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Pandit Gangaram Raghunandan Bhaiya Vs. Patel Motibhai Ramdas - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtGujarat High Court
Decided On
Judge
Reported in(1981)22GLR254
AppellantPandit Gangaram Raghunandan Bhaiya
RespondentPatel Motibhai Ramdas
Cases ReferredBrohmananda Das v. Nagendra Chandra
Excerpt:
.....tenant for manufacturing purposes as well as for residential purposes and such an inference can be legitimately, and reason ably drawn. 30. for the reasons mentioned above, i am convinced beyond any doubt, that in the instant case, as the lease was for manufacturing purposes, the suit notice dated april 16, 1971 is bad in law, and that being so, both the subordinate courts obviously committed a patent error in law in decreeing the plaintiff's suit for possession. 26 is bad in law, the plaintiff's suit for possession must necessarily fail;.....filed by the respondent-plaintiff by decreeing that along with the possession of the suit premises, the respondent-plaintiff should recover the amount of r.375 instead of r.250/- decreed by the trial court. the decree of the trial court was modified to the said extent by the lower appellate court. it may be stated at this stage that the learned civil judge, (j.d.)- first court, nadiad did accept the plaintiff's suit, and directed the plaintiff to recover vacant and peaceful possession of the suit-house, adala and chowk. suffice it to say that as there was an eviction decree against the defendant, and hence, the defendant has filed the present second appeal in this court.2. it may be stated at the very out set, that in the instant case, bombay rents, hotel and lodging house.....
Judgment:

A.N. Surti, J.

1. The present appeal is directed by the original defendant--the tenant, who was aggrieved by the impugned judgment and degree passed by the learned Extra Assistant Judge of Kaira at Nadiad, in Civil Appeal No. 143 of 1974, whereby the lower appellate Court dismissed the appeal filed by the original defendant and allowed the cross-objections filed by the respondent-plaintiff by decreeing that along with the possession of the suit premises, the respondent-plaintiff should recover the amount of R.375 instead of R.250/- decreed by the trial Court. The decree of the trial Court was modified to the said extent by the lower appellate Court. It may be stated at this stage that the learned Civil Judge, (J.D.)- First Court, Nadiad did accept the plaintiff's suit, and directed the plaintiff to recover vacant and peaceful possession of the suit-house, Adala and chowk. Suffice it to say that as there was an eviction decree against the defendant, and hence, the defendant has filed the present second appeal in this Court.

2. It may be stated at the very out set, that in the instant case, Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 did not apply to the facts of the present case.

3. The respondent owner is the owner of the property bearing C.P. No. 709-A situated at village Vadthal, and had filed Regular Civil Suit No. 173 of 1971 in the trial Court for recovering the possessions of the premises and the arrears of rent against the appellant-defendant. It was the plaintiff's case that he bad become the owner of the entire suit pro party on December 24, 1970 as he had purchased the entire property for Rs. 25.000/- It was also the case of the plaintiff that the defendant was the tenant in respect of one room and the Adala and the Chowk and that the originally the tenancy was for one year on payment of Rs. 125/- for one year, and that thereafter, he had become the monthly tenant, and since the property was purchased by the plaintiff, the appellant-defendant had become the tenant of the plaintiff. The notice of attornment was also served upon the defendant by the plaintiff, and it was alleged that the defendant was in arrears of rent from Maba Sud 5 of S.Y. 2024 and that the defendant did not pay the amount of arrears of rent. Under the circumstances, the plaintiff did serve fifteen days' notice to the defendant terminating the tenancy and called upon him to deliver the possession of the suit premises. The tenancy of the defendant was terminated by a notice dated April 16, 1971 and the monthly rent was Rs. 10-42ps. along with all taxes.

