P.N. Mitra, J.
1. The suit out of which this appeal arises was commenced by the respondent, the National Petroleum Co. Ltd. against the appellant Ram Protap Kayan for ejectment of the latter from a corrugated sheet shed and godown forming part of premises No. P-2 Paharpur Siding Road of the Port Commissioners of Calcutta in King George's Dock. There was also a claim for damages for wrongful occupation which was provisionally laid at Rs. 9400, The respondent's case was that its predecessor-in interest the National Petroleum Company (hereinafter referred to as the company) entered into business relationship with the appellant, the terms whereof were set out in an instrument of agreement executed by both the parties on 31st March 1981, that one of the terms of the said agreement was that the company would provide for the appellant a suitable shed and godown at a monthly rent of Rs. 60 in which the appellant would fit up his tin manufacturing machines and of which he would remain in occupation for a period of five years and would return vacant possession at the end of it, that in pursuance of the agreement the company let out the shed and godown in suit to the appellant from 1st April 1934, that the period of five years expired on the expiry of the 1st April 1939 and that as the appellant then refused to vacate the premises, he was in wrongful occupation as a trespasser since then.
2. In his written statement the appellant admitted the letting to him from 1st April 1934. The defence taken by him that is now material was that the agreement, which was unregistered, did not and could not create a lease for a term of five years, and that as the letting to him was for manufacturing purposes, he had in law a tenancy from year to year terminable by six months' notice to quit ending with the year of the tenancy. As no such notice had been served, he continued to be a tenant and could not be regarded as a trespasser.
3. While the suit was pending in the Court below the premises were requisitioned and taken over by the Government in October 1942. The prayer for ejectment, therefore, became unnecessary, but the prayer for damages remained and called for determination of the principal question which emerged for consideration in the case, viz., whether the appellant was bound to vacate the premises at the end of the term of five years under the agreement of 31st March 1934 or whether he was, in the circumstances of the case, a tenant from year to year whose tenancy was only determinable by six months' notice to quit ending with, the year of the tenancy.
4. The agreement of 31st March 1984 which has been marked as Ex. 2 in the case, was stated to be entered into between the National Petroleum Company and Messrs Gajanand Ram Protap and Company (under which name and style the appellant was carrying on business) for a period of five years. There are fifteen paragraphs in this agreement, but those that deal with the letting to the appellant are paras. 1 and 3 and are in these terms :
'1. The Second Party agrees to pay in full and (return) the documents of all Tin Manufacturing machines purchased by the First Party from Messrs E. W. Bliss and Company, America, as per their Invoice No. 193 dated 15th January 1934, and pay the Custom duty, and Port Charges etc. Having met all payments concerning these machines, the second party will become the absolute owner of the said machinery.
The Second Party will fit up the machinery at their cost in a suitable shed to be provided by the First Party on a monthly rental of Rs. 50 (Rupees fifty only) inclusive of all outgoings and taxes; such shed is to be erected and built before the arrival of the machinery by the First Patty on the lands leased out to the First Party by the Port Commissioners at King George's Dock.'
'3. The shed and godown rented out on a monthly basis for a term of five years, will be duly maintained by the Second Party and returned back on the expiry of the period in the same condition as handed over to the Second Party by the First Party. Any changes that the Second Party may choose to make in the said shed and godown will be subject to the written consent of the first party, Port Commissioners Factory Inspector and Municipal Corporation but such consent shall not be unreasonably withheld.'
