# Bi•hun4eo Narain and Another v. Seogenl Bal and Jagernath

- **Citation:** [1951] 1 S.C.R. 560
- **Court:** Supreme Court of India
- **Decided:** 1948-02-13
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bi-hun4eo-narain-and-another-v-seogenl-bal-and-jagernath-112
- **Pages:** 13

## Headnote

1951
Bi•hun4eo
Narain
and Another
v.
Seogenl Bal
and Jagernath.
Bose.J.
1951
Ma14
560
SUPREME COURT REPORTS
(1951]
the same parties for the same relief. It will be more
convenient and proper to have these matters decided
there. Accordingly,
we dismiss the
plaintills'
suit
with costs throughout, but make it plain that in doing
so we do not adjudicate upon their right to seek partition of such properties as they contend are omitted to
be partitioned under the compromise decree in the
pending suit.
Appeal di1mi11ed.
Agent for the appellants : R. C. Prasad.
Agent for respondent No. 1 : P. K. Chatteriee.
KARNANI INDUSTRIAL BANK, LIMITED
"·
THE PROVINCE OF BENGAL AND OlHERS
[SAIYID FAzL Au, MuKHE!lJEA and
CliANDIUSEKHAl\A AlYAR JI.)
Transfer of Property Act (IV of 1882), ss. 106, 116-Lease
for a term-Acceptance of rent for further period
before expiry of
term-New tenancy--Necessity of notice ta quit-Lessee's property
becoming property of lessor by failure to remove within time-In·
junction against removal-Whether can be granted.
The context in which the provision for acceptance of rent finds
a place in s. 116 of the Transfer of Property &t shows that what
is contemplated is that the payment of rent should be made at
such time and in such manner as to. be
equivalent to the land·
lord assenting to the lessee continuing in possession.
Where
payment is made at a time when there was no question of the
lessor
assenting
to the lessee's continuing in possession and
neither party treated the payment as importing such assent the
case does not fall within s. 116.
A lease deed was executed on the 17th February, 1928, in respect of a land for a period of ten years from 24th February, 1928
the annual rent of Rs. 6,000 being payable in advance every year.
In April, 1937, a cheque for Rs. 6,000, being the rent from 1st
April, 1937, to 31st March, 1938, was
sent by the lessee and accepted by the lessor : Held, that as the rent was paid before ~
expiry of the lease and neither party treated the payment of rent
as importing assent on the part of the lessor to allow the lessee
S.C.R.
SUPREME COURT. REPORTS
561
to continue in possession as a lessee after the .period of the lease,
no new tenancy was created under s. 116 of the Transfer of Property Act. The· utmost that could be said was that by implied
consent the period of the lease was extended up to the 31st
March, 1938, and even then no notice under s.
106 of the Transfer of Property Act was necessary for terminating the lease.
K. B. Capadia v. Bai Jerbai Warden and Another [1949)
F.C.R. 262 distinguished.
Where in accordance with thC terms of a lease bricks and other
materials manufactured by the lessee on the leased premises had
become the property of the lessor as they had not been removed
by the lessee within the period fixed by the lease : Held that the
lessor was entitled to ask for an injunction restraining the lessee
from removing the materials even though he was not in possession of the leased premises.
Rathnasabhapathi Pillai and Others v. Ramaswami Aiyar (I.L.R.
33 Mad. 452). Bhramar Lal Banduri & Others v. Nanda/al Chowdhuri (24 I. C. 199) and Valia Thamburatti v. Parvati and Others
(I. L. R. 13 Mad. 455) distinguished.
CML APPELLATE JmusDICTION.
Civil Appeal No- 58
of 1950.
Appeal against the Judgment and Decree dated the
13th February, 1948, of the High Court of Judicature
at Calcutta (Mitter and Sharpe JJ.) in Appeal No. 117
of 1942 arising out of Decree elated the 24th November, 1941, in Suit No. 85 of 1938.
N. C. Chatteriee and Harish Chandra (K. C. Chopra
and G. C. Mathur, with them) for the appellant.
Chandra Sekhar Sen ( C. N. Laik, with him) for respondent No. 1.
1951, May 4.

## Text

1951
Bi•hun4eo
Narain
and Another
v.
Seogenl Bal
and Jagernath.