4. The suit was resisted by the defendant by his written statement, Ex. 10. For the disposal of the present appeal suffice it to say, that in substance his defence was, that as the suit premises were taken on lease by him for manufacturing purposes by plaintiff's predecessor-in-title, 15 days' notice which was given by the plaintiff to the defendant was illegal (vide Ex. 26 dated April 16, 1971). In substance, for the disposal of the present appeal, suffice it to say that it was the contention of the appellant-defendant, that in the facts and circumstances of the case, the plaintiff should have given to the defendant six months' notice for terminating his tenancy as the defendant was an yearly tenant, and that the tenant had taken the suit premises on lease for manufacturing purposes. For each of the said two reasons, it was contended that the plaintiff was bound in law to give to the defendant six months' notice terminating the tenancy of the defendant. In this behalf, it was an admitted case that the suit premises were leased out by the predecessor-in-title of the plaintiff to the defendant for the primary object of seeing that the defendant runs a furnace in the suit premises, and wit the aid of that furnace, through heating process, the defendant could convert milk into 'MAVA'. On these facts, it was contended on behalf of the defendant, that the primary object of creating the lease was that the defendant should manufacture 'MAW from the milk, and that being so, six months' notice to quit should have been given by the plaintiff to the defendant for terminating his tenancy. It was also urged that it was the positive case of the plaintiff that originally the suit premises were leased out to the defendant for a period of one year (vide evidence of Motibhai Ramdas Patel-Ex. 21). It was also contended on behalf of the defendant, that having regard to the facts and circumstances of the case, the defendant was entitled to the statutory protection conferred on the lessee by virtue of Section 114 of the Transfer of Property Act, 1882.

5. On the pleadings of the parties the learned trial Judge raised the various issues at Ex. 12, and the same are set out in para 3 of the trial Court's judgment.

6. The learned trial Judge, in substance, took the view that though the suit notice was given for 15 days terminating the tenancy of the defendant, the suit notice was legal and valid. He also took the view that the defendant failed to prove that he is a permanent yearly tenant as alleged in his written statement. He also took the view that the defendant was in arrears of rent, and ultimately passed an eviction decree in favour of the plaintiff and also directed the defendant to pay to the plaintiff a sum of Rs. 250/- as arrears of rent from the date of purchase to the date of the suit and also mense profits at Rs. 10/- per month till the possession is handed over by the defendant to the plaintiff.

7. Under the aforesaid circumstances, the defendant-tenant was aggrieved by the judgment and decree passed by the learned trial Judge, and he preferred Civil Appeal No. 143 of 1974 in the Court of the learned Extra Assistant Judge, Nadiad, who also took the view that the suit notice was legal and proper. Before the lower appellate Court a grievance was made that the plaintiff was entitled to get Rs. 375/- instead of Rs. 250/ and to this extent the cross-objections were also allowed by the lower appellate Court.

8. It is under these circumstances, that the present second appeal is filed in this Court by the defendant-tenant.

9. At the time of the hearing of this second appeal, Mr. Abichandani, the learned advocate for the defendant raised before me the following three contentions.

(1) That as the defendant was a yearly tenant, it was the duty of the plaintiff to give to the defendant six months' notice for the pur pose of terminating his tenancy.

(2) That as the primary purpose of granting lease in respect of the subpremises was the aforesaid manufacturing purpose, it was obligatory on the part of the plaintiff to give to the defendant six months' notice to quit and not 15 days' notice to quit.

(3) That Section 114 of the Transfer of Property Act, 1882 confers statutory protection on a lessee who holds over the suit premises, and that relief should be granted to the tenant against the forfeiture (vide Section 107 r.w. Section 114 of the Transfer of Property Act).

10. These were the only submissions made by Mr. Abichandani in course of the hearing of the appeal.

11. In the case before me, 1 am convinced that the suit premises were leased out by the predecessor-in-title of the plaintiff to the defendant. The suit premises were leased out to the defendant for the primary purpose of manufacturing or preparing 'MAVA' from milk. Now in this behalf, I may refer to the evidence which is given by Motibhai Ramdas Patel-the plaintiff-Ex. 21.

12. The evidence of Motibhai is as follows: The defendant is the tenant of house from the time of Ranjanaben's grand-father in the house since 10 years. He first took ob rent from the grand-father of Ranjanaben at the rent of Rs. 125/- per year. He kept it for one year. Then he was an yearly tenant. The very witness also states that it is true that he resides and prepares 'MAVA' from the milk since the beginning. The furnace is there before he purchased the house.

13. Suffice it to say that from the evidence given by the plaintiff, it is clear to my mind that the suit premises were leased out to the defendant for the purpose of manufacturing MAVA from milk in the furnace which was very much installed right from the inception of tenancy. Under the aforesaid circumstances, it was strongly urged before me, that the dominant purpose of creating she lease in favour of the defendant was, that the defendant could use the demised premises for manufacturing purposes. In this view of the matter, my pointed attention was invited to Sections 106, 107 and 114 of the Transfer of Property Act, 1882.

