# CHAPSIBHAI DHANllBHAI DANAD v. PURUSHOITAM

- **Citation:** [1971] Supp. 1 S.C.R. 335
- **Court:** Supreme Court of India
- **Decided:** 1971-04-05
- **Bench:** 1. M. Shela1, I. D. Dua
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/chapsibhai-dhanllbhai-danad-v-purushoitam-5250
- **Pages:** 17

## Headnote

UaN.-Ptriod indefinite but no heritable rights to lessee's heirs-If
11e1ntanent lease.
Transfer of Property Act (4 of 1882), s. 108 (d)-Accession, proof vf.
Eauments Act (5 of 1882), ss. 12 and 15-Proof of acquisition of
e~nient right-Proof of easement of right of passage-Easement right tu
Ught and 'lir-Dtprivation of-When actionable.
In 1906 the predecessor-in-title of the respondent leased out an open
portion of land to the appellant's father. The lease was for building a
residential structure, and the appellant constructed a house.
Though it
was for 30 years certain, the lessee was entitled to remain in possession \)f
the land so long as he paid the stipulated rent, which the lessor was not
entitled to increase.
There were no express words indicating that the
leasehold rights were intended to be heritable. The deed provided for the
right of the lessee to remove the structures after the lease period, meaning
thereby vacating the land, if be so desired. It gave the lessee the right to
transfer by sale the leasehold interest.
Jn 1929, the original plot was given two numbers 94 and 93 the latter
being the western portion in the possession of the respondent-lessor and
the former being the eastern portion leased out to the appellant There
was a strip of land, 4 ft. in width, immediately to the west of survey no.
94 and forming part of survey no 93. This strip ot land was used by 11\e
appellant for passage for going to a well situated in plot Ro. 93. The
appellant's father bad taken a portion of plot no. 93, including the strip.
011
lcai;e~ paying separate rent therefor and put up thereon a tin Shed
wllich stood there from 1935 to 1941. Sometime thereafter the respondent
commenced construction on survey no. 93 in close vicinity to the appellant·~
plot.
335
A
B
c
D
E
F
On the questions: (I) Whelher the lease was a permanent lease; (2)
there was an accession in respect of the strip of land within the meaning
of 1. 108(d) of the Transfer of Property Act, 1882, and therefore, the strip
of land must be deemed to be comprised in the lease; and (3) whether the
-11ant had acquired by prescription, rights of euement of light and air
and of passage over the strip of land under s. 15 of the Easements Act.
G
1882.
HELD: (I) The question as to whether a leaae was permanent or for
the lif• time only of the lessee, even where it was for building •tructure6
and was transferable, depends upon the terms of the lease.
The mere
fact that a lease provides for the interests thereunder to pass on to the
heirs of the lessee would not always mean that it is a permanent lease.
Such a provision can be.made in two ways resulting in two dilferent conH
aequences. The leaae m•Y provide a fixed period and the.n include a ~vilion that in the event of the lessee dying before the expiry of such ~
his hei!"I would be entitled to have the benefit of the lease for the remam~
336
SUPREME COURT REPORTS
[1971] SUPP. s.c.R.
A
B
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of the period.
In such a case, although the lease may provide for the
heirs to succeed to the interests in the leased land it would only mean that
such heirs succeed to the rights up to the expiry of the lease
period.
If the lease provided that the lessee could continue in possession of the
property so long as he paid the stipulated rent, it would usually be regard.··
ed as lease for an indefinite period and as such for the lessee's life time.
In such a .case, if the lease contains a provi:;ion for the rights thereunder
being heritable, then, such a lease, though ordinarily for the lifetime of
the lessee, would be construed as permanent. [341F-H; 344C-E]
In the present case, since the lessee was entitled to remain in possession even after the lease period it was a lease for an indefinite period. But
there was no provision in the deed making the lessee's right heritable and
therefore, it was not a permanent lease but only for the lifetime of the
lessee.
[344A ; 346D-E]
(a) The words, if the lessee were to remove the buildings before the

## Text

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CHAPSIBHAI DHANllBHAI DANAD
v.
PURUSHOITAM
April 5, 1971
[1. M. SHELA1' AND I. D. DUA, JJ.J
UaN.-Ptriod indefinite but no heritable rights to lessee's heirs-If
11e1ntanent lease.
Transfer of Property Act (4 of 1882), s. 108 (d)-Accession, proof vf.
Eauments Act (5 of 1882), ss. 12 and 15-Proof of acquisition of
e~nient right-Proof of easement of right of passage-Easement right tu
Ught and 'lir-Dtprivation of-When actionable.
In 1906 the predecessor-in-title of the respondent leased out an open
portion of land to the appellant's father. The lease was for building a
residential structure, and the appellant constructed a house.
Though it
was for 30 years certain, the lessee was entitled to remain in possession \)f
the land so long as he paid the stipulated rent, which the lessor was not
entitled to increase.
