T.U. Mehta, J.
1. This Revision Application arises out of the eviction suit filed by the opponent Nos. 1 to 6 against the opponent No. 1 as the head tenant and the petitioner as the assignee in the court of Civil Judge, Junior Division at Cambay where the said suit was registered as Regular Suit No. 12 of 1961. The premises in question consist of a shop at Cam-bay. The facts of the case show that on 11th December, 1957 opponent No. 1 executed a rent note with respect to the suit premises as found at Ex. 34. One of the terms of the rent note was that the tenant should vacate the suit premises without any dispute and without insisting upon a notice whenever the landlord desired to take possession.
2. It is found that the head tenant fell into arrears of rent with the result that on 24-9-1960 the opponent No. 1 Thakorlal Chunilal who has since died, served him with a notice of eviction on two grounds namely:
(1) Non-payment of arrears of rent, and
(2) Bonafide personal requirement.
By this notice he in effect claimed possession of the suit premises latest by 24th October, 1960. Reply to this notice was given by the head tenant on 1-10-60 as found at Ex. 36, wherein he has raised the question as regards the standard rent and has demanded certain particulars about rent. The rejoinder to this reply is given by opponents Nos. 1 to 6 as found at Ex. 37, which is dated 1-11-1960. Further reply to this rejoinder was given by the head tenant on 8-11-60 as found at Ex. 38. On 17-11-60 the opponent Nos. 1 to 6 gave a notice to the petitioner who is the sub-tenant informing him that the head tenant was served with a notice dated 24-9-60 and after receipt of this he had vacated the suit premises which was occupied by the sub-tenant who was conducting his business of confectionery- in the suit premises. Opponent Nos. 1 to 6 demanded from the petitioner sub-tenant the details as regards the condition under which he had acquired the possession of the suit premises from the head tenant. Finally opponents Nos. 1 to 6 gave another notice as found at Ex. 41. On 3-12-60 this notice was given to the head tenant as well as to the sub-tenant (petitioner). The notice demanded the vacant possession of the premises latest by about 24th January, 1961 which is the date arrived at after calculating the directions given in the notice as to the date on which the premise should be vacated. This last notice of eviction is found -at Ex. 41. Thus by virtue of this notice the tenant as well as sub-tenant were required to vacate the premises latest by 24-1-61.
3. It is found that in the meanwhile on 1st October, 1960 i.e. after the receipt of the first notice dated 24-9-60 found at Ex. 35., the head tenant who is the opponent No. 7 assigned his tenancy rights in favour of the petitioner who is referred in this judgment as sub-tenant. This document of assignment is found at Ex. 55 in the record of the case.
4. The present suit has been filed by opponent Nos. 1 to 6 on 23rd January, 1961. The Trial court decreed the suit with the result that the present petitioner preferred an appeal to the District court. This appeal was allowed and the decree of the trial court was set aside. Against that judgment of the appellate court the opponents Nos. 1 to 6 approached this Court in Special C.A. No. 14 of 1965 under Article 227 of the Constitution. A contention was raised in this Court in that Special C.A. that before disposing of the matter finally it was necessary to consider whether the tenancy created in favour of the opponent No. 7 was a tenancy at will or a contractual tenancy. It seems from the judgment recorded by this Court in that Special C.A. on 24-6-69 that the contention of the opponent Nos. 1 to 7 was that if the tenancy was a tenancy at will, the assignment in favour of the sub-tenant who is the present petitioner would be illegal. But if it was a contractual tenancy it would be legal. For this proposition reliance was placed on the decision given by the Supreme Court in Anand Nivas Private Ltd. v. Anandji Kalyanji's Pedhi and Ors. : 4SCR892 wherein it is held that a statutory tenant has no estate or interest in the premises occupied by him and that his right to remain in possession after the determination of contractual tenancy is, purely personal and is not capable of being transferred or assigned. This contention of the opponent Nos. 1 to 6 prevailed with the result that this Court allowed the above referred Spl. C.A. No. 14 of 1965, and sent the matter back to the lower Appellate Court to determine the nature of tenancy and after determining the said nature, to find whether the petitioner sub-tenant derived any valid title under the Act. The judgment seems to have proceeded on the assumption that tenant at will had no interest in the property which could be transferred and that such a tenancy is not a contractual tenancy.
