# BHAW ANJI LAKHAMSID & ORS v. HIMATLAL JAMNADAS DANI & ORS

- **Citation:** [1972] 2 S.C.R. 890
- **Court:** Supreme Court of India
- **Decided:** 1971-12-14
- **Case number:** Civil Appeal No. 1546 of 1969
- **Bench:** C.~ A. Vaidialingam, K. K. Mathew
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bhaw-anji-lakhamsid-ors-v-himatlal-jamnadas-dani-ors-5579
- **Pages:** 10

## Headnote

Transfer oj Property Act. s. 116 arrd Bombay Rems, Hotel and
Lodging House Rates (Control) Aci, 1947-Contractual renGncy determined by ¢lux of time-Tene1ncy thereafter protected by statuteTenant continuing in possession and landlord accepting rent-Without
proof that both parties had the necessary intention r.here is no 'holding
over' by the tenant within meaning of s. 116 oj Transfer of Property
Act.
The appe1lants were lessees of a plot of land in Bombay. The lease
w~ granted in 1948 and was determined by efflux of time on September 30, 1958. However the appellants continued to occupy the land and
to pay rent to the ~essors. On August 7, 1959 the lessors gave notice
purporting to terminate the tenancy in the land by the end of September
1959 on the ground inter alia that the lessors required the plot for the
purpose of putting up construction on it.
Since the appellants did not
vacate the premises the bssors filed a suit on October 22, 1959 in the
Small Causes Court, Bombay. The appellants contended in defence that
the land was not required by the lessors bona fide for purposes of construction.
They further .contended that they were tenants holding over
within the meaning of s. 116 · of the Transfer of Property· Act, and that
since the landlord had accepted rent after the tenancy had determined by
effiux of time a n~w lease had come into being and as the original lease
was for a manufacturing purpose the new lease was by implication for
the same purpose and consequently six months' notice was required for
its termination by the lessors.
The Trial Court held that the plaintiff
required the plot bona fide for constructing a new building within the
meaning of clause (i) of sub-section (1) of sc~tion 13 of the Bombay
Rents, Hotel and Lodging House Rates (Comrol) Act, 1947. The Court
also helc1 that the tenancy tcrmin3.ted by efftux of time, but that the
)cssecs continued in possession .hy virtue of the immunity from -eviction
conferred by the aforesaid Bombay Act and so they were not holding
over within the meaning of s. 116 of the Transr~·r of Property· Act. The
Trial Court '3CCordingly d~crced the suit.
In appeal the ~lppell:ltc Court
confirmed the d-ecree.
The High Court rejected the appellants' petition
under Art. 227 of the Constitution. ln appe~l to this Co,.trt by special
lc<~.vc.
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HELD : The act of holding over after the expiration of the term dres
not create. a tenanc~ of any kind.
Tf a tenant remains in possession after
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the determination of the L:!ase the common law rule is thLlt he is a tenant
on sufferance.
A distinction should be drawn between a tenant continuing in possession after the determination of the term with the consent
of the landlord and a tenant doing so without1 his consent.
The forme·r
i~ a tenant on suffe'rence in English law nnd the latter a lr!n::mt holding
over a tenant-at-will. In view of the concluding words of s, 116 of the
Transfer of Property Act a lease holding over is in a bett.cr position than
H
a tenant-at-will.
The assent of the landlord to the continuance of possession after the determination of the tenancy will create a new tenancy.
What the section contemplates is that on one side there should be an
offer of taking a new lease evidenced by the lcs~ce dr sub-lessee rcm!linin!!
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BHAWANJI v. IDMATLAL (Mathew,./.)
89.t
in possession of the property after his term was over and on the otb:r
side there must be a definite consent to the continuance of possession by
the landlord expressed by acceptance of rent or otherwise. The basis.
of the section is thus a bilateral contract between the erstwhile landlord
and the erstwhile tenant. If the tenant has the statutory right to remain
in possession, and if he pays the rent, that will not normally be referable
to an offer for his continuing in possession which can be converted into
a contract by acceptance thereof hy the landlord. 1894 B-D; 897 0-H)
In the case of normal tenancy a landlord is entitled where he does.
not accept th~ rent

## Text

890
BHAW ANJI LAKHAMSID & ORS.
v.