There were no express words indicating that the
leasehold rights were intended to be heritable. The deed provided for the
right of the lessee to remove the structures after the lease period, meaning
thereby vacating the land, if be so desired. It gave the lessee the right to
transfer by sale the leasehold interest.
Jn 1929, the original plot was given two numbers 94 and 93 the latter
being the western portion in the possession of the respondent-lessor and
the former being the eastern portion leased out to the appellant There
was a strip of land, 4 ft. in width, immediately to the west of survey no.
94 and forming part of survey no 93. This strip ot land was used by 11\e
appellant for passage for going to a well situated in plot Ro. 93. The
appellant's father bad taken a portion of plot no. 93, including the strip.
011
lcai;e~ paying separate rent therefor and put up thereon a tin Shed
wllich stood there from 1935 to 1941. Sometime thereafter the respondent
commenced construction on survey no. 93 in close vicinity to the appellant·~
plot.
335
A
B
c
D
E
F
On the questions: (I) Whelher the lease was a permanent lease; (2)
there was an accession in respect of the strip of land within the meaning
of 1. 108(d) of the Transfer of Property Act, 1882, and therefore, the strip
of land must be deemed to be comprised in the lease; and (3) whether the
-11ant had acquired by prescription, rights of euement of light and air
and of passage over the strip of land under s. 15 of the Easements Act.
G
1882.
HELD: (I) The question as to whether a leaae was permanent or for
the lif• time only of the lessee, even where it was for building •tructure6
and was transferable, depends upon the terms of the lease.
The mere
fact that a lease provides for the interests thereunder to pass on to the
heirs of the lessee would not always mean that it is a permanent lease.
Such a provision can be.made in two ways resulting in two dilferent conH
aequences. The leaae m•Y provide a fixed period and the.n include a ~vilion that in the event of the lessee dying before the expiry of such ~
his hei!"I would be entitled to have the benefit of the lease for the remam~
336
SUPREME COURT REPORTS
[1971] SUPP. s.c.R.
A
B
c
D
E
F
G
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of the period.
In such a case, although the lease may provide for the
heirs to succeed to the interests in the leased land it would only mean that
such heirs succeed to the rights up to the expiry of the lease
period.
If the lease provided that the lessee could continue in possession of the
property so long as he paid the stipulated rent, it would usually be regard.··
ed as lease for an indefinite period and as such for the lessee's life time.
In such a .case, if the lease contains a provi:;ion for the rights thereunder
being heritable, then, such a lease, though ordinarily for the lifetime of
the lessee, would be construed as permanent. [341F-H; 344C-E]
In the present case, since the lessee was entitled to remain in possession even after the lease period it was a lease for an indefinite period. But
there was no provision in the deed making the lessee's right heritable and
therefore, it was not a permanent lease but only for the lifetime of the
lessee.
[344A ; 346D-E]
(a) The words, if the lessee were to remove the buildings before the
expiry of 30 years he would have to pay rent for the remainder of tbt
period, do not show an intention to create a permanent lease. The clause
providing for such removal is not that the lessee would remove the structures on default of payment of rent but on his own volition~ a clause
indicative of the parties not having intended the lease to be permanent.
[344B ; 345E-F]
(b) The words 'after the lease period' mean either at the end of 30 years
or at the death of the lessee. Therefore, the clause that after the lease
period we shall, if we like, remove our buildings', merely ensures the right
to remove the structures if the lessee or his heirs so desired on the expiry
of the lease period, that is. either at the end of 30 years or after the lifetime of the lessee. The heirs are mentioned here to provide for the contingency of the lessee dying before the expiry of 30 years and also for
the contingency of his living beyond that period and continuing to occupy the land. In the event of the first contingency, the lessee's heirs would
contiiiu,e in possession till expiry of 30 years and then remove the
structures if they wished. In the case of the second contingency the heirs
of the lessee would have a right to remove the structures on the death
of the lessee. In either event the right provided for is the right to remove
the structures.
It was not a provision for the lease being heritable and
its being consequently a permanent lease.
[345D-H]
(c) The pronoun used in the document is the vernacular equivalent
of •we• used for the executant instead of the singular 'I' and does not mean
the lessee and his heirs. [346B-C]
Sivavogeswara Cotton Press v. M. Panchaksharappa, (1962] 3 S.C.R.
876, Lekhraj Roy v. Kunhya Singh,
1876-77 LR. 4 I.A. 223
Vaman
Shriparl v. Maki, I.LR. 4 Born. 424, Donkangonda v. Ravanshivappa, 45
Born. LR. 194, Bavasaheb v. West Patent Co. 56 Born. LR. 61 and Abdul
Rahim v. Sara/a/Ii, 30 Born. LR. 1596, referred to.
