Holding

A void lease does not terminate an existing statutory tenancy; the appellant remained a tenant entitled to protect its possession and the appeal was allowed.

Summary

Biswabani Pvt. Ltd. occupied Kalpana Theatre under a registered lease (1948‑53) and later under a consent decree that attempted to create a fresh five‑year lease starting March 1955. The fresh lease was not registered, rendering it void under the Transfer of Property Act. After the five‑year period expired in February 1960, the landlords locked part of the premises and the company sued for a declaration of its tenancy and an injunction. The trial court held the company was a month‑to‑month tenant; the District Court and High Court treated it as a trespasser. The Supreme Court held that the void lease did not extinguish the company's status as a statutory tenant under the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, and that it could protect its possession by a suit for declaration and injunction. The Court also overruled the objection that a defective certificate of fitness for appeal should dismiss the appeal. The appeal was allowed, setting aside the High Court judgment and restoring the trial court decree.

Issues considered

The status and nature of possession of a person who was a tenant under rent‑control law when a subsequent lease is void for lack of registration, both during and at the expiry of the void lease period.
Whether such a person is a tenant removable only by due legal process or merely a licensee who can be evicted by the landlord locking the premises.
Whether the person can defend his possession by filing a suit for declaration of tenancy and injunction.
Whether the appeal can be dismissed solely on the ground that the High Court's certificate of fitness for appeal is defective.

Legislation cited

Constitution of Indias. Article 133
Income Tax Act, 1922s. 66A
Registration Act, 1908s. 17(1)(d)
Transfer of Property Act, 1882s. 107, s. 116, s. 53A
West Bengal Premises Rent Control (Temporary Provisions) Act, 1950
West Bengal Premises Tenancy Act, 1956

Subjects

tenancyvoid leaseregistration requirementstatutory tenantrent controlsection 53Apart performanceinjunctiondeclaration suitcertificate of fitnessArticle 133

Judgment

650

A BISWABANI (/.'.) LTD.
v.
SANTOSH KUMAR DUTIA AND ORS.
September 14, 1979
B [R. S. SARKARIA AND D. A. DESAI, JJ.]
landlord and Tenant-Rent Control Proceedings for fixation of standard
rtnJ-Consent decree-Company to he tenant for five years, indenture o/
leaM to he drawn and registered-Such lease not registered, landlord accept·
ing standard rent fixed by Rent Controller-Expiry of lease period of '(i.ve
rear~Landlord entering portion of demised premises, locking it up-Suit by
c Compaey for declaration of status as tenant and for iniunctio,;...-Company
Jvherher entiJled to protect possession-Lease being void for want of rtgis.
tralio~Whether has effect on company's status as tenant-Tran.sfer · of
Property Act, s. 53A and West Bengal Premises Tenancy Act. 1956.
\;_
Constitution of India, 1950, Art. 133-Certificate merely stating case fit
D for appeal-Certificate defective-Dismissal of such appeal-Tra11esty of
junice l'.'here a substantial question of lizw of general public· _importance
rai.Jed. '

The third respondent took on lease the demised premises from respon-
dents 1 and 2 under a registered lease deed dated September 11, 1948, the
lease being for five years at monthly rent of Rs. 20001- v.·ith an option. for
E renewal to· be exercised by a notice two months before the expiry of tho
IC25e. Respondent 3 was the managing director of the appellnnt company.
During the period of the aforesaid lease, the appellant company was accepted
as tenant of the demised premises and the Company paid the rent reserved
under the lease being Rs. 2000/- per mensem. The period reserved under
the leac:e ·expired on August 31, 1953. But before the expiry of the
period an application was made by the appellant for fixation of standard
F · rent .of the demised premises under· the West Bengal Premises Rent Control
(Temporary Provisions) Act, 1950. In October 1953, respondent 1 and Z
as lessors commenced an ejeCtment action against the appellant and the
third respondent on the ground that the lease had expired and the le88Ce
had failed to exercise the option for ·renewal. During the pendency of the
a.forementibned actions,. the par.ties· compromised and the consent decree
inter alia provided thnt the company would_ be the tenant on a monthly
G rent of Rs. 1000/- from !st 11-!arch, 1955 for a period of 5 years and that,
after the period of five years there shall be no renewal of the lease~ t.ito •
lcuoe shall be treated as trespasser.. An indenture of lease was also to
be dmwn up and executed by both the parties in terms of the COD!Cnt
decree. On the expiry of the aforesaid term of five years- on 29th February~
1960, respondents 1 and 2, lessors having enteroo and Jocked . . a portion
of the demised premises, the company filed a suit on 11-!arch 14, 1960 agai.,t
H ~ents 1 and 2, lessors and the proforma respondent 3 for a declara-
. tion -that the company was the tenant of the premises ind for an injunction
re~tra.ining respondents 1 and 2 from interfering v.ith its tenancy rights.
BISWABANI (P) LTD. V. S. K. DUTTA & ORS. 651

