# GANGA DUTT MURARKA v. KARTIK CHANDRA DAS AND OTHERS

- **Citation:** [1961] 3 S.C.R. 813
- **Court:** Supreme Court of India
- **Decided:** 1961
- **Case number:** Civil. Appeal No. 82 of 1957
- **Bench:** J. L. Kapur, M. Hidayatullah, J.C. Shah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ganga-dutt-murarka-v-kartik-chandra-das-and-others-1926
- **Pages:** 8

## Headnote

Tenant, Eviction of-Determination of lease by efflux of
time-Tenant continuing in possession on payment of rent fixed bi'.
rent control Acts-Landlord accepting the same-Nelli tenartey, if
created-Transfer of Property Act, z882 (4 of z882), ss. zo6, IC6.
The appellant was a contractual tenant of certain premises
in the town of Calcutta of which the respondents were the
owners. The respondents called upon the appellant to vacate
and deliver possession of the premises on the expiration of the
perioJ of tenancy but possession was not delivered and the
respondents were unable to obtain possession in view of
the protection afforded to the tenants by the successive
rent control Acts passed by the State. In the meantime the
x96z
February zo.
I
'
\:. 814
SUPREME COURT REPORTS
. [1961]
'•. r!i6r
• .. ·appellant continued to pay every month. amo,;nts equal to the
-
'
. contractual rent, and later the rent declared to be the statutory
~GaniaDull
rt!nt and the ·respondent' acCepted. the same .. The· _question
· Mu,-arAa·
arising for decision \Vas whether· the-·acceptance of the amounts
· v.
by the respondents conferred upon the appellant the right of a
•. Karlik
.• tenant holding over within the meaning of s. n6 of the Transfer
ClaaNdr0 Das . of ~~operty Act. ,t
, •
1.
.
. Held, that where a contractual tenancy to which.the rent
. ; control legislation applied, had expired by efflux of time. _or by
.'determination by notice to quit and th~, tenant continued 'in
· possession of .the premises, acceptance of rent from the tenant by
. -· . '. the landlord. after the. expiration' or determination of the con-
' tractual 'tenancy will not' afford ground for holding that the
.. landlord had assented to a new contractual tenancy. .
. · ·
Kai' Khushroo v. Bai ]erbai [r949] F.C.R. 262, followed ....
/
._.: :• . Acceptance by the landlord from the. tenant of amounts
1
: · equivalent. to rent after the contractual tenancy had expired or
'amountswhich were fixed ·as standard rent did not amount to
acceptance of rent from a lessee within the meaning ·of s. n6 of
· -. the. Transfer ·of Property Act.
·
·
!
·
:· ·.· Occupation of• the 'appellant· after the· determination of
. tenancy was not in pursuance of any contract express or implied
. buL:was by virtue .. of protection granted. by the successive
. , statutes and such ·occupation was not required to be determined
· in themanner prescribed by s. 106 of. the Transfer of Property
-"-A.Ct~"·· '; .
·.
·~
1 •
• · ;, ·'·
,-
-
..
,.•: , ... "J.

## Text

3 s.c.R.
SUPREME COURT HEPORTS
813
the amount of Rs. 3,20,000/- must have been divided.
'96'
In that view of the case, the decree passed by the
Kashuiaths•
High Court will be modified as follows: -
Yamosa Kabadi
The properties of the joint family except the prov.
perties divided on September 23, 1946, October 12,
Narsings•
.
1946, October 19, 1946, including the amount of Bhask•rs• K•b•d•
Rs. 3,20,000/-, October 20, 1946, October 21, 1946,
Shah J.
including the stock-in-trade, silks and sarees and cupboards, and on November 10, 1946, February 7, 1947,
February 22, 194 7, February 24, 194 7, February 25,
1947, and the furniture, utensils and other movables
between May and June, 1947, and the property divided
on July 13, 194 7, and the outstandings divided between February 5, 1948, and February 9, Hl48, shall be
partitiuned between the parties. The partition will
be made on the footing that defendant No. 3 is
entitled to a half share and defendant No. l, the
plainWfs collectively and defenda.nt No. 2 are each
entitled to a 1/6 share. Defendant No. l will be
entitled to his costs in Appeals Nos. 218 of 1959 and
219 of 1959. The other appeals filed by the plaintiffs
and defendant No. 3 will be dismissed. One hearing
fee.
