# Chinnathayi alias Veeralakshmi v. Kulasekara Pandiya Naicker and Another

- **Citation:** [1952] 1 S.C.R. 269
- **Court:** Supreme Court of India
- **Decided:** 1952
- **Case number:** Civil Appeals Nos. 30, 32 & 33 of 1949
- **Bench:** PATANJALI SAsTRI C. J, MuKHERJEA, DAs, VMAN BosE
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/chinnathayi-alias-veeralakshmi-v-kulasekara-pandiya-naicker-and-another-8
- **Pages:** 15

## Headnote

Transfer of Property Act (IV of 1882), ss. 106, 107-Duration of
lease-Presumption-Kabuliyat for 10
years-Payment of annual
rent for two years only-Kabuliyat inoperative-Nature of possession after the two years-Whether adverse, as tenant from year to
year, or as monthly tenant-Applicability of s. 106 to implied tcnan·
cies-Prcsumption from payment of annual rent.
The rule of construction embodied in s. 106 of the Transfer
of Property Act applies not only to express leases
of
uncertain
duration but also to leases implied by law which may be inferred
from possession and acceptance of rent and other circumstances,
1951
Chinnathayi
alias
Veeralakshmi
v.
Kulasekara
Pandiya Naicker
and Another.
1951
Nov. 26
270
SUPREME COURT REPORTS
f1952]
1951
The contract to the contrary contemplated by the said 5ection
need not be an express contract ; it 1nay be implied, but it should
Ram Kumar Das be a valid contract.
If the contract is invalid the
section
will
T..
regulate the duration of the lease.
fagdish Chandra
\.Vhen the rent reserved is an annual rent, a preiumption
Deb Dhabal Deb would arise that the tenancy was an annual tenancy unless there
and Another.
is something to rebut this presumption. But under s. 107 of
the
Transfer of Property Act a tenancy from year to year or
reserving an yearly rent can be made only by a registered instrument.
The defendant executed a registered bbuliyat to the
Receiver
who was n1anaging an estate pending a suit,
purporting to
take
a plot of land on lease for a period of ten years at a rental of
Rs. 46 per annum and paid the first year'.i rent of Rs. 46 on the
8th March, 1925, and the next year's rent on the 16th March,
1926.
No further rent was paid by the defendant to the Receiver
or to the
propri~tor after that date.
The proprietor,
treating
the defendant as a monthly tenai;it served notice to quit on him
on the 18th July, 1942, asking the latter to vacate on the 7th
August, 1942, and instituted a suit for ajectment in July, 1943.
The kabuliyat was found to be inoperative in law and the.
defendant contended that the payment and acceptance of annual
'rent in 1925 and 1926 did not create a monthly tenancy but two
tenancies for one year each for two successive years, that
the
relation of landlord and tenant came to an end on the exipration
of th'C second annual lease, and, as there was no holding over,
the suit was t.ime-barred :
Held (i) that from the facts a tenancy could be presumed to
have come into existence from 1924 ; (ii) as the
purpose of
the
tenancy was for building structures on the land, under sec. 106
()f the Transfer of Property Act the tenancy must be presumed
to be one from month to month in the absence of a contract to
the contrary ; (iii) a contract that the tenancy was for one
year
certain could not be inferred in the present case from the fact
that an a'nnual rent was paid in 1925 and 1926, inasmuch as the
kabuliyat, though inoperative in law, showed that the
parties
never intended to create a lease for one year; {iv) on the facts
of the case it was quite proper to hold that the tenancy was one
from month to month since its inception in 1924 and the suit
was not time~barred.
Debendra Nath v. Shyama Prasanna (11 C.W.N. 1124) and
Sheikh Akloo v. Emaman (I.L.R. 44 Cal. 403) approved.
Aziz Ahmad v. Alauddin Ahmad (A.LR. 1933 Pat. 485), Md.
Moosa v. faganand (20 LC. 715) and Matilal v. Darieeling Muni·
cipality (17 C.L.J. 167) rderred to.
CIVIL APPELLATE JUR1smcTJoN :
Civil
Appeal No.
114 of 1950.
Appeal from a judgment and decree of
the High Court of Patna (Shearer and Reuben JJ.)
dated 5th November, 1948, in Appeal No. 2064 of 1946,
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•
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S.C.R.
SUPREME COURT REPORTS
which arose out of a decree of the District
Purulia in Title Appeal No. 116 of 1945.
are stated fully in the judgment.