Sonabai v. Hiragayri, 28 Born. L. R. 552, Runge IA/I Lobes v. Wilson,
[1899] I.L.R. 26 Cal. 204, Promoda Nath Roy v. S. Chowdhry, (1905] I.LR.
32 Cal. 648 and Nava/ram v. Javeri/al, 7 Born. LR. 401, disapproved.
(2) Under s. 108(d) of Transfer of Property Act if any accession is
made to the leased property during the continuance of a lease, such acceasioa is deemed to be comprised in the lease. [346F]
CHAPSIBHAI v. PURUllHOTTAM (She/at, J.)
33 7
In the present case, the appellant made no serious attempt to e•tablish
A
accession by adverse possession. [347H]
(a) When the plots were separately demarcated including the strip in
the respondent's portion no protest was ever made against such :i demarcatioo by the appellant or his father.. [347G]
(b) The appellant made a categorical statement in evidence, that according to him the said strip of land was covered by the lease deed and
B
was not an acquisition over and above the leased land under the deed,
but the evidence showed that strip was not so included. [347G-H]
(cl The appellant sought to n1ake out a case of easementary right by
prescription, a case incompatible \\1ith the claim of adverse possession.
[348A·B]
(3) Under ss. 12 and 15 of the Easements Act an easement by prescription can be acquired by assertion of hostile claim of certain rights vver
another man's property. Jn order to acquire the easement the person who
asserts the hostile claim must prove that he had the consciousness to ~xercise
that bost!le claim on a property which is not his own, and where no such
consciousness is proved, he cannot establish a prescriptive acquisition of
the right. Where he has pleaded ownership- and has failed. he cannot sub·
sequentlv turn round and claim that right as an easement by prescription.
To prove the latter it is necessary to establish that it was exercised on
so1ne,Jne else's property and not as an incident of his own ownership of
that property. [3490-G]
In the present case, the appellant having claimed, though unsuccessfully.
that the strip of land was included in the leased land or that there was
an accession, he could not successfully claim that during the requisite
period he exercised rights over it as the owner of a document tenement.
Further, he could not claim any right of passage because his use of the
strip as a passage was permissive.
[350C·E]
As tu light and air through the windows on the western side the ap.
peJlant could succeed only if there was a substantial privation of light,
enough to render the occupation ofi..~is house uncomfortable according to
ordinary notions of mankind. [35011; 351A]
·
rn the present case, the plan showed that as a consequence of conc
D
struction by the respondent there would be a partial deprivation of light
F
and air. But no attempt was made on behalf of the appellant to establish
that the obstruction caused by the respondent's construction had been such
as to a;nount to substantial privation so as to render the occupation of the
house by the appellant uncomfortablt. [351C-E]
Rayachand v. Ma11ik/a/, I.L.R. [1946] Born. 184 (F.B.), approved.
Coils v. Home and ColoniafStores, [1904] A. C. 179, applied.
G
[The question whether under ss. 4 and 12 of the Easement Act. a lessee
can acquire a right to light and air as against the owner, left open.] [349A]
CIYJL APP£LLATE
JURISDICTION: Civil Appeal No. 435 ot
1967.
Appeal from the judgment and decree dated September 30,
1966 of the Bombay High Court Nagpur Bench in Letters Patent
No. 4 of 1964.
22-1 SC. lndia/71
H
338
11.JPRBMB COURT REPOR_'IS
[1971] SUPP. s.c.a.
A
S. T. De1ai and A. G. RatnaparkhJ, for the appellant
Rameshwar Dial, Jaishi Ram Goel and A. D. Mathur for the
respondent
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B
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The Judgment of the Court was delivered by
Shelat, J.-By a deed of lease, dated May 5, 1906, the predecessor-in-title of the respondent let out to the appellant's father
an open portion of land measuring 26 ft. x 225 ft. out of a larger
plot. The lease was for constructing buildings and for a period
of 30 years certain at the annual rate of Rs. 130. The lease contained, inter alia, the foJlowing :
"Even after the prescribed time limit, I shall have a
right to keep my structure on the leased out land, so long
as I like, and I shall be paying to you the rent every year
as stated above. You will have no right to increase the
rent and I shaJI also not pay it, myself and my heirs shall
use this land in whatever manner we please. After the
lease penOd, we shall, if we like, remove our building
right fron. the foundation and vacate your land. In case
we rem"'1e our structure before the stipulated period, we
shall be liable to pay to you, the rent for aJI the thirty
years, as agreed to above. .. ....... In case I were to sell
away the buildings, which I shall be constructing on the
above land, to anyone else, then, the purchaser shall be
bound by all the terms In this lease-deed. .. ....... "
The trouble between the parties started when the respondent
commenced construction on the rest of the land in a fashion so
as to be in close ~cimty to the western boundary of the leased
land to house an industry, called Sudha Industries.