5. The second paragraph provided for the purchase by the appellant of a soldering machine which had been ordered by the company from a London firm, and the remaining paragraphs embody the terms of the contract between the parties relating to the manufacture of petrol containers by the appellant and their supply by him to the company. The provisions of some of these paragraphs may briefly be referred to. Thus, para. 5 provided that all empty tins required by the company in its entires business during the continuance of the agreement would be supplied by the appellant from his factory in the shed provided by the company, and, if the demand exceeded the capacity of the factory, from his factory in the town or otherwise as convenient to him. The sixth paragraph dealt with the contingency of dislocation of work in the factory and also provided for the supply of tin plates of suitable size and quality (obviously by the company) from each of which a specified number of tins were to be manufactured by the appellant. Paragraph 8 gave liberty to the appellant to do outside work if the company was not able to place orders to the full extent of the capacity of the factory. By para. 9 the appellant undertook not to do any work for the competitors of the company and not to sell the branded goods to the agents of the company without its express sanction. By para. 10 the appellant undertook to use a soldering composition of 50% lead and 50% Block Tin and to take particular care that the tins manufactured by it might not be leaky and so reflect on the reputation of the company. By para. 14 the manufacturing cost allowance to the appellant was agreed to be ./1/1 (one anna one pie) per four gallon tin delivered to the company at its installation at King George's dock. It is unnecessary to go further into the provisions of the agreement.
6. The learned Subordinate Judge held that as no particular premises was mentioned in the document and it was simply stipulated that premises suitable for the purpose of manufacture of tin canisters close to the company's own business concern would be provided, 'the agreement could not be considered to be a lease properly so-called.' 'Nevertheless', he said, 'it was an agreement by which the parties were bound. In pursuance of this agreement the premises described in Schedule A (of the plaint) were made over to the defendant.' He went on to say that
'if the plaintiff had served six months' notice calling upon the defendant to vacate within the period of five years fixed by Ex. 2 (the Agreement) the plaintiff could not have ejected the defendant as the defendant would have taken shelter under Section 53A, T. P. Act, and also under the terms of Ex. 2. In view of the Agreement the plaintiff could not have ejected the defendant within the period of five years fixed by Ex. 2. In view of the existence of the document the defendant could occupy the premises for a period of five years only. The defendant solemnly undertook to vacate the premises after the expiry of a period of five years. The effect of this agreement has not been nullified by the absence of a formal document creating a lease in favour of the defendant. In my opinion the defendant was bound to vacate the premises in terms of the agreement in Ex. 2.'
The learned Judge, therefore, held that the respondent was entitled to recover damages and he gave the respondent a decree for Rs. 8393-5-4 at the rate of Rs. 200 per month from 2nd April 1939 to the end of September 1942.
7. Before us the appellant has repeated the contention that his tenancy must be deemed to have been a tenancy from year to year, and as it was never terminated by the requisite notice, he continued to be a tenant up to the time the Government took possession of the premises and he was not therefore liable for any damages. He has further contended that even if his possession be held to have been wrongful after 1st April 1939, the measure of the damages should be the rent which was payable by him and not the sum of Rs. 200 per month which has been awarded by the learned Judge. Alternatively, he has contended that the damages should not exceed Rs. 120 per month on the basis of certain data which will be noticed later on in this judgment.
8. The argument of the appellant with regard to the nature of the tenancy was put in this way. The agreement, Ex. 2 being unregistered, no lease for a term of five years was created, as under Section 107, T. P. Act, a lease for a term exceeding one year can be created only by a registered instrument. But there was a letting to the appellant followed up by payment and acceptance of rent, and the letting was for a manufacturing purpose. Therefore, under Section 106 of that Act the lease must be deemed to be a lease from year to year terminable by six months notice to quit ending with the year of the tenancy, there being no contract to the contrary. The only modification that was made by the operation of Section 53A of the Act in the legal relationship of the parties was that during the continuance of the term of five years the respondent could not eject the appellant from the demised premises by service of six months' notice to quit. But this was really an additional protection afforded to the appellant, which did not fundamentally alter the character of the tenancy as a tenancy from year to year. With the withdrawal of the protection on the expiry of the term of five years the tenancy again became terminable by service of six months' notice to quit.
9. We are unable to assent to this view of the operation of Section 53A, upon the rights of the parties in the present case. That section which was characterised by Lord Mac Millan in Mian Pir Bux v. Mahomed Tahar as a partial importation into India of the English equitable doctrine of part performance, is in these terms:
'Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that the contract, though required to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and person claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract :
Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.'