HIMATLAL JAMNADAS DANI & ORS.
December 14, 1971
[C.~ A. VAIDIALINGAM AND K. K. MATHEW, JJ.]
Transfer oj Property Act. s. 116 arrd Bombay Rems, Hotel and
Lodging House Rates (Control) Aci, 1947-Contractual renGncy determined by ¢lux of time-Tene1ncy thereafter protected by statuteTenant continuing in possession and landlord accepting rent-Without
proof that both parties had the necessary intention r.here is no 'holding
over' by the tenant within meaning of s. 116 oj Transfer of Property
Act.
The appe1lants were lessees of a plot of land in Bombay. The lease
w~ granted in 1948 and was determined by efflux of time on September 30, 1958. However the appellants continued to occupy the land and
to pay rent to the ~essors. On August 7, 1959 the lessors gave notice
purporting to terminate the tenancy in the land by the end of September
1959 on the ground inter alia that the lessors required the plot for the
purpose of putting up construction on it.
Since the appellants did not
vacate the premises the bssors filed a suit on October 22, 1959 in the
Small Causes Court, Bombay. The appellants contended in defence that
the land was not required by the lessors bona fide for purposes of construction.
They further .contended that they were tenants holding over
within the meaning of s. 116 · of the Transfer of Property· Act, and that
since the landlord had accepted rent after the tenancy had determined by
effiux of time a n~w lease had come into being and as the original lease
was for a manufacturing purpose the new lease was by implication for
the same purpose and consequently six months' notice was required for
its termination by the lessors.
The Trial Court held that the plaintiff
required the plot bona fide for constructing a new building within the
meaning of clause (i) of sub-section (1) of sc~tion 13 of the Bombay
Rents, Hotel and Lodging House Rates (Comrol) Act, 1947. The Court
also helc1 that the tenancy tcrmin3.ted by efftux of time, but that the
)cssecs continued in possession .hy virtue of the immunity from -eviction
conferred by the aforesaid Bombay Act and so they were not holding
over within the meaning of s. 116 of the Transr~·r of Property· Act. The
Trial Court '3CCordingly d~crced the suit.
In appeal the ~lppell:ltc Court
confirmed the d-ecree.
The High Court rejected the appellants' petition
under Art. 227 of the Constitution. ln appe~l to this Co,.trt by special
lc<~.vc.
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HELD : The act of holding over after the expiration of the term dres
not create. a tenanc~ of any kind.
Tf a tenant remains in possession after
G
the determination of the L:!ase the common law rule is thLlt he is a tenant
on sufferance.
A distinction should be drawn between a tenant continuing in possession after the determination of the term with the consent
of the landlord and a tenant doing so without1 his consent.
The forme·r
i~ a tenant on suffe'rence in English law nnd the latter a lr!n::mt holding
over a tenant-at-will. In view of the concluding words of s, 116 of the
Transfer of Property Act a lease holding over is in a bett.cr position than
H
a tenant-at-will.
The assent of the landlord to the continuance of possession after the determination of the tenancy will create a new tenancy.
What the section contemplates is that on one side there should be an
offer of taking a new lease evidenced by the lcs~ce dr sub-lessee rcm!linin!!
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BHAWANJI v. IDMATLAL (Mathew,./.)
89.t
in possession of the property after his term was over and on the otb:r
side there must be a definite consent to the continuance of possession by
the landlord expressed by acceptance of rent or otherwise. The basis.
of the section is thus a bilateral contract between the erstwhile landlord
and the erstwhile tenant. If the tenant has the statutory right to remain
in possession, and if he pays the rent, that will not normally be referable
to an offer for his continuing in possession which can be converted into
a contract by acceptance thereof hy the landlord. 1894 B-D; 897 0-H)
In the case of normal tenancy a landlord is entitled where he does.
not accept th~ rent after the notice to quit, to file a suit in ejectment and
obtain a dceree for possession, and so his acceptance of rent is an Unequivocal act referable only to his desire to assent tl> the. tenant continuing in possession. T.hat is not so where a Rent Act e"-ists; and if the
tenant says that landlord accepted the rent not as statutory tenant but
only as legal rent indicating his assent to the tenant's continuing in possession it is for the tenant to establish it. [898 B-C]
In the present case neither the landlord's desire that the appellants
should continue in possession ndr the necessary animus on the part of the
tenant had been proved. The parties had not been shown to be ad ~dem.