The MJ.it was contC6ted on the contention that as the consent decree A
proTidecl for a lresJ:i lease. of 5 years, it can only be brought about by a
registered instrument and as tho consent decree or the document incori}orat· ,
in,; the term9 of the companies was not registered, the Company continued.
in pos!C8Sion UBder a void tense and therefore, on the expiry of the period .
of 5 years the Company wa! a trespasser. and respondents 1 and 2 were
entitled to tale over possession from such a trespasser.
B
The trial court held that as the ·consent decree provided for a le~e
for a period of 5 years in the absence of registration the lease for a' period
of 5 years did not come inte existence, but if tho tenant entered into
~ession under an invalid lease and the landlord accepted rent, a tenancy
from month to month came. into existence between the lessors and the
le.asee and that such a lessee cannot be evicted except nfter terminating the
tenancy by a valid notice to quit and in the absence of such determination c
the lessee would be a lessee , from mo:cth to month and can protect / its
possession and decreed the appellant-plaintiff's suit.

In appeal by Respondents 1 tmd 2, tho District Judge held that the
lea.'le being void, yet the lessors would not be entitled to disturb the posses--
sion of the ienant for a period of S ye an in view of~ the provisions contained
in s. !3A of the Transfer of Property Act, but after the expiry of tho period D
of S yean the appellant became a rank trespasser and respondents 1 and
tl were entitled to take possession of the property, E.nd accordingly allowed
tho appeal and dismissed the company•s suit. The appellant company's second
appeal to the High Court was dismissed.

In the further appeal to this Court on tho questions as . to :
E
(a) The status and nature of possession of a person who was admitted-
ly a tenant of premises covered by the local rent restriction Act till the
date of commencement of a fresh lease which turns out to be void· for want
of registration, during and at the expiry of the period purporting to be
re:.erved by sue~ a void lease;

(b) Would such a person be a tenant ..who could only be remov~ by F
proper legal proceedings or a licensee without any interest in the premises
a..i coold be forcibly evicted by the landlord of the premises entering tho
premises and lockll;tg the same;

(c) Could such a person defend its possession by a suit seeking declara-
. tion and mandatory injunction; and
(d) whether the appeal oos liable to be dismissed on the solo ground G
that the certificate which the High· Court granted was defective.

HELD : 1. The High Court was in error in holding that if on the- expiry
of the agreed period of lease there was a covenant for not getting any
renewal of the lease the tenant would be a trespasser, wholly over-looting
the legal position that on the expiry of the contractual tenancy the tenant
continues as a statutory tenant except where he surrenders possession or is B
eTicted under the enabling provisiOns of the relevant" P..ent Restriction Act.
[666 BJ
652 SUPREME COURT REPORTS [1980] 1 s.c.R.

A 2. The appellant w.S a tenant and continued to be a tenant and was
entitled to protect its possession by appropriate proceeding unless evicted in
due cour.e of law. (666 Cj

3. The appellant as tenant would be entitled to protect its pooseosion
unless evicted in due course of law and in order to protect its possession it
can legitimately sue, there being no bar in law, for a declaration of its
B status as tenant and for an injunction either prohibitory or mandatory.
[665 PJ

4. The indenture of first lease granted an option to the lessee wb.ich
would be nono other than the appellant company, to claim renewal of
'ease. This option was not exercised. Notwithstanding the non-exercise of
the option on the date of expiry of the lease the contractual tenancy having
c come to an end, the tenant would be a tenant holding over if· require-
ments of s. 116 of the Transfer of Property Act are satisfied. Howev«, on
the date of expiry of contractual tenancy, the West Bengal Premises Rent
Control (Tem.PQrary Provisions) Act, 1950, was in force and was applicable
to the premises and, therefore, on the determination of ·contractual tenancy
by efflux of time right of re-entry would be subject to the over-riding provi-
sion of the Rent Act and the rights of such a person remaining in p06Se8-
D sion are governed by the statute alone. He is loosely described as statutory
te11ant which is another name for status of irremovability. [658 C-D]

Anand Nivas P. Ltd. v. Anandji Kalyanji Pedhi and Ors., (1964] 4 S.C.R.
892; referred to.
5. There is no bar in law to a statutory ten2nt entering into a fresh
E contract of tenancy with the landlord. In the instant case this was attempt-
e,d by the consent decree but the letase was void for want of requisition.
However from this undisputed position an inference of tenancy can be reason·
ably made. [658 GJ
6. If the lease is void for want of registration neither party to the
indenture can take advantage of any· of the terms of the lease. At best the
provisiOn contained in s. 53A of the Transfer of Property Act which incor-
F porated the English equitable doctrine of part performance can, if the terms
thereof are satisfied, be relied upon to protect possession for the _period
reserved under such Ot void lease. But no other terms of such an indenture
inadmissible for want of registration can be the basis for a relief. [659 BJ
7. Section 53A of the Transfer of Property Act is not at all attracted
in the facts of this case. The suit was filed by the appellant who sought
G to protect its possession. The equitable doctrine of part perfonmnce can
be .used as a shield and -not as a sword. It can be used . to defend and
protect one's possession. (659 GJ

Probodh Kumar Das &: Ors. v. Dantmara Tea Co. Ltd. and Ors., 66 I.A.
.J
2'3; referred to.