0. As. Nos. 218 and 219 of 1959 allowed.
0. As. Nos. 220 to 223 of 1959 dismissed.
GANGA DUTT MURARKA
v.
KARTIK CHANDRA DAS AND OTHERS.
(J. L. KAPUR, M. HIDAYATULLAH and J.C. SHAH, JJ.)
Tenant, Eviction of-Determination of lease by efflux of
time-Tenant continuing in possession on payment of rent fixed bi'.
rent control Acts-Landlord accepting the same-Nelli tenartey, if
created-Transfer of Property Act, z882 (4 of z882), ss. zo6, IC6.
The appellant was a contractual tenant of certain premises
in the town of Calcutta of which the respondents were the
owners. The respondents called upon the appellant to vacate
and deliver possession of the premises on the expiration of the
perioJ of tenancy but possession was not delivered and the
respondents were unable to obtain possession in view of
the protection afforded to the tenants by the successive
rent control Acts passed by the State. In the meantime the
x96z
February zo.
I
'
\:. 814
SUPREME COURT REPORTS
. [1961]
'•. r!i6r
• .. ·appellant continued to pay every month. amo,;nts equal to the
-
'
. contractual rent, and later the rent declared to be the statutory
~GaniaDull
rt!nt and the ·respondent' acCepted. the same .. The· _question
· Mu,-arAa·
arising for decision \Vas whether· the-·acceptance of the amounts
· v.
by the respondents conferred upon the appellant the right of a
•. Karlik
.• tenant holding over within the meaning of s. n6 of the Transfer
ClaaNdr0 Das . of ~~operty Act. ,t
, •
1.
.
. Held, that where a contractual tenancy to which.the rent
. ; control legislation applied, had expired by efflux of time. _or by
.'determination by notice to quit and th~, tenant continued 'in
· possession of .the premises, acceptance of rent from the tenant by
. -· . '. the landlord. after the. expiration' or determination of the con-
' tractual 'tenancy will not' afford ground for holding that the
.. landlord had assented to a new contractual tenancy. .
. · ·
Kai' Khushroo v. Bai ]erbai [r949] F.C.R. 262, followed ....
/
._.: :• . Acceptance by the landlord from the. tenant of amounts
1
: · equivalent. to rent after the contractual tenancy had expired or
'amountswhich were fixed ·as standard rent did not amount to
acceptance of rent from a lessee within the meaning ·of s. n6 of
· -. the. Transfer ·of Property Act.
·
·
!
·
:· ·.· Occupation of• the 'appellant· after the· determination of
. tenancy was not in pursuance of any contract express or implied
. buL:was by virtue .. of protection granted. by the successive
. , statutes and such ·occupation was not required to be determined
· in themanner prescribed by s. 106 of. the Transfer of Property
-"-A.Ct~"·· '; .
·.
·~
1 •
• · ;, ·'·
,-
-
..
,.•: , ... "J.
CIVIL APPELLATE JURISDICTION:
Civil. Appeal No.
82 of 1957.
.. ·
.· . "Appe'.11
fro~ ; the judgment and'. decree dated
April 4, 1955, ?.f t~e. Calcutta High Court in Appeal
from Appellate Decree No. 1224 of 1953.
G. S. Pathak flond D. N. ,Jf ukherjee, for the appellant.
H. N. · Sanyal,. Additional "Solicitor-General of India
and P. K. Chatterjee, for the respondents.
·: . , ·
, 1961. February IO .. The· Judgment of the· Court
was_delivered by
.. .
; ·'
.
· ·
Shah J.
· SHAH, J . .:_ar the ·premises· relating to which this
dispute arises-No. 5, Raja Rajkissen Street, Calcutta
.-t_he respondents are the owners ;J.nd .. the appellant __
was, a· contractual tenant from Junec 15, 1917, till
· · June 15,-l 9i 7, under three successive tenancies for
· '10 years each. Under the first tenancy, the 'appellant ·
· paid rent at the rate of Rs: 84-15;0 per month, under
the seco_nd-tenancy at therate_of,R.s. 180 per month
•,
~-.;._._-_
..
