TMI Blog1979 (9) TMI 195X X X X Extracts X X X X X X X X Extracts X X X X ..... 00/- p.m. On the expiry of the period of 5 years disputes arose between the lessors and the lessee whereupon respondents 1 and 2 lessors commenced an action in ejectment against the company on 5th October 1953 in the Court of the First Subordinate Judge, Howrah. In August 1953 appellant company as lessee filed an application before the Rent Controller under the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, for fixation of standard rent of the demised premises. Ultimately the parties arrived at a compromise and the consent terms were filed in T.S. No. 68 of 1953 instituted by the lessors respondents 1 and 2 for eviction of the company and the Court was invited to pass a decree in terms thereof. The consent decree, inter alia provided that the company would be the tenant of Kalpana Theatre ona monthly rent of ₹ 1,000/- from 1st March 1955 for a period of 5 years and that the third respondent Kanti Bhusan Bose had to offer security by deposit of G.P. Notes of the face value of ₹ 20,000/- with the lessors. The lease was to be for a period of 5 years commencing from 1st March 1955. An indenture of lease was to be drawn up and executed by both the partie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 2 appealed to the District Court at Howrah. The learned Additional District Judge held that the lease being void, yet the lessors would not be entitled to disturb the possession of the tenant for a period of 5 years under the provisions of s. 53A of the Transfer of Property Act but after the expiry of the period of five years the appellant became a rank trespasser and the respondents 1 and 2 were entitled to take possession of the property. Accordingly the appeal was allowed and the company's suit was dismissed. The appellant company preferred second appeal to the High Court. The High Court broadly agreed with the findings of the learned Addl. Distt. Judge and dismissed the appeal. The High Court granted a certificate unfortunately very vague without specifying whether the certificate was under Article 133(a), (b) or (c) as it stood at the relevant time. The undisputed facts are that Kanti Bhusan Bose, 3rd respondent took on lease the demised premises under a registered lease need dated 11th September 1948, the period reserved under the lease being 5 years at a monthly rent of ₹ 2,000/- with an option for renewal to be exercised by a notice two months before the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the status and nature of possession of a person who was admittedly a tenant of premises covered by the local rent restriction Act till the date of commencement of a fresh lease which turns out to be void for want of registration, during and at the expiry of the period purporting to be reserved by such a void lease ? 2. Would such a person be a tenant who could only be removed by proper legal proceeding or a licensee without any interest in the premises and could be forcibly evicted by the landlords of the premises entering the premises and locking the same ? 3. Could such a person defend his possession by a suit seeking a declaration and mandatory injunction ? Appellant was accepted as tenant by respondents 1 and 2 even though the indenture of lease dated 11th September 1948 (referred to as 'the first lease') was executed by the third respondent who was the Managing Director of the appellant company. Indisputably when the first lease expired on 31st August 1953 the appellant was the tenant of the demised premises, a fact demonstrably established and expressly accepted by respondents 1 and 2 and evidenced by their conduct of accepting rent from the appellant compan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the indenture can take advantage of any of the terms of the lease. At best the provision contained in s. 53A of the Transfer of Property Act which incorporated the English equitable doctrine of part performance can, if the terms thereof are satisfied, be relied upon to protect possession for the period reserved under such a void lease. But no other terms of such an indenture inadmissible for want of registration can be the basis for a relief. In this case respondents 1 and 2 rely upon a provision in the consent decree that there was not to be any further renewal of the lease and the High Court was so much impressed with this provision when it observed: Here is a party who has solemnly entered into an agreement, has enjoyed the benefit of it, has committed a flagrant breach of it, and now wishes the law to come to his aid and protect him from the evil consequence.... If the appellant succeeds it will be most unhappy state of affairs . This observation appears to be provoked by the High Court looking into that part of the consent decree which provides for no further renewal of the lease, which being a term in an indenture inadmissible for want of registration, could not have been lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he first time under a void lease the appellant could have protected its possession under s. 53A. But it must be made distinctly clear that the appellant was in possession on the date on which the second lease now found void was to commence. Would this attempt inchoate or still born of entering into a fresh contractual tenancy make any difference in the position of the appellant and the nature of his possession? If the second lease is void or inchoate or ineffective or still born it is not all effective. If it is not effective it does not impinge upon the nature of the appellant's possession which was that of a tenant. In