271
Judge of
The facts
M. C. Setalvad, Attorney-General for India, (Nandlal
Untwalia, with him) for the appellant
B. C. De (lyotirmoy Chose, with him) for the res-,
pondent.
1951. Novemb

## Text

S.C.R.
SUPREME COURT REPORTS
269
Kulasekara's claim was rightly negatived in the courts
below arrd that of Rajaya was rightly decreed.
In the result all these appeals fail and are dismissed
with costs.
Appeals dismissed.
Agent for the appellant in Ci.vii Appeals Nos. 28 &
29 of 1949, respondent No. 1 in Civil Appeals Nos.
30, 32 & 33 of 1949 and respondent No. 2 in Civil Appeal No. 31 of 1949 and for Respondent
No. 3 in
Civil Appeal No. 31 of 1949 : M. S. K. Sastri.
Agent for the appellant in Civil Appeals Nos. 31 to
33 of 1949, respondent No. 1 in Civil Appeals Nos.
28, 29 of 1949 and respondent No. 2 in Civil Appeal
No. 30 of 1949 : M. S. K. Aiyangar.
Agent for the appellant in Civil Appeals Nos. 30, 89,
and 90 of 1949, respondent No. 1 in Civil Appeal No.
31 of
1949 and respondent No. 2 in Civil Appeals
Nos.
28, 29, 32 & 33 of 1949: S. Subrahmanyam.
Agent for the respondents Nos. 1 and 2 in Civil Appeals Nos. 89 and 90 of 1949: V. P. K. Natr!biyar.
RAM KUMAR DAS
ti,
JAGADISH CHANDRA DEB DHABAL DEB
AND ANOTHER.
[PATANJALI SAsTRI C. J., MuKHERJEA, DAs
and VMAN BosE JJ.]
Transfer of Property Act (IV of 1882), ss. 106, 107-Duration of
lease-Presumption-Kabuliyat for 10
years-Payment of annual
rent for two years only-Kabuliyat inoperative-Nature of possession after the two years-Whether adverse, as tenant from year to
year, or as monthly tenant-Applicability of s. 106 to implied tcnan·
cies-Prcsumption from payment of annual rent.
The rule of construction embodied in s. 106 of the Transfer
of Property Act applies not only to express leases
of
uncertain
duration but also to leases implied by law which may be inferred
from possession and acceptance of rent and other circumstances,
1951
Chinnathayi
alias
Veeralakshmi
v.
Kulasekara
Pandiya Naicker
and Another.
1951
Nov. 26
270
SUPREME COURT REPORTS
f1952]
1951
The contract to the contrary contemplated by the said 5ection
need not be an express contract ; it 1nay be implied, but it should
Ram Kumar Das be a valid contract.
If the contract is invalid the
section
will
T..
regulate the duration of the lease.
fagdish Chandra
\.Vhen the rent reserved is an annual rent, a preiumption
Deb Dhabal Deb would arise that the tenancy was an annual tenancy unless there
and Another.
is something to rebut this presumption. But under s. 107 of
the
Transfer of Property Act a tenancy from year to year or
reserving an yearly rent can be made only by a registered instrument.
The defendant executed a registered bbuliyat to the
Receiver
who was n1anaging an estate pending a suit,
purporting to
take
a plot of land on lease for a period of ten years at a rental of
Rs. 46 per annum and paid the first year'.i rent of Rs. 46 on the
8th March, 1925, and the next year's rent on the 16th March,
1926.
No further rent was paid by the defendant to the Receiver
or to the
propri~tor after that date.
The proprietor,
treating
the defendant as a monthly tenai;it served notice to quit on him
on the 18th July, 1942, asking the latter to vacate on the 7th
August, 1942, and instituted a suit for ajectment in July, 1943.
The kabuliyat was found to be inoperative in law and the.
defendant contended that the payment and acceptance of annual
'rent in 1925 and 1926 did not create a monthly tenancy but two
tenancies for one year each for two successive years, that
the
relation of landlord and tenant came to an end on the exipration
of th'C second annual lease, and, as there was no holding over,
the suit was t.ime-barred :
Held (i) that from the facts a tenancy could be presumed to
have come into existence from 1924 ; (ii) as the
purpose of
the
tenancy was for building structures on the land, under sec. 106
()f the Transfer of Property Act the tenancy must be presumed
to be one from month to month in the absence of a contract to
the contrary ; (iii) a contract that the tenancy was for one
year
certain could not be inferred in the present case from the fact
that an a'nnual rent was paid in 1925 and 1926, inasmuch as the
kabuliyat, though inoperative in law, showed that the
parties
never intended to create a lease for one year; {iv) on the facts
of the case it was quite proper to hold that the tenancy was one
from month to month since its inception in 1924 and the suit
was not time~barred.