The appellant filed the suit in 1958, out of which this appeal
arises, urging that the said lease Wlls a permanent lease, that buildings had been constructed on the leased land partly in 1906, and
the rest in 1909 and 1922, that the said plot of land was subsequently demarcated into two survey numbers, 94 and 93, that a
strip of land, 4 ft. i'n width and measuring 650 sq. ft immediate!)
to the west of survey No. 94 and forming part of survey No. 93
was covered by the said lease and Wlls in his possession as par;
of the leased land or was acquired by him ag acceision. Pend·
ing the suit the appellant amended the plaint asserting that the~
portion Jct out under the said deed of lease was 5850 sq. ft. in
1he aggrepte, wlllch tncladed ·the said strip of land, and annexed
a new plan showing details of the land which according to him
was leased out under the said deed.
CHAPSIBHAI V. l'URUSHOTTA" (Sht/at,J.)
Out of the.structures put up by the appe!Jant's father, the
central building, as shown in the plan produced by the appellant,
has windows on the ground, first and second floors, all opening
on the western side. The eaves of that building protrude on that
side by about 2t ft. with the result that the rain water falls over
the said strip of land. According to the plaint, there is a drain
partly in plot No. 94 and partly over the said strip of land which
carries the entire waste water from the said building. According
to the appellant, the said construction made by the respondent
shut off light and air which he had been enjoying from the afore·
said windows. He had other complaints also to make and claim·
ed amongst other things a declaration that the said strip of land
was part of the leased land covered by the said deed, or in the
alternative, that he had acquired it by way of accession, and
prayed for a permanent injunction against shutting off light and
air through the said windows and interference with his
rights
over the said strip of land either as the lessee thereof or as and by
way of easements over it. The respondent's answer to the suit
briefly was that the appellant was not entitled to the said strip of
land either as falling under the said lease or as accession. The
respondent also denied that the appellant was entitled to any of
the reliefs claimed by him, that the said lease was not a permanent
lease but was for a period of 30 years in the first instance, but
being a lease for constructing builclings thereon and being transferable. could at best be for the lifetime ot _the lessee, the appeh
!ant's father.
He also averred that part of the land comprised
in plot No. 93 used to be let out from time to time to persons
including the appellant's father, who had executed a
separate
rent note, dated July 21, 1935, and who had under the said note
been in possession thereof as a lessee from 1935 to 1941. and that
he having been permitted as such a· lessee the use of the said
strip of land to enable him access to the said leased portion of
~urvey No. 93, there was no question of his having acquired any
easementary rights by prescription over the said strip of land.
.
The Trial Court partially decreed the appellant's
sui.t, in
that it rejected the appellant's claim to the said strip of land, but
granted a declaration of easement for light and air through the
said windows and- fat. carrying waste and rain water through the
said drain ovet the said. strip of land. Against that judgment and
decree, the appellant filed an ap~ !>cf ore the Di!l'ri~t Court.
The respondent also filed ctoss-ob1ect1ons.
The District Court
disnnMed the appellant's appeal and allowed the cross-objections
with the result that the appellant's suit was dismissed. A second
appeaf filed' by the apj>ellant in the High Court was heard by a
Single Judge "1116 lield that the said lease was a permanent lease-,
that tlie appellant bad atquired the said strip of lllnd' as· acces-;
Sioli to the ll!Ued lllltil Bild 81' a· ~c:e ot tboee fuxlinfl
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340
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SUPRBME COURT REPORTS
[1971] SUPP. s.c.R.
granted a mandatory injunction directing removal of any con·
struction or projection by the respondent over the said strip of
land. In v'iew of his finding that the said strip of land had always
been in the possession of the appellant and earlier. of his father
ever-since 1906 and thus had been acquired as an accession, he
considered it unnecessary to go into the question of easementary
rights claimed by the appellant. The principal ground on which
the Single Judge founded his judgment was that the lease was
both transferable and heritable, and therefore, had to be held as
a permanent lease.
Aggrieved by the judgment and decree passed by the learn·
ed Single Judge, the respondent filed a letters patent appeal where·
in three principal questions were canvassed ; (I) whether the said
lease was a permanent lease, (2) whether the strip of land in dispute
was covered by the said lease, or in the alternative, acquired as
accession, and (3) in the alternative, whether the appellant had
acquired easementary rights over the said strip of land (a) of light
and air, (b) of passage and (c) of draining water, both waste and
rain, over the said strip of land. The Letters Patent Bench ans·
wered all the three questions against the appellant holding that
the said lease being a l~ase for building purposes and transferable,
was a lease for an indefinite period, and therefore, for the life·
time of the lessee, the said Dhanji, that the said strip of land was
neither covered under the said lease, nor acquired as accession
through adverse possession, and lastly, that except for the drain
extending upto 32 ft. constructed on the said strip of land, the
appellant had not acquired any other easementary rights over it.
