1. The facts in this ease are all admitted.
2. The defendants occupied a godown on a lease from the plaintiff which expired on October 20, 1923. On that day the defendants sent a letter to the plaintiff saying that, as the Colaba Cotton Green was being removed to Sewri on November 1, they would vacate the godown on October 30. On the same date the plaintiffs attorneys replied to the defendants saying that if they did not vacate the godown during the course of that day they would have to give a proper notice to quit to the plaintiff, otherwise he would hold them responsible for all. damages and consequences, and further that the plaintiff did not accept their proposal to vacate the godown on October 30. A somewhat similar letter was sent by the plaintiff's solicitors on October 22, in which it was said that the plaintiff would insist upon a proper notice for giving quiet and peaceful possession, otherwise he would hole them responsible for all damages and consequences. On the same day the defendants' solicitors wrote to the plaintiff's solicitors denying that the plaintiff was entitled to any notice to quit as alleged, or that he could hold the defendants responsible for any damages or consequences. It was further said that the defendants would vacate the godown by the end of that month. However, as a matter of fact, the defendants vacated the godown on October 26, and a letter was sent to the plaintiff's attorneys on that date informing them of that fact. Further correspondence ensued in November; on the 12th of that month, the plaintiff's solicitors wrote claiming the sum of Rs. 1166-10-8 made up of two months' proportionate rent under the old lease; one month's rent being rent for the month commencing from October 21, 1923, during part of which the defendants continued to be in possession of the godown; and another month's rent being claimed as an extra month's rent in lieu of giving a proper legal notice. Defendants' attorneys replied on November 14, denying the plaintiff's right to this claim and offering to pay Rs. 117 as compensation for use and occupation for six days from October 21 to 26, 1923. The suit was filed on November 23, and the plaintiff claims the amount of Rs. 1166-10-8 with interest.
3. The main point for determination is whether the plaintiff is entitled to take up the position that the defendants became tenants holding over under Section 116 of the Transfer of Property Act, so that they were under an obligation to pay rent, at any rate, for the month in which there was occupation and to give a proper legal notice to quit, that is to say. notice of their in tention to quit under Section 106 of the Transfer of Property Act, modified as it is by the Bombay usage requiring one month's (instead of fifteen days') notice. Mr. Mirza's contention is that the defendants did in fact hold over, although it was only for a period for six days; that this gave the plaintiff the option of treating the defendants either as trespassers or as tenants in accordance with the terms of Section 116; that the plaintiff exercised his right of treating them as tenants, and so is justified in demanding the two months' rent claimed in the plaint. On the other hand, Mr. Kamdar's main argument is that there must be not only the assent of the plaintiff to the holding over but the consent of the defendants to their continuing as monthly tenants in accordance with Section 116.
4. If you take the words of Section 116 in their ordinary meaning, then, certainly I find it difficult to say that the conditions specified in that section are not fulfilled in the present case. The defendants were lessees and they remained in possession of the property after the determination of the lease granted to them as lessees. The first sentence of Section 116 is, therefore, fulfilled. The plaintiff is a lesser, and he, in the correspondence, did assent to the defendants' continuing in possession subject to the condition that has been referred to about their giving a proper notice to quit. Therefore, it seems to me that literally the second condition that 'the lessor otherwise assents to his continuing in possession' is complied with. Then the final part of the section provides that 'the lease is, in the absence of an agreement to the contrary, renewed', in the present case 'from month to month', and the effect is that merely by the defendants remaining in possession with the assent of the plaintiff to their continuing in possession, by law, the lease which had been given to the defendants was renewed from month to month. If that is so, then clearly there is justification for the position taken up by the plaintiff, although it certainly savours of sharp practice and seems grasping and unfair. However that may be, I am only concerned with what are the strict legal rights of the parties. I cannot accede to Mr. Kamdar's entire proposition that in order to bring the case under Section 116 there must also be the assent of the lessee to the lease being renewed from month to mouth, or from year to year, as the case may be. That would put the person holding over obviously in an unfair position in regard to his relations with the lessor, and I quite accept what has been laid down in Vadlapalli. Narasimham v. Dronamraju Seetharamamurthy I.L.R. (1907) Mad, 163 that the option of giving an assent which will convert the holding over into a tenancy is one that is conferred on the lessor and not on the lessee. I was at first inclined to think that a distinction might be made in a case where a person does not remain in possession for a sufficient time to justify his being treated as a tenant holding over from month to mouth or from year to year, under Section 116. The argument which suggested itself to me is this. What is the principle which underlies Section116? As far as T can see, it could only be assigned to two different grounds: (1) of contract or (2) of estoppel. One might say that what the section really recognises is that A tenant holding over makes a proposal that the lease shall be renewed from month to month, or from year to year, and that acceptance of rent, or other acts of the lessor assenting to his continuing in possession have the effect of communicating the acceptance of that proposal in accordence with Section 3 of the Indian Contract Act. Again one might say, looking at it from the stand-point of estoppel, that the lessor by accepting rent or doing any other act, which shows that he assents to the lessee remaining in possession, has intentionally caused or permitted the lessee to believe that the lease is renewed from month to mouth, or from year to year, and to act upon that belief. That would be a case falling under Section 115 of the Indian Evidence Act, and that of course would imply that the lessee was asserting that he was a tenant from month to month, or from year to year, and that the lessor was denying that, but was estopped by his act from setting up that defence. So that in either case there must be either a proposal from the lessee warding it or an allegation by the lessee that he is a tenant from mouth to month; and here the short, time the defendants contemplated remaining, and did in fact remain, in occupation of the godown precludes the idea of any such proposal or allegation. But on a further consideration I do not think, having regard to the very clear terms of the section, that I would be justified in talcing that view. As I have already said the effect of that section is that, if there is continuance of possession and if that continuance of possession is assented to by the lessor, that, in law, operates as a renewal of the lease from month to month or from year to year, in the absence of any agreement to the contrary Here no contract to the contrary is alleged. A further difficulty that arises is that, if one says that Section 116 only operates in a case where the continuance of possession lasts for such time as establishes a condition of things in which the lessee can properly be treated as a tenant from month to month, or from year to year, where is the exact line to he drawn? Is it to he said that the lessee can remain in possession for twentynine days and insist upon the landlord treating him as a trespasser, but that, if he stays one day longer then, if the lessor has assented to his continuing in possession, he becomes a monthly tenant? And in the case of a lease for agricultural or manufacturing purposes, over how many months can the occupation extend, before the lease becomes renewed from year to year? I think that there is no sufficient justification for my holding that any days (or months) of grace can be allowed in regard to the tenant's possession in a case under Section 116. Finally, it is clear that the defendants' letter of October 20, 1923, contemplates a holding over with the assent of the lessor rather than a continuance of possession without such assent. For these reasons I am forced to the conclusion that, in law, the position taken up by the plaintiff is correct.
5. There must, therefore, be a decree for the plaintiff for the sum of Rs. 1166-10-8 with interest at nine per cent, per annum from November 12, 1923, to judgment. Costs and interest on judgment at six per cent.
6. The plaintiff to withdraw the sum of Rs. 117 deposited by the defendants towards satisfaction of the decretal amount.