Debendra Nath v. Shyama Prasanna (11 C.W.N. 1124) and
Sheikh Akloo v. Emaman (I.L.R. 44 Cal. 403) approved.
Aziz Ahmad v. Alauddin Ahmad (A.LR. 1933 Pat. 485), Md.
Moosa v. faganand (20 LC. 715) and Matilal v. Darieeling Muni·
cipality (17 C.L.J. 167) rderred to.
CIVIL APPELLATE JUR1smcTJoN :
Civil
Appeal No.
114 of 1950.
Appeal from a judgment and decree of
the High Court of Patna (Shearer and Reuben JJ.)
dated 5th November, 1948, in Appeal No. 2064 of 1946,
_. .
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•
i
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S.C.R.
SUPREME COURT REPORTS
which arose out of a decree of the District
Purulia in Title Appeal No. 116 of 1945.
are stated fully in the judgment.
271
Judge of
The facts
M. C. Setalvad, Attorney-General for India, (Nandlal
Untwalia, with him) for the appellant
B. C. De (lyotirmoy Chose, with him) for the res-,
pondent.
1951. November 26.
The Judgment of the Court was
delivered by
MuKHERJEA J.-This appeal is on behalf
of
the
defendant and it arises out of
a suin commenced by
the plaintiff respondent, in the Court of the Subordinate Judge at Chaibassa, for recovery of possession
of the land described in schedule to the plaint, on the
allegation that the defendant was a monthly
tenant
in respect of the same, and that the tenancy was
determined by a notice to quit. The suit was decreed
' by the trial court and the decision was affirmed, on
appeal, by the District Judge, Purulia, and on Second
Appeal, by a Division Bench of the High Court of
Patna. The defendant has now come up to this court
on the strength of a certificate granted under section
110, Civil Procedure Code.
Mr. Setalvad, appearing on behalf of the defendantappellant, stated to us at the outset that he would not
dispute the validity or sufficiency
of the
notice
to
quit served upon his client, if on the facts of this case
he is held to be a monthly tenant under the plaintiff
in respect of the premises in suit.
His contention, in
substance, is that the defendant
was at no point of
time a monthly tenant under the plaintiff or his precleeessor.
There might have been, according to
the
learned Counsel, two tenancies for one year each for
two successive periods, but on the expiry of the second
yearly lease, which happened on 7th December. 1926,
the defendant ceased to be a tenant and no fresh tenancy
was created by holding over as is
contemplated· by
section 116 of the Transfer of Property Act.
As there
was no holding over, there could not be any question of a monthly tenancy being brought into existence
3-4 S. C. lndia/71
1951
Ram Kum,,, Dai·
v.
/agdish Chandra
Deo Dhabal Deb
and Ant~lher.
1951
Ram Kumar Das
. 'v.
/aztlish Chandra
Dea Dhabal Deb
1mtl Another.
Mulcheriea /.
272
SUPREME COURT REPORTS
[1952]
under the provision of section 116 of the Transfer of
Property Act, and the present suit of the plaintiff having been admittedly brought more than 12 years after
the determination of the second yearly lease, is barred
by limitation under Article 139 of the Indian Limitation Act.
The whole controversy in this appeal thus
centres round the point as to whether the defendant
was in fact a monthly tenant under the plaintiff at
the
<late
when the
notice
to
quit
was
served
upon him.
To appreciate
the
respective
contentions
that have been put forward upon this point by the
learned Counsel on both sides, it will be necessary to
narrate briefly the material facts in their chronological
order.
The property in suit is a plot of land, measuring 4
bighas 12 cuttas, and is comprised in old Survey plot
No. 573 of village Jugselai in the district of
Singhbhum. 'fhe entire village forms part of the Dhalbhum
estate, of which the plaintiff is admittedly the present
proprietor.
One Charan Bhumiji was the "Pradhan"
of village Jugselai from some time before 1913 and on
24th July, '1913, the father of the
defendant,
by
a
registered Patta, tqok a lease of about 31 bighas of Jana
appertaining to Survey plot No. 573 from this Pradhan
for purposes of cultivation.
It is not disputed
that
the property in suit is covered by this Patta. At that
time the
proprietor
of
the
Dhalbhum estate was
Raja Satrughna and he died in 1916, leaving behind
him a will by which the entire estate was bequeathed
to the present plaintiff.