As to light and air, the Bench held that the appellant failed to
establish that the obstruction caused by the respondent's construction was such as to give him an actionable claim against the respondent. The result was that except for the said drain, the Bench
dismissed the appellant's suit.
Mr. Desai for the appellant raised three contentions in support of the appeal ; (!) that on a proper interpretation of the document of lease, the lease was a permanent lease, (2) that there was
an accession in respect of the said strip of land within the mean·
ing of s. 108(d) of the Transfer of PTDperty Act, 1882, and therefore, the said strip of land must be deemed to be comprised in
the lease, and (3) that the appellant had acquired by prescription
rights of ·easement of light and air, of throwing rain water and
draining waste water through the said drain and of passage over
the said strip of land under s. 15 of the Easements Act, 1882.
On the question of interpretation of the document of lease,
Mr. Desai supported the view taken by the Single Judge. The
learned Single 1 udge construed the document to mean (a) that
the lease was for building purposes, (b) that i:t was in the first
CHAPSIBHAI v. PURUSHOTTAM (Shelat,J.)
instance for· 30 years certain, (c) that the lessee was to continue
to enjoy all rights as a lessee even after the expiry of 30 years,
and (d) that the lesser could not increase the rent even after the
expiry of 30 years. The most important term of the said lease.
said the Single Judge, was "tb.e one which provides for the leasehold right continuing to the heirs and successors". The Letter
Patent Bench, however, felt that on a proper construction of the
document, the lease was for an indefinite period, and though transferable, did not provide for any hereditary rights. In support of
that conclusion the Bench pointed out that the view consistently
taken by the High Court of Bombay, right from the decision in
Vaman Shripad v. Maki,(') was that such a lease is to be construed as one for the lifetime of the lessee and not as a permanent
lease. The only solitary case where a lease for
an indefinite
period was construed as permanent was that in Sonabai v. lliragavri, (') but subsequent decisions of that High Court had dissented from th.at decfa'ion and had consistently held leases for
indefinite periods as leases for the lifetime of the lessee.
(see
Donkangonda v. Re.,anshiddappa ('). In Bavasaheb v.
West
Patent Co.(') Sonabai's case (~ was once again dissented from,
the High Court reiterating that a lease for an indefinite period
is ordinarily to be construed as one for the lifetime of the lessee
and that a distinction should be made between a transferable and
a heritable lease. The High Court there observed (!) that if a
lease were to be for a definite period and before that period was
over, the lessee died, the leasehold· rights during the remainder of
the period would enure for the benefit of his heirs, unless the
document slipulated that in such an event the rights of the lessee
were not to enure for the benefit of his successors, (2) that if the
lease was for an indefinite period, it would not enure for the
benefit of the lessee's heirs. Such a lease would usually be for
the lifetime of the lessee himself unless it clearly appeared from
the contract that the benefit of the lease was intended to accrue
to the lessee's successors. Whether a lease was permanent or for
the lifetime only of the lessee, even where it was for building
structures and was transferable, depended upon the terms of the
lease and tb.e Court must, therefore, look at the substance of it
to ascertain whether the parties intended it to be a permanent
lease. But the fact that the lease provided that the lessee could
continue in possession of the property so long as he paid the stipulated rent did not mean that the lease was for
perpetuity. Jt
would usually be regarded as a lease for an indefinite period. and
as such for the lessee's lifetime.
The High Court also pointed
out that the fact lhat tenancy rights were transferable, as provided
(I)
I.L.R. 4 Bom. 424.
(3) 4SBom. L. R. 194.
(2) 28 Bom. L.R. ss2.
(4) S6Bom.L.R.6\.
341
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SUPIUl/dll COmlT llBPORTS
[1971] SUPP. s.c.R.
by s. 108.(j) of the Transfer of Property Act, did not mean that
t)J.ey were also heritable.
In two of its decisions, Runge Lall Lobes v. Wilson(') and
Promada Nath Roy v. S. Chowdhry (') the Calc1dta High Court
took the view that where the purpose of the lease was for con·
structing buildings, the court could presume, even
though the
document did not in terms so provide, that the lease was intended
to be permanent. To the same efl'.ect was also the decisiOn in
Nava/ram v. Javerilal.(').
On the other hand in Lekhraj Roy v.
Kunhya Singh(') where the lease was for the period of the continuance of the lessors' mokurruri, the Privy Council held that
if it could be ascertained what the term was. the rule of construc·
tion that a grant of an indefinite nature enured for the lifetime
of the grantee would not apply. But, if the grant was made to a
person for an indefinite period, it enured, generally speaking, for
his lifetime and passed no interest to his heirs unless there were
words showing an intention to grant a hereditary interest In
Abdul Rahim v. Sarafalli ('}
the Bombay High Court adhered
to the view consistently taken -by it that the lease there was for
the lessee's lifetime. The lease there contained terlns similar to
those before us. It was for building a factory and although it
provided for 25 years certain in the first instance it also provided
that after the expiry of that period the lessee would continue to
take the agreed rent so long as the lessee· remained in possession
and further provided for the lessee's right to remove the factory
when he decided to hand over the land to the lessor.