10. In form the section imposes a bar on the transferor when the conditions mentioned in the section have been fulfilled--it debars him from enforcing against the transferee any right in respect of the property other than a right expressly provided by the terms of the contract. He is not allowed to take advantage of the fact that the contract, though required to be registered, hag not been registered, or where there is an instrument of transfer, that the transfer has not been completed in manner prescribed by law. And in order to obviate any difficulty about proof of the contract or of the instrument of transfer for want of registration, supplementary legislation was enacted amending Section 49, Registration Act.
11. So far as the transferee is concerned, the section confers a right on him to the extent that it imposes a bar on the transferor. But this is only a right to protect his possession against any challenge to it by the latter contrary to the tenor of the contract or the instrument of transfer; Probodh Kumar Das V. Dantmara Tea Co., Ltd. 0043/1939 . As Lord Atkin observed in S.N. Banerjee v. Cuchwar Lime and Stone Co., Ltd. :
'...the words of the section make it quite plain that the section does not operate to create a form of transfer of property which is exempt from registration. It creates no real right; it merely creates rights of estoppel between the proposed transferee and transferor, which have no operation against third persons not claiming under those persons.'
12. Has the transferor any right under the section? It was contended on behalf of the appellant that the question must be answered in the negative in view of the observations made by their Lordships in Probodh Kumar Das's case: 0043/1939 . In that case the facts, shortly stated, were that an agreement to sell the Kaiyachera Tea Estate was executed in favour of the plaintiffs' predecessors on 10th October 1981, who thereupon paid a part of the price and went into possession. The defendant the Dantmara Tea Co. Ltd., however, subsequently had a regular conveyance executed and registered in their favour by the owners and thus acquired the legal title to the property. In those circumstances the plaintiffs brought the suit to have it declared that the Dantmara Tea Co. Ltd. had no right or title to the estate, including the right to sell tea under the export quota allotted to it under the Indian Tea Control Act or to transfer the quota rights to any person. They also sought an injunction. The contention of the plaintiffs was that notwithstanding that they had not chosen to sue for specific performance of the contract of 10th October 1931, and notwithstanding that they had taken no steps to complete their title, they were nevertheless entitled under Section 63A actively to assert the rights of a proprietor in virtue of the contract of 10th October 1931, and their possession. In repelling this contention Lord MacMillan observed:
'In their Lordships' opinion the amendment of the law effected by the enactment of Section 53A conferred no right of action on a transferee in possession under an unregistered contract of sale. Their Lordships agree with the view expressed by Mitter J. in the High Court that 'the right conferred by Section 53A' is a right available only to the defendant to protect his possession'......The section is so framed as to impose a statutory bar on the transferor; it confers no active title on the transferee. Indeed any other reading of it would make a serious in road on the whole scheme of the Transfer of Property Act.'
13. It has been contended that the passage quoted by their Lordships with approval from the judgment of Mitter J. lays down that the section has conferred a right only on the transferee. The contest in which the passage occurs in the judgment of Mitter J. (Dantmara Tea Co., Ltd. v. Probodh Kumar Das, 41 C. W. N 51 at p. 63) and the observations in their Lordships' judgment which precede and follow the quotation make it clear enough however that what the passage lays down and what their Lordships take it to lay down is that the only right conferred on the transferee is the right to protect his possession and not that the section confers a right only on the transferee. Their Lordships were concerned with repelling the assertion of an active title by the transferee. The question of the transferor's right was not a matter which engaged their Lordships' attention at all.
14. When the section says that the transferor shall be debarred from enforcing any right against the property other than a right expressly provided by the terms of the contract, by plain implication it sanctions the enforcement of a right which has been so provided. And there is obvious justice in this, for if the transferor is to be held to his bargain with the transferee in respect of the property, it is only just that he should be given liberty to enforce his contractual rights against the latter in respect of it. It may be said that this is not the conferment of a right but the saving of an existing right. But whether it is the one or the other, it secures the result of enabling the transferor to enforce his contractual rights against the transferee in respect of the property.