3 S.C.R.
SUPREME COURT REPORTS
815
and undPr the third tenancy at the rate of Rs. 225
per month. The tenancy was in respect of buildings
used for manufacturing " tin canisters " and open
land. On September 30, 1946, the Governor of
Bengal issued the Calcutta Rent Ordinance, V of 1946,
making certain provisions for control of rent of premises in the town of Calcutta. Bys. 12 of the Ordinance, it was provided in so far as it. is material that
notwithstanding, anything contained in the Transfer
of Property Act, the Presidency Small Cause Courts
Act or the Indian Contract Act, no order or decree for
the recovery of posse;sion of any premises shall be
made as long as the tenant pays rent to the full
extent allowable by the Ordinance and performs the
conditions of the tenancy. By the proviso, the landlord was, notwithstanding the protection gra11ted
entitled, if the conditions specified therein were fulfilled, to obtain possession of the premises. This
Ordinance was replaced by Act I of 1947 which contained suustantially the same provisions. By the
West Bengal Act V of 1948, the provisions of Ordinance V of 1946 and Act I of 1948, were continued.
Thereafter on December l," 1948, the West Bengal
Premiseo Rent Control· (Temporary Provisions) Act
XXXVIII of 1948 was brought into operation and by
this Act, the West Bengal Act V of 1948 was repealed,
but the protection granted to the tenants was continued. This Act was repealed by the West Bengal
Premises Rent Control Act, 1950, and by s. 12 of the
latter Act protection to tenants, including tenants
whose tenancies had expired, against eviction was
granted by prohibiting courts from passing decrees or
orders for recovery of possession of any premises in
favour of landlords. It was provided by that Act
that the landlord shall be entitled to obtain a decree
in ejectment, inter alia, where the premises are reasonably required by him either for the purpose of
building or re building or for his own occupation.
By letter dated May 15, 1957, the respondents
called upon the appellant to vacate and deliver
possession on the expiry of the period of tenancy .
.Possession was however not delivered by the appellant
Ig6I
Ganga Duti
Mura,.ka
v.
J(artik
Chand1·a Das
Shah].
Ganga Dutt
Murarka
v.
Karlik
Chandra Das
Shah].
816
SUPREME COURT REPORTS
[1961]
and he continued to pay the stipulated amouut and
the same was accepted by the respondents. In an
application under s. 9 of the West Bengal l:'remises
Rent Control (Temporary Provisions) Act, 1948, the
Controller fixed the standard rent of the premises at
Rs. 455 per month. After the enactment of the West
Bengal Premises Rent Control Act, 1950, another
application was submitted by the appellant and the
standrad rent was reduced to Rs. 247-8-0. On October 10, 1950, the respondents served a notice upon
the appellant requiring him "to quit, vacate and
deliver possession of'the premises occupied", which
the appellant was described ii.s holding as "monthly
tenant", on the expiry of the 31st of Chaitra, 1357
B. S., i.e., April 14, 1951. The ground for eviction, it
wa.s claimed, was that the premises were reasonably
required by the landlords for putting up new buildings thereon. The appellant having failed to vacate
the premises, the respondents sued in the Court of
Sm11ll Causes, Calcutta, for a decree in ejectment. The
Court of Small Causes decreed the suit filed by the
respondents. In appeal to the Special Bench, Court
of Small Causes, the decree passed by the court of first
instance was reversed. The appellate court held that
by acceptanlJe of rent after determination of the
tenancy in June, 1947, the appellant continued to be
" a tenant holding over" and as the purpose of the
tenancy was manufacturing, it could be determined
only by a notice of six months, expiring with the year
of tenancy and as no such notice was served, the
tenancy wa's not determined and the suit was liable
to fail. In appeal to the High Court of J ndicature at
Calcutta, the decree passed by the Special Bench was
reversed and the decree passed by the court of first
instance was restored.