!898 D]
Ac.k:ordingly it must be held that there was no holding over by theD
appellants and the appeal must be dismissed.
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Ganga Dutt Murarku v. Kartjk Chandra Das, L19611 3 S.C.R. 813~
re-affirmed .
.Kai Khushroo Bezon;ee Capadia Y. Bai lcrbai Hirjibhoy
Warden &
Atlr.,
1949-50]
F.C.R.
262. Davies v.
Bri~tow, [1920] 3 K.B. 428.
Morriwon v. 1acobs, [1945] 1 K. B. 577 and Mangilal v. Sugan Chand,
A.I.R. 1965 S.C. 101, applied.
Manujendra Dutt v. Purendu Prosad Roy Chowdhury & Ors., [1967] l
S.C.R. 475, distinguished.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1546 of
1969.
V. Jo,.f. Tarkunde, S. K. Dholakia and S.- K. Bagga, for appellants Nos. 1 and 3.
S. K. Bagga. for appellant No. 2.
D. V. Pntel,. A. G. Parikh and B. R. Agarwalt~. for the
respondents.
The Judgment __ of the Court was delivered by
Mathew, J. This is an appeal, by special leave, from the judgment of the High Court of Bombay dismissing a petition filed
under Article 227 of the Constitution praying for issue of an approprivate writ or order quashing the order dated 28-2-1968 passed
by the Full Bench, Small Causes Court, Bombay, in appeal No. 95
of 1963 from the order dated 21-2-1963 passed by the Judge.
Small Causes Court, Bombay, in R.A.E. Suit No. 9293 of 1959.
In this appeal we are CQncerned with a plot of land admeasur·
ing 2108 square yards in Survey No. 171, Hissa No. 7. at
892
SUPREME COURT REPORTS
[1972] 2 S.C.R.
Ghatkopar. Thjs plot belonged to one Jamnadas Chhotalal Dani.
On 15-11-1948, Jamnadas executed two leases in favour of one
Bhawanji Lakhamsi and Maoiibhai J~habhai, defendants 1 and
2. The subjecrrnatter.of the first lease was two plots, the one
· referred ·to above and another in the same area measuring 805
square yards. The subject matter of the second lease was a t4ird
plot in ~the same ar.ea.
The leases were for :! period of ten years and in respect ~f the
first plot~the rent payable was Rs. 7'i/- a month. In both the
leases there was an option clause which entitled the lessees to
surrender th~ leased property by 30-9-1953. The' lessees sur:-
rendered the two plots, other than the plot with which we are
concerned, in pursuance of the option clause, on 15-1-19 51, with
the I'~sult that the lease in respect of the first plot continued.
Jamna'das died on 14-8-1951, but before his death he had made a
gift of the leased property in favour of the three respondentb. The
lease in respect' of the p1ot in question here determined by efflux
of time on 30-9-1958. But the lessees continued to remain in
· possession paying- rent at the rate of Rs. 75/- per month.
On 7·8-1959, the lessors gave notice purporting to terminate
the tenancy by the end of September, 1959. They stated in the
notice that the lessees had sub-let the premises and that the lessors
reQuired the plot for the purpose of putting up constructions on
it. Since the lessees did not vacate the premises, !f:he lessors filed
·the suit on 22-10-1959 in the Small Causes ·Court of Bombay.
The lessees contended that they qid not sub-let the premises
and that the lessors did not bona-fide require the premises for the
purpose of construction. They also contended thaf by the acceptance of rent by the lessors after the termination of the tenancy by
emux of time, a fresh 1enancy was creattul, that the original lease
was granted for erecting a saw mill-a manufacturing purpos~
and so the lease created by fielding over was, by implication, also
for a manufacturing pUfpOSe, and therefore, lessees were entitled
to six months' notice expiring with the end of the :Nar of the
~enancy, and that the tenancy created by holdin~ over was not
validly determined by the one month's notice.
