P.N. Mookerji J.
1. This appeal arises out of a suit for declaration of Title and recovery of possession. The suit has been decreed by both the Courts below. Hence this second appeal by the contesting defendant.
2. The suit was brought by the plaintiff-respondent on, inter alia, the following allegations, namely, that the suit lands were originally held by his predecessor Mahadev Singh on a tenancy under the admitted landlords Bejoy kumar Banerjee and others for a fixed term of five years from 1334 to 1338 B. S. The tenancy expired, but Mahadev continued to hold on with the landlords' assent, and upon his death, the tenancy devolved on his heirs Ajodhya and Kalika who -continued in possession till October 20, 1944, when it was sold to the plaintiff. Thereafter, the plaintiff brought a rent suit against defendant No. 1 Sreemati Fulkumari Devi who was in occupation of one of the rooms as a tenant under the plaintiff and his predecessors, but the said defendant No. 1 denied the plaintiff's title and set up title in defendant No. 2, the present appellant, and disclaimed all relationship of landlord and tenant between her (defendant No. 1) and the plaintiff, whereupon the rent suit was dismissed. On account of this dismissal,, the present suit had to be brought against the two defendants.
3. The suit was contested only by defendant No. 2 who claimed title to the suit lands as a tenant under the admitted landlords Bejoy Kumar Banerjee and others, his case being that, upon the expiry o Mahadev's lease from 1334 to 1338 B. S., he vacated the suit lands which were taken into khas possession by the landlord who settled the same with him (the contesting defendant No. 2) in or about 1340 B.S. The defendant also denied the story of holding over by Mahadev both on facts and as a matter of law, repudiating, inter alia, the Plaintiff's case of landlodds' assent to his (Mahadev's) alleged continuing in possession after the expiry of his original lease from 1334 to 1338 B. S., which fact of continuance of possessiaa was itself denied, as I have already stated above and the defence, accordingly, contended that Mahadev had no title at the material time, that is, at the time of his death, to transmit to his heirs Ajodhya and Kalika and the plaintiff got nothing by his kobala purchase of 1944, which kobala again was itself challenged as fraudulent, fictitious and collusive.
4. Both the Courts below have concurrently found that the original tenant Mahadev continued in possession after the expiry of his fixed term lease of five years from 1334 to 1338 B. S. till his death in or about 1941-42; that, thereafter, his heirs Ajodhya and Kalika remained in occupation till October 20, 1944 when they sold the suit lands with the structures thereon to the present plaintiff. They have also concurrently found that the story of the landlords' taking khas possession, or their settlement with defendant No. 2 has not been proved. They have further recorded a finding that Mahadev's continuing in possession after the expiry of his original lease from 1334 to 1338 B. S. was fully known to the landlords Bejoy Kumar Banerjee and others and he (Mahadev) actually continued in such possession for about ten years till his death in 1941-42. In these circumstances, the Courts below have held that the reasonable inference would be that Mahadev continued in occupation after the expiry of his lease with the assent of the landlords and thus became a tenant by holding over under Section 116 of the Transfer of Property Act and this interest was heritable and transferable and thus gave title to his heirs upon his death and to the plaintiff under his kobala of 1944.
5. In support of their above conclusions the Courts below have relied; upon the two decisions of this Court, reported in the cases of Safar Ali Master v. Abdul Majid : AIR1927Cal279 , and the Bengal National Bank Ltd. v. Raja Janoki Nath Roy : AIR1927Cal725 , respectively, and, eventually, they have decreed the plaintiff's suit. The propriety of this decision is challenged in this appeal and, in particular, I am invited to hold that the case in : AIR1927Cal279 , referred to above, was wrongly decided and ought not to be followed, particularly in the face of the later Federal Court decision in the case of Kai Khushroo Bezonjee Capadia v. Bai Jerbai Hirjibhoy Warden and that in any event, the point requires further elucidation and re-consideration.