With certificate of fitness
under Art. 133(1Xc) of the Constitution this appeal is
preferred by the appellant against the order of the
High Court.
·
The contractual tenancy in favour of the appellant
was determined by effiux of time on June 15, 1947,
and since that date there has been between the parties
no fresh contractual tenancy. The respondents were,
3S.C.R.
SUPREME COURT REPORTS
817
it appears, anxious to obtain possession of the premises let out to the appellant, but they were unable
to obtain assistance of the court in view of the protection afforded to the appellant by the successive rent
contrnl Acts. In the meanwhile, the appellant continued to pay every month amounts equal to the
contractual rent, and later the rent declared to be the
statutory rent. Does the acceptance of the amounts
paid by the appellant confer upon him the right of a
tenant holding over within the meaning of s. 116 of
the Transfer of Property Act?
Section 116 of the Transfer of Property Act in so
far as· it is material provides that if a lessee of pro.
perty r~mains in possession thereof after the determination of the lease granted to .him and the lessor
accepts rent from the lessee or otherwise assen ts 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 property is leased as specified in
s. 106. It is, however, well settled that where a contractual tenancy to which the rent controllegislation
applies has expired by efflux of time or by determination by notice to quit and the tenant continues in
possession of the premises, acceptance of rent from
the tenant by the landlord after the expiration or
determination of the contract11al tenancy will not
afford ground for holding that the landlord has
assented to a new contractual tenancy. It was
observed by B. K. Mukherjea, J. (as he then was), in
Kai Khushroo v. Bai Jerbai ('):
"On the determination of a lease, it is the duty
of the lessee to deliver up possession of the demised
premises to the lessor. If the lessee or a sub-lessee
under him continues in possession. even after the
determination of the lease, the landlord undoubtedly has the right to eject him forthwith; but if he
does not, and there is neither assent or dissent on
hi~ part to the continuance of occupation of such
person, the latter becomes in the language of English
law a tenant on sufferance who has no lawful title to
(I) [1949] F.C.R. 262. 170. 27"-
Ganga Dutt
Murarka
v.
Karlik
Chandra Das
Shah f·
r961
Ganga Dutt
Murarka
v.
Kartik
Chandra Das
Shah j.
818
SUPREME COURT REPORTS
[1961)
the land but holds it merely through the ]aches of
the landlord. If now the landlord accepts rent
from such person or otherwise expreRses assent to
the continuance of his possession, a new tenancy
comes into existence as is contemplated bys. 116,
Transfer of Property Act, and unless there is an
agreement to the contrary, such tenancy would be
regarded as one from year to year or from m"n th to
month in accordance with the provisions of s. 106
of the Act."
It was further observed :
" .................. in cases of tenancies relating to
dwelling houses to which the Rent Restriction Acts
apply, the tenant may enjoy a statutory immunity
from eviction even after the lease has expired. The
landlord cannot eject him exeept on specified
grounds mentioned in the Acts them'<·lves. In such
circumstances, acceptance of rent by the landlord
from a statutory tenant whose lease has already
expired could not be regarded as evidence of a new
agreement of tenancy, and it would not be open to
such a tenant to urge, by way of defence, in a suit for
ejectment brought against him, under the provisions
of Rent Restriction Act that by acceptance of rent
a fresh tenancy was created which had to be determined by a fresh notice to quit. "
Under the Calcutta Rent Ordinance, 1946, and the
subsequent legislation which culminated in the West
Bengal Premises Rent Control Act, 1950, in the
expression "tenant" was included any person who
continued in possession after termination of his
tenancy. Section 12 of the West Bengal Premises Rent
Control Act, 1950, expressly protects a tenant whose
lease has expired. By the Rent Restriction Statutes
at the material time, statutory immunity was granted
to the appellant against eviction, and acceptance of
the amounts from him which W'ere equivalent to rent
after the contractual tenancy had expired or which
were fixed as standard rent did not amount to acceptance of rent from a lessee within the meaning of s. ll6,