H In the instant case the appelloot had come to the court for a declaration
of its tenancy rights seeking to protect its possession not under the doctrine
of jlfttt performance as incorporated in s. 53A, but with •peeific allegation
BISWABANI (P) LTD. v. S. K. DUTTA & ORS. 653

tltat tho appellant is a tenant •nd it be so declared, and for an injunction A
restraining respondents 1 and 2 from interferin·g or disturbing the appellants
possession of ·the premises as a tenant. [660 B-C]

8. If the appellant was already i~ possession as a tenant of the pre-
mises, an unsuccessful attempt to create a fresh lease would not change
the nature.of his pos~on as from ·al tenant to one in part performance
under a void lease. The appel1ant continues to be in possession as tenant B
and no cloud is created over its title to remain in possession as tenant
merely because the appellant and respondents 1 and 2 attempted to enter
into a fresh lease which did not become effective. [661 B-C] ·

&1n Kumar Das v. Jagdish Chandra Deb Dhabal Deb & Anr.,
[1952] S.C.R. 269 at 280; referred to.
c
Technicians Studio P. Ltd. v. Liia Ghosh & Anr., [1978] 1 SCR 516;
explained and distinguished.

9. An incomplete and ineffective attempt at creating a fresh lease would
lmve no impact on a tenant who was in possession as tenant at the com-
mencement of such a void lease and he would continue to be the tenant
because s. 53A would not be attracted as be is not put in possession in D
part performance of an agreement of lease not registered and it would be
unwise to hold that the payment of the standard rent fixed by the Rent Con-
troller having jurisdiction as payment under such an agreement of lease.
[664 F-GJ

~
10. A person rema1n1ng in occupation of premi<;es let to him after the
\ determination of or expiry of the period of the tenancy is commonly, E
though in law not acctirately, called a statutory tenant. He acquires ~e
status of irremovability. Statutory tenant being a person who en)oys the
status of ilrremovability, would enjoy the protection of the statute until he
is evicted from the premises under the enabling provisions of the statute. A
statutory tenancy would, therefore, come to an end on either the surrender
of premises by such ' a tenant or if a decree of eviction is passCd against
him. [664 H- 665 BJ F

Hirala/ Vallablzram v. Kastorblzai Lalbhai & Ors. [1967] 3 SCR 343
referred to.

11. A still born attempt not clothed with legal formality cannot destroy
the existing status. The second lease never came into existence for want of
registration and more particufurly the appellant was not put in possession G
under the purported second lease which tunIS out to be void. The para-
doxical approach manifested is that if a valid lease had come into existence
on the expiry ·of it the appellant tenant would have continued in possession
under the protection of the relevtlnt Rent Restriction Act. However, if
,.1.._ such an attempt at qi-eating a fresh lease was ineffective or infructuous, how
' '
can such an incohate exercise destroy the existing rights. The High Court
was therefore in error when it held the existing rights to have been des- B
troyed ignoring the very existence of the West Bengal Premises Tenancy Act,
1956. [665 G-666 BJ
654 SUPREME COURT REPORTS [1980] 1 S.C.ll.

A 12. A. certificate that it is a fit e&e for appeal to the Supremo Cowt
which the High Court grants must be supported b¥ adequate reasolli. It is -'\•
obligatory upon the· IIigh Court to set out the questions of public or privato
importance which in its opinion falls to be dotenuined in the propoecd
appeal. A certificate will be defective if it does not set out the 5\ibstantial
question of law which in the view of the High Court falls to be determined
by the Supreme Court. Au appeal is liable to be dismissed if the certificate
B is defective. [666 G-4i67 BJ I
Sohanlal Naraindas v. Laxmidas Raghunath Gadit, [1971] 1 SCC 275,
Railway Board, Govt. of India v. Mis. Observer Publication (P) Ltd., [1972]
3 SCR 865; Nund & Samont Co. P. Ltd. v. Commissioner of Income Tax,
Bihar and Orissa, [1970] 78 I.T.R. 268 India Machinery Stores P. Ltd. v.
Commissioner of Income Tax, Bihar and Oris3G, [1970] 78 I.T.R. 56; re-
C fened to.
In the instant case, the certificate granted by tlie High Court leaves
much to be desired. It merely slll<es that it is a fit case for appeal to
the Supreme Court, without specifying whether the certificate wu under
Article 133 (a), (b) or (c) as it stood at the relevant time. As a very subl!-
tantial question of law of g0neral public importance is raised, it would be
D a travesty of justice if the appeal is dismissed on the sole ground that the
certificate is defective. It would biwe been open to grant special leave on
the question raised. The preliminary objection that the certificate granted
by the High Court being invalid, the appeal must fail on that account alone
over-ruled. [666 E-F, 667 CJ ·
CIVIL APPELLATE JURISDICTION; Civil Appeal No. 2450 of 1969.
E From the judgment and decree dated 14-8-63 of the Calcutta
High Court in Appeal from Appellate Decree No. 632/63.
L. N. Sinha, A. N. Sinha and Rathin Das for the Appellant.
A.K. Sen, D. N. Mukherjee and N. R. Chaudhary for Respon-
dents l, 2-7 and 9.
F
D. Mookerjee and P. K. Mukherjee for Respondent No. 3. ·
The Judgment of the Court was delivered by
DESAI, J. Kalpana Theatre with its furnishings and fi;o;tures situ-
ated at 61, Chintamoni Dey Road, Howrah, ·belonging to respondents
G 1 and 2 is the subject matter of dispute between its landlords ud
tenant awaiting resolution for the last two decades. Under a Ib-
gistered lease deed dated 11th September 1948 respondent 3 K!M:lti
Bhusan Bose, took this Theatre on lease for a period of 5 years with
effect from 1st September 1948. Respondent 3 is the Managing
Director of the appellant Biswabani Pvt. Ltd. ('company' for short).
H It appears that during the period of lease responslents 1 and 2, the
owners of the Theatre, accepted the appellant company as their tenant
and in token of it accepted rent from .the company at the rate of
BISWABANI (P.) LTD. v. S/ K. DUTTA & ORS. (Desai, J.) 655