The plaintiff's
claim
under
the will was challenged
by one Partap Chandra Deo
Dhabal who succeeded in getting his name recorded as
proprietor of the zemindari in the Singhbhum Collectorate. Thereupon the plainitiff instituted a suit (being
Title Suit No. 67 of 1921) in the Court of the Suborm..
nate Judge at Mindapore for establishment of his title
to the zemindari and the suit was decreed by the trial
Judge. Against this decision,
the
defendant
Pratap
.Chandra Deo Dhabal took an appeal to the High Court
of Calcutta and during the pendency of this appeal,
the High Court appointed a Receiver who was put in
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S.C.R.
SUPREME COURT REPORTS
273
possession of
the entire estate..
On 8th December,
1924, the defendant executed
a
registered Kabuliyat
in favour of the Receiver, by which he purported to
take settlement of the land in suit for a period of
10 years at a rental of Rs. 46 per annum and a selami
of Rs. 250.
There was a covenant in the lease, which
looks like one for perpetual renewal, and
it was
to
the effect that on the expiry of the term, if the lessor
did not require the land for his
own purposes
and
decided to re-settle it, the lessee would be entitled to
fresh settlement on enhanced rent and on such terms
as might be then agreed upon between the parties.
It appears from the record that the selatni money,
amounting to Rs. 250, was paid by the defendant to
the Receiver several months before the Kabuliyat was
executed, and
the
rental amounting
to
Rs. 46 was
paid for the first time on 8th of March, 1925.
The
next payment of rent was made in the succeeding
year, on 16th of March, 1926.
Admittedly, no further
payment of rent was made by the lessee either to the
Receiver or to the proprietor since
then, up to this
period. The High Court dis.missed the appeal pteferted
by Pratap Chandra Deo Dhabal some time in 1924
and this order of dismissal was affirmed by the Judicial Committee in May 1927.
The Receiver was then
discharged and the plaintiff got possession of the entire
estate in July 1927.
On April 15, 1937, the plaintiff
brought a suit for ejectment (being Title Suit No. 2 of
1937) against the defendant in respect of this property
in the Court of the Subordinate Judge at Chaibassa.
The claim was based substantially u,pon the terms of
the Kabuliyat executed by the defendant on 24th of
December, 1924, and the suit was, in
fact, one
for
cjectment of a lessee oil the expiration of the period
provided for in the lease.
It was only the renewal
clause irt the Kabuliyat that was challenged as invalid
and inoperative, not only because it was
vague
and
indefinite but also on the grouhd that
the
Receiver
acted beyond his authority in entering into a stipuiation of this character.
1951
Ram Kumar Das
v.
f agdish Chandr11
Deo Dhabal De'
and Anothi!r.
Mukherfea f.
1951
Ram Kumar Das
v.
fagdish Chandra
Deo Dhabal Deb
.and Another.
274
SUPREME COURT REPORTS
[1952]
The defendant in his written statement resisted the
plaintiff's claim for possession primarily on the ground
that he had acquired permanent rights in
the land
under the Prodhan' s Patta of
1913
and
continuous
occupation of it since then for more than 12 years. The
Kabuliyat of 1924, he attempted to ignore altogether.
It was said that it was executed only to avoid trouble
and harassment at the hands of the Receiver and that,
·being inoperative as a lease it could not, in any view,
affect ·the prior rights which he acquired under the
Patta of 1913.
The trial judge decreed the suit. On
appeal,
the
judgment was reversed by the District Judge and the
plaintiff's suit was dismissed simply on
the
ground
that the notice to quit that was served on the defendant was ineffectual in law to determine the tenancy.
The District Judge found, first of all, that the Prodhan's
Patta was void and inoperative in law· and could not
create any rights in the defendant,
inasmuch
as
the
Prodhan had
no authority
to
settle lands of this
character. The Kabuliyat of 1924 was also held to be
ineffectual as not amounting to a lease as defined by
the Transfer of Property Act.
It was held, however,
by the District Judge that apart from the Kabuliyat,
a tenancy was
created by payment and acceptance af
rent in the years 1925 and 1926 and after 1926 the
defendant occupied .the position of a monthly tenant
. by holding over under section 116 of the Transfer of
Property Act.