Bose.J.
1951
Ma14
560
SUPREME COURT REPORTS
(1951]
the same parties for the same relief. It will be more
convenient and proper to have these matters decided
there. Accordingly,
we dismiss the
plaintills'
suit
with costs throughout, but make it plain that in doing
so we do not adjudicate upon their right to seek partition of such properties as they contend are omitted to
be partitioned under the compromise decree in the
pending suit.
Appeal di1mi11ed.
Agent for the appellants : R. C. Prasad.
Agent for respondent No. 1 : P. K. Chatteriee.
KARNANI INDUSTRIAL BANK, LIMITED
"·
THE PROVINCE OF BENGAL AND OlHERS
[SAIYID FAzL Au, MuKHE!lJEA and
CliANDIUSEKHAl\A AlYAR JI.)
Transfer of Property Act (IV of 1882), ss. 106, 116-Lease
for a term-Acceptance of rent for further period
before expiry of
term-New tenancy--Necessity of notice ta quit-Lessee's property
becoming property of lessor by failure to remove within time-In·
junction against removal-Whether can be granted.
The context in which the provision for acceptance of rent finds
a place in s. 116 of the Transfer of Property &t shows that what
is contemplated is that the payment of rent should be made at
such time and in such manner as to. be
equivalent to the land·
lord assenting to the lessee continuing in possession.
Where
payment is made at a time when there was no question of the
lessor
assenting
to the lessee's continuing in possession and
neither party treated the payment as importing such assent the
case does not fall within s. 116.
A lease deed was executed on the 17th February, 1928, in respect of a land for a period of ten years from 24th February, 1928
the annual rent of Rs. 6,000 being payable in advance every year.
In April, 1937, a cheque for Rs. 6,000, being the rent from 1st
April, 1937, to 31st March, 1938, was
sent by the lessee and accepted by the lessor : Held, that as the rent was paid before ~
expiry of the lease and neither party treated the payment of rent
as importing assent on the part of the lessor to allow the lessee
S.C.R.
SUPREME COURT. REPORTS
561
to continue in possession as a lessee after the .period of the lease,
no new tenancy was created under s. 116 of the Transfer of Property Act. The· utmost that could be said was that by implied
consent the period of the lease was extended up to the 31st
March, 1938, and even then no notice under s.
106 of the Transfer of Property Act was necessary for terminating the lease.
K. B. Capadia v. Bai Jerbai Warden and Another [1949)
F.C.R. 262 distinguished.
Where in accordance with thC terms of a lease bricks and other
materials manufactured by the lessee on the leased premises had
become the property of the lessor as they had not been removed
by the lessee within the period fixed by the lease : Held that the
lessor was entitled to ask for an injunction restraining the lessee
from removing the materials even though he was not in possession of the leased premises.
Rathnasabhapathi Pillai and Others v. Ramaswami Aiyar (I.L.R.
33 Mad. 452). Bhramar Lal Banduri & Others v. Nanda/al Chowdhuri (24 I. C. 199) and Valia Thamburatti v. Parvati and Others
(I. L. R. 13 Mad. 455) distinguished.
CML APPELLATE JmusDICTION.
Civil Appeal No- 58
of 1950.
Appeal against the Judgment and Decree dated the
13th February, 1948, of the High Court of Judicature
at Calcutta (Mitter and Sharpe JJ.) in Appeal No. 117
of 1942 arising out of Decree elated the 24th November, 1941, in Suit No. 85 of 1938.
N. C. Chatteriee and Harish Chandra (K. C. Chopra
and G. C. Mathur, with them) for the appellant.
Chandra Sekhar Sen ( C. N. Laik, with him) for respondent No. 1.
1951, May 4.
The Judgment of the Court was delivered by
F AZL Au J.
The principal question for determina1951
Karnani
Industrial Bank
Limited
v.
The Province of
Bengal
and Others.
tion in this appeal is whether a certain lease had validly
Fazl Ali J.
terminated by efflux of time or whether there was
"holding over" by the lessee of the leasehold property
as contemplated in section 116 of the Transfer of Property Act. The circumstances under which this question and several subsidiary questions to which reference
will be
made later have Erisen may be briefly stated
as follows:
1951
Karnani
Indrutrlal Bank
Limited
v.