Rs. 2,000/r p.m. On the expiry of the period of 5 years clisputes
arose between the lessors and_the lessee whereupon respondents 1 and
2 lessors commenced an action in ejectment against the company on
5th. October 1953 in the Court of the First Subordinate Judge,
Howrah. In August 1953 appellant company as lessee filed an
application before the Rent Controller under the West Bengal Pre-
mises Rent Control (Temporary Provisions) Act, 1950, for fixation
of standard rent of the demised premises. Ultimately the parties
arrived at a compromise and the consent terms were filed in T.S.
No. 68 of 1953 instituted by the lessors respondents 1 and 2 for evic-
tion of the company and the Court was invited to pass a decree in
terms thereof. The consent deccee, inter alia provided that the com- 0
pany would be the tenant of Kalpana Theatre ona monthly rent of
Rs. 1,000/- from 1st March 1955 for a period of 5 years and that
tke third respondent Kanti Bhusan Bose Jiad to offer security by
deposit of G.P. Notes of the face value of Rs. 20,000/- with the
leillOrs. The lease was to be for a period of 5 years commencing
from 1st March 1955. An indenture of lease was to be drawn up
and executed by both the parties in terms of the consent decree. The
company was given permission to sublet the premises with prior
approval of the lessors. Thoce is a furious controversy about one of
the terms of the consent decree which reads as under :
"After the period of five years there shall be no
renewal of the lease, the lessee shall be treated as tres-
pas~e.r".

On the expiry of the term of five years on 29th February 1960
it awears that respondents 1 and 2 lessors locked up a portion of
the demised premises whereupon .the company filed a suit on 14th F·
:March 1960 against respondents 1 and 2 lessors and the proforma
reip()ndent 3 for a declaration that the company was the tenant of
tile premises, and foc a pemianent injunction restraining respondents
1 and 2 from interfering with its tenancy rights. There was also a
prayer for a mandatory injunction directing ,respondents 1 and 2
to remove the locks put by them on some portion of the demiBed G
• premises and for reliefs incidental and ancillary thereto.

The suit was, inter alia, contested on a contention that as the
roOBent decree provided for a fresh lease of five years such a lease
can only be valid if it is registered and as the consent decree or the docu-
ment incorporating the lern:I$ of compromise was not registered, the If
company continued in possession under a void lease und, therefore, on
the expiry of the period of five years the company was a trei;passer
. 656 SUPREME COURT REPORTS [1980] 1 S.C.R.

