LexBHAWANJI LAKHAMSHI & ORS. versus HIMATLAL JAMNADAS DANI & ORS.
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890 BHAW ANJI LAKHAMSID & ORS. v. HIMATLAL JAMNADAS DANI & ORS. December 14, 1971 [C.~ A. VAIDIALINGAM AND K. K. MATHEW, JJ.] Transfer oj Property Act. s. 116 arrd Bombay Rems, Hotel and Lodging House Rates (Control) Aci, 1947-Contractual renGncy deter- mined by ¢lux of time-Tene1ncy thereafter protected by statute- Tenant continuing in possession and landlord accepting rent-Without proof that both parties had the necessary intention r.here is no 'holding over' by the tenant within meaning of s. 116 oj Transfer of Property Act. The appe1lants were lessees of a plot of land in Bombay. The lease w~ granted in 1948 and was determined by efflux of time on Septem- ber 30, 1958. However the appellants continued to occupy the land and to pay rent to the ~essors. On August 7, 1959 the lessors gave notice purporting to terminate the tenancy in the land by the end of September 1959 on the ground inter alia that the lessors required the plot for the purpose of putting up construction on it. Since the appellants did not vacate the premises the bssors filed a suit on October 22, 1959 in the Small Causes Court, Bombay. The appellants contended in defence that the land was not required by the lessors bona fide for purposes of con- struction. They further .contended that they were tenants holding over within the meaning of s. 116 · of the Transfer of Property· Act, and that since the landlord had accepted rent after the tenancy had determined by effiux of time a n~w lease had come into being and as the original lease was for a manufacturing purpose the new lease was by implication for the same purpose and consequently six months' notice was required for its termination by the lessors. The Trial Court held that the plaintiff required the plot bona fide for constructing a new building within the meaning of clause (i) of sub-section (1) of sc~tion 13 of the Bombay Rents, Hotel and Lodging House Rates (Comrol) Act, 1947. The Court also helc1 that the tenancy tcrmin3.ted by efftux of time, but that the )cssecs continued in possession .hy virtue of the immunity from -eviction conferred by the aforesaid Bombay Act and so they were not holding over within the meaning of s. 116 of the Transr~·r of Property· Act. The Trial Court '3CCordingly d~crced the suit. In appeal the ~lppell:ltc Court confirmed the d-ecree. The High Court rejected the appellants' petition under Art. 227 of the Constitution. ln appe~l to this Co,.trt by special lc<~.vc. c D E F HELD : The act of holding over after the expiration of the term dres not create. a tenanc~ of any kind. Tf a tenant remains in possession after G the determination of the L:!ase the common law rule is thLlt he is a tenant on sufferance. A distinction should be drawn between a tenant con- tinuing in possession after the determination of the term with the consent of the landlord and a tenant doing so without1 his consent. The forme·r i~ a tenant on suffe'rence in English law nnd the latter a lr!n::mt holding over a tenant-at-will. In view of the concluding words of s, 116 of the Transfer of Property Act a lease holding over is in a bett.cr position than H a tenant-at-will. The assent of the landlord to the continuance of pos- session after the determination of the tenancy will create a new tenancy. What the section contemplates is that on one side there should be an offer of taking a new lease evidenced by the lcs~ce dr sub-lessee rcm!linin!! A B c BHAWANJI v. IDMATLAL (Mathew,./.) 89.t in possession of the property after his term was over and on the otb:r side there must be a definite consent to the continuance of possession by the landlord expressed by acceptance of rent or otherwise. The basis. of the section is thus a bilateral contract between the erstwhile landlord and the erstwhile tenant. If the tenant has the statutory right to remain in possession, and if he pays the rent, that will not normally be referable to an offer for his continuing in possession which can be converted into a contract by acceptance thereof hy the landlord. 1894 B-D; 897 0-H) In the case of normal tenancy a landlord is entitled where he does. not accept th~ rent after the notice to quit, to file a suit in ejectment and obtain a dceree for possession, and so his acceptance of rent is an Un- equivocal act referable only to his desire to assent tl> the. tenant con- tinuing in possession. T.hat is not so where a Rent Act e"-ists; and if the ten
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