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PETITIONER: TECHNICIANS STUDIO PRIVATE LTD.

       Vs.

RESPONDENT: LILA GHOSH & ANR.

DATE OF JUDGMENT19/09/1977

BENCH: GUPTA, A.C. BENCH: GUPTA, A.C. FAZALALI, SYED MURTAZA

CITATION:  1977 AIR 2425            1978 SCR  (1) 516  1977 SCC  (4) 324  CITATOR INFO :  R          1980 SC 226  (15)

ACT: Transfer of PropertyAct   (Act  IV)  1882,  sec.   53A- Doctrine of Part Performance-Scope of. West Bengal PremisesTenancy  Act 1956-Appellant  coming into possession of the premises as aresult     of      a compromise  decree in the court-Terms of  compromise  decree notregistered  and  no lease  deed  executed  subsequently Whether payment and acceptance of rent creates a monthlytenancy entitling protection   available  under   West   Bengal Premises TenancyAct 1956.

HEADNOTE: In terms of the compromise petition filed in the HighCourt in an earlierejectment   suit,  it  was  agreed   by   the predecessors-in-title ofthe  respondent that the  appellant would  become "a direct tenant under the first  respondent’s husband  and  his brother who were then the  owners  of  the property at a monthly rent of Rs. 1000/- and that the  lease would  be  for a period of 16 years from May 19,  1954  with option  to the, appellant to terminate the lease earlier  on giving 60 days’ notice on the lessors." No deed of lease was ever executed nor the petition of compromise containing  the terms  of  settlement  was registered  and  the  appellant’s possession  from  May  19,  1954 was on  the  basis  of  the compromise.   Respondent No. 1 after the expiry of the  said period of lease served a notice on the appellant to quit and vacate the premises and thereafter filed a title suit No. 59 of  1970  on  May  22,  1970  in  the  Third  Court  of  the Subordinate Judge at Alipore for recovery of possession  and mesne  profits.   The defence of the appellant was  that  by payment  and acceptance of rent a monthly tenancy  has  been created in their favour which was continuing even after  the expiry of the said period.  The trial court found that to be effective as a lease for 16 years the petition of compromise required registration and this not having been done it could not  create any interest in favour of the appellant  in  the premises  though  they were entitled to protect  their  pos- session  for  a  period  of 16 years under  s.  53A  of  the Transfer  of  Property Act.  It also held that  payment  and acceptance  of  rent  made in terms.  of  the  unregistered,

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compromise petition did not give rise to a right of  tenancy and  on  the  expiry  of  the  said  period,  they  had  no- protection against eviction and thus decreed the suit.  Both the  first  appellate  court and the High  Court  in  second appeal affirmed the findings of the trial court. Dismissing the appeal by special leave, the Court, HELD  :  (1)  Section 53A confers no  active  title  on  the transferee in possession.  It only imposes statutory bar  on the transferor.  A person who is let into possession on  the strength  of a void lease does not acquire any  interest  in the  property but gets under s. 53A only a right  to  defend his  possession.  In the instant case under the petition  of compromise  the  appellant had to pay a monthly sum  of  Rs. 1000/- as rent during the period of intended lease which the appellant did.  These monthly payments brought the appellant under  the coverage of section 53A but from this fact  alone that the appellant had performed his part of the contract it is not possible to conclude that a tenancy was brought  into existence.   Acceptance of the payments tendered as rent  is not decisive of a tenancy. [520 A-C] Probodh Kumar Das and Ors. v. Danymara Tea Co. Ltd. and Ors. 66 I.A. 293 and State of Punjab v. British India Corporation Ltd. [1964] (2) SCR 114(123), referred. to. (2)  Whether the relationship of landlord 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  payment made by a trans- 517 feree 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.  In the instant case the payment of a monthly  sum  as  rent by the appellant  to  the  plaintiff- respondent who accepted the same did not create any tenancy. The question is ultimately one of fact: [520 E-F] Ram Kumar Das v. Jagadish Chandra Deb & Anr. [1952] SCR 269, held not applicable. (3)  Part performance in this country does not give rise  to an equity as in England  but  to a statutory right which  is comparatively a restricted right in that it  is    available only as a defence.  Section 53A of the Transfer of  Property Act  is  only a partial importation in the  statute  law  of India  of the English doctrine of part performance. [519  H, 520 A] Sheth  Maneklal  Mansukhbhai  v.  M/s.   Hormusji  Jamshedii Ginwalla and sons. [1950] SCR 75, reiterated. (4)  The  petition of compromise seeking to create  a  lease for  16  years was required to be registered and  not  being registered it did not affect the immovable property to which it  relates  and could not be received as  evidence  of  any ,transaction   affecting   the,  property  though   it   was admissible  as evidence of- part performance of  a  contract for the purpose of s. 53A of the Transfer of Property Act or as evidence of any collateral transaction not required to be effected by registered instrument. [519 A-B]

JUDGMENT: CIVIL APPELLATE JURISDICTION         Civil Appeal No. 352 of 1977. Appeal by Special Leave from the Judgment and order dated 6- 5-1976  of the Calcutta High Court in Appeal from  Appellate Decree No. 1557 of 1973.

