CHAPSIBHAI DHANJIBHAI DANAD versus PURUSHOTTAM

Citation: [1971] SUPP. 1 S.C.R. 335 · Decided: 05-04-1971 · Supreme Court of India · Bench: J.M. SHELAT · Disposal: Dismissed

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Judgment (excerpt)

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 con-
H 
aequences. The leaae m•Y provide a fixed period and the.n include a ~vi-
lion 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 
H 
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 posses-
sion 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 struc-
tures on default of payment of rent but on his own volition~ a clause 
indicative of the parties

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