5. As a result of the above decision the matter went back to the lower appellate court. The said court, after hearing the parties, came to a conclusion that the tenancy which was created in favour of the head tenant was a tenancy at will which did not create any interest in the property. The lower appellate court, therefore, concluded that no rights were created in favour of the sub-tenant who is the assignee of the head tenant under the provisions of the Rent Act. The lower appellate court, therefore, dismissed the appeal filed by the sub-tenant and being aggrieved thereby, the sub-tenant has preferred this revision application.
6. The first question which arises to be determined in this matter is whether the tenancy created in favour of the opponent No. 7 by virtue of the rent note Ex. 34 is a tenancy at will or not. I have already referred to the contents of this rent note which makes it clear that the parties stipulated that the tenant should vacate the premises whenever demanded by the landlord, without raisin? any dispute and without insisting on a notice. This term of the tenancy makes it a tenancy at will because when a tenancy is terminated at the will of one of the parties to the contract of lease it should be held to be terminable at the will of the other party also. This view has been taken in several decisions including the decision given by a Division Bench of Patna High Court in Ram Lai Sahu v. Mt. Bibi Seohra A.I.R. 1941 Patna 228 and Allahabad High Court in Khuda Bakhsh v. Shea Din and Anr. I.L.R. 8 Allahabad 405. It would, therefore, follow that the contract of lease as evidenced by the document Ex. 34 is the contract creating a tenancy at will wherein the said contract can be terminated by either of the two sides at will without giving any notice. The fact that such tenancies are tenancies at will cannot be disputed because, the main test for deciding whether it is a tenancy at will or not, is to find out whether the continuance of the said tenancy is dependent upon the will of both the parties or not. This test is completely satisfied in the present case and, therefore, it should follow that the learned Judge of the lower appellate court was right in holding that the contract between the parties was the contract creating a tenancy at will. This view gets support from the Bombay decision hi Jivraj Gopal v. Atmaram Dayaram I.L.R. 14 Bombay 310, therein the document of lease provided that the tenant was to live in the said premises so long as the plaintiff landlord permitted him to do so and so long as he should pay the rent. He was to vacate when asked to do so by the plaintiff. The court hold that the lease in question created a tenancy at will which did not require registration. Similar view is also taken by Madras High Court in K.R. Manicka Mudaliar v. T. Chinnappa Mudaliyar I.L.R. 36 Madras 557.
7. In this connection it should be noticed that Section 105 of the Transfer of Property Act defines lease as a transfer of right to enjoy immoveable property for a certain time which is expressed or implied in consideration of a price paid or promised. One of the main ingredients of the lease which is contemplated by Section 105 is that the tf-sssfef is question snouttf be for a period which is certain. Now in case of a tenancy which could be terminated at will of either of the two parties it is obvious that there is no certainty as regards the period of lease. Therefore, such leases do not fall under the definition contemplated by Section 105 of the Transfer of Property Act.
8. Having thus found that the tenancy created in favour of the opponent No. 7 was a tenancy at will the question which next arises to be considered is whether such a tenancy could be considered a contractual tenancy or not. In my opinion there is no contradiction between the contractual tenancy and a tenancy at will, if the tenancy at will has come into existence as a result of a bilateral contract between the concerned parties. In other words, a tenancy at will can be the outcome of the contractual relations between the two parties and, therefore, it cannot be said that because a tenancy at will has come into existence the said tenancy cannot be treated 'as a contractual tenancy. Of course, a contractual tenancy which possesses the characteristics of a tenancy at will has a very precarious existence, as it can be brought to an end at the will of the parties to the contract. Such a tenancy would none-the-less remain a contractual tenancy.
9. Now so far as the petitioner sub-tenant is concerned, the question which still remains to be considered is whether the head tenant could have validly assigned to him a right which he possessed under the above referred contractual tenancy which possessed the characteristics of a tenancy at will. In my opinion the answer to this question is easy if once we believe that the head tenant was at all time legally entitled to transfer or assign his contractual rights under the rent note found at Ex. 34. Here we are not considering the extent of this contractual rights and, therefore, whatever be the said extent, the fact remains that the head tenant was entitled to transfer and assign all the contractual rights which he owned under the real note Ex. 34. Therefore, if the head tenant wanted to assign his contractual rights under the rent note, Ex. 34 he could do so under the law. In fact he has done so by an assignment deed found at Ex. 55 of 1-10-60.