Transfer of Property Act. Failure to take action
which was nonsequent upon a statutory prohibition
3 S.C.R.
SUPREME COURT REPORTS
819
imposed upon the courts and not the result of any
voluntary conduct on the part of the appellant did not
also amount to "otherwise assenting to the lessee
continuing in possession. " Of course, there is no
prohibition against a landlord entering into a fresh
contract of tenancy with a tenant whose right of
occupation is determined and who remains in occupation by virtue of the statutory immunity. Apart from
an express contract, conduct of the parties may
undoubtedly justify an inference that after determination of the contractual tenancy, the landlord had
entered into a fresh contract with the tenant, but
whether the conduct justifies such an inference must
always depend upon the facts of each case. Occupation
of premises by a tenant whose tenancy is determined
is by virtue of' the protection granted by the statute
and not because of any right arising from the contract
which is determined. The statute protects his possession so long as the conditions which justify a lessor in
obtaining an order of eviction against him do not
exist. Once the prohibition against the exercise of
jurisdiction by the court is removed, the right to obtain
possession by the lessor under the ordinary law springs
into action and the exercise of the lessor's right to
evict the tenant will not unless the statute provides
otherwise, be conditioned.
The High Court was in our judgment right in holding that by merely accepting rent from the appellant
and by failing to take action against him, the appellant did not acquire the rights of a tenant holding
over. It is true that in the notice dated October 10,
1950, the appellant is described as a "monthly
tenant", but that is not indicative of conduct justifying an inference that a fresh contractual tenancy had
come into existence. Within the meaning of the West
Bengal Premises Rent Control Act, 1950, the appellant
was a " tenant" and by calling the appellant a tenant
the respondents did not evince an intention to treat
him as a. contractual tenant. The use of the adjective
"monthly" also was not indicative of a contractual
relation. The tenancy of the appellant was determined
by effiux of time and subsequent occupation by him
105
Ga11ga DuU
Muraf'Aa
v.
Karlik
Chandra Des
Shah].
I961
Ga11ga DuU
MuYarka
v.
Kartik
Chandra Das
Shah].
February r7.
820
SUPREME COURT REPORTS
[1961)
was not in pursuance of any contract express or
implied, but was by virtue of the protection given by
the successive statutes. This occupation did not confer
any rights upon the appellant and was not required to
be determined by a notice prescribed by s. 106 of the
Transfer of Property Act.
In that view of the case, this appeal fails and is
dismissed with costs.
Appeal dismissed.
JUTE AND GUNNY BROKERS LTD.
AND ANOTHER
v.
THE UNION OF INDIA AND OTHERS.
(and connected appeals)
(P. B. GAJENDRAGADKAR, K. N. WANCHOO and
K. c. DAS GUPTA, JJ.)
'
Requisition and Acquisition of Property-Orders by Government of India-Notice on managing agents-Validity-Holders of
Pucca delivery order, if owners of goods-Estoppel-Defence of India
Act, z939 (35 of z939)-Defence of India R.11les, z939, rr. 75A, zz9Code of Civil Procedure, z908 (Act V of z908), 0. XXIX, r. 2lndian Companies Act, z9z3 (7 of I9z3), ss. 2(zz),z,,.S-Indian Sale
of Goods Act, z930 (3 of z930), s. z8.
The Government of India entered into an agreement with
the President of Argentine Institute for Promotion of Trade to
supply hessian in return for licences for shipment to India of
food-stuff purchased there and with a view to implement that
agreement issued orders under r. 75A(1) of the Defence of India
Rules, 1939, on the managing agents of certain jute mills on
September 30, 1946, requisitioning hessian and directing them
and any other person in possession of the said goods to deliver
them to the Director of Supplies, Calcutta. Although 'in the
heading of the notices after the names of the managing agents it
was not stated that they were being addressed as managing
agents of such and such mills, the schedules attached to them
made it clear that they were addressed as managing agents of
such and such mills. On the same day notices of acquisition
under r. 75A(2) were served on the said managing agents and
they were further informed that under r. 75A(3) the goods would
vest in the Government at the beginning of the same day free
from any mortgage, pledge, lien and other similar encumbrance.
The notices of acquisition were also accompanied by schedules
similar to those accompanying the requisition <;>rders.
The