The Province of
Bengal
and Others.
Faz/ Ali J.
562
SUPREME COURT REPORTS
[1951]
The Province of Bengal,
(hereinafter referred to as
the respondent No. 1 or
plaintiff) is admittedly the
owner of an area of 1125 bighas and odd of land in
village Akra. On the 17th February, 1928, the respondent No. 1 executed a lease (exhibit 3) in respect
of the said land for 10 years for manufacture of bricks
in favour of the appellant, at a rental of Rs. 6,000 a
year.
The lease was to commence from the 24th
February, 1928, and
a year's
rent was payable in
advance.
By the terms
of the said lease, the lessee
was
prohibited from
assigning or subletting the premises or any part thereof without the consent of the
lessor except to a limited . company and the lease also
contained a general provision that the lessee would
at
the expiration of the lease restore to the lessor the
demised premises in as good condition as it was at the
date of the lease, reasonable wear and tear excepted.
Two further clauses in the lease, which are material for
the decision
of this
appeal, may be
reproduced
verbatim:-
Clause 11 of Part I of the Schedule
"The Secretary of State reserves
the
right to
terminate the lease at any time subject to six months'
notice in the event of the lessee's failing to observe and
duly perform the conditions hereinbefore
and after
mentioned and it is hereby agreed that the lessee shall
before the expiration or prior termination of the lease
hereby granted remove
his boilers engines trucks kilns
railway and tram l.Tnes bricks tools and plant and all
other materials
whatsoever
and
yield
up the said
demised premises unto the Secretary of State and that
those bricks tools and plant
and other materials that
shall not be removed before such expiration or prior
termination shall become the property of the
Secretary
· of State."
Clause 1 of Part Ill of the Schedule
''The lessee shall be at liberty to keep on the
said
premises hereby demised for three months after the
expiration or prior termination of the term of this
S.C.R.
SUPREME COURT REPORTS
563
lease any bricks boilers engines
trucks kilns railway
and tram lines and all other materials whatsoever as
may have been manufactured by him in the
premises
in accordance with the conditions of these presents but
any bricks and other-materials left in - contravention
to this condition shall become the absolute
property
of the Secretary of State without payment.
It may be stated here that at the time of the execution of the lease,
the lessee had purchased from the
lessor for Rs. 50,000 "all the boilers, engines, trucks
kilns, railway
and tramway
lines and all other movable property, plant and machinery on the demised
. "
premises.
The case of the respondent No. 1, who is the plaintiff in
the
present
litigation, is that the appellant
(defendant No. 1) had, in contravention of the terms of
the lease, sublet the brickfield to defendants-respondents 2 to 18. without the consent of respondent No. 1,
and they had caused serious damage to the brickfield
in general and failed to maintain the embankments,
sluices, etc. in proper repair resulting in a total loss of
Rs.
16,840. It was further alleged that the defendants
had refused to deliver possession though the lease had
terminated, and they had not removed the bricks, pugmills and other materials within 3 months from the
termination of the
lease.
On these allegations, the
respondent No.. 1 prayed for the fol\o:wing reliefs :--
(a) a decree for ejectment and khas possession over
the brickfield ;
(b) damages amounting to Rs. 4,000 for the pe_riod
betWeen the termination of the lease and institution of
the suit and mesne profits for the subsequent perio1l;
( c) a decree for Rs. 16,840 for damages caused to.
the field ; and
( d) a decree for permanent injunction
restraining
the defendants from
removing or otherwise disposing
of
the
bricks,
pugmills, etc. which were claimed
to have become the property of the plaintiff.
3-10 S- C. fndi:y'67
1951
Kamani
Industrial Bank
Limited
v.
The PrtJl'i11ce of
t:t1Bengal
and OtherJo
Fazal Ali J.
1951
Karnani
lndustrit1! Bank
Limited
v.
T!tc Prorincc of
&·ngal
and 01/zt'rs.
Faz/ Ali J.
564
SUPREME COURT REPORTS
[1951]
The suit was contested by the appellants, and the
other defendants, and
their
defence was
that
the
appellants had held over with the implied consent of
respondent No. 1, and hence the lease had not validly
terminated, that no damage or injury had been caused
to the land, that the respondent No. 1 was not entitled
to forfeit the properties of the appellants lying in the
brickfield inasmuch as the term in the lease to that
effect was by way of penalty and as such unenforceable,
and that the respondent No. 1 was not entitled
to · the relief of injunction.