The trial court held that there was no clear evidence of the
~ub-lettin~ of the premises, but that the plairrtiffs required the plot
bona fide for constructing a new building within the meaning of
cla\lse ( i) o.f sub-section ( 1) of Section 13 of the Bombay Rents,
Hotel and Lodging }louse ~ates (Control) Act, 1947, hereinafter
:c#Iled the Ac,t. '[be court also held that the tenancy termjnated
;tiY efflux of .!ime, .but .th.at tb..e J~sees continued in pos'iession :by
.Vbti)~ ·of the ~-mm.unity ]rqm .~vi.c~i<?l) conferred by .the Ac.t and
.s.o;·,~ey ~re .no.t )lold.i.n~ 9v~r WiOWl.t~~ ,nje~i.ng ·or ,s~~?n ~16
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BHAWANJI V. HIMATlAL (Mathew, J.)
893
of the Transfer of Property Act, notwithstanding the fact that rent
was accepted by the lessors from month to month after 30-9-1958,
and that it ~as not necessary to .~ive the lessees six months' notice
expjrin~ with the end of the year of -the tenancy, for terminating
ihat tenancy. In appeal, the Full Bench of the Small Causes Court
confirmed the dec1·ee of the trial court. It was to quash this decree
that the petition under Article 227 was filed before the High Court.
Before the Hi~h Court, the main contention of the appellants
was that, since a fresh tenancy by holdin_g over was created by the
acceptance of rent by the lessors after the determination of the
lease by effiu~ of time, the appellants were entitled to six months'
notice expiring with the end of the year of the tenancy, as the
Jease originally grant·~d was for a manufacturing purpose, and
therefore, ·the lease created by the holding over was also for same
purpose. The High Court was of the opinion that in view of the
decision of this Court in Ganga Dutt Murarka v. KartJk Chandra
Das(l) no case was made out for new tenancy by holding over
under section 116 of the Transfer of Property Act as the appel~
1ants had obtained the status of irremovability und~r the Act, and
as there was no contractual tenancy. the tenants were not entitled
Lo any notice. The Court also held that the lease which was granted
for erecting a saw mill was not a lease for manufacturing pullJose.
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Counsel for the appellants ar_gued that the appellants were
holding over as the lessors were receiving the rent from the appellants after the termination of the tenancy by effiux of time on
30-9-1958 and. the fact that appellants gained immunity from eviction by virtue of the Act was quite immaterial in deciding the
question wliether the appellants were holdin~ over under section
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116 of the Transfer of Property Act. He submitted that as there
was a new contractual tenancy created by the holding over, the
appe1lan1ts were entitled to six months' notice as the purpose of the
oricinal lease was for a manufacturing purpose and that purpose
became inco1J)orated in the new lease by
implic~tion of
la~v.
Counsel said that certain vital ooints were omitted to be con ..
sidercd in the decision of this Court in Ganga Dutt Murarka v.
Kartik Chandra Das, ( 1) and therefore, the decision requires re 4
consideration. In Ganga Dutt Mararka v. Kartik Chandra Das,
this Court held that where a contractual tenancy, 1to which rent
control legislation applied, had expired by efflux of time or bJ
detennination by notice to quit and the tenant continued iri possession of the premises, acceptance of rent from the tenant by the
landlord after the expiration or determination of the contractua 1
tenancy will -not afford ground for holding that the landlord
had assented to a new contractual tenancy. It was further held
----·-
.. ----·
(l) [196113 S.C.R. 813.
894
SUPREME COURT REPORTS
[1972] 2 S.C.R.
that acceptance by the landlord from the tenant after the conA
tractual ten~cy had expired, of amounts· equivaient to rent, or
amounts which were fixed as standard rent, did not amount to
acceptan~ Q.f rent from a lessee within ~the meaning of section 116
of the Transf~r of Property ACit.