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K. Sen, Sankar Ghosh and Rathin Das for the Appellant. Lal  Narain Sinha, Tapash Chandra Ray, S. C. Agarwal, V.  J. Francis, Sunil Kumar Bhattacharyya and Umma Prasad Mukherjee for the Respondent No. 1. The Judgment of the Court was delivered by GUPTA, J. This is an appeal by special leave from a judgment of  the  Calcutta High Court disposing of  a  second  appeal which  arose  out  of  a suit  for  recovery  of  possession instituted  against the appellant by the  first  respondent. The  property  in  dispute consists of  land  measuring,  11 bighas  17  kathas and 17 sq. ft. with  structures  thereon, being  premises  No.  1,  Babu  Ram  Ghosh  Road,  Calcutta, previously  numbered as premises Nos. 2, 3 and 4,  Babu  Ram Ghosh  Road.  Earlier, in 1952 the  predecessors-in-interest of the first respondent had brought a suit for ejectment  of the  lessees  of the property impleading  the  appellant,  a private limited company who were the sub-lessees, also as  a defendant.  That suit was decreed against all the defendants some time in 1954.  The appellant applied for review of  the judgment  decreeing  the suit.  The review  petition  having been  dismissed,  the  appellant moved  the  High  Court  in revision.  The revision case was ultimately disposed of  in terms  of a petition of compromise.  The relevant  terms  of the compromise were-               (i)   the  appellant  would  become  a  direct               tenant  under the first  respondent’s  husband               and his brother, who were               518               then the owners of the property, at a  monthly               rent of Rs. 1000/-;               (ii)  the  lease  would  be for  a  period  of               sixteen years from May 19, 1954 with option to               the  appellant to terminate the lease  earlier               on giving sixty days’ notice on the lessors. No  deed of lease was however executed, nor the petition  of compromise   containing   the  terms   of   settlement   was registered.   There  is  some  dispute  as  to  whether  the appellant   had  been  dispossessed  in  execution  of   the ejectment decree or continued in possession, but it is clear that  their possession on and from May 19, 1954 was  on  the basis of the compromise. The property ultimately devolved on the first respondent  as sole  owner  who on the expiry of the period  of  the  lease mentioned in the compromise petition served a notice on  the appellant to quit and vacate the premises.  As the appellant did  not  comply  with  the  notice,  the  first  respondent instituted title suit No. 59 of 1970 on May 22, 1970 in  the Third Court of the Subordinate Judge at Alipore for recovery of  possession and mesne profits on a declaration  that  the appellant were trespassers and in wrongful occupation of the premises  after  the  period mentioned in  the  petition  of compromise  had  expired.   The appellant’s  case  in  their written statement was that by payment and acceptance of rent a monthly tenancy had been created in their favour which was continuing  even after the expiry of the said  period.   The trial  court  found  that to be effective  as  a  lease  for sixteen   years   the  petition   of   compromise   required registration,  and  this not having been done it  could  not create  any  interest  in favour of  the  appellant  in  the premises   though  they  were  entitled  to  protect   their possession  for a period of sixteen years under section  53A or  the Transfer of Property Act.  It was further held  that payment  and  acceptance  of  rent  made  in  terms  of  the unregistered  compromise  petition did not give  rise  to  a right  of tenancy and on the expiry of the said period  they