The trial
Judge by his judgment dated the 24th
November,
1941,
held that there was no holding over
with the assent of the plaintiff and both parties were
under a
mistaken belief that the lease had expired on
the 23rd February, 1938.
He however held that the
evidence did not show that there was any damage or
injury caused to the property. On these findings, the
suit was decreed in part, and the
respendent No. 1
was directed to be put in possession of the brickfield
and was also granted a decree for Rs. 4,000 as mesne
profits up to the date on which the respondent No. 1
was put in possession. The
prayer for damages for
injury alleg~d to have been caused to the field and the
prayer for injunction were however
disallowed.
The
trial Judge allowed the appellants 3 months' time "to
remove their
belongings from the
Akra
brickfield
including kilns, pugmills, bricks, coals and any other
brick-making material
that
may be lying
there"
after this period these properties, if any, left
in the
field, were
to become the absolute properties of
the
plaintiff.
The
appellants
thereafter
preferred
an
appeal to the High Court at Calcutta, and the respondent No. 1 also preferred a cross-objection
claiming
that
the
prayer for
injunction should have been
allowed -and the claim for damages should have been
decreed in full.
The learned Judges of the High
Court who heard the appeal,
by their
judgment
dated the 13th February,
1948, dismissed the
appeallants'
appeal and allowed
the cross-objection
of the
respondent No. 1 in part.
They held that on the facts
established in the case there was no holding
over,
and that the clause
in the
lease stating that if the
"S.C.R.
SUPREME COURT REPORTS
565
.appellants did not remove the bricks
etc. · from
the
field within 3
months after
termination
of
the
lease they would
become the property of respondent
No. 1, was not a clause by way of penalty and should
be given effect to.
They further held that the claim
of respondent No. 1 for damages for injury caused to
the demised premises was not established. The present
appeal is directed against the judgement of the High
Court.
The admitted facts of the case are briefly these.
The
appellants duly paid Rs. 6,000 as rent to respondent
No. 1 in February, 1928. In February, 1929, a sum of
Rs. 6,714 and odd was paid by the appellants as rent
for the period 17th February, 1929, to the 31st March,
1930, and thereafter they continued to pay Rs. 6,000
as rent for the yearly period, 1st April to 31st March
of the succeeding year, and the last payment was made
in April, 1937 by means of a cheque sent with a covering letter, the material portion of which runs as
follows :-
·
"We beg to enclose herewith a cheque for Rs. 6,000
in payment of rent of Akra brickfield for the year
1937-38 ending 31st March, 1938, and shall thank. you
to please favour us with your formal receipt for the
above."
The cheque was duly cashed and the amount was
entered in the cash book of the plaintiff in the following terms:-
"5-4-37 (date of receipt).
Received without prejudice from Karnani Industrial Bank Ltd. on account
of yearly rent for Akra brickfield for the year ending
31st March, 1938."
. On the 27th August, 1937, the appellants applied to
the Secretary to the Government of Bengal, Public
Works Department, for renewing the lease for a further
period of 10 years, but no reply was received to that
letter.
After addressing
several other
letters, the
appellants received a letter dated the 23rd February.
1938, with which was enclosed a copy of an extract
from a letter
addressed by the Executive Engineer.
1951
Katt1ani
Industrial Bank
Limited
v.
The Provinet·of
Bengal
and Others
Fazl All J.
1951
Karnanl
lndultrial Bank
Limited
....
The Province of
Bengal
and Others.
Faz/ Ali J. ·
566
SUPREME COURT REPORTS
[1951}
Suburban Division to the Assistant Engineer, No. III
Sub-division, which was a under:-
"He is requested
to
make
arrangements
with
Messrs. Karnani Industrial
Bank Limited for vacant
possesiion of the Akra bricklield on the 24th instant
as the lease with the Bank will expire on the
23rd
instant according to the terms of the agreement."
Ultimately, on the 17th March, 1938, the appellants
received the following communkation from the Executive Engineer, Suburban Division :-
"I would inform you that it is not the intention
of Government in this Department to lease out the
bricklields and arrangement is being accordingly made
to make over the lands to the Government in
the
Revenue Department for disposal."