. The act _gf holdin_g over after the expiration of the term does
not create a tenancy of any kind. If a tenant remains in passession afiter the determination of the lease, the common law rule is
that he is a tenant on sufferance. A distinction should be drawn
between a tenant continuing ill possession after the determination
of the term with the consent of the landlord and a tenant doi:ng so
without his consent. The former is a tenant at sufferance in
English Law and the latter a tenant holding over or a tenant at
will. In view of 1the concluding words of section 116 of the Trans·
fer of Property Act, a lessee holding over is in a better position than
a tenant at will. The assent of the landlord to the continuance of
possession •after the det~rmination of the, tenancy will create a
new tenancv. What the section contemplates is that on one side
there should be an offer of taking a new lease evidenced by the
lessee or sub-lessee remaining in possession of the property after
his 'term was over and on the other side there must be a definite
consent to the continuance of possession by the landlord expressed
by acceptance of rent or otherwise. In Kai Khushroo Bezonjee
Capadia v. Bai lerbai Hirjibhoy Warden and another(l), the
Federal Court had occasion to consider the question of the nature
of the tenancy created under section 116 of the Transfer of })roperty 'Act and Mukherjea J. speaking for the majority said, that
the tenancy which is created by the "holding over" of a Ie~see or
under-lessee is a new tenancy in law even though many of the
terms of the old lease might be continued in it, by implication;
and that to bring a new tenancv into exis~ence, there must be a
bilateral act. It was further held that the assent ot the landlord
which is founded on acceptance of rent must be acceptance of rent
as such and in clear recognition of the tenancv right asserted by
the person who pavs it. Pataniali Sastri J., in his dissenting
iudszment, has substantially agreed with the maiority as regards the
nature of the tenancy created by section 116 of the Transfer of
Property A~t, and that is evident from th·~ followingobserva~
tions :-
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"Turning n.ow to the main point, it win be seen that
the s'ec'tion postulates the Jessee remaining in possess1on
after the determination of the lease which is conduct
indicative, in ordinary circumstances of hi~ desire to continue as a tenant under the lessor and implies a ~acit
H
offer to take a new tenancy from the expiration of the
(1) [1949·50] F.C.R. 262.
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BHAWANJI v. HIMATLAL (Mathew, J.)
895·
old on the same terms so far as they are applicable to the
new situation, and when the lessor assents . to the lessee ,
so continuin.e; in possession, he tacitly accepts the latter's
offer and a fresh tenancy results by the implied agree.
ment of ifue parties. When, further, the lessee in that situ·
ation tenders rent and the lessor accepts it, their conduct raises more :r~adily and clearly the implication of
an a~eement between 1he parties to create a fresh
rtenancy.,
Mere acceptance of amounts equivalent to rent by a landlord
from a tenant in posSP..,ssion after a lease had been determined,
either by efflux of rtim~~ or by notice to qurt, and who enjoys
statutory _immunity from eviction except on well defined ground~
as in the Act, cannot be re.e;arded as evidence of a new agreement of tenancy. In Ganga Dutt Murarka v. Kartik Chandra.
Das, (1) this Court observed as follows :-
"By the Rent Restriction-Statutes at the material
time, ~'tatutory immunity was ~ranted to the appellant
against eviction, and acceptance of the amounts from
hlm which were equivalent to rent after the contractual
tenancy had expired or which were fixed as standard rent
did not amount to acceptano~ of rent from a lessee
within the meanin~ of s. 116, Transfer of Property Act.
Failure to take action which was consequent upon a
statutory prohibition imposed upon the courts and not
the re<;ult of any voluntary conduct on the part of the
appellant did not a1so amount to "otherwise assenting to
the lessee continuing in possession".· Of course, there
is no prohibition against a land!ord entering into a
fresh contract of ten~ncv with a tenant who~ ri_ght of
occupation is determin,~d and who remains in occupation by virtue of the statutory immunity. Apart from
an express contract, conduct of 1the parties may
UTI·
doubtedlv justify an inference lthat after detennination
of the contractual tenancy, the landlord had entered into
a fresh contract with the tenant, but whether the conduct justifies such an inference must always dependupon the facts of each case. Occupation of premises by
a tenant whose tenancy is determined is by virtue of
the protection granted by the sta:tute and not because of
any right arising from •the contract which is determined. The statute protects his possession so long as
the conditions which iustifv a lessor in obtaining an
order of eviction against him do not exist. Once the
prohibition against the exercise of jurisdiction by the
(t) [1961) 3 S.C.R. 813.
