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TMI Blog1971 (12) TMI 111X X X X Extracts X X X X X X X X Extracts X X X X ..... matter of the first lease was two plots, the one referred to above and another in the same area measuring 805 square yards. The subject matter of the second lease was a third plot in the same area. The leases were for a period of ten years and in respect of the first plot, the rent payable was ₹ 75/- a month. In both the leases there was an option clause which entitled the lessees to surrender the leased property by 30-9-1953. The lessees surrendered the two plots, other than the plot with which we are ,concerned, in pursuance of the option clause, on 15-1-1951, with the result that the lease in respect of the first plot continued. Jamnadas died on 14-8- 195 1, but before his death he had made a gift of the leased property in favour of the three respondents. The lease in respect of the plot in question here determined by efflux of time on 30-9-1958. But the lessees continued to remain in possession paying rent at the rate of ₹ 75/- per month. On 7-8-1959, the lessors gave notice purporting to Terminate the tenancy by the end of September, 1959. They stated in the notice that the lessees had sub-let the premises and that the lessors required the plot for the purpose of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on that in view of the decision of this Court in Ganga Dutt Murarka v. Kartik Chandra Das( [1961] 3 S.C.R. 813) no case was made out for new tenancy by holding over under section 116 of the Transfer of Property Act as the appellants had obtained the status of irremovability under the Act, and as there was no contractual tenancy, the tenants were not entitled to any notice. The Court also held that the lease which was granted for erecting a saw mill was not a lease for manufacturing purpose. Counsel for the appellants argued that the appellants were holding over as the lessors were receiving the rent from the appellants after the termination of the tenancy by efflux of time on 30-9-1958 and the fact that appellants gained immunity from eviction by virtue of the Act was quite immaterial in deciding the question whether the appellants were holding over under section 116 of the Transfer of Property Act. He submitted that as there was a new contractual tenancy created by the holding over, the appellants were entitled to six months' notice as the purpose of the original lease was for a manufacturing purpose and that purpose became incorporated in the new lease by implication of law. Coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a J. speaking for the majority said, that the tenancy which is created by the "holding over" of a lessee or under-lessee is a new tenancy in law even though many of the terms of the old lease might be continued in it, by implication; and that to brine a new tenancy into existence, there must be a bilateral act. It was further held that the assent of the landlord which is founded on acceptance of rent must be acceptance of rent as such and in clear recognition of the tenancy right asserted by the person who pays it. Patanjali Sastri J., in his dissenting judgment, has substantially agreed with the majority as regards the nature of the tenancy created by section 116 of the Transfer of Property Act, and that is evident from the following observations :- "Turning now to the main point, it will be seen that the section Postulates the lessee remaining in possession after the determination of the lease which is conduct indicative, in ordinary circumstances of his desire to continue as a tenant under the lessor and implies a tacit offer to take a new tenancy from the expiration of the old on the same terms so far as they are applicable to the new situation, and when the les ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the right to obtain possession by the lessor under the ordinary law springs into action and the exercise of the lessor's right to evict the tenant will not unless the statute provides otherwise, be conditioned." In Davies v. Bristow([1920]3 K.B. p. 428) the Court held that where a tenant of a house to which the Increase of Rent, & c. (War Restrictions) Acts apply, holds ever after the expiry of a notice to quit, and pays rent, the landlord is not to be taken by accepting it to assent to a renewal of the tenancy on the old terms, for he has no choice but to accept the rent; he could not sue in trespass for mesne profits, for those Acts provide that the tenant, notwithstanding the notice to quit, shall not be regarded as a trespasser so long as he pays the rent and performs the other conditions of the lease. In Morrison v. Jacobs([1945] 1 K.B. p. 577), Scott L.J. said : "The sole question before the court is whether after the expiration of the contractual tenancy the mere fact of the landlord receiving rent for the dwelling house from the tenant affords any evidence that the landlord had entered on a new contractual tenancy to take the place of the tenancy which had expi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t give a right to the landlord to evict a contractual tenant without first determining the contractual tenancy. After referring to the decision of this Court in Mangilal v. Sigam Chand(A.I.R. 1965 S.C. 101), it was held that section 3 of the Act in question was similar to section 4 of the Madhya Pradesh Accommodation Control Act (XXIII of 1965). It was further held that on the construction placed upon the section, name IV, that the provisions of the section are in addition to those of the Transfer of Property Act, it follows that, before a tenant can be evicted, a landlord must comply with both the provisions of section 106 of the Transfer of Property Act and those of section 3. In the case before us, admittedly, the tenancy has been determined by efflux of time and what is contended for is that by the acceptance of rent, a new tenancy has been created by virtue of the provisions of section 116 of the Transfer of Property Art. In other words, the question here is whether the conditions for the application of section 116 of the Transfer of Property Act are fulfilled. Learned counsel for the appellants argued that whenever rent is accepted by a landlord from a tenant whose tenancy h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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