In a subsequent letter dated the
14th September,
!'938, the · Executive Engineer wrote to the appellants
as follows :-
"I am instructed to state that Government have
decided that you cannot be
allowed to continue in
occupation of the premises any further ......... However,
as a matter of grace Government will allow you time
till the 30th day of September next, to dismantle the
kilns and to remove all your bricks, boiler etc. from
the site, on which date Government will
take
over
possession of the property from you."
The correspondence to which reference has been
made does not show that at any point of time the
plaintiff had assented to the appellant's· continuance
of possession.
On the other hand·, some of the letters
written by the appellants show
that, notwithstanding
their having paid rent up to . the 31st March, 1938,
they had proceeded all along on the footing that the
lease was to expire in February, 1938. For
instance,
in the appellants' letter of the 23rd August, 1937, it is
stated : "we are desirous of renewing the lease of the
bricklield for a further period of 10 years from the
date of the expiration of the period of the !ease dated
17-2-1928."
Again,
in the
letter
dated
the
23rd
October, 1937, reference is made to the appellants'
S.C.R.
SUPREME COURT REPORTS
application for renewal of the lease for a further period
of 10 years on its expiry. Even in
the letter which
was written on behalf of the appellants on the 3rd
March, 1938, after the expiry of the date on which the
lease was to terminate, the statement made in the
earlier letters was repeated, and it was further stated :
"we applied for renewal of the lease on
the 23rd
August, 1937, six months prior to the date of expiration of the lease." In this letter, it is nowhere suggested that the appellants were holding over by reason of
the acceptance of rent up to the 31st March, 1938.
On the other hand, at the end of this letter, we find
the following statement :-
"We therefore pray that if the Government is not
at all inclined to renew the lease, time may be granted
to us for dismantling and removing till the end of
December, 1938, and we shall pay the proportional rent
to the Government -for seven months time in pursuance
of the terms of the lease."
The ·reference to the period of 7 months shows that
it was assumed that the lease had expired in February,
1938.
The letters wr'itten on behalf of the Government
point to the same conclusion, namely, that both the
parties were acting on the assumption that the lease
was to expire on the 23rd February, 1938.
For
instance in a letter_ written on behalf of the Government on the· 25th -February, 1938, the following statement is made :-
"I have the honour to inform you that none of
your agents was present at the Akra brickfield today
as previously arranged to make over the possession of
the bnckfields.
You are therefore requested to please
inform me about as to what arrangements are being
m~de by you to make over the possession of the said
brickfield to this department. The term of lease expires
on the afternoon of the 23rd February, 1938."
Apart from the fact that the appellants did not set
up in any of their letters a case -of holding over, we
have to see whether the plea can be said to have been
19S1
Kornani
lndwtrial Bank
Limited
v.
The Province of
Bengal
and Othe,,.
Faz/ Ali J.
19SI
Kaman I
lnrlwtria/ Bank
Limited
v.
The Province of
Bengal
and Other$.
Faz/ All J.
568
SUPREME COURT REPORTS
[1951}
successfully made out by them.
There is no doubt
that the appellants have established that the rent was
paid on their behalf up to the 31st March, 1938, and
it was accepted by the respondent No. 1.
It has also
been established that this payement was made by a
cheque and that cheque has been cashed by the
Government. Section 116 of the 'J1ransfer of Property
Act, on which reliance was placed on behalf of the
appellants, runs as follows :-
"If a lessee or underlessee of property remains in
possession thereof after the determination of the lease
granted to the lessee,
and
the
lessor or his legal
representative accepts rent from the lessee or underlessee, or otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to the
contrary, renewed from year to year, or from month
to month, according to the purpose for which the pr<>-
perty is leased ...... "
·
This sect'ion was construed by the Federal Court in
K. B. Capadia v. Bai Jerbai Warden and Another (1),
and it was held that where rem was accepted by the
landlord after the expiration of the tenancy by efflux
of time, section 116 applied even. though the landlord
accepted the amount remitted to him as "part deposit
towards his claim for .compensation for illegal use and
occupation, and without prejudice to his rights". It
is to be noted that in that case rent had been accepted
after the expiry of the tenancy.