The conflict of opinion amongst these decisions
has since
then been resolved by the decision in Bavasaheb's case(') having
been expressly approved by this Court in Sivavogeswara Cotton
Press v. Panchaksharappa (')
The lease here was for building factories and other structures and was for a period of 20 years
certain. It, however, provided that the lessee could continue to
remain in possession so long as he desired and observed the terms
of the lease which provided for a higher rent for the first 10 years
after the expiration of the said 20 years and a still higher rent
thereafter. Cl. 04) of the lease in addition provided that it was
to be binding "on me, my heirs, executors, administrators, successors and assigns, as well as on your heirs, executors, administrators, successors and assigns ...... ". The question was as to the
(I} [18991 I.LR. 26 Cal. 204.
(2) [1905] T.L.R. 32 Cal. 648.
(3) 7 Bom. L. R. 401.
(4) [1876-77] L. R. 41. A. 22;.
(5) 30 Bom. L. R. 1596.
(6) S& Bom. Ii. R. 61.
(7) [1962] 3 S. C. R. 876.
CllAPSIBHAI V. PUI\USHOTIAM (Slit/at, J.)
nature of the lease. At page 885 of the report, the Court remark·
ed that cl. (14) was a very important clause "which though coming as the last clause must govern all the stipulations between the
parties. Thus the terms and conditions of the lease which created
the rights and obligations between the lessor and the lessee were
specifically declared to be binding on the heirs and successors-ininterest of the lessor and the lessee". The Court then examined
various decisions of the different High Courts including Nava/-
ram's case (1)
Promada Nath Roy's case (') and lastly, Bavasaheb's case ('). As to !he last case, the Court at page 889 of the
report expressed its "complete agreement" with the observations
of Gajendragadkar, J. (as he then was). namely, that the nature
of the tenancy created by a document must be determined by
construing the document as a whc :e, that if the tenancy is for building purposes, prima facie it might be arguable that it was intended
for the life-time of the lessee or might in certain cases be even a
permanent lease, and lastly, that whether it was a tenancy for life
or a permanent tenancy must ultimately depend upon the terms of
the contract itself. As can be seen from an earlier passage on that
very same page, the Court distinguished Bavasaheb's (') case
on the ground . that the lease there did not contain a provision similar to cl. (14) in the case before it. Besides, the
Court sought ·an additional support for
its conclusion that'
the lease was permanent in the provision which stipulated
that the rent would be Rs. 350 a year for the first 10 years,
Rs. 400 /- for the next 10 years and Rs. 500 /- thereafter until the
lessee continued to occupy the land, which provision indicated that
the lease was not intended to be only for the life-time of the Jessee.
It is cleac from the decision that what clearly weighed with the
Court was the fact that the document of lease distinctly indicated
that the parties intended that the rights under the lease were to be
hereditary. The question, therefore, is whether the lease under
consideration is of the type in the case of Sivayogeswara Cotton
Press.(').
Looking at the document (Ex. P-4) as a whole, the leiise undoubtedly is for building a residential structure. Though it is for
30 years certain, the lessee was entitled to remain in possession of
the land so long as he paid the stipulated rent, which the les~r
was not entitled to increase. But, though the lease is for building
structure and the period is indefinite there are at any rate no
(I) 7 Jlolll. J,.R. 401.
(2) [1905] I.t •• R. 32 Cal. 648.
m S6 Bon!. L.R.. 61.
(4) [t962J 3 ·s.c.R. s76.
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express words indicating that the leasehold rights thereunder were
intended to be heritable. On the other hand, it expressly provides,
as was the case in Abdul Rehim(1) for the right of the lessee to remove the structures, meaning thereby vacating the land, if he so
desired. The clause providing for such removal is not that the
lessee would remove the structures on default in payment of rent,
but depends on his own volition, a clause indicative of the parties
not having intended the lease \o be permanent. For, if it was intended to be permanent, there was no necessity for providing such a
right. But the argument was that there are words In the document
indicative of the lease having been intended to be heritable as was
the case in Sivayogeswara Cotton Press(').
The mere fact, however, that a lease provides for the interests thereunder to pass on
to the heirs of the lessee would not always mean that it is a permanent lease. Such a provision can be made in two ways resulting ·
in two different consequences. A lease may provide a fixed period
and then include a provision that in the event of the Jessee dying
before the expirY of such period, his heirs would be entitled to
have the benefit of ~he lease for the remainder of the period. In
such a case, although. the lease may provide for the heirs to succeed to the interests in the leased land, it would only mean that such
heirs succeed to the rights upto the expiry of the lease period. If
the lease, on the other hand, were for an indefinite period, and contains a provision fo1 the rights thereunder being heritable, then such
a lease, though ordinarily for the lifetime of the lessee, would be
construed as permanent. The question, therefore, is to which of
these two classes of leases the present lease belongs.