6. Giving the matter my best consideration, I am unable to accept this appeal. The point of law, arising in this appeal, is undoubtedly one of some difficulty and if : AIR1927Cal279 , had purported to lay down any broad proposition of law to the effect that mere continuance of possession for a long time without more would, as a matter of law, be sufficient to prove the necessary assent of the landlord under Section 116 of the Transfer of property Act, it would probably have been un-supportable and I would have been inclined to put it aside in the face of numerous authorities to the contrary, not excluding the Federal Court decision, referred to above, but, in my view, all that the case in : AIR1927Cal279 , lays, down is that the assent of the landlord, as required by Section 116 of the Transfer of Property Act, may be express or implied and it may be furnished or inferred even without or in the absence of acceptance of rent, from other circumstances which would either directly establish such assent or lead to a reasonable inference of it. To this proposition there can be no legitimate exception. It will be quite within the terms of the section and supported by all the known authorities; in any event, it will not be opposed to any. Whether a particular case will show express or implied assent, or whether such an assent is directly established in a particular case, or may be reasonably inferred, will depend upon the facts and circumstances of that case and it is hardly possible to lay down any definite and absolute rule in that behalf and, in my opinion : AIR1927Cal279 did not really attempt or purport to do this 'impossible'. All that it held was that, in that particular case, the concurrent findings of the two Courts below, that, in the facts and circumstances of that case, the inference of the two Courts below as to the requisite assent on the part of the landlord was a reasonable one and should not be interfered with in second appeal. It is true that the length of the tenant's continuance in possession after the expiry of his lease was a material factor in that case for the ultimate conclusion of assent on the landlord's part, but I do not think that that was the only factor and, even if it was, that decision, right or wrong, stands and it need not affect the present case one way or the other, where, as I shall presently show, the tenant's possession coupled with the other circumstances, may reasonably be held to justify an interference of the requisite assent on the landlords' part,
7. Same remarks apply to the earlier case of this Court reported in Chaturbhuja Nanda v. Gopal Dolai, 18 Ind Cas 448 (Cal) (D).
8. I am, therefore, not oppressed by either of the two decisions reported in 18 Ind Cas 448 (Cal) (D) and : AIR1927Cal279 , and I need not rely upon them as any precedent or authority for my present purpose and, even on the, accepted principles which I have set out above, the decision of the two Courts below in favour of the plaintiff can and ought to be maintained in the circumstances of this case and, even if 18 Ind Cas 448 (Cal) (D), and : AIR1927Cal279 laid down or purported to lay down any extreme proposition of law, which, I do not think they did, as I have already stated, which may appear to present some conflict with the other cases, or with the superior authority of the Federal Court decision in the case of , it is unnecessary for me to pursue the matter further and come to any definite conclusion in the present case as to the correctness or otherwise or the binding force of the above two decisions, 18 Ind Cas 448 (Cal) (D) and : AIR1927Cal279 . In the above view of the matter, I shall proceed at onqe to consider the legal position in the present case and, for that purpose I shall record a brief statement of my view of the relevant part of Section 116 of the Transfer of Property Act and advert to the salient features of this instant case.
9. 'Section 116 of the Transfer of Property Act runs thus:
'If a lessee or under-lessee of property remains in possession thereof after the determination of the lease granted to the lessee, and the lessor or his legal representative accepts rent from the lessee or under lessee, or otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month, according to the purpose for which the property is leased, as specified in Section 106.''