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had   no-protection  against  eviction.   The  trial   court accordingly  decreed  the suit.  The first  appellate  court having   dismissed  the  appeal  preferred against   this decision,  the  appellant took a second appeal to  the  High Court.  The High Court dismissed the second appeal affirming the findings of the courts below. The contention of the appellant in this Court ’also is  that as  the  first respondent and  her  predecessors-in-interest before  her had accepted the rent paid month by  month  duly granting  receipts,  a monthly tenancy had been  created  in favour  of the appellant independent of the protection  they had under section 53A of the Transfer of Property Act’ It is claimed that this was a tenancy governed by the West  Bengal Premises  Tenancy  Act, 1956 which  protected  them  against eviction, Was the High Court wrong on the facts found by the courts below in rejecting this contention ? Admittedly  there  was  an  ejectment  decree  against   the appellant before the petition of compromise was filed in the High Court.  By the compromise the decree was not set  aside but a lease for sixteen 519 years  was sought to be Created in favour of the  appellant. Thus  whatever  interest the appellant may have had  in  the property  was extinguished after the passing of  the  decree and even if they, continued in possession after the  decree was  passed the subsequent possession in order to  be  valid must be referable to the compromise.  Clearly, the  petition of  compromise seeking to create a lease for  sixteen  years was  required to be registered and not being  registered  it did  not affect the immovable property to which  it  relates and  could  not be received as evidence of  any  transaction affecting the ’property though it was admissible as evidence of  part  performance  of ’a contract for  the  purposes  of section 53A of the Transfer of Property ,Act or as  evidence of any collateral transaction not required to be effected by registered  instrument.   In  order to be  entitled  to  the protection  of section 53A, the transferee must  perform  or must  be  willing to perform his part of the  contract.   In this case one of the terms in the petition of compromise was that  the appellant would pay a monthly rent of  Rs.  1000/- and  there is no dispute that this sum was paid every  month for  the period of sixteen years.  It has not been found  or even  claimed that any such sum was paid and accepted  after the expiry of that period.  Mr. A. K. Sen appearing for  the appellant  contends  that  as  a  result  of  these  monthly payments  not  Only  the protection under  section  53A  was available to the appellant, but a monthly tenancy also  came into  existence which subsisted after the period of  sixteen years  mentioned in the petition of compromise had  expired. In support of his contention Mr. Sen relies mainly on  their decision of this Court in Ram Kumar Das v. Jagadish  Chandra Deb  Dhabal  Deb and another.(1) We do not  think  that  Ram Kumar’s case is an authority for the proposition Mr. Sen was contending for that in every case where a person enters into possession  on  the  strength of an invalid  lease  and  the landlord  accepts ’rent’ in terms of that invalid  lease,  a monthly  tenancy is created by implication of law.   In  Ram Kumar’s case 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  in  fact a  monthly  tenant  under  the plaintiff  at  the date when the notice to quit  was  served upon  him.  The Court speaking through Mukherjea J. came  to the conclusion that "on the facts of this case, it would  be quite proper to hold that the. tenancy of the defendant  was

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one from month to month since its inception in 1924".  It is not necessary to refer to the other cases cited by Mr.  Sen; these  are  the decisions of several High Courts  which  are either based on an incorrect reading of Ram Kumar’s case  or in  which  the contention Mr. Sen has raised  here  did  not arise  for  consideration.   If Mr.  Sen’s  contention  were correct, then it was unnecessary to enact section 53A. Mr. Sen has also referred to the law in England according to which a tenancy at will is implied when a person enters into possession under a void lease.  But part performance in this country does not give rise to an equity as in England but to a statutory right which is comparatively a restricted  right in  that it is, available only as a defence.  It  has,  been held that section 53A is only a partial importation in the 520 statute  law  of  India  of the  English  doctrine  of  part performance.  see  Sheth  Maneklal  Mansukhbhai  v.   Messrs Hormusji Jamshedii Ginwalla and sons(1).  It is well settled that  section 53A confers no active title on the  transferee in  possession,  it  only imposes a  statutory  bar  on  the transferor.  (see Probodh Kumar Das and others  v.  Dantmara Tea  Company Limited and others (2).  Thus a person  who  is let into possession on the strength of a void lease does not acquire any interest in the property but gets under  section 53A only a right, to defend his possession.  As the  section says,  this  right  is subject to  the  condition  that  the transferee  has performed or is willing to perform his  part of  the  contract.   In  this case  under  the  petition  of compromise  the  appellant had to pay a monthly sum  of  Rs. 1000/as  rent during the period of the intended lease  which the  appellant  did.   These monthly  payments  brought  the appellant  under the coverage of section 53A, but from  this fact alone that the appellant had performed his part of  the contract, it is not possible to conclude that a tenancy  was brought  into  existence.   Even  the  acceptance  of  these payments tendered as rent is not decisive of a tenancy.  "In its  wider sense rent means any payment made for the use  of land  or buildings.  In its narrower sense it means  payment made  by  tenant to landlord for property demised  to  him." (State  of  Punjab v. British India Corporation  Ltd.)  (3). Here the payments can be explained, as the courts have done, as evidence of the appellant’s willingness to perform  their part of the contract.  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 circumbet the protection of the  Rent Acts  given  to the tenants.  Whether  the  relationship  of landlord  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  the  present case the High Court  has  found  in agreement with the courts below that the "payment of rent by the  appellant to the plaintiff respondent who accepted  the same  did not create any tenancy in favour of the  appellant inasmuch as the said payments were made in part  performance of  the said contract of lease contained in  the  compromise petition".   We  cannot go behind this finding  of  fact  on

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which  the  appeal turns.  The appellant’s plea  of  tenancy cannot therefore be accepted. The appeal is dismissed with costs. S.R. Appeal dismissed (1) [1950] S.C.R.75.                   (2) 66 I.A. 293. (3)  [1964] 2 S.C.R. 114,123. 521