Such tenancy could be determined by
fifteen days' notice, expiring with the month of tenan-
.cy, but as the notice, which was served by the plaintiff
upon the defendant, did not fulfil this requirement, the
plaintiff's· suit was bound to fail. The District Judge,
though he dismissed the suit, gave the plaintiff a de-
. claration to the effect that the defendant was liable to
eviction on service of fifteen days' notice, expiring with
the end of the Bengali month of the tenancy.
Against
this decision, the plaintiff took an appeal to the High
Court of Patna, and the appeal came up for hearing before Harries C. J. and Faz! Ali J. The learned Judges
affirmed the finding of· the lower appellate court that
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S.C.R.
SUPREME COURT REPORTS
275
the Prodhan's Patta did not create any rights m
the
defendant and that the Kabuliyat of 1924
was
also
ineffectual as a lease to give the defendant any tenancy
right.
The
learned Judges further
held
that the
defendant did not acquire any permanent right in the
land by prescription or otherwise and that by reason
of the payment of rent to the Receiver in
the years
1925 and 1926 he
became a tenant from month to
month. In these circumstances the
High Court
concurred with the District Judge
m
holding that the
notice to quit was
insufficient
for the
purpose
of
determining the tenancy.
It seems that the defendant
made a strenuous endeavour before the High Court to
establish
that as the Patta of 1913 as well
as the
Kabuliyat of 1924 were both invalid and inoperative,
he was never a tenant in respect of the land in suit and
no tenancy could be created by the two
payments
of
rent, inasmuch as the Receiver had no
authority
to
receive them.
It was contended, therefore,
that
the
plaintiff was in possession of the land
as
a trespasser
all along and thus acquired a good tide by adverse possession. The High Court, though it held definitely that
the defendant was a tenant from month
to
month,
nevertheless .kept open the question as to whether the
payment of rent to the Receiver was
tantamount
to
payment to the plaintiff.
It was held
that
as the
notice to quit was <;lefective, that
was
sufficient for
dismissal of the suit, and the declaration made in
the
decree of the lower appellate court that the defendant
was liable to be evicted on service
of
fifteen
days'
notice, expiring with the Bengali month of the tenancy,
was directed to be deleted.
This
judgment of
the
High Court was pronounced on the 5th of May, 1942.
Soon after this
on
18th July, 1942,
the
plaintiff
served a notice to quit on the defendant, asking nim to
vacate ·the land on the 7th of August following, and
as the defendant refused to give up
possession, the
present suit was brought on
22nd July, 1943.
The
plaint in the present suit
is a very
simple one; it
proceeds entirely
on
the findings
recorded
by
the
High Court in the previous litigation.
The right to
1951
R.am Kumar Das
v.
Jagdish Chandrti
Deo Dhabal Def,
and Another.
Mukherjea. f.
1951
Ram Kumar Das
v.
Tagdish Chandra
Deo Dhabal Deb
and Another.
Mukherjea. ].
276
SUPREME COURT REPORTS
(1952]
possession is not based on the terms of the Kabuliyat
of 1924.
The plaintiff avers that by reason of the payment of rent on 8th March, 1925,
and
16th March,
1926, the defendant became a tenant from month
to
month under him and the tenancy was determined by
a proper notice to quit.
The defendant in his written statement raised several
pleas in answer to the plaintiff's claim.
He reiterated
his rights under the Pattti of 1913 and urged that by
reason of his holding possession of the land on assertion of a permanent tenancy right for a long period
of time, he acquired a valid title to the property. As
regards the Kabuliyat of 1924, it is said in one part of
the written statement that the defendant executed this
document under
misapprehension
of
facts
without
lmowini•. tl1e contents thereof. But at another place it
is stated that
the
Kabuliyat was
binding
on
the
plaintiff and he was not entitled to institute a suit in
contravention of its terms, wiiliout in any event refunding the
selami
money.
The
defendant
admitted,
what he denied in the earlier suit, that the payments·
made to the Receiver amounted to payments to
the
plaintiff himself, although this question was left open
by the High Court on the previous occasion. The other
· pleas raised in the written statement are not material,
except that a specific point was taken, challenging the
sufficiency of the notice to quit that was served upon
the defendant.
On iliese pleadings a number of issues were framed.
The trial judge held on a consideration of the materials
placed before him that the Prodhan' s Patta was a void.
and· inoperati:ve document and conferred no rights on
the defendant.
He negatived the
case,
which
the
defendant attempted to ma1* in course of hearing, that
the Kabuliyat executed by him
was
obtained
bY)
threat and coercion.