A and respondents 1 and 2 were entitled to take over possession from
such a trespasser. It was also contended tl)at on the expiry of the
period of five years on 29th February 1960 the company handed
over peaceful and vacant possession to respondents 1 and 2 in t.erms
of the consent decree.
The trial court held that as the consent decree provided for a 'J
lease for a period of five years in the absence of registration the lease
for a period of five years did not come into existence but if the tenant
entered into possession under an invalid lease and the landlord ac-
cepted rent a tenancy from month to month came into existence bet-
ween tl1e lessors and the lessee and that such a lessee cannot be evic-
c ted except after terminating the tenancy by a valid notice to quit-
and in the absence of such determination the lessee would be a
k~see from month to month and can protect its possession. In ac-
cordance with this finding the trial court decreed the appellant-plain-
tiff's suit. Respondents 1 and 2 appealed to the District Court at
Howrah. The learned Additional District Judge held that the lease
0
being void, yet the lessors would not be entitled to disturb the pos-
session of the tenant for a period of 5 years under the provisions
of s. 53A bf the Transfer of Property Act but after the expiry 1<Jlf
the period of five years the appellant became a rank trespasser and
the resrondents 1 and 2 were entitled to take possession of the pro-
E perty. Accordingly 'the appeal was allowed and the company's suit
was dismi3sed. The appellant company preferred second appeal to the
High Court. The High Court broadly agreed with the findingS
of the learned Addi. Distt. Judge and dismissed the appeal. The
High Court granted a certificate unfortunately very vagne \vithout
specifying whether the certificate was under Article 133(a), {b) or
F ( c) as it stood at the relevant time.
The undisputed facts are that Kanti Bhusan Bose, 3rd respon-
dent took on lease the demised premises under a registered lease
deed dated 11th September 1948, the period reserved under the lease
being 5 years at a monthly rent of Rs. 2,000/r with an option for
G renewal to be exercised by a notice two months before the expiry of
the lease. It is equally undisputed that during this period of 5 years
the appellant company was accepted as tenant of the demised pre-
mises and the company paid the rent reserved under the lease being
Rs. 2,000/~ p.m. The period reserved under the lease expired on
31st August 1953. But before the expiry of the period an applica-
U tion was made by the appellant for fixation of standard rent of tlie
demised premises under the West Bengal Premises Rent Control
(Temporary Provisions) Act, 1950. In October 1953 respondents
BISWABANI (P.) LTD. ~· s. K. DUTTA & ORS. (Desai, J.) 657

1 and 2 as lessors commenced an ejectment action against the ap- A
pellant and third respondent on the ground that the period reserved
,under the lease has expired and the lessee has failed to exercise the
option for renewal. During the pendency of the aforementioned
actions the parties entered into a compromise and the consent terms
were filed in the suit instituted by respondents 1 and 2 lessors inviting B
the Court to pass a decree in terms thereof, and a consent decree
was passed which has been referred to.Jn the evidence as 'solenama'.
It, inter alia, provides for a lease for a further period of 5 years com-
mencing from 1st March 1955 on a monthly rent of Rs. 1,000/•
p.m. made up of a rent of Rs. 5001- for the premises and a rent of
I
Rs. 500/~ for furniture and fixtures and the lessee would have, no c
• further option of renewal of the lease on the expiry of the period re-
served nnder the lease. This consent decree incorporating the
terms of a fresh lease to be effective as a valid lease required re-
gistration in view of the provisions contained in s. 107 of the Transfer
of Property Act read with s. 17 (1) ( d) of the Registration Act, 1908,
because the period reserved under the lease was exceeding one year. D
It is an admitted position that the instrument containing terms of
lease, i.e. either the consent terms or the consent decree . was not
registered as required by law. However, it is equally an admitted
position that the company continued in possession and paid rent
which was accepted by the lessors from the company from month
to month. It appears that on 29th February 1960, i.e. the last day E
- on winch would expire the lease for a period of 5 years, the lessors
resoondents 1 and 2 entered into the demised premises and locked
a portion thereof.

The questions that emerge for consideration in this appeal are : -
F
1. What wonld be the status and nature of possession Of a
person who was admittedly a tenant of premises covered
by the local rent restriction Act till the date of com-
mencement of a fresh lease which turris out to be void
for want Of registration, during and at the expiry of tho
period purporting to be reserved by such a void lease ? G
2. Would such a person be a tenant who could only be re-
moved by proper legal proceeding or a licensee without
any interest in the prentises and could be forcibly evicted
by the landlords of t11e prentises entering the premises
and locking the same ? H
3. Could snch a person defend his poosession by a suit
8eeking a declaration and .mandatory injnnction?
658 SUPREME COURT REPORTS [1980] 1 S.C.R.

A Appellant was accepted as tenant by respondents 1 and 2 even
though the indenture of lease dated 11th September 1948 (referred
to as 'the first lease') was executed by the third respondent ,who was
the Managing Director of the appellant company. Indisputably
when the first lease expired on 31st August 1953 the appellant was
the tenant of the demised premises, a fact demonstrably establinbed
B
and expressly accepted by respondents 1 and 2 and evidenced by
their conduct of accepting rent from the appellant company. The
indenture of first lease granted rui option to the Jessee which would
be none other than the appellant company, to claim renewal of leaze.
This option was not exercised. Notwithstanding the non-exercise of
c the option on the date of expiry of the lease the contractual tenancy hav-
ing come to an end, the tenant would be a tenant holding over ·if re-
quirements of s. 116 of the Transfer of Property Act are satisfied.
However, on the date of expiry of contractual tenancy the West
Bengal Premises Rent Control Temporary Provisions) Act, 1950,
was in force and was applicable to the premises and, therefore, on
D the determination of contractual tenancy by efllux of time the terms
and conditions of the lease are extinguished and the rights of such a
person remaining in possession are governed by the statute alone. He
is loosely described as statutory tenant which is another name for
status of irremovabi!ity (see Anand Nivas Private Ltd. v. Anandji
Kalyanji Pedhi & Ors.('). ·
E
It must be recalled here that the fir!1( lease expired on 31st
August 1953. Respondents 1 and 2 filed Title Suit No. 68 of 1953
in -October 1953. :This suit ended in a consent decree as aforemen-
tioned and the appellant and respondents 1 and 2 agreed to enter in,
to a fresh lease for a period of .5 years commencing from 1st March
F 1955 on a monthly rent of Rs. 1,000/-. It is not in dispute that
from 1st September 1953 to 28th February 1955 rent was paid by
the appellant and the same was accepted by respondents 1 and 2.
There is no bar in raw to a statutory tel)llnt entering into a fresh con-
tract of tenancy with the landlords which 'W'as attempted by the con-
sent decree. From this undisputed positicm an inference of tenancy
G
can be reasonably made. Accordingly it must be held that whea the •
parties agreed to enter into a fresh lease (referred to as 'the second
lease') commencing from 1st March 1955, appellant company was
a statutory tenant in possession of the demised premises.