After reciting the purpose for which it was made, the term of
30 years and the rent, the deed provides :
"Even after the prescribed time limit. I shall have a
right to keep my structure on the leased out land, so long
as I like, and I shall be paying to you the rent every
year as stated above."
Though the period is 30 years, th.is part of the document would
make the lease for an indefinite period which would ordinarily mean
a lease for the lifetime of the lessee. What follows then, however,
gives scope for the argument that it Is not merely for the lifetime
of the lessee :
"You will have no right to increase the rent and I
shall also not pay it, myself and my heirs shall also not
pay It, myself and my heirs shall use this land in whatever manner we please. After the lease period, we
(I) 30 Bom. L.R. 1596.
(2) [1962) 3 S.C.R. 87~
CHAPSIBHAI ~. PURUSHO'ITAM (She/at, J.)
341
shall, if we like, remove our building right from the
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foundatiqn and vacate your land. In case we remove our
structure before the stipulated period, we. .. shall be liable
to pay to you, the rent for all the thirty years, as agreed
to above."
And further :
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"In case I were to sell away the buildings, which I
shall be constructing on the above land, to anyone else,
then, the purchaser shall be bound by all the terms in
this lease deed."
This part of the document undoubtedly gives the lessee the right
to transfer by sale the leasehold interest. But, as already stated,
a clause enabling the leasehold interest to be transferred does not
render sucb interest heritable.
The effect of these clauses is that the first part of the document ensures that the lessor cannot charge rent higher than the
.agreed rent even if the lessee were to remain in possession after
the period of 30 years. That part is conSistent with the lease
being for an indefinite 11eriod, wnJch means for the lifetime of
the lessee. The next part provides for the right to remove the
-structures "after the lease period". The words "after the lease
period" mean either at the end of the 30 years, or on the death
of the lessee, because, it also says that if the lessee were to remove
the buildings before the expiry of 30 years, he would have to
pay the rent for the remainder of that period. This part of the
document does not show the intention that the lease was to be
a permanent lease.
It merely ensures the right to remove the
-structures if the lessee or his heirs so desired on the expiry of the
lease period, i.e., either at the end of 30 years, or after the lifetime of the lessee. The heirs are mentioned here to provide for
the contingency of the lessee dying before the expiry of 30 years
and also for the contingency of his living beyond that period
and continuing to occupy the land. In the event of the first contingency, the lessee's heirs would continue in possession till the
expiry of 30 years and then remove the structures if they wished.
In the case of the second contingency, the heirs of the lessee
would have the right to remove the structures on the deatb of
the lessee. In either event the right provided for is the right to
remove the structures. It is not a provision for the lease being
heritable and its being consequently a permanent lease.
Thus,
·the lease is for a period certain, i.e., 30 years and on the expiry
of that period if the lessee still were to continue to pay the rent,
for his lifetime. In the event of bis dying before that period, the
benefit of the lease would enure to bis heirs till the completion of
30 years. They would be entitled to remove the structures either
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at the end of the 30 years if the Jessee were to die before the expiry of that period or at the end of the Jessee's life were he to continue to be in possession of the leased property after the expiry
of 30 years. But the lease did not create hereditary rights so that
on the death of the Jessee his heirs could sue<;eed to them.
In this connection it is necessary to note that; as translated
in English, it would appear as if the document uses the pronoun
'I', meaning as if the Jessee, in the earlier part and the pronoun
"we", meaning the lessee and his lieirs, in the latter part. Such
a translation, however, is not correct.
We ascertained from
Mr. Ratnaparkhl who after looking at the original Marathi assur·
ed us that the pronoun used throughout is ami, which means "we".
a term often used in documents written in regional language for
the executant instead of the singular 'I'.
In our view the lease before us is clearly distinguishable from
that in the case of Sivayogeswara Cotton Press(') where the
leasehold rights were in clear terms made heritable and where
the Court held that cl. 04), though placed last in the document,
governed all its terms. There is no provision in the present case
comparable with such a clause. The lease was undoubtedly for
an indefinite period which only means that it was to enure for
the lessee's lifetime. Reference in it of the heirs of the lessee is.
only for the limited purposes set out earlier and not for making
the leasehold interests heritable. We do not find in the document
words such as those in Sivayogeswara Cotton Press (') would compel us to the conclusion that the lease was intended to be permanent.
That leads us to the second contention of Mr. Desai. Under
s. 108(d) of the Transfer of Property Act, if any accession is made
to the leased property during the continuance of a .lease, such
accession is deemed to be comprised in the lease. If the accession is by encroachment by the lessee, and the Jessee acquires
title thereto by prescription, he must surrender such accession together W'ith the leased land to the lessor at the expiry of the term.
