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Ram Prosad Pandey, and on His Death His Heirs and Legal Representative, Boidya Nath Pandey and ors. Vs. Debi Prosad Deb - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in49Ind.Cas.974
AppellantRam Prosad Pandey, and on His Death His Heirs and Legal Representative, Boidya Nath Pandey and ors.
RespondentDebi Prosad Deb
Cases ReferredGohinda Chandra Saha v. Dwarka Nath Patita
Excerpt:
transfer of property act (iv of 1882), sections 106, 116 - lease--holding over--agreement, implied, as to term, of holding over, where rent is not payable monthly. - .....the learned pleader for the appellant argues that the defendant having held the land from year to year, the case is governed by section 106 of the transfer of property act and that as the rent was payable every six months, it was to be presumed that the notice to be given was a six months' notice although the lease was not for agricultural or manufacturing purposes. in fact the lease was one for the purpose of a stationery shop. he further argues that it being a case of holding over, section 106 must be read into section 116 and that as he was entitled under section 106 to six months' notice, he would also be entitled, under that section read into section 116, to six months' notice in the case of a holding over. apparently, the lease was not one from year to year but one for a.....
Judgment:

Beachcroft, J.

1. This is an appeal by the defendant in a suit for ejectment. It has been decreed by both the Courts below. The defendant got a lease in 1S90 from one Uma Charan Deb, who had got a settlement from Government. The lease was for the term of Uma Charan's own settlement. That settlement expired on the 31st Maroh 1905. Originally the rent, which was Its. 50 a year, was made payable six monthly according to the Bengali Calendar, bat that was subsequently changed and the rent was made payable On the 30th June and 31st December of every year. Uma Charan subsequently transferred his interest to the plaintiff There have been infructuous attempts on the part of the plaintiff before this litigation to eject the defendant. The present litigation began with the service of a notice of 15 days. As the defendant did not vacate the land this suit was brought to eject him. It is necessary to state here that after the termination of his lease in 1905, the defendant did not get another lease but since then has been holding over and continuing to pay rent six monthly as before. The question in this appeal is whether the notice was a valid notice. It depends on the amount of notice to which the defendant is entitled.

2. The learned Pleader for the appellant argues that the defendant having held the land from year to year, the case is governed by Section 106 of the Transfer of Property Act and that as the rent was payable every six months, it was to be presumed that the notice to be given was a six months' notice although the lease was not for agricultural or manufacturing purposes. In fact the lease was one for the purpose of a stationery shop. He further argues that it being a case of holding over, Section 106 must be read into Section 116 and that as he was entitled under Section 106 to six months' notice, he would also be entitled, under that section read into Section 116, to six months' notice in the case of a holding over. Apparently, the lease was not one from year to year but one for a term. But the learned Pleader argues that that doss not really affect his position, because assuming that to be the case, Section 106 has no application and in that case he would be entitled to a reasonable notice, which would not be less than six months and that under Section 116 in this case, apart from Section 103, he would be entitled to the same notice as he would be entitled to under Section 105. Now there is only one case of this Court which is directly in point as regards the question raised, and that is the case of Trailukho Nath Roy v. Sarat Chandra Banerjee 8 C.W.N. 901 : 32 C. 123 at pp 125 126, and that is conclusive unless the facts of that case can be distinguished from the facts of this case. There there was a lease for 3 years. The lessee held over after the termination of the lease. It was held that the words in Section 116, 'in the absence of an agreement to the contrary'', must be taken to mean: 'An agreement as to the terms of the holding over', and as the lease in that case was not for agricultural or manufacturing purposes, it must be deemed to be a lease from month to month terminable by 15 days' notice. The only difference between that case and this case is, to my mind, that, in that case rent was payable yearly, whereas in the present case rent was payable six monthly,' but that is not a difference of any importance. But the learned Pleader for the appellant attempts to distinguish that case on the ground that the rent for the first two years was paid in a lump sum and rent for, the third year was eventually not paid and, therefore, if the lessee held over there was no evidence on which an implied argument could be inferred as to the terms of the holding over. It seems to me that the fact that the rent for the first 2 years was paid in a lump sum and that for the third year no rent was eventually paid, does not really alter the fact that it was a lease for a term and that the rent was payable not monthly but annually. Bat the learned Pleader lays stress on the fact that whereas in the present case there is evidence of six-monthly payment of rent subsequently to the expiry of the first lease, in that case there was co evidence of payment after the expiry of the first lease. I have already stated that the lease was not for agricultural or manufacturing purposes from which an implied agreement could he inferred as to the terms of the holding over. Can such be inferred from the payment of rent? It was pointed out in the case of Gohinda Chandra Saha v. Dwarka Nath Patita 26 Ind. Cas. 962 : 20 C.L.J. 455 : 19 C.W.N. 489. that even if the mode in which the rent is expressed to be reserved, for example, at so much a year, affords a presumption that the tenancy is of a character corresponding to it, the rule is not of universal application and the presumption of a yearly taking does not. always arise from the rent being payable yearly. That also was a case of a shop. Therefore on the authority of that case, it does not follow, from the fact that the rent was not payable monthly, that there was an implied agreement for the holding over that the lease would be anything but a lease from month to month. It. seems to me that Section 116 of, the Transfer of Property Act is self contained. What one has to see in a case where there has been holding over is whether there has been an agreement as regards the terms of the holding over. Where there has 'been no such agreement, then, no matter what were the terms which governed the original lease, under the statutory provisions the lease is, in the absence of such agreement, to be regarded as renewed from year to year or from month to month according to the purposes for which the property is leased, and reading that section with Section 106, it is clear that in the case where the lease is for agricultural or manufacturing purposes, it is to be regarded as renewed from year to year and in the case of a lease for other purposes, it is to be regarded as renewed from month to month.

3. The terms of the sections seem to me perfectly clear and the result is that the appeal must be dismissed with costs.


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