14. Section 106 of the Transfer of Property Act, 1882 provides as follows:

In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months' notice expiring with the end of a year of the tenancy; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable on the part of either lessor or lessee, by fifteen days' notice expiring with the end of a month of the tenancy.

Every notice under this section must be in writing, signed by or on behalf of the person giving it, and (either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party), or to one of his family or servants, at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property.

15. Section 107 of the aforesaid Act reads as under:

A lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument.

All other leases of immoveable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession.

Where a lease of immovable property is made by a registered instrument, such instrument or, where there are more instruments than one, each such instrument shall be executed by both the lessor and the lessee:

Provided that the State Government may, from time to time, by notification in the Official Gazette, direct that leases of immovable property, other than leases from year to year, or for any term exceeding one year, or reserving a yearly rent, or any class of such leases, may be made by unregistered instrument or by oral agreement without delivery of possession.

16.Section 114 of the Transfer of Property Act, 1882 is in the follow ing terms:

114. Where a lease of immovable property has determined by forfeiture for nonpayment of rent, and the lessor sues to eject the lessee, if, at the hearing of the suit, the lessee pays or tenders to the lessor the rent in arrear, together with interest thereon and his full costs of the suit, or gives such security as the Court thinks sufficient for making such payment within fifteen days, the Court may, in lieu of ; making a decree for ejectment, pass an order relieving the lessee against the forfeiture; and thereupon the lessee shall hold the property leased as if the forfeiture had not occurred.

17. Shortly stated Mr. Abichandani's submission before me was, that in the instant case, the notice dated April 16, 1971 (vide Ex. 26) terminating the tenancy is a notice giving to the defendant only 15 days' time for the purpose of terminating the tenancy. He urged that such a notice is patently bad in law, particularly when the dominant purpose of creating the lease in favour of the defendant was that the defendant should pre pare 'MAVA' from milk. He also urged before me, that in the instant case, the tenant at the time when the appeal is being heard is aged about 66 years, and that he is without a wife or any child. He also urged that the tenant is all alone in life. The rent of the demised premises is hardly Rs. 120/- per year in a small village where the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, are not made applicable. Under the circumstances, he urged that when the plaintiff ad mitted in clear terms in his deposition, that the defendant was keeping a furnace for the purpose of preparing 'MAYA' from milk, the only irresistible inference should be that the lease was created for manufacturing purposes. From this view point, Mr. Abichandani attacked the legality of the suit notice, Ex. 26, and urged, that the suit for possession must necessarily fail on account of this infirmity; but Mr. Abichandani further urged, that in the facts and circumstances of the case, this is a clear case where even the plaintiff admitted that originally the lease was for one year, and that thereafter for years together, the tenant did hold over the premises on the same terms and conditions. Under the circumstances, Mr. Abichandani's submission was that Section 107 of the Transfer of Property Act does not create any embargo or any impediment in the rights of the tenant when he says that he is an yearly tenant. Thus from this view point also, Mr. Abichandani attacked the legality of the suit notice, Ex. 26, and urged before me, that both the subordinate courts obviously committed an error in law in holding that the suit notice is legal and proper. Mr. Abichandani also urged, that in the facts and circumstances of the case, for years together and even during the pendency of the proceedings in the court, the tenant was always ready and willing to pay the agreed amount of yearly rent, and that being so, he is entitled to the protection conferred on the tenant, namely, he should be given relief against the forfeiture.

18. Mr. Abichandani invited my attention to a few decisions of the Supreme Court, and urged before me that preparation of 'MAVA' from milk amounts to manufacture within the meaning of Section 106 of the Transfer of Property Act. Before I refer to the decisions cited by Mr. Abicbandani, it would be just and proper to administer myself the necessary caution for the interpretation of the expression 'manufacturing purposes' appearing in Section 106 of the Transfer of Property Act. In this behalf, I may refer to the reported decision of the Supreme Court in P.C. Cheriyan v. Barfi Devi : 1979(4)ELT593(SC) . In paragraph 18, it is observed as follows:

Before parting with this judgment, we may sound a note of caution, that definitions of 'manufacture' given in other enactments, such as, in the Factories Act or the Excise Act should not be blindly applied while interpreting the expression 'manufacturing purposes'' in Section 106 of the Transfer of Property Act. In some enactments, for instance in the Excise Act, the term 'manufacture' has been given C an extended meaning by including in it 'repairs', also.