By the consent decree appellant and r~pondents 1 and 2 en-
B
tered into a fresh lease for a period of 5 years. The High Court
(I) [1964] 4 s.c.R. sn.
ll!SWABANI (P.) LTD. v. s. K. DUTTA & ORS. (Desai, !.) 659

A
has foutld this lease to be void for want of registration and this
position was not disputed before us. The appellant continued in
pO!lllession for a period of 5 years and paid rent as agreed to bet-
ween the parties in the consent decree. Now, if the lease is void
for want of registration neither party to the indenture can take ad-
vantage of any of the terms of the lease. At best the provision con- B
tained in s. 53A of the Transfer of Property Act which incorporated
the English equitable doctrine of part performance can, if the terms
thereof are satisfied, be relied upon to protect possession for the
period reserved under such a void lease. But no other terms Of ~uch

•' an il\denture inadmissible for want of registration can be the basis for
a relief. In this case respondents 1 and 2 rely upon a provision in the c
consent decree that there was not to be any further renewal of the
lease and the High Court was so much impressed with this provision
when ii observed : "Here is a party who has solemnly entered into
an agreement, has enjoyed the benefit of it, has committed a flagrant
breach of it, and now wishes the law to come to his aid and protect
him from the evil consequence... . If the uppellant succeeds it will
be most unhappy state .of affairs". This observation appears to be
provoked by the High Court looking into that part of the consent de-
. eree which provides for no further renewal of the lease, which being
a term in an indenture inadmissible for want of registration, could
•ot have been looked into. And this feeling of righteous fudignation E
completely ignores the overriding provisions of the relevant Rent
R~triction Act which came to the aid of every tenant in its area of
operation on the determination of contractual tenancy. At its com-
mencement every lease world have its origin in a bilateral contract
which except for lease for indefinite period or permanent lease would
be far some specified duration. On the expiry of the period the · F
solemn implied promise or assurance is to return possession. If roch
a promise is to be enforced overlooking or ignoring Rent Restriction
Act it would make a mockery of protection extended by Rent R~
triction Act.

It mmt further be made clear that s. 53A of the Transfer of Pro- G
perty Act is not at all attracted in the facts of this case. The suit was
• field by the appellant who sought to protect ·its possession. The equit-
able doctrine of part performance can be. used as a shield and n<>lj
as a sWOl"d. It can be used to defend and protect one's ~on
(see Probodh Kumar Das & Ors. v. Dantmara Tea Co. Ltd. cf.
Ors.).(') In fact, any discussion of s. 53A in the facts of this case H
(2) 66 I.A. 93.
660 SUPREME OOURT REPORTS (1980] 1 s.c.11..

A would be entirely beside the point. It was so made clear by the
learned counsel appearing for the present appellant before the High
Court but somehow or the other the High Court has practically put
into forefront the application of s. 53A. We must accordingly steer
clear of this position that neither the appellant relies on s. 53A to pro-
tect its possession nor would it be of any use or assistance because it
B can be a sheath and not a sword as the appellant has come to the ;
Court for a declaration of its tenancy rights, seeking to protect its
possession uot under the doctrine of part performance as incorporated
in s. 53A but with specific allegation that the appellant is a tenant
and it be so declared, and for an injunction restraining respondents 1 ,
c and 2 landlords from interfering or disturbing the appellant's posses-
sion of the premises as tenant.
•
If, as it clearly transpires from the facts. of this case, the appellant
was a tenant on the date on which the second k'ase, which is fonnlll
to be void, was to commence what would be the nature of possession
D of the appellant during the period of 5 years, the period sought to be
reserved under the second lease and on the expiration of such period '!
If the appellant was put into possession for the first time under a
void lease the appellant could have protected its possession under
s. 53A. But it must be made distinctly clear that the appellant was
in possession on the date on which the second lease now found void
E was to commence. Would this attempt inchoate or still born of enter-
ing into a fresh contractual tenancy make any difference in the position
of the appellant and the nature of his possession ? If the second )ease
is void or inchoate or ineffective or still born it is not all effe~tive.
lf it is not effective it does not impinge upon the nature of the ap-
pellant's possession which was that of a tenant. In other wor~ the
F
appellant continued to remain in possession of the demised preioises
as tenant because there was no impact of the lease which is found
to be void. It must be made distinctly clear that the appellant was
not put in possession under the lease which turns out to be void; In
such a situation even during the period of 5 years for which.' the
G second lease was to be created the appellant continued to be in pos-
session as tenant and this is evidenced by the further fact that rent
was accepted from the appellant by respondents 1 and 2. There is
nothing to show that the rent was accepted from month to month by
respondents 1 and 2 under the second lease and not what was deter-
mined by the Court in rent fixation case ·No. 114/53 wherein the
H i:rarties had filed a consent precipe by which the parties invited
the Rent Controller to fix the standard rent of the premises at
Rs. 500/- p.m. and Rs, 500/- for use of the machinery, furniture and
BISWABANI (P.) LTD. v. s. K. DUTTA & ORS. (Desai, J.) 661