The presumption is that the land so encroached upon is added
to the tenure and forms part thereof for the benefit of the tenant
so long as the lease continues and afterwards for the benefit of
the landlord. The plea of the appellant in the plaint in regard to
an accession was vague and confused. Para 2 of the plaint simply
stated that the said strip of land was part of plot No. 93, but was
used by the appellant as a passage. Para 7 (a) of the plaint, however, used the words "accession to the leasehold rights of tjie plaintiff in respect of the nazu/ plot No. 94", but did not say that suchi
<O [196213 s.c.R. s76.
CHAPSIBHAI '· PURIJSll01TAM (She/at, J.)
accession came about as a result of or by means of adverse possessi.Qn. In para 8(a), which was inserted in the plaint by an
amendment in 1959, an alternative plea was made that the said
strip of land was part of the land under the lease. The written
statement of the respondent denied the user of the said strip of
land by the appellant and also the plea of accession thereof to
the leased land. But the appellant's case was only that the building which his father had constructed extended upto the end of
the western boundary of plot N!>. 94, with the result that (a) the
eaves of tha.t building projected over plot No. 93 by about 2! ft.,
that its windows on that side opened on plot No. 93 and a drain
was constructed by the side of the appellant's western boundary
through which waste water flowed from that building. According
to the appellant's case, the said strip of land, which without doubt
forms part of plot No. 93, was used by the appellant as a passage for going to a well situate in plot No. 93. Plot No. 93, however, was an open plot until recently, except for a small structure
on its northern side, so that there was no definite or well marked
passage which was used by the appellant in order to reach the
said well. The projection of the eaves or the opening of the
windows on to the said strip of land were not asserted as acts of
adverse possession or encroachment but as easementary rights. The
appellant did not claim any right to the said well as admittedly
the use of the said well for drawing water was with the consent
of the lessor. Therefore, the use of the passage for going to the
well would be incidental to the permissive use of the said well.
As regards the drain, the appellant's evidence was that it passed
partially through the said strip of land.
Originally a kachha
drain, it was made pucca upto a distance of 32 ft. in 1923.
No
width of it, however, was shown. Obviously, there can, therefore, be no adverse possession over the whole of the 4 ft. wide
strip of land.
The Letters Patent Bench has pointed out three circumstances
as emerging from the evidence wllich clearly negative the case
of accession by adverse possession : (!) that the original plot was
given two numbers, 94 and 93 in 1929, plot No. 93 being shown
as commencing from the western wall of the appellant's building,
(2) that no protest was ever made against such a demarcation by
the appellant or his father, and (3) a clear admission by the appellant in cross-examination that according to him the said strip of
land was covered by the lease dee4 and was not an acquisition
over and above the leased land Ul)der that deed.
Parties to a suit are, it is true, entitled to make contradictory
pleas in the alternative in their pleadings. But at the stage of the
evidence, no serious attempt was made by the appellant to establish accession by adverse possession. On the contrary, the appel34T
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lant sought to make out a case of easementary rights by prescrip·
tion, a case incompatible with the claim of adverse possession
where a party claims title over the land of another as his own
and therefore there would be no dominant tenement claiming a
righ.t by prescription over a servient tenement. In this state of
the evidence the Letters Patent Bench, in our judgment, was right
in rejecting the claim of accession which the learned Single Judge
had erroneously accepted.
As regards the appellant's claim to the easementary rights,
assuming that a lessee can claim such rights over an adjacent property belonging to his lessor, s. 15 of the Easements Act requires
that the access and use, on the basis of which an easement is
claimed, must be as and by way of easement and without interrup·
tlon for a period of 20 years. The enjoyment must be, in other
words, as of right and not permissive either under a licence or an
agreement. In Abdul Rashid v. Brahman Saran(1) a Full Bench
of the Allahabad High Court held, on the principle embodied in
s. 12, that the possession of a tenant being in law the possession
of his landlord, the tenant cannot acquire by prescription an easement in favour of his holding except on behalf of his landlord.
The Full Bench, however, made a distinction between an easementary right· of way and an easementary right of light and air
mentioned in the first two paragraphs of s. 15, and held that
though a lessee of land, who is the owner of the building on such
land, ;:annot acquire by prescription an easement of a right of
way or one to flow water over another land of the lessor, so far
as the use of light and air or support for his building is concerned
he is the owner of the building and may under the first two para·
graphs of s. 15 acquire such easements as he would not acquire
them for any one except himself under s. 12. Th.is decision was
followed in Haji Abdulla Barron v. Municipal Corporation,
Karachi(~. But in Ambaram v. Budhalal(') the High Court
of Bombay differed from the Allahabad High Court holding that
the distinction in English law arising from the language of ss.