TMI Blog1990 (5) TMI 238X X X X Extracts X X X X X X X X Extracts X X X X ..... ntioned in Schedule 'A' annexed to the petition, for injunction and for other reliefs. One Mr. S.C. Sen was appointed as Receiver. A declaration was also sought in the suit that the trust dated October 20th, 1948 created by late Gopi Krishna Khemka, father of the plaintiff, is void and for cancellation of the same. Premises No. 38, New Road, Alipore, building with open space was one of the properties belonging to the trust. Grindlays Bank Limited ('Grindlays' for short), respondent No. 1 herein was the original tenant and they were occupying four flats and they surrendered a portion of the tenancy namely two flats i.e. Flats Nos. 1 and 2 which came into effect from 1st April, 1978. The receiver let out these two flats to M/s Tata Finlay Ltd. ('Tatas' for short) with Effect from February 7, 1979 pursuant to a letter written by Tatas. Questioning the action of the receiver an application was filed in the High Court contending that the receiver had no authority to create any tenancy and that the receiver has virtually created two new tenancies terminating the original tenancy of Grindlays and it was contended before the learned Single Judge of the Calcutta High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 377; 600 per month and since then Tatas is a monthly tenant in respect of the said two flats. It is the case of the Tatas that the terms of the tenancy were reduced into writing as recorded in the letter dated 7th February, 1979 and the receiver adopted the same and did not raise any objection thereto, and it claimed to be still a monthly tenant and therefore, they are entitled to protection under West Bengal Premises Tenancy Act ('Act' for short) and the appellant has no right to demand vacant possession of the said flats from the Tatas. The stand taken by the Grindlays is that the premises in question comprised of four flats and they took all the four flats for 10 years on lease from 1st June, 1958. After the expiry of the period of the said lease relationship between Grindlays and the Trust continued to be that of landlord and tenant governed by the Act, and that in 1977 they agreed to surrender Flat Nos. 1 and 2 by the letters dated 10th March, 1978 and 29th March, 1978 addressed to the receiver in favour of Tatas. However, at all material times they retained the tenancy in respect of Flat Nos. 3 and 4 and continued to be tenant in respect of those flats and they are al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons transfer of property means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to him- self, or to himself and one or more other living persons and to transfer property is to perform such act. In this Section living person includes a company or association or body of individuals, whether incorporated or not, but nothing herein contained shall affect any law for the time being in force relating to transfer of property to or by companies, associations or bodies of individuals. In Mulla Transfer of Property Act, 7th Edition, page 48, there is a passage in this respect which reads thus: The word transfer is defined with reference to the word convey . This word in English Law in its narrower and more usual sense refers to the transfer of an estate in hand; but it is sometimes used in a much wider sense to include any form of an assurance inter vivos. The definition in Sec. 205(1)(ii) of the Law of Property is conveyance includes a mortgage, charge, lease, assent, vesting declaration, vest-. ing instrument, disclaimer, release of every other assurance of property or of any interest therein by any instrument ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cy subject to a month's notice, creates in the first instance a tenancy for two months certain. But as soon as the third month commences, that is not a new tenancy; it turns the original tenancy into a three months' tenancy, and when the fourth month begins, the tenancy becomes a four months' tenancy, and so on so long as the tenancy continues, until that is to say, notice to quit is given. Relying on the above passage the learned counsel contended that the monthly tenancy, therefore, is new tenancy. Even otherwise, according to the learned counsel the integrity of the tenancy is broken up and on that score also it is a new tenancy. Reliance is placed on Badri Narain Jha and Ors. v. Rarneshwar Dayal Singh and Ors., [1951] SCR 153 it is observed: An interse partition of the mokarrari interest amongst the mokarraridars as alleged by the plaintiffs could not affect their liability qua the lessor for the payment of the whole rent, as several tenants of a tenancy in law constitute but a single tenant, and qua the landlord they constitute one person, each constituent part of which .possesses certain common rights in the whole and is liable to discharge common obligations ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee for years accept a new lease by indenture of part of the lands, it is a surrender for that part only, and not for the whole (k); and though a contract for years cannot be so divided, as to be avoided for part of the years and to subsist for the residue, either by act of the party or act in law; yet the land itself may be divided, and the tenant may surrender one or two acres, either expressly or by act of law, and the lease for the residue will stand good and untouched. In Halsbury's Laws of England, 4th Edn. Volume 27, paragraph 449 read as under: 449. Surrender by change in nature of