10. But this does not conclude the matter because it is still necessary to consider what rights have exactly passed to the sub-tenant under this assignment deed. This question involves the consideration of the extent of right which a tenant at will has in the tenancy after he receives an eviction notice from his landlord. At this point it should be remembered that the first eviction notice which was given by the landlord was on 24-9-60 as found at Ex. 35. In effect it demanded possession latest by 24th October, 1960. This notice is given by the opponent No. 1 Thakorlal Ghunilal who has died during the pendency of this revision application. The rent note was executed in favour of this Thakorlal Chunilal and, therefore, the deceased Thakorlal Chunilal was legally competent to terminate the tenancy. He did terminate this tenancy by notice Ex. 34 with effect from 24th October, 1960, but in the meanwhile, after receiving this notice the tenant assigned his tenancy rights on 1-10-60 by document Ex. 63 in favour of the petitioner sub-tenant. The question is what is the effect of this assignment. Would this assignment enure for the benefit of the sub-tenant even after the 24th October, 1P60, or would it enure only upto 24th October, 1960, which was the last date upto to which the head tenant could have claimed his right of a contractual tenant. It is on this question that the learned Advocates of the parties have heavily concentrated during the course of the hearing of this revision application.
11. Mr. Shah who appeared on behalf of the petitioner sub-tenant contended that since the head tenant has assigned his tenancy rights on 1-10-60 when the contractual tenancy was still in existence, the petitioner sub-tenant became a tenant as defined by Section 5(11)(aa) of the Rent Act which says that the expression 'tenant' includes any person to whom interest in premises has been transferred under the proviso to Sub-section (1) of Section 15 of the Rent Act. Here it should be noted that Section 15(1) of the Rent Act puts a total ban of sub-letting. This Sub-section (1) of Section 15 is controlled by the proviso which says that the State Government may, by notification in the Official Gazette, permit in any area the transfer of interest in the premises held under such leases or class of leases and to such extent as may be specified in the notification. The above referred definition of a tenant given in Section 5(11)(aa), therefore, says that if a tenant assigns his tenancy rights under this proviso to Section 15(1) of the Rent Act, the person in whose favour the assignment is made shall be included within the meaning of the word 'tenant.' Shri Shah therefore, contended that the moment the head tenant assigned his tenancy rights to the petitioner subtenant on 1-10-60, the latter became a tenant within the meaning of Section 5(11) of the Rent Act. It was further contended that if the petitioner is found to have become a tenant within the definition of that word as given in Section 5(11), Section 12 of the Rent Act would at once come into operation and he would get protection contemplated by Sub-section (1) thereof which says that a landlord shall not be entitled to recovery of possession of any premises so long as the tenant pays, or is ready and willing to pay the amount of standard rent and permitted increases and if he observes and performs the other conditions of the tenancy in so far as they are consistent with the provisions' of the Act.
12. This contention of Shri Shah is required to be scrutinised in light of the decision given by the Supreme Court in the above referred case of Anand Nivas v. Anandji Kalyanji's Pedhi. There the Supreme Court has discussed the rights of a tenant who is known as a statutory tenant. The Supreme Court has held that a person remaining in occupation of the premises Jet to him after the determination of or expiry of the period of the tenancy is commonly, though in law not accurately, called a statutory tenant. Then explaining the rights of such a statutory tenant the Supreme Court has observed that such a person is not a tenant at all because he has no estate or interest in the premises occupied by him. He has merely the protection of the statute in that he cannot be turned out so long as he pays the standard rent and permitted increases, and performs the other conditions of the tenancy. The Supreme Court has further explained that right of such a person to remain in possession after the determination of the contractual tenancy is personal and, therefore, it is not capable of being transferred or assigned and it devolves on his death only in the manner provided by the statute. These being the rights of a person who is known as a statutory tenant, the question which arises to be considered in this case is how far this position affects the rights of the petitioner to claim protection under Section 12 of the Rent Act.
13. The above referred decision of the Supreme Court makes it clear that after the determination of the tenancy rights of the head tenant on 24th October, 1960, the he sad tenant could not have claimed any contractual rights in the premises. Had be preferred to continue possession of the premises he could have done so only as a statutory tenant and his right to continue the possession of the suit premises would have been purely personal to him in other words, after 24th October, 1960 he could not have assigned or transferred his statutory right to remain in possession of the suit premises. If this is so, could he have legally entered into any contract with the petitioner assignee which would enable him to assign his rights to continue in the possession of the premises for the period subsequent to 24th October, 1960? In other words, the question is, could the opponent head-tenant transfer or assign a right which he himself never possessed? It is obvious that after he received the eviction notice Ex. 35 his right as a contractual tenant came to an end on 24th October, 1960. Thereafter his right to continue in possession was purely personal to him. Therefore, he could have validly assigned his contractual rights only for the period upto 24th October, 1960 and the petitioner assignee could have claimed all the tenancy rights under the Rent Act only limited to that period. But, since after 24th October, 1960 the head tenant had lost his contractual rights and his right to continue in possession was purely personal to him, he could not have legally created any right in favour of the petitioner assignee to continue in possession of the suit premises even as a statutory tenant. This proposition is based on the principle that the head tenant could not have unilaterally extended his own rights by resorting to the devise of an assignment in favour of the petitioner.