15. The question that next arises is this: Is this right of the transferor dependent upon fulfilment of all the conditions mentioned in the section The terms of the section, in our opinion, clearly indicate that they cannot be conditions precedent to the enforcement of the transferor's right; they are only conditions precedent to the imposition of the bar against the transferor and consequently conditions precedent to the accrual of the transferee's right to protect his possession. No doubt, if the transferor wants to enforce against the transferee any right in respect of the property which has been expressly provided by the contract, he must previously have put the transferee in possession in part performance of the contract. And ex hypothesi there is a written contract containing reasonably clear terms as to the transfer, because what the transferor seeks to enforce is a right provided by such a contract. But we cannot agree with the view expressed by Broom-field J. in Bechardas Damodar v. Borough Municipality of Ahmedabad, I. L. R. (1941) Bom. 629 : A. I. R. (28) 1941 Bom. 346, that the transferor can 'derive no rights from the section which are inconsistent with the conditions subject to which the section comes into operation', the condition insisted on by the learned Judge in the case before him being that the transferee should have performed or be willing to perform his part of the contract. In this view, the transferor's right would become quite illusory and in fact would cease to be rights at all because they could always be defeated by the transferee by the simple device of refusing to perform his part of the contract.
16. In Suleman Haji Ahmed Umar v. P.N. Patell, 35 Bom. L. R. 722 : (A. I. R. (20) 1933 Bom. 381), Wadia J. attempted to reconcile the needs of justice with what he thought to be the requirement of the section by holding that it would be sufficient if the transferee had partially performed his part of the contract. Wadia J. might have put his decision upon the surer ground that the transferor's right was not dependent upon any such condition at all.
17. We are not concerned with the question of correctness of the actual decision of Broom-field J. in Bechardas's case, (A. I. R. (28) 1941 Bom. 346 : I. L. R. (1941) Bom. 529) but to the learned Judge's observation that a suit for damages for breach of a contract can never be founded upon this section, it may be rejoined, without disrespect, that a suit for damages simpliciter for breach of contract does not require to be rested upon the section at all.
18. In the present case the right of the respondent to have the premises returned to it by the appellant on the expiry of the period of five years has been expressly provided by para. 3 of the contract. The appellant was given possession and took possession of the premises in part performance of the contract, and he remained in possession for the full period of the agreement. It would be meaningless to say that the right of the respondent to have the premises returned to it on the expiry of the period is dependent upon the willingness of the appellant to restore it. We agree with the learned Subordinate Judge that the appellant was bound to vacate the premises on the expiry of the period of five years and his possession became wrongful thereafter.
19. A point was raised that the agreement Ex. 2 was not admissible in evidence for want of registration. As the agreement did not specify any particular shed and godown but merely said that a suitable shed would be provided by the company on the lands leased out to it by the Port Commissioners at King George's Dock. We are of opinion that the instrument did not operate as a present demise. No doubt, under the Indian Registration Act a 'lease' includes an agreement to lease, but as was observed by Lord Buckmaster in Rani Hemanta Kumari Debi v. Midnapore Zemindary Co. Ltd., 46 I. A. 240: (A. I. R. (6) 1919 P. C. 79), 'an 'agreement to lease', which a lease is by the statute declared to include, must, in their Lordships' opinion be a document which effects an actual demise and operates as a lease. The think that Jenkis C. J. in the case of Panchanan Basu v. Chandi Charan Misra, 37 Cal. 808 : (6 I. C. 443), correctly stated the interpretation, of Section 17 in this respect. The present agreement is an agreement that, upon the happening of a contingent event at a date which was indeterminate and, having regard to the slow progress of Indian litigation, might be far distant, a lease would be granted. Until the happening, of that event it was impossible to determine whether there would be any lease or not. Such an agreement does not, in their Lordships' opinion, satisfy the meaning of the phrase 'agreement to lease' which, in the context, where it occurs and in the statute in which it is found; must in their opinion relate to some document that creates a present and immediate interest in the land.' In the case before their Lordships the question arose with regard to a solenama by which the plaintiff in the suit in which the solenama was filed agreed that if she succeeded in another suit which she had brought to recover certain land other than the land in the compromised suit, she would grant to the defendants a lease of that land upon specified terms.