89&
SUPREME COUlt T REPO:R TS
[1972] 2 S.C.R.
Court is removed, the right to obtain possession by the
lessor under 'the ordinary law springs into action and the
exer~is~ of the lessor's right to evict the tenant will- not
unless the statute provides otherwise, be conditioned/
1
In Davies v. Bristow (I) the Court held that where a tenant of
a house to w.hich the Increase of Rent, & c. (War Restrictions)
Acts apply, holds ever after tlie expiry of a notice to quit, and
pays rent, the landlord js not to be taken by accepting it to assent
to a renewal of the tenjlllcy on the o1d tem1s, for he has no choice
but to· accept the rent; he could not sue in trespass for mesne
profits, for those Acts provide that the tenant, notwithstanding the
notice to ...Quit, shaH not be regarded as a trespasser so long as he
pays llie rent and perfonns the other conditions of the lease. In
Morrison v. Jacobs( 2 ), Scott L.J. said:
''The sole question before the court js whether after
the expiration of the contractual tenancy 1he mere fact
of the landlord receiving rent for the dwelling house
from the tenant affords any evidence that the landlord
had entered on a new contractual tenancy to take the
place of the tenancy which had expired. In my
opinion, it does not. The true view is that the landlord takes the rent, knowing that the tenant is granted a
statutory tenancy by the Rent Restrictions Acts and that
his right to ~ain possession of his dwellin_g house depends
entirely on his establishing tha't he brings himself
within the conditions laid down by the Acts."
In the same case, MacKinnon J. srud:
"At common law, if at the expiration of a tenancy
a landlord has acquired a right to claim possession
a~ainst his rtenant and instead of exercising that right
he allows him to remain in the house and accepts rent
from him as before, the parties by their conduct may,
with reason. be held to have entered into a new contract of demise. But the essential factor in those circumstances is that the landlord vo1untarily abstains
frcm turning the tenant out. When the tenant remains
in poss.es~ion. not by reason of any such abstention by
the ,)andlord, but because the Rent and Mortgage Inte.
rest Restrictions Acts deprive the landlord of his former
power of eviction, no such inference can properly be
drawn.· That is the very obvious and .cogent basis of
the decision ]n Davies v. Bristow".
lt was argued on behalf of the apoe11ants, on the basi5 of the
{}ecision of this Cou'rt in Manujendra Dutt v. Purendu Prosad Roy
---- --
(1) {1920] 3 K.B. p. 428.
(2) [1945]1 K.B. p. 577.
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BHAWANJI v. JUMATLAL (Mathew, J.)
897
Chowdhury & others ( 1) !that if in the case of a tenancy to which
Rent Restriction Acts applied, the provision of section 106 of the
Transfer of :Property Act was applicable, there is nothing incongruous in making section 116 also applicable in the case of a
statutory ~nancy. In the said decision, the appellant before this
Court was a tenant of a piece of land. The lease was for a period
of ten years but the lessee was given the option of renewal on his
fulfilling cenain conditions. The lease deed also provided that
if !the lessor required the Lessee 'to vacate the premises, whether at
the time of the expiry of the lease or thereafter (in case the lessee
exercised hi~ option to renew the lease) six months' notice to the
lessee was necessary. The lessee exercised his option to renew
the lease and offered •to fulfil the condition therefor. In the meanwhile the Calcutta Thika Tenancy Act, 1949, was passed. One
of the questions which arose for consideration was whether the
Thika ten~ was entitled to the notice provided under the lease.
This Court held that the Act did not give a right to the landlord
to evict a contractual tenant without first determinin~ the contractual tenancy. After referrin.e; to Ute decision of this Court in
.MangUal v. Sugan Chande), it was held that section 3 ol the Act
in question was similar to section 4 of the Madhya Pradesh
Accommodation Control Act (XXIII of 1965). It was further
held that on the construction placed upon 1the section, namely,
that •the provisions of the ·section are in addition to those of tile
Transfer of Property Act, it follows •that, before a tenant can be
cvkted, a landlord must· comply with both the provisions of section 106 of the Transfer of Property Act and those of section 3.
