# • ALLENBURRY. ENGINEERS PRIVATE LTD v. RAMAKRISHNA DALMIA & ORS - **Citation:** [1973] 2 S.C.R. 257 - **Court:** Supreme Court of India - **Decided:** 1972-09-15 - **Bench:** J. M. Shelat, D. G. Palekar, K. K. Mathew, S. N. DwIVEDI, Y. v: CHANDRACHUD - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/allenburry-engineers-private-ltd-v-ramakrishna-dalmia-ors-5848 - **Pages:** 9 ## Headnote Transfer of Property Act-S. 106 and 101-Meaning of the word "1\Janufacturer-Whether lease for reconditioning and repairing vehicles is ntc.nufaclure within s. 106. . ln 1953, an open piece of land in the city of Bombay belonging to Sir Sapurji Bharucha Mills Co. Ltd., was"purchased by Bharat Insurance Co. Ltd. In 1947, the said piece of land was leased to Allenberry & Co. on a monthly rent of Rs. 1800/-. In 1950, the appellant Company was incorporated for the specific purpose of taking over the business of A!lenberry & Co. In 1954, the appellant Company occupied the said leased land as tenant together with certain vehicles belonging to· the said Allenberry & Co. at an agreed rent of Rs. 1800/- per mensem. A document of lease _was executed by the -parties for ten_ years. The document \Vas -not, however, registered with the result that it could not be tendered in evidence as one creating a lease. · On January ·20, 1960, the Bharat ·Insurance Co. served a notice upon the appellant Company terminating the· tenancy and called upon the Company to hand over quiet and vacant possession of the said land or part of it .. Later, a suit was filed in the Court of Small Causes at Bombay, and after nationalisation, the L.l.C. was substituted for that of the Bharat Insurance Co. as the plaintiff in the said suit. It was contended by the appellant that since the tenancy was for manufacturing pUrpo-ieS, one month's- notice terminating the: telnancy was an invalid notice under s. I 06 of the Transfer of Property Act. All. the three Courts bclrnv, however, concurrently held that the tenancy was not satisfactorily proved to be for manufacturing purposes as alleged by the appellant com~any and in the absen 1ce of any proof as to the terms for \vhich it Wai made; the notice terminating the tenancy,' although it was a 'month's notice, was a valid notice and on that footing, decreed the- suit. TYoo · questions were raised before this Court: (I) That the tenancv being for manufacturing purposes, the presumption laid down in S. 106, Transfer -Of Property .Act under which .such tenancy has_ to be, regarded as a tenancy -from year ·to year, terminable b}r a• six· months'· noticft and not by a month's notice,. must. apply. (2) The second question Wa3 that in any event, the lease · w$ for manufacturing purposes, 'and therefore, . the saiJ notice .. was not valid., Dismissing the appeal. . ' ' • . ~ -• ' ' ' ' f I .- ' ' ' , ' , ' : '. • : ' HELD : ( 1) The expression "manufacturing purposes"' in S. 106 of the Transfer of Property. Act is used in its popular and dictionary mean- . ing. · ThC' burden 'of proving that the lease \\'as for manufacturing pur· posco lie on the appellant company who claims it to be so. That burden i3 to establish ,that· the exclusive or the dominant purpose _of the lease '!fa• the manufacturing purpose. [2610] C. Mack;rtich,v. Stuart & Co. Ltd.,"A.l.R. 1970 .S.C. 889,..referred to. : ·(iii ~Th~ :Wofd "~~~Ura'~tur~··,. ~ccording: i~ the dictio~ary . meaning, is the making of articles or material by· physical labour or mechanical power: "Manufacture"' implies a 'change, but every change is not manu18-L348Sup.C.I./73 258 SUPREME COURT REPORTS [1973] 2 S.C.R. • :-1 . . , : ·1•: ,J' · · .. ' : .. '·!· A facture. a'nd · c\·ery · change' in'· an ' article 1s' 'the ·result o'f' treatnient, labour and manipulation. But something more i'i necessary and th,re ·must be transform1tion; a new and d;fferent article must emerge ha.ving: .a distinctive name; character' 3.nd use.· [261FJ ·: . . / ,; R. v. Wheeler, 2 R. ALD .. 349 rderred 10-:·' . : _; / . .I . i . i . I . f; .