tenant's occupation. A surrender is implied when the tenant remains in occupation of the premises in a capacity inconsistent with his being tenant, where, for instance, he becomes the landlord's employee, or where the parties agree that the tenant is in future to occupy the premsises rent free for life as a licensee. An agreement by the tenant to purchase the rever- sion does not of itself effect a surrender, as the purchase is conditional on a good title being made by the Landlord. In Foa's General Law of Landlord and Tenant, 7th Edition by Judge Forbes, paragraph 991 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orted into the change of rent than what the parties had intended and warrant a finding by the Court, that the parties had intended to create a new tenancy in supersession of the earlier one or that by operation of law a new tenancy had come into existence. From what has been considered above it emerges that surrender of part of the tenancy does not amount to implied sur- render of the entire tenancy. Likewise the mere increase or reduction of rent also will not necessarily import a surrender of an existing lease and the creation of a new tenancy. We have noticed above that the transfer includes 'lease'. Therefore it becomes necessary at this stage to consider whether there has been violation of injunction granted by Justice A.N. Sen which formed part of the appointment order of the Receiver. So far as the Grindlays are concerned we are unable to accede to the contention that a new tenancy is created. It is true that Justice A.N. Sen issued an injunction restraining the defendants from selling or transferring any of the properties. There is some force in the submission of the learned counsel for the appellant that the lease in favour of Tatas amounts to transfer but t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th the determination of the tenancy the estate must necessarily disappear and the statute can only preserve his status of irremovability and not the estate he had in the premises in his occupation. It is also further observed that: The definition makes a person continuing in possession after the determination of his tenancy a tenant unless a decree or order for eviction has been made against him, thus putting him on par with a person whose contractual tenancy still subsists. In Biswabani (P) Ltd. v. Santosh Kumar Dutta and Ors., [1980] 1 SCR 650 it is observed that: If thus the appellant was already in possession as a tenant of the premises an unsuccessful attempt to create a fresh lease would not change the nature of his possession as from a tenant to one in part performance under a void lease. The appellant continues to be in possession as tenant merely because the appellant and respondents 1 and 2 attempted to enter into a fresh lease which did not become effective. Their Lordships referred to a passage in Woodfall on 'Land- lord and Tenant' Vol. 1, 27th Edn. page 187 para 446 which reads thus: Moreover, if the tenant enters into possession under a v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... already noted that the Grindlays were the tenants in respect of the four flats. They surrendered two flats. This partial surrender does not put an end to the tenancy and we are satisfied that in respect of the Grindlays no new tenancy is created by the Receiver and they continued to be the tenant and they are entitled to the protection under the Act. Shri Vaidyanathan, learned counsel appearing for one of the respondents, relying on the Full Bench decision of the Madras High Court in Arumugha Gounder v. Ardhanari Mudaliar and Others, AIR 1975 Madras 23 1 contended that the protection under the Act cannot be extended to the tenant of a Receiver. In that case the tenant was let into possession of a land by Receiver appointed by the Court pending the suit. The question was whether the provisions of Tamil Nadu Cultivating Tenants Protection Act, 1955 can be extended to such a tenant. It was observed in para 6 that: So then the act of the Receiver in letting out the land in the suit is an act of the Court itself and it is done on behalf of the Court, the whole purpose of the Court taking possession through the Receiver appointed by it is to pro- tect the property for the benefit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agree with the High Court that it is a new tenancy. Such a lease comes within the meaning of 'transfer' and in view of the injunction order passed by A.N. Sen, J. creation of such a new tenancy is legally barred. In Kerr on Receivers, 12th Edn. at p. 154 it is observed: The receiver does not collect the rents and profits by virtue of any estate vested in him, but by virtue of his position as an officer of the Court appointed to collect property upon the title of the parties to the action. In appointing a receiver the Court deals with the possession only until the right is determined, if the right be in dispute. It is also useful to note a passage from Sir John Woodroffe book on Receivers : The Receiver being the officer of the Court from which he derives his appointment, his possession is exclusively the possession of the Court, the property being regarded as in the custody of the law, in gremio legis for the benefit of whoever may be ultimately determined to be entitled thereto. In Kanhaiyalal v. Dr. D.R. Banali, AIR 1958 SC 725 at p. 729 it was observed: A receiver appointed under 0.40 of the Code of Civil Procedure, unlike a receiver appointed un ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