20. The agreement Ex. 2, therefore, in our opinion, did not require registration. Even if it can be interpreted as creating a present and immediate interest in the premises and therefore has to be regarded as requiring registration under the Registration Act and under the Transfer of Property Act, we think its admissibility in evidence is saved by the proviso to Section 49, Registration Act, which was added by Act XXI  of 1929. That proviso runs as follows :
'Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882, to be registered may be received as evidence of a contract in a suit for specific performance under Chap. II, Specific Belief Act 1877, or as evidence of part performance of a contract for the purposes of Section 53A, Transfer of Property Act, 1882, or as evidence of any collateral transaction not required to be effected by registered Instrument.'
21. The expression 'as evidence of part performance of a contract for the purposes of Section 63A' is not a very happy one. Sir Dinshaw Mulla in his commentary on the Transfer of Property Act has observed that it 'is an elliptical expression which means that the deed is available not only as a contract but as evidence that the acts done are part performance of the contract.' Does the proviso permit the document being used as evidence of the contract for the purposes of Section 53A apart from any question of any acts having been done in part performance of it Or, does it mean that the document can be used as evidence of the contract only when there have been acts done in part performance of it, the proof of the contract being merely an ingredient in the proof that the acts done were part performance of the contract? It is unnecessary for us to decide this question in the present case, because we consider that the respondent seeks to use the agreement not only as evidence of the contract for the purposes of Section 53A but also as proof that acts were done by him in part performance of it for the same purposes. The respondent wants to use the document as evidence that the right which it seeks to enforce is a right which is expressly provided by the contract and is therefore a right which is saved or sanctioned by Section 53A. The respondent also wants to adduce the document in evidence for showing that it let the appellant into possession and let him remain in possession for the full period of the agreement in part performance of the contract. Exhibit 2, therefore, is admissible in evidence.
22. Two arguments may here be noticed which were advanced by the respondent with a view to repel the appellant's contention that he was a tenant from year to year. In the first place it was argued that Section 105, T. P. Act, must be read as subject to Section 107 of the Act which provides in absolute and unqualified terms that a lease from year to year can be created only by a registered instrument, and as when the former section enacts that in the absence of a contract to the contrary a lease for manufacturing purposes shall be deemed to be a lease from year to year terminable by six months' notice to quit ending with the year of the tenancy, it must be interpreted as referring to a lease for manufacturing purposes which has been created by a registered instrument but which is silent as to its own duration. Section 106 could not have intended, it was argued, to make that a lease from year to year which could not become such a lease by the terms of Section 107; it is not permissible to engraft an exception upon the absolute and unqualified enactment in Section 107 that a lease from year to year can be created only by a registered instrument. The appellant, it was contended, cannot therefore be regarded as a tenant from year to year.
23. In the view we have taken of the case it is not necessary for us to decide this question. But if it had been, we would not have felt inclined to accede to this contention. Section 107, in our view, deals with the creation of a tenancy from year to year by act of parties. Section 106 provides for the case where the lease is for manufacturing purposes but the contract between the parties is silent as to its duration. In such a case the law supplies the omission and enacts that the lease shall be deemed to be a lease from year to year. The attachment of this incident to the lease by operation of law is a very different thing from the creation of a lease from year to year by act of parties. The two sections deal with entirely different matters and there is no conflict or contradiction between the two which requires that they should be harmonised in the manner suggested by the respondent.