- r .' '•; , , (iii) The disputed pr_cmises, \Vere used mostly for Storing the Jisposal vehicles together ·with spare parts' etc., acquired along with th.em or purchased from the market, for. repairing and. reconditioning and making the said vehicle fit for resale. There is .. no evidenc(f except the bare word of one witness that parts such as chassis and bodie:i. etc., \verc ## Text A . • ... B • c D E F G • " •• ~- II • ALLENBURRY. ENGINEERS PRIVATE LTD . v. RAMAKRISHNA DALMIA & ORS. · : September 15, 1972 257 [J. M. SHELAT, D. G. PALEKAR, K. K. MATHEW, S. N. DwIVEDI . AND Y. v: CHANDRACHUD, JJ.] Transfer of Property Act-S. 106 and 101-Meaning of the word "1\Janufacturer-Whether lease for reconditioning and repairing vehicles is ntc.nufaclure within s. 106. . ln 1953, an open piece of land in the city of Bombay belonging to Sir Sapurji Bharucha Mills Co. Ltd., was"purchased by Bharat Insurance Co. Ltd. In 1947, the said piece of land was leased to Allenberry & Co. on a monthly rent of Rs. 1800/-. In 1950, the appellant Company was incorporated for the specific purpose of taking over the business of A!lenberry & Co. In 1954, the appellant Company occupied the said leased land as tenant together with certain vehicles belonging to· the said Allenberry & Co. at an agreed rent of Rs. 1800/- per mensem. A document of lease _was executed by the -parties for ten_ years. The document \Vas -not, however, registered with the result that it could not be tendered in evidence as one creating a lease. · On January ·20, 1960, the Bharat ·Insurance Co. served a notice upon the appellant Company terminating the· tenancy and called upon the Company to hand over quiet and vacant possession of the said land or part of it .. Later, a suit was filed in the Court of Small Causes at Bombay, and after nationalisation, the L.l.C. was substituted for that of the Bharat Insurance Co. as the plaintiff in the said suit. It was contended by the appellant that since the tenancy was for manufacturing pUrpo-ieS, one month's- notice terminating the: telnancy was an invalid notice under s. I 06 of the Transfer of Property Act. All. the three Courts bclrnv, however, concurrently held that the tenancy was not satisfactorily proved to be for manufacturing purposes as alleged by the appellant com~any and in the absen 1ce of any proof as to the terms for \vhich it Wai made; the notice terminating the tenancy,' although it was a 'month's notice, was a valid notice and on that footing, decreed the- suit. TYoo · questions were raised before this Court: (I) That the tenancv being for manufacturing purposes, the presumption laid down in S. 106, Transfer -Of Property .Act under which .such tenancy has_ to be, regarded as a tenancy -from year ·to year, terminable b}r a• six· months'· noticft and not by a month's notice,. must. apply. (2) The second question Wa3 that in any event, the lease · w$ for manufacturing purposes, 'and therefore, . the saiJ notice .. was not valid., Dismissing the appeal. . ' ' • . ~ -• ' ' ' ' f I .- ' ' ' , ' , ' : '. • : ' HELD : ( 1) The expression "manufacturing purposes"' in S. 106 of the Transfer of Property. Act is used in its popular and dictionary mean- . ing. · ThC' burden 'of proving that the lease \\'as for manufacturing pur· posco lie on the appellant company who claims it to be so. That burden i3 to establish ,that· the exclusive or the dominant purpose _of the lease '!fa• the manufacturing purpose. [2610] C. Mack;rtich,v. Stuart & Co. Ltd.,"A.l.R. 1970 .S.C. 889,..referred to. : ·(iii ~Th~ :Wofd "~~~Ura'~tur~··,. ~ccording: i~ the dictio~ary . meaning, is the making of articles or material by· physical labour or mechanical power: "Manufacture"' implies a 'change, but every change is not manu18-L348Sup.C.I./73 258 SUPREME COURT REPORTS [1973] 2 S.C.R. • :-1 . . , : ·1•: ,J' · · .. ' : .. '·!· A facture. a'nd · c\·ery · change' in'· an ' article 1s' 'the ·result o'f' treatnient, labour and manipulation. But something more i'i necessary and th,re ·must be transform1tion; a new and d;fferent article must emerge ha.ving: .a distinctive name; character' 3.nd use.· [261FJ ·: . . / ,; R. v. Wheeler, 2 R. ALD .. 349 rderred 10-:·' . : _; / . .I . i . i . I . f; .- r .' '•; , , (iii) The disputed pr_cmises, \Vere used mostly for Storing the Jisposal vehicles together ·with spare parts' etc., acquired along with th.em or purchased from the market, for. repairing and. reconditioning and making the said vehicle fit for resale. There is .. no evidenc(f except the bare word of one witness that parts such as chassis and bodie:i. etc., \verc actually manufactured and replaced .for the old. No books of accourit or log books showing· the work ·carried on the premises or other docuinents were produced. which would throw' light!