In the case before us, admittedly, d1e tenancy has been determined by efflux of time nnd what is contended for is that by the
acceptance of rent, a new tenancy has been created by virtue of
the provi~ions of section 116 of the Transfer of Property Act. In
other word~, the Question here is whether the conditions for the
applicdion of section 116 of the Transfer of Property Act are
fulfilled.
Learned counsel for the appellants argued that' whenever rent
is accepted by a landlord from a tenan~ whose tenancy has been
determined, but who continues in possession, a tenancy by holding
over is created. The argument was that the assent of the lesso.r
alone and not that of the lessee was material for the purposes of
section 116. We are not inclined to accept this contention. We
have alre.adv shown that the basis of the section is a bilatera 1
contract betweon the erstwhile landlord and the erstwhile tenant.
If the tenant has the statutory right to remain in possession and
if he pavs the rent, that will not normally be referable to an' offer
for his continuing in possession which can be convertJa..d into a
co~tr~ct by acceptance thereof by the landlord. We do not say
{1) (1967] 1 S.C.R.' 475.
(2) A.J.R. 1965 S.C. 101.
898 '
· SUPREME COURT REPORTS
[1972] 2 S.C.R.
1hat the bPeiation of section i 16 js . ·always .· excluded ··whatever
.might be· th~ circumstanc~s under which th~ tenant pays the rent
.and the. landlord acceptS it. . We have earlier re~yrred. to the observations of this Coun in· Ganga Dutt Murarka v. Kart1k Chandra
Das( 1) re~ding some of the circumstances in which a fresh con~
tract of tenancy may be inferred. We have already held .the who!e
basis of ·section 116 of the Transfer· of Property Act lS that, tn
case of norn:lal tenancy, a landlord is entitled, where he does not
accept ~
rep.t a(ter the notic-e to quit, to file a suit in ejectment
and obtain a decree for· J}()Sscssion, and so his acceptance of rent
is an unequivocal act referable only to his desire to assent to the
tenant continuing in possession. That is not so where Rent Act
exists; and if the tenanf says that landlord accepted the rent not
as statutory tenant but only as legal rent indicating his assent to
the tenant's continuin~ in possession, it is for the tenant to estab·
lish it.
No attempt has been made to establish it in this case and
there is no evidence, apart from the acceptance of the rent by thl!
landlord, to indicate even remotely that he desired the appellants
to continue in possession after ~he termination of the tenancy.
Besides, as we have already indicated. the animus of the tenant in
tendering the rent is also material. If he tenders the rent al\ the
rent payable under the statutory tenancy, the landlord cannot~ by
accepting it as rent, create a tenancy by holding over. · In such a
case the parties would not be id idem and there will be no consensus.· The dec;hion in GanRa Dutt Murarka v. Kflrtik Chandra
Das( 1). which followed the principles laid down by the Federal
Court in Kai Khushrllt> Bezonjee Capadia v. Bai Jerbai Hirjibhuy
Warden and another(~) is correct and does not · require reconsideration.
We. therefore, come to 111e conclusion that there was no hold·
in~ over by the appellants and if that be so. the question whether
the tcnancv created by holding over was for manufacturing pur·
pose and therefore the landlord wns bound to give six months~
notice for the determination of the tenancy by holding over does
not arise for consideration.
AppeJJant!i• cou~el prayed t~at othe appellants may be given
some trme f~r vacatme the premtses. This Court, when passing
tbe order on July 31. 1969, on the appli~tion for stay by the
appellants had observed :
.
"Pcti!ioner undertakes to vacate the premises withIn such time a!
may be fb.ed by this Court."
(l) (I 'JISl)•) S.C.R.IItl
(2) {1949--SOl F.C.R. !6~
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B
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BHAWANJI v. HIMATLAL (Mathew;].)
899
We accordingly arant three months' time from today to the appel~
lants to va~at~ the premises, and they have to comply with the
undertakin~ given to this Court and s;eferred to above.
We dismiss the appeal with costs.
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h. ,,
Appeal dismined.