fixtures, in aU Rs. 1,0001- p.m. Iu this connection, attention was
drawo to Receipt Ext. 10 issued by respondents 1 and 2 on ·1st
January 1960 in which it is stated that the amount is accepted as per
terms of consent decree (solenama), but it could not be overlooked
that this amount was determined by consent of parties in the case
iuitiated by the appellant before the Rent Controller for fixation of
B
standard rent. If thus the appellant was already in possession as a

"--·,. •
tenant of the premises an unsuccessful attempt to create a fresh lease
would not change the nature of his possession as from a tenant to
one in part performance under a void lease. The appellant continues
to be in possession as tenant and no cloud is created over its title to
f
•• remain in possession as tenant merely because the appellant and c
respondents 1 and 2 attempted to enter into a fresh lease which did not
become effective.
Even if it is assumed that the appellant was put in possession for
the first time under a lease which turns out to be void, the appellant
came into possession of the premises with the consent of the landlords
D
and paid .rent from month to month. As the lease was to be for a
period of S years, for want of registration no operative lease came in-
to existence. In ahnost identical circumstances in Ram Kumar Das
v. Jagdish Chandra Deb Dhabal Deb & Anr.,(') an inference of
tenancy was made and the duration of the tenancy in such circum-
stances was held to be from month to month. E
Woodfall on 'Landlord and Tenant', Volume I, 27th Edn., p. 187
para 446, in this context states as under :

~'Moreover, if the tenant enters into possession under
a void lease, be thereupon becomes tenant from year to
year upon the terms of the writing, so far as they arei I'
applicable to and not inconsistent with a yearly tenancy.
Such tenancy may be determined by the usual notice to
quit at the end of the first or any subsequent year, and it will
determine, without any notice to quit, at the end of the term
mentioned in the writing. But if the lessee does not enter
0
he will not be liable to an action for not taking possession;
nor will an action lie against the lessor for not giving pos-
• session at the time appointed for the commencement of the
term but before the lease is executed".
In the context of fiction enacted in s. 106 of the Transfer of
Prop~rty Act depending upon the nature of lease, namely, one of a B
[19521 S. C. R. 269 at 280.
6-625SCT/79
,662 SVPREME COURT REPORTS [1980] 1 5.C.R.

Theatre, the person so put in possession would be a tenant from
month to month.
The Privy Council in Arif v. Jadunath,(') in terms held that if
an indenture of lease is compulsorily registrable under s. 107 of the
Transfer of Property Act such a lease can only be made by a re-
gistered instrument and if not so made, is void altogether. How-
ever, if from such a person in possession under a void lease the I
landlord accepts rent as held in Ram Kumar Das's case, (supra)
an inference of tenancy would follow. Mulla in 'Transfer of Pro-
perty Act', 6th Edn., at p. 680 has observed that an oral agreement