_ on the activities carried on the premises., Even· if the evid·ence of 'the Said witness· \Vere accept- · ed. in toto, and ~t ·is. held that _som'e·spare·parts were being manufactured for repairing.· or reconditioning' the vehicles,' the' dominant' purpoge of ·the ifz..-ie would still· haVC' tO be~regarded as; one' for stOrage 'and resale :o_f _the ·vehicles and not 'for manufacturing purpose. l\fanufacturing . or spare· parts wOuld then~ be rrierely incidental to-the main :purpOie- of dis;- posal of these vehicles.·· Therefore, the appellants have failed to ·establish that the domioant purpose Of the lease was manufacturing purpose and therefore, the appellants could not have challenged the legality of the . notice. That being the position, it is not necessary to go into the question whether S,. 107 has an impact ori, _S. 106 of .the Tra.nsfer of Property Act. ·. · .· .. .. ·: .:. ~--:. _ .. ,.,,. [265-D] C1~1L ·APPELLAT~:JURISDICTION: .Civil Appeal No. 1072 of · 197 L.. ·' " · . ,. '· .l c D E · : Appeal by: special leave ·froffi" i!ie judgment and order dated . . June 16, 1971 of the Bombay High Court in Special Civil Applica- '. . tion No. 1604 of 1969. · M. C. Chagla, R .. R. · Zaiwal~, P. C; Bhariari and Ravintler NRrain, for the appellant. · · 'V. M. Tarkuride, Madan Gopal Gupta, n;·s. Slwrma, R'unesh- ,.Jl'ar,,'Dial, P. N. Chadha and B. D. Sharma, for respondent No. 1. . . . The J udgmenl of the Court was delivered by '' Shelat, J. This · appeal, by special !_eave, is against th.: judgment of th~ High Court of Bombay. When the special leave was granted, it was confined to the question whether the tenancy in favour of the appellant-company was one for' ' manufacturing purpose, and if it was so, whether the notice terminating the tenancy wa~ inadequate ? ·' · · · · ' The appeal fi~st reached h~ring before 'a Division Be~'ch of this Court. At that tune, the partir..s were agreed. that the re- . lationship between them was that of· landlord and tenant. But F G H • • . - B c o, F .ALLENBURRY v. DALMIA (Shelat; J.) 259 the case N the appellant-company was that the kase in its favour was for·a period of ten years,_that such a lease was for manufacturing purposes, and therefore, could not be validly terminated by a month's notice. The respondents, on tfie other hand, contended that the lease was by an unregistered document, and iliat it was not a. valid lease by reason of the provisions of ss; 106 and 107 of the Transfer of Property. Act. . The Division Bench did not go into·· the question whether::t]Je lease was for manufacturing purpose9. or not: However, · the Division -Bench felt that the appeal raised important· questions as to the impact of s. 107 upon s. 106 of-the Act, and there being so far no decision of.o this Court upon such a question. referred th.~ appeal to -a larger Bench. That is now the matter has come up before _us. . .. , . ' .The premises . with which we are presently concerned consist of an open piece of land adjoining Haines Road in the. city of Bombay. Prior to 1963, the said piece of land belonged to a company called' Sir Shapurji Bharucha Mi,Jls Co. Ltd. 'fn 1953, the said piece of land was· purchased by Bharn:t Insurance Co. Ltd. It appears that in, 19.47' the said piece of land was leased. to Allenbury & Co. on a monthly rent of Rs. 1800/- where· the Jessee kept a number _of American vehicles used by the army during 'the Second. World. War and purchased by· that company from the Disposal Department of the Government of India. In or about .1950, the appellant-company· was incorporated .for thesp.