In our judgment, the
present case cannot be
governed by that decision
because of the fact, which In our opinion is important;
that here the payment of rent up to the 31st March,
1938, was made not after the date of expiry of the
lease, but on the 5th April, 1937, nearly a year before
the expiry of the lease.
A rcterence to section 116 of
the Transfer of Property Act will show that for the
application of that section, two things are necessary :-
(1) the lessee should be in possession after the tennination of the lease; and (2) the lessor or his representative should accept rem or otherwise assent to his continuing in possession.
The use of the word 'otherwise'
(l) [19S9] F.C.R.262
S.C.R.
SUPREME COURT REPORTS
569
suggests that acceptance of rent by the· landlords has
been ·treated as
a form of his giving assent to the
tenant's continuance of possession.
There can be no
question of the lessee "continuing in possession" until
the lease has expired, and the context in which the
provision for
acceptance of rent finds a place clearly
shows that what is conte111plated is that the payment
of rent and its acceptance should be made at such a
time and in such a manner as to be equivalent to the
landlord assenting to the lessee continuing in possession.
Both the courts below,
after dealing with the
matter elaborately, have concurrently held that in the
circumstances of the case of the consent of respondent
No. 1 to
the
appellants'
continuing in possession
cannot be inferred, and we agree with this finding.
It was pointed out to us on behalf of the respondent
that the entry relating to this payment in the books
of the
plaintiff contains the words : "received without prejudice from Karnani Industrial Bank .... " The
same words however occur in several earlier entries,
an<l we are not inclined to attach any special signifinance to them.
But it seems to us that the very fact,
that the payment was made at a time when there was
no question of the lessor assenting to the lessee's continuing in possession and neither party treated the
payment as importing such assent, is sufficient to take
the case out of the mischief of section 116 of the
Transfer of Property Act.
There is also another view which we think is possible to take upon the facts of the case. As we have seen
the· rent for the first year was paid in advance near
about the ti~e of the execution of the lease, and nothing
turns upon 1t.
When
however the second payment
was made, the sum paid was Rs. 6,714 and odd, and
the payment was made in respect of rent up to the
31st March, 1930.
After this, all the subsequent payments were made up to the 31st March of the succeeding
year, evidently because the
financial year,
which the
parties considered
themselves to be governed by, ran
from the 1st April to the 31st March of the succeeding
year. It was presumably in view of this fact that the
1951
Karnani
Industrial Bank
Limited
v.
Tfie Province <f
Bengal
and Otheri.
Faz/ Ali J,
1951
Karnani
lnduJtrial Bank
Limited
v.
The Province of
Bengal
and Others•
Faz Ali J.
570
SUPREME COURT REPORTS
[1951]
plaintiff filed
an application on the 6th November,
1941, for amending the plaint so as to include the
following statement :-
"The plaintiff submits that even assuming that
the registered lease terminated on the 23rd February,
1938, by an
agreement between the plaintiff and the
defendant No. 1, the latter was allowed to hold over
up to the 31st March, 1938.''
This application however was rejected, because it
was made at a very late stage, that is to say, after the
defendants' evidence had been closed and an adjournment had been granted to the plaintiff to adduce
rebutting evidence.
However that
may be, the utmost
that can be said upon the evidence as it stands is that
by the implied consent of the parties the period of the
lease was extended up to the 31st March, 1938.
In
this view, the respondent No. I became entitled to
re-enter after the 31st March, and no notice under
section 106 of the Transfer of Property Act was necessary.
In the circumstances, the decree for ejectment
passed by the courts below must be upheld.
The next question which arises in the case turns up
the proper construction of clause 11 of Part I and
clause I of Part III of the lease, which have already
been quoted.
It seems to us that clause 11 should he
read as a whole, and, when it is so read,
it becomes
clear that it was intended to be. applicable only where
the Secretary of State decided to exercise his right to
terminate the lease 'at any time subject to 6 months'
notice," in the event of the lessee failing to observe
and duly perform the conditions mentioned in the lease.
In such a case, if the lessee did not remove the boilers,
engines and all other materials and yield up the premises to the Secretary of State, those articles were to
become the property of the Secretary of State.
This
clause is
evidently not applicable to the present case.