19. The Chford English Dictionary, explains the word 'manufacture' as follows:

The action or process of making by hand.... The action or process of making articles or material (in modern use, on a large scale) by the application of physical labour or mechanical power.... A product of hand-labour.... An article or material produced by the application of physical labourer mechanical power.... The article produced to supply the demand of the market.

20. The Law Lexicon explains the word 'manufacture' in the following way.

'Manufacture' implies a change but every change is not manufacture and yet every change of an article is the result of treatment, labour and manipulation. But something more is necessary and there must be transformation; a new and different article must emerge having a distinctive name, character or use.

Every alteration in an article does not confer on it a new character as a manufacture. To constitute a new and different article, it must be changed as to have a positive and specific use in its new state.

No doubt, the definition of the term 'manufacture' as given by the lexicographers does not necessarily afford a true test in law as to what should or should not, while dealing with a given statute, be construed as amounting to manufacture but that definition does provide a guide as to what meaning, in the absence of any indication to the contrary in the statute.

The expression 'manufacture' has, in ordinary acceptation a wide constitution: it means making of articles, or material commercially different from the basic components, by physical labour or mechanical process; and a manufacturer is a person by whom or under whose direction and control the articles or materials are made.

The essence of manufacture is the changing of one object into another for the purpose of making it marketable.

According to the Oxford Dictionary, the word 'manufacture' means 'to work up (material) into forms suitable for use' or 'make or fabricate from material; to produce by labour (now especially on a large scale)'.

The proper approach is to ascertain the meaning of the expression 'manufacture' in the context or the subject a materies of the Act.

21. Black's Law Dictionary explains the word 'manufacture' by mentioning that one who by labour, art or skill transforms raw material into some kind of a finished product or article of trade. It means the process of making by hand or machinery, and in substance states that human industry is also essential for the manufacture of goods.

22. In Corpus Juris Secitndum volume 55, the word 'manufacture' is explained as 'signifying production, a process, or operation, has been variously defined as the production of articles for use from raw or prepared materials by giving these materials new forms, qualities, properties or combinations, whether by hand labour or by machinery; it reduces materials into a form fit for use, by the hand or by machinery; and that the manufacture should be on a large scale. Manufacture is also defined as the application to material of labour or skill whereby the original article or material is changed to a new, different and useful article, provided the process is of a kind popularly regarded as manufacture, and this, it has been said, is the legal definition of the word.

23. In its generic sense, 'manufacturing' has been defined as the producing of a new article of use or ornament by the application of skill and labour to the raw materials of which it is composed.

24. In light of the meaning of the term 'Manufacture' my attention was invited to the reported decision of the Supreme Court in Union of India v. Delhi Cloth and General Mills : 1973ECR56(SC) , and it was urged that 'MAVA' as is known to the consumers and to the commercial community is something different from 'milk'. Before 'MAVA' is prepared or manufactured, a certain type of heating process is to be given to milk which requires considerable hand-labour and a peculiar art of preparing or manufacturing 'MAVA'. Even the type or the quality of 'MAVA' will also differ having regard the time during which heat is administered and the degree of heat administered to milk. In substance, Mr. Abichandani's submission was that the entire commercial community and to the consumers of 'MAVA' the distinction is well known, and hence, I must inevitably come to the conclusion that if the demised premises were given on lease for the purpose of preparing 'MAVA' from milk the only irresistible inference is that the dominant purpose for the creation of lease was the manufacturing purpose and not the purpose other than manufacturing.

25. My attention was invited to the reported decision of the Supreme Court in Commissioner of Sales Tax v. Dr. Sukh Deo : [1969]1SCR710 in paras 5 and 1 of the said judgment, the material observations are as follows:

The expression 'manufacture' has in ordinary acceptation a wide connotation; it means making of articles, or material commercially different from the basic components, by physical labour or mechanical process; and a 'manufacturer' is a person by whom or under whose direction and control the articles or materials are made.