10. From the express terms of the section, it is obvious that mere continuance of possession after the expiry of determination of his lease would not entitled the tenant to claim a tenancy by holding over. Mere continuance of possession without more would not be sufficient for the purpose. There must also be the landlord's assent to such possession by acceptance of rent or otherwise. Acceptance of rent, unless explained on any other hypothesis, would be evidence of such assent, but it is not the only relevant evidence on the point and such evidence may be furnished otherwise also, that is, by other circumstances. What has to be proved is assent of the landlord. In the absence of an agreement to the contrary, the tenant's continuance of possession after the termination of the lease, coupled with the landlord's assent, would constitute a tenancy by holding over and the lease would be renewed from year to year or from month to month according to the purpose of the tenancy under Section 106 of the Transfer of Property Act. The landlord's assent again may be express or implied and, even when there is no direct evidence, it may be inferred from circumstances. The length of the tenant's possession may have this importance that when it is pretty long, slight evidence circumstantial or otherwise, may be sufficient to tilt the balance in favour of the landlord's assent. Mere absence of dissent would not be enough to constitute assent, but, if it continues for a sufficiently long period, it may, with the aid of other circumstances, and in the absence of any contrary indication, reasonably give rise to an inference of assent. The cumulative effect would be to give rise to an inference of assent as a presumption of fact which is certainly rebuttable, but which will prevail unless rebutted. The length of the period rnay only reduce the requirement of other circumstances to a minimum, so that when it is sufficiently long, only a slight aid will be necessary from the other circumstances and, to that extent, it may facilitate the drawing of the presumption.
11. On the determination of his lease, the tenant, continuing in possession without more, possibly becomes, what is technically known in English Law, a 'Tenant on sufferance' or, as he is also called sometimes, a 'tenant at sufferance', or a 'tenant by sufferance', who is in not by right but by the laches of the owner or landlord, and whose possession is therefore not of right but of wrong, although it may not be that of a trespasser whose possession originates in wrong and continues in wrong and is thus wrongful both in its inception and in its continuance, the quondam tenant's possession having had, on the other hand, a lawful origin though continuing in wrong after the termination of the lease and thus being 'rightful in its origin or inception, though wrongful in its continuance''; but the landlord's assent would convert this wrongful possession into a rightful one and, as I have already said, when this possession is suffered long without protest, very slight evidence may be sufficient to raise the necessary inference of assent on the landlord's part. (See in this connection 'Wood fall on Landlord & Tenant' 25th Ed (1954) 312 Sec also Kantheppa v. Sheshappa ILR 22 Bom 893 at p. 898 (E).
12. I do not think that the above exposition or statement of the legal position is opposed to any of the decided cases either under Section 116 of the Transfer of Property Act (Vide e. g. the case of Ratan Lal Gir v. Farshi Bibi, ILR 34 Cal 396 same case in 11 Cal WN 826 (F) and the case of Paramananda Singh v. Syjou Singh 24 Cal LJ 30: (AIR 1917 Cal 219) (G) or under the closely related Article 139 of the Indian Limitation Act, to which also consideration of this part of the law or holding over is usually very germane (Vide for example, the cases of ILR 22 Bom 893 (E) Chandri v. Daji Bhau, ILR 24 Bom 504 (H) and Madan Mohan Gossain v. Kumar Rameswar Mali 7 Cal LJ 615 (I). It is not also inconsistent with any observation of the Federal Court in Capadia's case as it clearly recognises that, if the landlord neither assents, which rules out both express and implied assent, that is, even circumstances from which assent may be presumed or inferred, nor dissents, the requisites of holding over are not satisfied. On the other hand it is supported by the terms of Section 116 of the Transfer of Property Act and the principle of the decision in : AIR1927Cal279 as explained above by me, and the similar principle underlying the earlier case of this court, reported in 18 Ind Cas 448: (S. A. No. 3359 of 1910 (Cal) (D), decided by Chitty and Teunon, JJ. cited in : AIR1927Cal279 . I would, therefore, examine the present case in the light of my exposition of the law as made above.