~cific pllrpose of talcing over .the · business of Allenbury & Co ... together with all its assets and properties including the said vehicles.. In 1954, the appellant-company occupied the said leased land as tenant together with such of the said vehicles remaining undisposed of till then at an agreed rent of Rs.' 1800/- a month: · It is not in dispute that at that time a document of lease was executed .bY the. parties; which according to the appellantcompany. provided for a lease . for .. ten ·years. _ Tre document was, however, ,not re)tistered with the result that it could not be tendered in evidence as one, creating a lease. .There .was, however, no dispute.between the . parties that . the , appellantG · company paid and the respondents- acc..."Pted all throughout rent from the appellant-company at the aforesaid agreed r:rte of Rs. 1800/- a month. On January 20; 1960, the Bharat Insurance Co. Ltd. served a notice upon the appellant-company thereby ·terminating the tenancy and called upon it to hand over quiet and vacant possession of the said premises on -the ground that the. app~llant-company had· sub-let the said· land or part of it. The appellant-company having failed to abide by that demand, a suit was filed in the Court of Small Causes at Bombay. On the nationalisation of the Life Insurance Companies and on the 260 SUPREME COURT REPORTS [l 973] 2 S.C.R~ Life Insurance Corporation of India being set up, the name of that Corporation was substituted for 'that of the Bharat Insurance Co. as the Plaintiff in the said suit The suit was henceforth continu.ed by the Corporation. Although . the unregistered document could not go in evidence, the suit as well as the appeal arising therefrom before the., Appellate Bench of the Small Causes Court proceeded on 1the basis that the relationship between the parties w1ts that of landlord and tenant as there was no dispute that the occupation of the premises in question by the appellant-company was as a tenant irrespective of wh~ the terms or the period of tha!t tenancy were, which terms could not be /proved as the· docu- :nent in respect thereof could not be brought on record by reason of its being an· unregistered document. The Special ·Civil Application under Art. 227 of the Constitution filed ·in the Hi'gh Court against the judgment of the Small Causes Court and confirmed by its Appellate Bench, also proceeded on the assumption that the relationship b.etween the parties was that of landlord and tenant. All the three courts concurrently held that the tenancy, whatever its terms were, was not satisfactorily proved to be .for manufacturing purposes ·as alleged by the appellant-<:ompany and in the absence of any proof as to the term for which it was made, whether it was for ten years or from year to year, the notice t~rminating the tenancy and calling upon the appellan'l-company to deliver vacant possession, although ;t was a month's notice, was not an invalid notice and on that footing decreed the suit. In ithese circumstances, two questions were sought to be raised by Mr. Chagla. The first was that there being no dispute between the parties that the relationship between them was that of landlord and tenant and 'the respondents having accepted all along the said rent of Rs. 1800/- a month, the Cour't must proceed upon the basis that the occupation of the premises by the appellant-company was in the capacity as a tenant. According to him, if the appellant-company. can establish that. that (enancy was for manufacturing purposes, the. presumption laid down in s. 106 of the Transfer of Property Act, under which such tenancy has to be regarded as a tenancy from year to y,ear terminable by a s!x months'. notice and not by a month's notice, must apply. It 1s true, said he, that under s. 107 of the Act a lease fron1 year to vear can be made only by a registered instrument, but that provision in _no way co':1tro~s the presumption laid down in s. 106 u~~er wluch once 1t 1s proved that the parties were in the position o~ a landlord an? a tenant and the tenancy was for manufacturmg purpos~s. 1t has to be presumed to be one from year to year. Accordmg to him, the. two sections are independent of each other. the one A 8 c D E F G B F G " ALLEN1iURRY v. DALMiA (Shelat, J.) 261 dealing with the user and notice, and the presumption arising from such user, and the other dealing with compulsory registration for a lease from year 'lo year, oi: for a term exceeding one year. Mr. Tarkunde, appearing f.or the Corporation, on the other hand, disputed the construction of. these two sections sug11;ested by Mr. Chagla. The second question raised by Mr. ChaJ!:)a was