LexKARNANI INDUSTRIAL BANK, LIMITED versus THE PROVINCE OF BENGAL AND OTHERS
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1951 Bi•hun4eo Narain and Another v. Seogenl Bal and Jagernath. Bose.J. 1951 Ma14 560 SUPREME COURT REPORTS (1951] the same parties for the same relief. It will be more convenient and proper to have these matters decided there. Accordingly, we dismiss the plaintills' suit with costs throughout, but make it plain that in doing so we do not adjudicate upon their right to seek parti- tion of such properties as they contend are omitted to be partitioned under the compromise decree in the pending suit. Appeal di1mi11ed. Agent for the appellants : R. C. Prasad. Agent for respondent No. 1 : P. K. Chatteriee. KARNANI INDUSTRIAL BANK, LIMITED "· THE PROVINCE OF BENGAL AND OlHERS [SAIYID FAzL Au, MuKHE!lJEA and CliANDIUSEKHAl\A AlYAR JI.) Transfer of Property Act (IV of 1882), ss. 106, 116-Lease for a term-Acceptance of rent for further period before expiry of term-New tenancy--Necessity of notice ta quit-Lessee's property becoming property of lessor by failure to remove within time-In· junction against removal-Whether can be granted. The context in which the provision for acceptance of rent finds a place in s. 116 of the Transfer of Property &t shows that what is contemplated is that the payment of rent should be made at such time and in such manner as to. be equivalent to the land· lord assenting to the lessee continuing in possession. Where payment is made at a time when there was no question of the lessor assenting to the lessee's continuing in possession and neither party treated the payment as importing such assent the case does not fall within s. 116. A lease deed was executed on the 17th February, 1928, in res- pect of a land for a period of ten years from 24th February, 1928 the annual rent of Rs. 6,000 being payable in advance every year. In April, 1937, a cheque for Rs. 6,000, being the rent from 1st April, 1937, to 31st March, 1938, was sent by the lessee and ac- cepted by the lessor : Held, that as the rent was paid before ~ expiry of the lease and neither party treated the payment of rent as importing assent on the part of the lessor to allow the lessee S.C.R. SUPREME COURT. REPORTS 561 to continue in possession as a lessee after the .period of the lease, no new tenancy was created under s. 116 of the Transfer of Pro- perty Act. The· utmost that could be said was that by implied consent the period of the lease was extended up to the 31st March, 1938, and even then no notice under s. 106 of the Trans- fer of Property Act was necessary for terminating the lease. K. B. Capadia v. Bai Jerbai Warden and Another [1949) F.C.R. 262 distinguished. Where in accordance with thC terms of a lease bricks and other materials manufactured by the lessee on the leased premises had become the property of the lessor as they had not been removed by the lessee within the period fixed by the lease : Held that the lessor was entitled to ask for an injunction restraining the lessee from removing the materials even though he was not in posses- sion of the leased premises. Rathnasabhapathi Pillai and Others v. Ramaswami Aiyar (I.L.R. 33 Mad. 452). Bhramar Lal Banduri & Others v. Nanda/al Chow- dhuri (24 I. C. 199) and Valia Thamburatti v. Parvati and Others (I. L. R. 13 Mad. 455) distinguished. CML APPELLATE JmusDICTION. Civil Appeal No- 58 of 1950. Appeal against the Judgment and Decree dated the 13th February, 1948, of the High Court of Judicature at Calcutta (Mitter and Sharpe JJ.) in Appeal No. 117 of 1942 arising out of Decree elated the 24th Novem- ber, 1941, in Suit No. 85 of 1938. N. C. Chatteriee and Harish Chandra (K. C. Chopra and G. C. Mathur, with them) for the appellant. Chandra Sekhar Sen ( C. N. Laik, with him) for res- pondent No. 1. 1951, May 4. The Judgment of the Court was deli- vered by F AZL Au J. The principal question for determina- 1951 Karnani Industrial Bank Limited v. The Province of Bengal and Others. tion in this appeal is whether a certain lease had validly Fazl Ali J. terminated by efflux of time or whether there was "holding over" by the lessee of the leasehold property as contemplated in section 116 of the Transfer of Pro- perty Act. The circumstances under which this ques- tion and several subsidiary questions to which reference will be made later have Erisen may be briefly stated as follows: 1951 Karnani Indrutrlal Bank Limited v. The Province of Bengal and Others. Faz/ Ali J. 562 SUPREME CO
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