13. There is, admittedly, no agreement to the contrary, as mentioned in Section 116 of the Transfer of Property Act. It has been sufficiently established also (i) that the original tenant Mahadeb continued in possession till his death in 1941-42, that is, for about 10 years after the determination of his fixed term lease in 1931-32, and, thereafter, his heirs and then' their assignee, the present plaintiff, till about 1945. and that they continued to pay Municipal taxes and raised new structures to the full knowledge of the landlords; (ii) that the landlords never protested against their occupation or the entry or recording of Mahadev's name in the Municipal Register as occupier until possibly shortly before the present suit, although, for years in the meantime, they had full knowledge of the above entry in a context, which, as I shall presently explain in the course of this judgment, was highly significant from the tenant's point of view, and the present appellant's story of Mahadev's leaving the suit property on the expiry of his fixed term lease and his furher story of the landlords' taking over of, khas possession thereafter and payment of Municipal taxes by the landlords since about' 1932, and settlement with him (appellant Defendant No. 2) in 1340 B.S.or at any time whatsoever, have been found to be false by both the courts below. It also appears that the landlords who are undoubtedly supporting the defendant appellant have withheld their collection papers (including the real counter-foil books) which might have thrown some light on the state of things after the determination of Mahadev's original lease in 1931-32, and this they have done in spite of sufficient 'opportunity, particularly after the remand from this Court on the earlier occasion. It has also to be noticed that these counter-foils were called for from the landlords by one of the parties in the present suit. In these circumstances, I am not prepared to disturb the concurrent finding of the two courts below that the landlord's requisite assent to Mahadev's continuing in possession for the purpose of Section 116 of the Transfer of Property Act may be reasonably inferred in this case. The importance of the landlord's papers cannot be overlooked or minimised in this particular case, when it is remembered that the Original tenant is dead and his heirs are away and not easily available and the plaintiff is a subsequent purchaser from those heirs more than 12 years after the expiry of the original lease, and the withholding of these papers is a very material circumstance in this case and may justify the drawing of an adverse inference or presumption against the defendant appellant on the question of the requisite assent of the landlords, particul-larly in the face of the fact that the landlords (one of whom has deposed in favour of the defendant appellant) have chosen to support the defence case and defeat the plaintiff's suit by producing papers which have been found unreliable by both the Courts below. I do not also think that, in the above circumstances, the absence of direct evidence of any payment and acceptance of rent or express assent is of much consequence or militates against the drawing of a reasonable inference of such assent as has been drawn or made in this case, and I am even inclined to hold, in the facts and circumstances of the present case, that there was payment and acceptance of rent after the expiry of Mahadev's original lease upto about the time of his (Mahadeb's) death and that the landlords' papers, the real papers if produced would have sufficiently demonstrated the same.
14. It is pertinent to point out here one other relevant particular which is rather of a telling character on the question of the landlord's assent. I have already referred to the fact that the landlords allowed Mahadeb's name to continue as the recorded occupier in the Municipal Register till long after the expiry of his lease. This by itself may not ordinarily have been very material as Mahadev was actually in occupation, but, when it is considered in the back ground of the landlords' application of 1344 B. S. that is, long after the expiry of Mahadev's original lease, for rectification of the Municipal Register, which, as the relevant Ext, 3-G shows, was for correction of the mistake in the owner's name in the Municipal Register and which as the landlords' evidence here shows, was not on the footing that Maria dey would properly be the recorded occupier only because of his occuption and for that, no sort of title was necessary,and, indeed, the D. V. landlord's evidence shows that they (the landlords) would have certainly taken steps for deleting his (Mahadeb's) name from the occupier's column, if this tenancy had terminated, without the slightest whisper about the termination of Mahadev's tenancy, 1 feel amply satisfied about the correctness of the concurrent finding of the two courts below on the question of the landlords' assent to Mahadev's holding over after