other words, the appellant continued to remain in possession of the demised premises as tenant because there was no impact of the lease which is found to be void. It must be made distinctly clear that the appellant was not put in possession under the lease which turns out to be void. In such a situation even during the period of 5 years for which the second lease was to be created the appellant continued to be in possession as tenant and this is evidenced by the further fact that rent was accepted from the appellant by respondents 1 and 2. There is nothing to s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioned in the writing. But if the lessee does not enter he will not be liable to an action for not taking possession; nor will an action lie against the lessor for not giving possession at the time appointed for the commencement of the term but before the lease is executed . In the context of fiction enacted in s. 106 of the Transfer of Property Act depending upon the nature of lease, namely, one of a Theatre, the person so put in possession would be a tenant from month to month. The Privy Council in Arif v. Jadunath,(1) in terms held that if an indenture of lease is compulsorily registrable under s. 107 of the Transfer of Property Act such a lease can only be made by a registered instrument and if not so made, is void altogether. However, if from such a person in possession under a void lease the landlord accepts rent as held in Ram Kumar Das's case, (supra) an inference of tenancy would follow. Mulla in 'Transfer of Property Act', 6th Edn., at p. 680 has observed that an oral agreement accompanied by delivery of possession, if for more than one year is valid, by delivery of possession, for the first year, and thereafter the lessee continuing in possession with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efend his possession. The decision in Ram Kumar Das's case (supra) was distinguished observing that in Ram Kumar Das's case (supra) it was admitted that in the beginning there was a relationship of landlord and tenant between the parties and the only question that arose for decision was whether the defendant was infect a monthly tenant under the plaintiff on the date when the notice to quit was served upon him. In the case before us, as pointed out earlier, the appellant was admittedly a tenant of respondents 1 and 2 between 1948 and 1953. Again, the appellant was a tenant from 1st September 1953 to 1st March 1955 when the second lease was to commence. In the case under discussion appellant was a sub-lessee and he was to acquire a status of direct lessee or tenant under the lease which was found to be void. To be precise, the appellant Technicians Studio Pvt. Ltd. was not the tenant at the commencement of the lease which turned out to be void. That is the distinguishing feature. In the present case the appellant was the tenant from 1948 to 1953 and till February 1955, a feature similar to Ram Kumar Das's (supra) and which was considered decisive. Therefore, the case fal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... turns out to be void for want of registration, would alter his position from one as tenant at the commencement of such void lease and would render him a licensee continuing in possession under the terms of a lease being void and, therefore, ineffective and that he ceases to be a tenant and could be forcibly removed at the end of the period which was reserved under the void lease. Such an incomplete and ineffective attempt at creating a fresh lease would have no impact on a tenant who was in possession as tenant at the commencement of such a void lease and he would continue to be the tenant because s. 53A would not be attracted as he is not put in possession in part performance of an agreement of lease not registered and that it would be unwise to hold that the payment of the standard rent fixed by the Rent Controller having jurisdiction could be by any process of construction treated as payment under such an agreement of lease. Therefore, it would appear that the appellant company was a tenant during the period 1948-53 and on the expiry of the contractual tenancy on 31st August 1953 it became a statutory tenant. A person remaining in occupation of premises let to him after the dete ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reated for a period of 5 years expiring in February 1960. A still born attempt not clothed with legal formality cannot destroy the existing status. The second lease never came into existence for want of registration and more particularly the appellant was not put in possession under the purported second lease which turns out to be void. The paradoxical approach manifested in the approach is that if a valid lease had come into existence on the expiry of it the appellant tenant would have continued in possession under the protection of the relevant Rent Restriction Act. However, if such an attempt at creating a fresh lease was ineffective or infructuous, how can such an inchoate exercise destroy the existing rights which the High Court held to have been destroyed ignoring the very existence of West Bengal Premises Tenancy Act, 1956 ? The High Court was further in error in holding that if on the expiry of the agreed period of lease there was a covenant for not getting any renewal of the lease the tenant would be a trespasser, wholly overlooking the legal position as affirmatively established that on the expiry of the contractual tenancy the tenant continues as a statutory tenant excep ..... X X X X Extracts X X X X X X X X Extracts X X X X
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