that in any event the lease was for manufacturing purposes, and therefore, the .said notice was not valid. Assuming that Mr. Chagla is right in the interpretation of ss. l 06 and 107 suggested by him, even then the appellant-company has first to establish that the lease in its favour was for manufacturing purposes and it is then only that it can take advantage of the rule of presump'tion laid down in s. 106. •The expression 'manufacturing purposes' in s. 106 is used in its popular and dictionary meaning, the Transfer of Property Act not having supp~ied any dictionary of its own for that expression. The burden of proving that the lease was for manufacturing purposes, must for the purposes of s. 106 of the Transfer of Property Act, lie on the party who claims it to be so, in the present case the appellant-company. That burden is to establish that the exclusive or at least the dominant purpose of the lease was the manufacturing purpose. [See C. Mockertic/1 v. Steuart & Co. Ltd.(')]. The word 'manufacture', according to its dictionary meaning, is the making of articles or material (now on large scale) bf physical labour or niechanical power. (Shorter Oxford English Dictio11ai·;'. Vol. I, 1203) According to the Permanent Edition of Words and Phrases. Vol. 26, 'manufacture' implies a change but every change is not manufacture and yet every change in an article is the result of treatment, labour and manipulation. But something more is necessary and 1there must be transformation; a new and different article must emerge having ·a distinctive name. character or use. "The word 'manufacture' " said Abbott, C.J., in R. v. Wheeler(') "has been generally understood to denote, either a thing made which is useful for its own sake and vendible as such. as a medicine, a stove. a telescope, and many others; or to mean an engine or instrument, or some part of an engine or instrument, to be employed either in the making of some previously known ar'ticle, or in >Jme other usefr l ourpos-e. as a stocking frame, or a steam engine for raising water from mines; or, it may perhaps extend also to a new process to be carried on by known implements or elements ·acting (1) A.I.R. 1970 S.C. 839. (2) 2 B & Aid. 349, cited in Stroud's Judicial Dictionary (Jrd ed.) Vol. ,p. 173~. 262 SUPREME COURT REPORTS (1973] 2 S.C.R. upon known substances, and ultimately producing some other .~nown substance bu't producing it in a cheaper or more expechtio1;1s manner, or of a better or more useful kind. No more philosophical or abstract principle can answer to the word 'manufactures'. Something of a corporeal and substantial nature-something that can be made by man ·from the matters subjected to his art and skill, er at the least some new mode of employing practically his art and skill,. is required to satisfy the word". In South Bihar Sugar Mills v. Union of India,(') the Act with which the Court was concerned was the Central Excise and Salt Act, 1944, which furnished no special definition of the word 'manufacture'. The question can canvassed there was whether carbon dioxide, one of the constituents of kiln gas produced as one of the processes necessary for refining sugar, could be said to. have been manufactured, quite apart from the manufacture of sugar itself. This Court held that what was produced was kiln gas, a compound of different gases and not carbon dioxide, 'though it was one of the different gases which made up kiln gas and therefore did not attract item 14-H in the Schedule to the Act. Since the Excise durty was Ieviable under the Act on manufacture of goods, the Court explained the connotation of the word 'manufacture'. In so aoing, the Court said _that the word 'manufacture' implied a change, but that a mere change in the material was no't manufacture. There must be such a transformation that a new and different article must emerge having a distinctive name, character or use. This was also the meaning given to the word 'manufacture' in Union of India v. Delhi Cloth & General Mills(2). A notification issued by the G0vernment of U.P. under s. 3A of the U.I>. Sales Tax Act, 1948 declared that the turnover in respect of medicine and phannaceuticai preparations would not be liable to tax except (a) in the case of medicine and