24. The other argument of the respondent was that the agreement Ex. 2 was not providing for the creation of a lease at all, but was merely granting a licence to the appellant to occupy the premises for the purpose of manufacturing tin canisters required for the respondent's business in petroleum products. The agreement, it was argued, was really a contract for the supply of petrol containers by the appellant to the company and embodied the terms on which the containers were to be supplied, and the appellant's occupation of the premises was really required for the performance of the contract and he was therefore, not a tenant. In support of this contention reliance was placed on the decision of R.C. Mitter J. sitting with Lodge J. in Corporation of Calcutta v. Province of Bengal : AIR1941Cal60 , which was affirmed by the Privy Council in Corporation of Calcutta v. Province of Bengal 0043/1943 . In that case the question was whether the premises No. 4 Theatre Road, which had been acquired for use as the official residence of the Commissioner of the Presidency Division and for which the Commissioner had to pay a certain percentage of his salary as rent, was occupied by the Commissioner as a tenant or as a servant of the Crown, the premises being assessable under Clause (a) of Section 127, Calcutta Municipal Act, in the former case and under Clause (b) of the section in the latter case. His Lordship laid down the principle that if the servant's occupation of the house be ancillary to the performance of his duties, the occupation is qua servant, but if it is unconnected with the employment, it is qua tenant, and his Lord, ship set out certain tests by which the question was to be determined.
25. It may be pointed out that this case that the appellant is a licensee has been made before us for the first time. The respondents' definite case in para. 5 of the plaint was that the appellant was in occupation of the premises as its tenant, and the latter Ex. A (9) dated 13th April 1939, which was written by the respondent to the appellant after the expiry of the term also made the same case. Apart from this circumstance, we do not think that the principles which govern the determination of the question whether the occupation of the premises by a person who is a servant is occupation by a tenant or simply as a servant and which have their origin in the special relationship between the parties can be extended to a case like the pre-sent where the occupier is an independent contractor who has entered into a business contract with the owner as much in his own interest as in that of the latter. Indeed, the fact that his occupation of the premises would facilitate or make for easier performance of the contract might well be a reason for the appellant to want to have a lease of the premises rather than a licence.
26. The tests for determining whether a particular instrument has effected a demise or operates merely as a licence, were authoritatively formulated in Glenwood Lumber Co. V. Phillips, (1904) A. C. 405: (73 L. J. P. C. 62) and Wells v. The Mayor etc. of Kingston-upon. Hull Corporation (1876) L. R. 10 C. P. 402: (44 L. J. C. P. 257). In the former case Lord Davey, delivering the judgment of the Privy Council, observed:
'If the effect of the instrument is to give the holder an exclusive right of occupation of the land, though subject to certain reservations or to a restriction of the purposes for which it may be used, it is in law a demise of the land itself.'
In the latter case Lord Coleridge C. J. held that if the contract was merely for the use of the property in a certain way on certain terms while it remained in the possession and under the control of the owner, it was a licence. These principles were adopted and applied in our Court in Secretary of State v. Karuna Kanta, 35 Cal. 82: (6 C. L. J. 342 F. B.), Secretary of State v. Bhupal Chandra : AIR1930Cal739 and O.C. Ganguly v. Kamalpat Singh : AIR1947Cal236 . In the case before us the provisions of para. 3 of the agreement to the effect that the appellant was to maintain the shed and godown duly and was to return them on the expiry of the term in the same condition in which they were handed over to him and that he could even make alterations in them subject to the consent of the company point unmistakably to the fact that exclusive possession was to be given and there is no indication anywhere else in the document that the grantor was retaining any possession in or control over the premises. It may be mentioned that the shed and godown covered an area of 11470 sq., feet or over 16 cottages, and costly machineries were to be installed therein by the appellant at his own cost and a regular factory was to be started there by him for the manufacture of petrol containers. These objects could not be accomplished without exclusive possession of the premises being taken by the appellant. As was held by Blackburn J., in Roads v. Overseers of Trumpington, (1871) 6 Q. B. 56 : (40 L. J. M. C. 35), exclusive possession would be taken to have been given if the nature of the acts to be done by the grantee was such as required a right of exclusive occupation. We are, therefore, unable to accept the contention that Ex. 2 was providing for a licence and not a lease. (His Lordship then discussed the question of quantum of damages and after discussing the evidence, concluded that the sum of Rs. 8393-5-4 awarded by the Subordinate Judge as damages to the respondent, was not unfair or excessive in the circumstances of the case.)
27. The result, therefore, is that the appeal fails and must be dismissed with costs.
R.C. Mitter, J.