It was held by tile Subordinate
J;udge in accordance with the decisions of the Patna
High Court on tile point that the Kabuliyat could nm;
operate as ·a, lease under the Transfer of Property Act,.
and consequently the defiendant did
not acquire
the
dghts of a lessee under the same.
He held, however,,
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S.C.R.
SUPREME COURT REPORTS
277
that by
payment
and
acceptance
of
rent
a
new
tenancy was created de hors the Kabuliyat, and as the
new tenancy was for building purposes,
it
was
a
1951
Ram Kumar DllS ·
1'.
fagdish. Ch111Zdr11
Deo Dhabal DeJ
and AfWtlter.
tenancy from month
to month
under
section
106,
Transfer of Property Act, terminable by fifteen days'
notke. As the notice was proper and sufficient,
the
trial judge decreed
the plaintiff's suit. Against this
judgment, the defendant took an appeal to the court
Mu-'!(.herjn. J.
of the District Judge, Purulia, and the District Judge
dismissed the appeal and
affirmed the judgment
of
the trial court. It appears that two points were raised
by- the defendant before the District Judge in support
of his appeal : one was that the Kabuliyat of 1924 was
effective as a lease and consequently the
defendant
could not be ejected in contravention of
the
terms
thereof.
At the same time it was contended that there
was no tenancy at all held by the defendant under the
plaintiff, inasmuch
as the
payments
made
to
the
Ree::eiver could not be regarded as payments
to
the
plaintiff. The first point, the District Judge
pointed
out,
was contrary to
the express
decisions
of
the
Patna High Court, while the second was contradictory
to· the defendant's own admission in the written statement.
The defendant then came
up
in
Second Appeal
before the High Court of Patna and the appeal was
heard by a Division Bench, consisting of
Shearer
and Reuben
JJ.
The
learned
Judges agreed in
dismissing the appeal and affirming the decree
made
by ~he courts below, but the grounds upon which they
based their decision are
not
identical.
As
regards
the nature of the tenancy created by
implication of·
law in consequence of the Receiver having accepted
payment ot
rent from the defendant, it
was held
by Reuben J. that
when
the
Receiver
accepted
rent in 1925, it should be presumed that the parties
intended to creat a tenancy for one vear and when he
accepted rent again in 1926, such acc~ptance amounted
to his a~senting to the defendant's holding over; and in
view of the purpose for which the tenancy was created,
the defendant from that time became a tenant from
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278
SUPREME COURT REPORTS
[1952] '
1961
month to month under the provision of section 116,
-
Transfer of Property Act. · Shearer, J ., felt diffiRam Ku=• 0"' culty in accepting this view though in his opinion
Jagdish vClvmdm if a periodic tenancy was created at all, it was from
o.,, ohaw o,bmonth to monthand not from year to year. There are
'
and Anoth<r. Observations, however, in the latter part of the judgment of Shearer, j,, which would go to show that in
Mukherj .. 1• his opinion the creation of two leases, each for one
year, could be fairly gathered from the admitted facts
of the case. The learned Judge was not sure, however,
as to whether the defendant ever became a tenant of the
plaintiff. He discussed the nature of the renewal clause
contained in the Kabuliyat and held it to be void for
uncertainty. He also negatived the defendant's plea
on the strength of adverse possession. His conclusion
was that whatever view might be taken regarding these
points, the defendant had no valid defence to the
plaintiff's claim for eviction and consequently the
decision of the courts below was right. It is the propriety of this decision that has been challenged before
us in this appeal.
Mr. Setalvad, in support of his client's case, has not
called in aid the Prodhan's Patta of 1913; nor has he
placed any reliance upon the Kabuliyat of 1924 and
the covenant for renewal contained therein .. He has
not disputed before us that the payments made to the
Receiver were in reality payments to the plaintiffs,
and has conceded that a tenancy could be created by
implication by reason of his client having paid and
the Receiver having accepted rents in respect of the
suit premises. His contention, as indicated already,
is that by reason of .the payment and acceptance
of rent, there· were _two tenancies for one year
each, created for two successive years; but the
relationship of landlord and tenant between the
parties came to an end on the expiration of the second
annual lease.
As there was no holding ·over by
the defendant since then as contemplated by section .
116, Transfer of Property Act, there was rio subsisting
tenancy at any time after December, 1926, and the
plaintiff's suit instituted in the year 1943 was obvious-_
ly time-barred.
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S.C.R.
SUPREME COURT REPORTS
279
Mr. De, appearing for the plaintiff-respondent,
has,
on the other hand, contended
that
the tenancy that
was created by payment and acceptance of rent in the
year 1925 was from the beginning a tenancy from month
to month under the provision of section 106.