pharmaceutical preparations imported into U.P., and (b) in the case of medicines and pharmaceutical preparations manufactured in U.P. The question was whether, when in a dispensary medicines and pharmaceutical. preparations,, as prescribed by a doctor, are mixed, the process of mixing results in manufact~re of medicines. The question was answered in the negative on the ground that when a mixture of di~erent dr1;1~s, as pres_cribed by a doctor, is prepared by a med1~al p;actlt10ner or hts employee, especially for the uSe of a patient m the .treatment. ?f an ailment or discomfort diagnosed bv such a medical praCltttioner by his professional skill, and which mixture is normally: incapable of being passed· from hand to han~ as a com~~rcial commodity, the medical practitioner supo.1".mg the med1c!ne cannot be said to be a manufacturer of med1cme and the mr!l:lure can- - 6 3 SCR 21 (2) [1961] Sup\>. 1 S.C.R. 586. (1) [19 8] . . . . B c D E F G H A II c D I F G H ALLENBURRY v. DALMIA (Shelat, J.) 263 not be said tQ. be manufactured within the meaning of the notification.. In all these cases the statute or fae notification concerned did not furnish any artificial meaning to the expression 'manufacture' and the Court applied, therefore, the ordinary meaning· as commonly understood to that expression. The expression 'manufacturing purposes' in s. 106, thus, means purposes for maldng or fabricating articles or materials by physical labour, or skill, or by mechanical power, vendible and useful as such. Such making or fabricating does not mean merely a chan11e in an already existing article or material, but transformin.2 it into a different article or material havini!. a distinctive name. character or use or fabricating a previously known article by a novel process. The two cases cited by Mr. Chagla, viz., Sedgwick v. Wat11ey, Combe, Reid and Co. ( 1) and Action Borough Council v. West Middlesex Assessment Committee('). would not be of assistance as the question there discussed was not as to the meaning of the word 'manufacture', but whether the premises in question were industrial hereditaments within the meaning of s. 3 c[ the Rating and Valuation (Apportionment) Act, 1928. Likewise, decisions given by courts on the word 'manufacture' occurring in different statutes would not be of assistance where the siatute concerned gives an artificial meaning or a special definition. Bearing in mind the connotation of the word 'manufacture· as understood in the decisions above-cited, we have to a!lCertain whether the appellant-company could be said to be cam·ing on qperations in the premises in question which could properly be called manufacturing operations. On this QUl'.-stion, the evidence on record is general character and almost meagre in quantum. Wit. Choradia, who was the managing director of the Bharat Insurance Co. between 1950 to 1954 and who used to reside in Delhi where the company had its headquarters. but occasionallv used to visit its branch in Bombay. deposed that after the ····cmises in question were purchased in 1953 by his company ; rom. Sir Shapurji Bharucha Mills, he visited them and found them to comprise an open land with sheds and a godown. There were lying there army automobiles, jeeps etc., but he did not notice at that time any manufaClturing process going on. He a.gain visited the premises in 1954 when also he found no manufacturing operations going on Wit. V. G. Kannan was an accountant in Allenbury & Co. Ltd. He used to go to the premises in 1950 and 1951 to pay wages to the workmen engag_ed there by his cqmpany. The premises had a workshop, a godown . Wit. J. P. Jain examined by the appellant-company was the Central Manager of the Bombay oranch of Allenbury & Co. from 1946 to 1950. Thereafter he became the managing director -0f the appellant-company. According to him, Allenbury & Ce>. Ltd. had in 1948 purchaSl'..d disposal vehicles which were stored for :;ale in the premises in question. The vehicles were in a damaged condition when they were purchased. In some cases chassis were missing or they w~re bent or broken; most of the parts were broken and missii1g. These used to be repaired and then sold. The company had put up a workshop where these vehicles were repaired, recondition.: