracts the courts must  look               at the substance of the Matter And decide what               the parties really intended to do." Our task therefore in the present case is to determine  what the  parties really intended to do.  In this connection,  it

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is  pertinent  to’ re-emphasise the following  facts  :  the lessee with a view to raises a substantial structure by  way of   factory  premises,  residential  quarters   and   other appurtenant buildings, took a lease of extensive land, about 4-1/2  acres  in  area ; those lands, at  the  time  of  the transaction  in question, were being used  for  agricultural purposes with the permission of the Government who were  the ultimate  owners.  Its character could be changed  with  the permission   of  the  Government  on  payment   of   certain prescribed  fees  and  charges.  The parties  could  not  he certain  of obtaining the necessary Government  sanction  to the conversion of the tenancy from agricultural to  building purposes.   Therefore the stipulation was clearly made  that in the event of the Government refusing to sanction the con- version,  the lease will be deemed to have come to  an  end. If the permission were forthcoming, and if the lessee put up substantial  structures,  it  would be in  his  interest  to continue in possession of the premises demised by the  lease as  long as he found it worth his while, but the lessee  may have  apprehended that circumstances might supervene  neces- sitating  his walking out of the venture.  He therefore  had to  make provision in the lease entitling him  to  surrender the lease so as to avoid the liability for payment of future rents.  But the lessor on his part would be equally  anxious to conserve his rights and therefore ’he ’insisted upon  the payment  of rent for at least 20 years irrespective  of  the consideration whether or not ’the tenant continued 891 to  occupy the premises.  Thereafter, the lessor  stipulated for enhanced rent of Rs.;. 400/- per annum for the first ton years  after the initial period of twenty  years  aforesaid, and  Rs.  500/-  thereafter for all times  that  the  lessee continued  to occupy the premises.  It could  not  therefore have been in the contemplation of the parties that the lease should  be  only  for  the life of the  grantee  or  for  an indefinite  period which could be terminated at the will  of the lessor.  In order to ensure that the lessor, should  not eject   the  lessee,  at  his  sweet  will,  the  term   was specifically included in the lease that it will not be  open to the lessor to do so.  It must, therefore, be held that  a stipulation entitling the lessee to surrender possession  of the premises at his will is not wholly inconsistent with the tenancy being permanent.  In this connection, the  following observations of the Judicial Committee of the Privy  Council in the case of Janaki Nath Roy v. Dina Nath Kundu (1) may be quoted :               "On  the  other. hand, restrictions  upon  the               power of  the  tenant to dig tanks  and  build               masonry   structures   (el.   8)   and   other               provisions in the document were relied upon by               the Appellants as indicating a tenancy not  of               a permanent nature.  That some provisions  are               to  be  found which point  in  that  direction               cannot  be denied though some of them  may  be               explained  by  the existence  of  the  special               powers  to resume Khas possession referred  to               above.  But the question after all, is one  of               construction of a document, viz., what is  the               correct  view  to take of the  rights  of  the               parties  after considering all the clauses  of               the  kabuliyat  and giving due weight  to  the               several   indications  which  point   in   the               different directions ?" It is noteworthy that the lease was intended by, the parties to be heritable and assignable. It

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(1)  (1931) 35 C.W.N. 982, 986. 892 was  a  lease for twenty years certain, and  then  in  terms which  are not wholly unequivocal in respect of  the  period after the lapse of the initial twenty years.  That the lease was  not intended to be for the life only of the grantee  is clear not only from the facts already noticed, namely,  that it  was  meant  for building  purposes,  was  heritable  and assignable  and had not reserved any right to the lessor  to terminate the tenancy, but also from the consideration  that the lessor would not gamble upon the life of his lessee when he was making sure of the term of at least twenty years.  He must  have. known that the factory worked for twenty  years, it would go on for ever, according to human calculations. The fact that the lessee stipulated in express terms that he shall  always be at full liberty to give up the lease  after October  1, 1934, it was argued, was a clear  indication  of the  lease not being a permanent one ; in other  words,  the contention  is  that the presumption arising from  the  fact that  the  lease was for a building purpose,  heritable  and assignable  is  rebutted  by the fact that  the  tenant  had insisted  upon the stipulation aforesaid.  In  oar  opinion, there is no substance in this contention.  It is always open to  a  lessee  of  whatever  description  to  surrender  his leasehold interest to the lessor, by mutual consent.  It  is not  necessary in law that the mutual consent should  be  at the  time’ the surrender is being made.  It is open  to  the parties  to  stipulate  terms  in  anticipation  of  such  a surrender.  In the instant case, the surrender was to be  in express  terms agreed to by the parties, at any  time  after the  lapse  of the initial period of twenty years.   Such  a stipulation  for  the  benefit  of  the  lessee  cannot   be construed as in derogation of the permanency of the  tenure, if the parties otherwise agreed to create such a tenure. For  the  reasons aforesaid, it must be held that  the  High Court  was  in  error in holding that the  present  case  is governed by the decision of the                             893 Bombay High Court in I.L.R. [1954] Bom. 448.  That  decision was, with all respect, entirely correct on the terms of  the document  then  before  the court.  That being  so,  in  our opinion,  on  a true and proper construction  of  the  lease deed, the presumption in favour of the transaction  creating a permanent lease cannot be held to have been rebutted by  a stipulation  in  favour of the tenant having  the  right  to surrender  the lease at his choice.  That being so, it  must be held that the lease deed evidences an intention to create a  permanent  lease.   In view of this finding,  it  is  not necessary  to  advert  to the other  contentions  raised  on behalf of the appellants. For the reasons given above, the appeal must be allowed; the judgement  and decree of the courts below are set aside  and the  suit  giving rise to the appeal  dismissed  with  costs throughout. Appeal allowed.