Transfer
of Property Act.
Alternatively, he has argued that if
a tenancy for one year only was created
m
the year
1925, then after the expiration of that one year's lease
the defendant held over and the Receiver's assent to
his continuing in posse&sion is evidenced by acceptance
of rent from him in the year 1926. The tenancy
thus
created would be a tenancy from month
to month
under section 116, Transfer of Property Act.
Lastly,
it is argued that even if two successive tenancies were
created
for one year each, the
facts admitted
and
proved would go to show that the tenant
held over
after the second
annual
lease
and consequently a
tenancy from month to month came into existence in
accordance with the provision of section 116,
Transfer
of Property Act, even though no rent was demanded by
the landlord after 1926.
The controversy between the
parties so far as this appeal
1s
concerned, therefore,
narrows down to the following three points :-
( 1) What was the nature of the tenancy created
by acceptance of rent by the Receiver from the defendant on the 8th of March, 1925 ? If it wa.~ a tenancy
from month to month, it is not disputed on behalf of
the defendant tliat on question of holding over would
at all arise and the plaintiff would
be
entitled
to
succeed.
(2) If in 1925 a tenancy was created for one year,
can the landlord's assent to the defendant's continuing
•
in possession be inferred from the fact that rent was
accepted from the defendant in March, 1926 ?
(3) If
the
payment
and
acceptance
of
rent
in March, 1926,
brought
into
existence
a
tenancy
for
another
year,
was
there
any
subsequent
tenancy created after the second year, although there
was no demand or acceptance of rent by the landlord
--.....
since then ?
1951
Ram Kumar Das
v.
fagdish Chandra
Deo Dhabal Deb
and Another.
Mu"k_herjea /.
I,
-----------
........ '
\
280
SUPREME COURT REPO~TS
[ 1952)
1951
. So far as the first point- is concerned, the courts
-
below have proceeded on the view- that a registered
Ram Ku=r Da• instrument signed by the landlord was necessary to
v.
create a valid lease for ten years .. _That view was not
Jagdi•hhac;:;;":i";. questioned before us and we express no opinion on this
~JAnoeher.' point. Proceeding, therefore, on the assumption that
even though the parties might have intended to create
JtukherieaJ._ a lease for IO years, no operative lease came into
existence, the only. facts admitted are that the defend.
ant remained in possession of the land belonging to
the plaintiff with the permission of the Receiver who
represented the plaintiff's estate, and paid rent to the
latter. From these facts a tenancy could be fairly
presumed and the point for determination is, what
was the duration of the tenancy that was created in
the present case? Section 106 of the Transfer of
Property Act lays down:
·" In the absence of a contract or local law or
usage to the contrary, a lease of immovable property
for agricultural or manufacturing purposes shall be
deemed to be a lease from year to year, terminable,
_on the part of either lessor or lessee, by six months'
notice expiring with the end of a year of the tenancy;
and a lease of immovable property for any other purpose shall be deemed to be a lease from month to.
month, terminable, on the part of either lessor or
lessee, by fifteen days' notice expiring with the end of
a month of tenancy."
·
The section lays down a rule of construction which
is to be applied when there is no period agreed upon
_between the parties. In such cases the duration has
to be determined by reference to the object or purpose
for which the tenancy is created. The rule of construction embodied in this section applies not only to~
express leases of uncertain duration but also to leases
implied by law which may be inferred from possession
and acceptance of rent and other circumstances. It
is conceded that in the case before us the tenancy
was not for manufacturing or agricultural parposes.
The object was to enable the lessee to build structures
upon tqe lanq. In these circumstances, it could ]?~ --
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S.C.R.
SUPREME COURT REPORTS
281
regarded as a tenancy from month to month, unless
there was a contract to the contrary. The question now
is, whether there was a contract to the contrary in the
present case ? Mr. Setalvad relies very strongly upon
the fact that the rent paid here was an annual rent and
he argues that from this fact it can fairly be inferred
that the agreement between the parties was
certainly
not to create a monthly tenancy.
It is not disputed
that the contract to the contrary, as contemplated
by
section 106 of the Transfer of Property Act, need not
oe an express contract ; it may be implied, but it certainly should be a valid contract. If it is no contract
in law, the section will be operative and regulate the
duration of the lease. It has no doubt been recognised
in several cases that the mode in which a rent is expressed to be payable affords a
presumption that the
tenancy is of a character corresponding thereto. Consequently, when the rent reserved is an annual rent,
the presumption would arise that the tenancy was an
annual tenancy unless there is something to rebut the
presumption. But the difficulty in applying this
rule
to the present case arises from the fact that a tenancy
from year to year or reserving a yearly rent can be
made only by registered instrument, as laid down in
section 107 of the Transfer of Property Act(1).