14. The question relating to the Isgil relationship bjtwjen the lessor, his lessee and the assignee of tb.2 leisss, his bssa disctmed by a Division Bench of Bombay High Court in Treasurer of Charitable Endowments v. S.F.B. Tyabji 30 B.L.R. 240. There, the court considered a tenancy which was a monthly tenancy. The tenant had assigned his leass-hold rights to a third person. Considering the question relating to the mutual rights of the lessor, lessee and the assignee of the lessee the court has observed as under:
What was assigned fa the assigns by the lessee was the interest io a monthly tenancy. A monthly tenancy is a tenancy which is liable to be determined by a notice of one month given by the lessor to the lessee. Therefore, the term that was assigned to the lessee was a term which was liable to be determined and put an end to in that manner, li is important to note that a monthly tenancy is determined by a notice given by a lessor to the lessee aad, therefore, by reason of the assignment this contractual term in the tenancy agreement was not and could not be affected. The right remained in the lessor to put an end to his tenancy by giving a proper and valid notice.
Then proceeding further the Court has observed further:
On the expiry of the period the lease comes to an end and the interest of the assignee also comes to an end. In the case of a monthly tenancy there is no term fixed. But it is liable to be determined by a month's notice given by the lessor to the lessee, and that is the interest which the assignee takes, and, as soon as that notice is given and the notice empires, the tenancy comes to an end, and with that the interest of the assignee also ceases.
These observations show that the interest of the opponent head tenant in the suit premises ceased in this case on 24-10-60 if notice Ex. 35 is taken into account aid on 24-1-61, if the last notice of eviction found at Ex. 41 is taken into account. In either case, the tenant was not legally capable of conferring any right upon the petitioner assignee which could have remained in force after the date of the expiry of the tenancy contemplated by both the above referred notices.
15. The contention of Shri Shah that the petitioner-assignee became a tenant under the definition of the term given in Section 5(11) of the Rent Act and, therefore, acquired protection of Section 12(1) of the Rent Act would be good only for the period upto which the tenancy of the head tenant was subsisting. Beyond that period, the protection claimed by Shri Shah in favour of the petitioner assignee would not be available to him for the simple reason that the person who assigned his right to him had no 'interest' in the tenancy after the period of tenancy expired. In my opinion, therefore, the assignment made by the opponent head tenant by virtue of document Ex. 35 was good first upto 24-10-60 and thereafter upto 24-1-61 but not beyond that. If that is so, the petitioner cannot claim any of the rights conferred on a tenant by the Rent Act after the expiry of the date of 24-1-61. In that view of the matter the decree for eviction passed by the lower appellate court must be confirmed.
16. One notable feature of this case is that the Rent note found at Ex. 34 contains a stipulation prohibiting the tenant from transferring or assigning his tenancy rights to others. In view of this express stipulation between the parties the question which would arise to be considered is whether in such cases the proviso which is attached to Sub-section (1) of Section 15 would be of any help to the assignee. This point is not raised by the opponents Nos. 1 to 6 at any stage and the same is also not argued before me in this revision application. I, therefore, do not touch that point.
16.1. On behalf of the opponents Nos. 1 to 6 it was contended that the transaction of assignment made in favour of the petitioner is colourable and, therefore even on that ground the decree passed by the lower Court Should be Confirmed. I find that this contention is not available to these opponents in view of the fact it was already decided when the appeal first came up before the lower appellate court and the only question which was kept open by this Court in Special C.A. No. 14 of 1965 was to determine whether the tenancy was a tenancy at will and if so, whether the petitioner assignee was entitled to claim protection under the provisions of the Rent Act.
17. This Revision Application accordingly fails. The decree for eviction passed by the lower appellate court is confirmed subject to the modification that the petitioner as well as the opponent No. 7 shall hand over vacant possession of the suit premises to the opponent Nos. 1 to 6 on or before 28th February, 1974, on condition that the petitioner gives as undertaking to this Court that in the meanwhile be shall not transfer the possession of the suit premises to anybody. Rule is accordingly discharged with costs.