the expiry of the term of his original lease. This significant circumstance was expressly relied upon by the learned .Munsif, though with some amount of exaggeration, and although it was not specifically adverted to by the learned Appellate Judge, I do not think that it was altogether out of his mind when he referred to the entry in the Municipal Register and to the landlords' application for rectification of the same as circumstances, justifying inference of the necessary assent and sufficient overt act on the landlords' part. The present, therefore, is not a case of 'neither assent nor dissent.' It is a case of assent which together with the tenant's continuance in possession constitutes a valid holding over in law under Section 116 of the Transfer of Property Act. In the above view of the matter, I am bound to hold that, after the expiry of his fixed term lease, Mahadev acquired a tenancy by'holding over under Section 116 of the Transfer of Property Act and that the courts below were right in so holding,
15. Once the above position is accepted, the Plaintiff's way is practically clear By virtue of his tenancy by holding over, Mahadev continued to be a tenant from month to month under Section 116, read with Section 106 of the Transfer of Property Act, and, accordingly, when he died in 1941-42, his heirs Ajodhya and Kalika acquired that tenancy by inheritance &, from them, the plaintiff respondent got it. by his kobala assignment of 1944. These devolutions or their validity has not been questioned before be but I may . just add a few words to affirm the correctness of the above position. In the Transfer of Property Act, the modes of determination of a tenancy are prescribed in Section 111. Death of the lessee is not one of them except in the case of a lease for life which determines, on the lessee's death, under the contract and necessarily also, under Clause (a) of the section. A tenancy from month to month under the Transfer of Property Act does not, therefore determine on the death of the tenant except under a special contract to the effect. Obviously then, it passes to his (the tenant's) heirs, or, in other words, it is heritable (vide in this connection Mulla's Transfer of Property Act, 3rd Ed. (1949), page 632 bottom). The case of Ashutosh Lahiri v. Chandi Charan Mitra : AIR1927Cal179 does not militate against this view. There the learned Judges were concerned not with the question of heritability of tenancies under the Transfer of Property Act but with the nature of category of the particular tenancy before them, namely, whether it was permanent or for life, or whether it was tenancy at will or one From year to year. A tenancy from month to month under the Transfer of Property Act is also clearly assignable (Vide Section 108(1)(J) of the Act). It is thus both heritable and transferable and the law seems to be pretty clear on this point.
16. The above position is practically beyond dispute but, if authority is needed, reference may be made to the case of the : AIR1927Cal725 and the case of Anwarli Bepari v. Jamini Lal Roy Choudhary's : AIR1940Cal89 Mahadev's tenancy, therefore devolved on his death, upon his heirs Ajodhya and Kalika, and, from them, the plaintiff ,got title, by the assignment (Kobala) in his favour. His (Plaintiff's) title, therefore, has been fully established.
17. One word is necessary with regard to the Privy Council case of Kamakhya Narayan Singh v. Ram Rakshna Singh 55 Ind App 212: (AIR 1928 PC 146) (L). There the original lease was one for life and, therefore strictly speaking, there was no question of holding over, and, indeed, there can possibly be no holding over under Section 116 of the Transfer of Property Act except by the lease or the under lessee (Vide 55 Ind App. 212, already cited at p. 225): AIR 1928 PC 146 at p. 151 (L). The heirs who were the claimants in that case would not properly come under that section They could only acquire a new and independent tenancy. This was apparently in the minds of their Lordships of the Privy Council (Vide pp. 224, 225 (of Ind App): (at p 151 of AIR); vide also in this connection : AIR1927Cal725 when they were dealing with question of holding over under' Section 116 of the Transfer of Property Act. But they also pointed out that section (Section 116) was subject to an agreement to the contrary'' and, in that case, there was such an agreement (vide p. 225 (of Ind App): (at p. 151 of AIR) and, further, that the facts and circumstances of the case also militated against the creation of a new tenancy. In the result, they held that no subsisting tenancy had been proved. There is nothing in that decision which in any way conflicts with the view of law which I have stated above.
18. In the above view of the matter, I dismissthis appeal, but, as the legal position was not quiteclear and as 18 Ind Cas 448 (D) and : AIR1927Cal279 appear to have needed someexplanation, I would direct the parties to bear theirown costs in this court on the present occasion.