The clause which applies to this case is clause 1 of
Part III, which is
intended to be applicable to the
normal case of the . lease expiring by efllux of time.
This clause. as we have seen, provides that the lessee
S.C.R.
SUPREME COURT REPORTS
571
shall be at liberty to keep on the demised pr!!mises for
3 months after the expiration of the lease any bricks,
boilers, etc., but it also provides that "any bricks and
other materials left in contravention of this condition
shall become the absolute property of the Secretary of
State without payment."
There can be no doubt that
under this clause, the bricks and other materials have
become the absolute property of the plaintiff. The only
question is as to the meaning of "other materials."
It seems to us
on an examination of the lease as a
whole that
there
must
be
a distinction between
materials, and machinery and tools and
similar articles, and the words "other materials" have no reference
to engines, trucks, railway and
tramway
lines and
plant. They mean
building materials
such as bricks,
tiles and similar articles that might have been manufactured by the appellants on the demised
premises.
That being so, the decree under appeal should be
modified accordingly.
The only other point which arises for consideration
relates to the plaintiff's prayer for a decree for permanent injunction against the defendants, to restrain
them from
removing or otherwise disposing of . the1
articles in regard to which the decree is to be passed.
It was contended on behalf of the appellants that the
respondent No. 1 not being in possession of these properties could not ask for the relief of injunction without asking for the declaration of its title in respect of
them and possession over them, and in support of this
proposition, the
following cases
were cited :-Ratnasabhapati ·Pillai and Others v. Ramaswami Aiyar (1),
Bhramar Lal Banduri and Others v. Nanda Lal Chowdhuri (2) and Valia Tamburatti v. Paravati and Others (3).
After reading and fully considering those cases, we find
them to be wholly inapplicable to the present case.
Jn the present case, it has been found that the bricks
and other materials have become the property of the
plaintiff, and there
can be no legal objection to the
granting of an injunction as prayed.
(I) I.L.R. 33 Mad. 482 .
.(2) 24 I.C. 199.
13) I.LR. 13 Mad. 455.
1951
Karnani
lndurtrlal Bank
Limited
v.
The Province of
Bengal
and Others
Faz/ Ali J.
1951
Karnani
Industrial Bank
Limited
v.
The Province of
Bengal
and Other1.
Faz/ Ali J.
1951
May 4
572
SUPREME COURT REPORTS
[1951]
The appeal therefore substantially fails and it is
dismissed with costs.
But it should be made clear m
the decree that only the building materials such as
bricks, tiles . and similar articles that might have been
manufactured by the appellants on
the demised premises shall become
the
property
of the respondent
No. 1.
As for the boilers, engines, trucks, kilns, railway and tram lines, etc., three months' time is given
from the date of this decree to enable the appellants
to remove them from the demised premises.
Appeal dismissed.
Agent for the appellant : Raji11der Narain.
Agent for respondent No. 1 : P. K. Bose.
KUMAR PASHUPATINATH MALIA & ANOTHER
v.
DEBA PROSANNA MUKHERJEE.
[SHR1
HARILAL
KANIA C. J.,
PATANJALI
SAsTRI and
s. R. DAS JJ.]
Bengal Money Lenders Act (X of 1940), u. 2(22), 36(5)-Relief
under s. 36--"Suit to which this Act applies"--Suit in which
execution
proceeding tvas pending on
/an.
1~
1939-Execution
Case struck off but attachment continuing in force on Jan. l,
1939-Applicability of Act-Civil Procedure Code (V of 1908), 0. 21,
r. 57-Striking off execution case keeping attachment in forceJV he th er terminate)· execution
proceeding--Sub·mortgagee-W hether
assignee of mortgage-Right to claim protection under s. 36(5).
~ decree on a mortgage was passed in a suit brought by the
representatives
in
interest of a sub-mortgagee in 1929 and a
personal decree for recovery of the amount remaining due after
the sale of the mortgaged properties was passed in 1935. In
1936 the decree-holder
started
execution of the personal decree
and attached certain properties
of
the
judgment-debtor. The
decree-holder filed a petition on January 30, 1937, praying that
the execution
case
"may be struck off for
non-prosecution, keeping the attachment in force" in Yiew of certain negotiations for
amicable settlement, and
the court passed an order
that the:
execution case "is dismissed for non-prosecution,
the attachment