In the context of these observations, Mr. Abichandani's submission was that in the instant case 'MAVA' is commercially different from the basic components, and the said change is always effected by physical labour of the person who prepares 'MAVA' and when milk is subjecting to heating process for preparation of 'MAVA', the only inevitable inference is that the dominant purpose of leasing the premises was the manufacturing purpose. He urged that this is a peculiar case, where the defendant all alone in life without a wife or a child, and that in small premises he was earning his bread by preparing 'MAVA' which is commercially different from the very basic components of milk.

26. Mr. Abichandani also invited my attention to a reported decision of the Delhi High Court in H.S. Mehra v. Union of India : AIR1968Delhi142 wherein in paragraph 4 it is observed as follows:

The definition of the term 'manufacture' as given by the lexicographers does not necessarily afford a true test in law as to what should or should not while dealing with a given statute be construed as amounting to manufacture. But that definition does prove a guide as to what meaning, in the absence of any indication to the contrary in the statute it should carry.

27. But in Brohmananda Das v. Nagendra Chandra : AIR1954Cal224 in paragraph 6 it is observed as follows:

On the facts that whatever the meaning of the word 'manufacture' may be, the lease in question was at least as much for sale of sweets as for preparing the same in the disputed premises. That being so, it was not solely for manufacturing purposes but was as much for other purposes as well. It was, therefore, a lease for 'any other purpose' within the meaning of Section 106.

28. At this stage, it may be stated that in the present case, I am convinced beyond any doubt that the lease for the suit premises was created solely for manufacturing purposes. 'MAVA' was prepared from milk as stated above; but look at the attendant circumstances in the present case;

(1) the suit premises comprise of one small room and an Adala;

(2) that a furnace was kept right from the very inception of the tenancy;

(3) that the defendant was occupying the premises for long 25 years;

(4) that the defendant was all alone in life without a wife or child;

(5) that the suit premises are situated in a small village;

(6) that the defendant was dealing in 'MAVA' in the suit premises and he would sell 'MAVA' from place to place;

Under the circumstances, can it be said that the premises were leased out for any other purposes within the meaning of Section 106 of the Transfer of Property Act? In the facts and circumstances of the case, I am convinced beyond any doubt that the primary purpose of creating the lease somewhere 25 years back was, that the premises should be leased out to the defendant principally for the purpose of preparing MAVA.

29. But Mr. Patel, the learned advocate for the plaintiff urged before me, that in the instant case, it can also be inferred that the premises were leased out to the tenant for manufacturing purposes as well as for residential purposes and such an inference can be legitimately, and reason ably drawn. Assume for a moment such an inference can be drawn even then, in the facts and circumstances of the case, it is not possible for me to base my ultimate conclusion on the footing that the premises were leased out for any other purposes within the meaning of Section 106 of the Transfer of Property Act. Even if such a view is possible having regard to the threatening problem of residence in the State, I must necessarily accept that view which would protect the roof and residence of any citizen in the State. Such a view will be more consistent and just with the felc necessities of our people and the threatening problem of accommodation in the State. Under the circumstances, I am of the view in the present case, that Mr. Patei's submission has no merit which deserves any consideration.

30. For the reasons mentioned above, I am convinced beyond any doubt, that in the instant case, as the lease was for manufacturing purposes, the suit notice dated April 16, 1971 is bad in law, and that being so, both the subordinate courts obviously committed a patent error in law in decreeing the plaintiff's suit for possession.

31. Since on the aforesaid point, I have taken the view that the lease in question was for manufacturing purpose, and consequently, as the suit notice Ex. 26 is bad in law, the plaintiff's suit for possession must necessarily fail; and I do not think it absolutely necessary to consider the other two points raised by Mr. Abichanclani in course of the hearing of the present appeal.

32. As a result of the aforesaid discussion, I must necessarily set aside the impugned judgment and the eviction decree for possession passed by the Courts below in favour of the original plaintiff. I hereby dismiss the plaintiff's suit for possession of the suit premises. The rest of the impugned decree for recovery of arrears of rent is hereby confirmed. Appeal is partly allowed and the eviction decree passed against the defendant-tenant is set aside. But having regard to the facts and circumstances of the case, I make no order as to costs.


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