The
Kabuliyat in the case before us is undoubtedly a registered instrument, but ex concessis it is not
an operative document at all and
cannot
consequently fulfil
the requirements of section 107 of the Transfer of Pro.
perty Act.
This position in fact is not seriously controverted
lJy Mr. Setalvad ; but what be argues is that a lease
for on.e year certain might fairly be inferred from the
payment of annual rent, and a stipulation
like
that
would not come within the mischief of section 107 of
the Transfer of Property Act.
His contention is that
the payment of an annual rent, as was made in the
present case, is totally inconsistent
with
a
monthly
lease.
We are not unmindful of the
fact
that
in
(1) Vi de Debendra Nath v. SyamaPrasanna, l l C.W.N. 1124, 1'126.
1951
Ram KumtW D111
v.
/agdish Chantbrz
D~ Dhahal DH>
aml Anotlit:f'.
1951
Ram Kumar Das
v.
fagdfrh Chandra
Deo Dhabal Deb
•nii Another.
282
SUPREME COURT REPORTS
[1952]
certain reported cases, such inference has been drawn.
One such case has been referred to
by Mr. Justice.
Reuben in ills judgment('), where reliance was placed
upon an earlier decision of the Calcutta High Court(2).
A similar view seems to have been taken also in Matilal v. Darjeeling Municipality(3 ).
.
· But one serious objection to th.is view seems to be
that this would amount to making a new contract for
the parties.
The parties here certainly did not intend
to create a lease for one year. The lease was intended.
to be for a period exceeding one year, but as the intention was not expressed in the
proper legal.
form, it
could not be given effect to.
It is one thing to say
that in the absence of a valid agreement, the rights of
the parties would be regulated by law
in the same
manner as if no agreement existed at all ; it is quite
another thing to substitute a new agreement
for
the
parties which is palpably contradicted by the admitted
facts of the case.
It would be pertinent to point out
in this connection that in the Second Appeal preferred by the plaintiff
against the dismissal of his earlier suit by the lower
appellate court, the High Court definitely held that
the defendant's tenancy was one from month to month
under section 106, T~ansfer of Property Act, and
the
only question left open was whether payment to tire
Receiver amounted to payment to the plaintiff himself.
In this suit the defendant
admitted
in
his
written
statement that payment to the Receiver had the same
effect as payment to the plaintiff, and the trial judge
took the same view as was taken by the High Court
on the previous occasion, that
by
payment to and·
acceptance of rent by
the
Receiver,
the
defendant
became a monthly tenant under section 106, Transfer
of Property Act.
In ms appeal .before
the District
Judge, which was the
last
court of facts, the only
ground upon which the defendant sought to challenge
this finding of the trial judge was
that
the Receiver
was an unauthorised person because of the decision of
(!) Aziz Ahmadv. A/auddin Ahmad, A.I.R.1933 Pat. 485.
(2) Md. Moosav. Jaganurtd20I.e.1.15,
(3) 17 C.L.J.167.
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S.C.R.
SUPREME COURT REPORTS
283
the Judicial Committee which . set aside his appointment and consequently acceptance of
rent
by
such
person could not create a monthly tenancy. This shows
that it was not the case of the defendant at any stage
of this suit that because one year's rent
was paid,
a
tenancy for one year was brought into existence.
We
think, therefore, that on
th~ facts of this case it would
be quite proper to hold that the tenancy of the defendant was one from month to month since its inception
in 1924.
This view finds support from a number of
reported cases(1), and in all these cases the rent payable was a yearly rental. On this finding no other
question would arise and as the validity of the notice
has not been questioned before us, the plaintiff would
be entitled to a decree in his favour.
The appeal thus
fails and is dismissed with costs.
Appeal dismissed.
Agent for the appellant : R. C. Prasad.
Agent for the respondents : S. P. Varma.
(1) Vide Dehendra Nath v. Syama Prasanna, 11 C.W.N. 1124; Sheikli
· Akloo v. Emaman, I.L.R. 44 Cal. 403.
. l9Sl
Ram Kumar Das
v.
fagdish Chandra
Deo Dhabal Deb
and Another.
Mufcherjer.i J.