c
accompanied by delivery of possession, if for more than one year
is valid, by delivery of possession, for the first year, and thereafter
••
the lessee continuing in possession with the assent of the lessor ~
comes a tenant by holding over under s. 116 of the Transfer of Pro-
perty Act. Such a lease being created by operation of law is bind-
ing even though the provisions of s. 107 have not been complied
with. It is also noted at p. 681 that though an unregistered lease is
D void as a permanent lease, it can be deemed to be a monthly lease
terminabk by 15 days' notice.
· Mr. Sen, however, strenuously urged that the ratio· in Ram Kumar
Das's case (supra) would have to be understood in the light of the
recent decision of this Court in Technicians Studio Pvt. Ltd. v.
Lila Ghosh &. Anr. (') As this case was heavily relied upon to assert
that it concludes the point raised in the present appeal, it warrants
an indepth analysis. Much before the premises came to be owned by
the respondent Lila Ghosh, her predecessors-in-title had brought a
suit for ejectment of the lessees of the property impleading the ap-
pellant Technicians Studio Pvt. Ltd., a private limited company who
were the sub-lessees also as a defendant. This suit ended in a decree
some time in 1954. The appellant applied for a review of the judgment
which did not meet with success. Against this decision rejecting the
review application the sub-lessee appellant moved the High Court in
revision. This revision was disposed of in terms of a consent precipe.
By the consent terms the appellant was to become the direct tenant
under the first respondent's husband and his brother who had by then
become the owners of the property at a monthly rent of Rs. 1000/-.
The lease was to be for a period of 1G years from May 1954 with an
opt'on to the appellant to terminate the lease on pving 60 day~'
notice to the lessors. The indenture of lease, however, was not exe-
cuted nor the consent decree was registered. On the expiry of the
(I) (1931) 58 I. A. 91.
(2) [1978] I S. C.R. 516.
BISWABANI (P.) LTD. v. s. iK. DUTTA & ORS. (Desai, /.) 6'6 3
(,
period of 16 years the first respondent commenced an ejectment A
··/' action alleging that the appellant was a trespasser. The appellant
..j
resisted the suit contending that it was a monthly tenant. Negativing
this contention this Court, agreeing with the High Conrt, held that
th~ payments made by the appellant in tlrat case can be explained as
~.
evidence of appcllunt's willingness to perform its part of the contract
' B
.'
.and that a person who is led into possession on the strength of a void
iease does not acquire .any interest in the property but gets under s.
'{ 53A a right to detcr.d his possession. The decision in Ram Kumar
Das's case (supra} was distingnished observing that in Ram Kumar
f ' Dais case (supra) it was admitted that in the beginning there was
a relationship of landlord and tenant between the parties and the oniy
question that arose for decision was whether the defendant was in-
c
~
... tact a monthly tenant ur.der the plaintiff on the date when the noflce
to quit was servec upon him. In the case before us, as pointed out
earlier, the appellant was admittedly a tenant of respondents 1 and
... 2 between 1948 ar;d 1953. Again, the appellant was a tenant from
1st September 1953 to 1st March 1955 when the second lease was D
to commence. In tjie case under discussion appellant was a sub-
lessee and he was to acquire a status of direct lessee or tenant under
the lease which was found to be void. To be precise, the appellant
Technicians Studio Pvt. Ltd. was not the tenant at the commence-
men< of the lease which turned out to be void. That is the distin-
guishing feature. In the present case the appellant was the tenant from E
1948 to 1953 and till February 1955, a feature similar to Ram Kumar
Das's (supra) and which was considered decisive. Therefore, the
case falls squarely in terms of the ratio in Ram Kumar Das"s case
wherein the position was admitted that in the beginning there was a
relationship of landlord and tenant between the parties. This Court
in Technicians Studio's case (supra) did not once and for ever con- F
clude the· point that a person coming in possession under a void lease
can never ciaim to be a tenant. On the contrary, it was in terms held
that each case will have to be decided on its own facts. This becomes
abundantly clear from a pertinent observation extracted herein :
G
"This does not mean however that there cannot be a
• relationship of landlord and tenant in any case where the
transferee has taken possession of the property under a
void lease or in part performance of a contract and is en-
titled io protection under section 53A of the Transfer
Jf Property Act Such a view would be incorrect and en- H
courage attempts to circumvent the protection of the Rent
Acts giyen to the tenants. Whether the relationship of land-
664 SUPREME COURT REPORTS [1980) 1 S.C.R.

A lord and tenant exists between the parties depends on \

whether the parties intended to create a tenancy, and the in- --\--
tention has to be gathered from the facts and circumstances
of the case. It is possible to find on the facts of a given '
I-
case that payments made by a transferee in possession were
really not in terms of the contract but independent of it
( B and this might justify an inference of tenancy in his favour.
~~-
;.,;;:
I
The question is ultimately one of fact''. /fr.
~

In this case it is unquestionably established that at the commence-
ment of the lease which turns out to be void, i.e. on 1st March 1955
f'-'
I
appellant was a tenant of the premises and that on its application )
standard rent in respect of the demised premises was determined and
the same was accepted as the rent to be paid under the second lease.
Payment has in fact been made and it would be twisting the la.nguage il'ii
\Iii
to hold that the payment was not made as rent but under the terms of
the second lease. In view of the statutory enactment of the eqnitable ,.,
D principle of part performance as found in s. 53A, the equity re-
cognised in Walsh v. Lonsdale,(') may not be attracted. However,
it would not be correct to hold that a tenant who was in possession of
the demised premises as tenant and who negotiated a fresh agreement
of lease with the landlord for a period exceeding one year which, in
order to be legal, must be by a registered instrument and which
E turns out to be void for want of registration, would alter his position
from one us, tenant. at the' commencement of such void lease and would
render him a licensee continuing in possession under the terms of a
lease being void and, therefore, ineffective and that he ceases to be
a tenant and could be forcibly removed at the end of the period
which was reserved under the void lease. Such an incomplete and
F ineffective ,attempt at creating a fresh lease would have no impact on
a tenant who was in possession as tenant at the commencement of,
such a void lease and he would continue to be the tenant because s.
53A would not be attracted as he is not put in possession in part per-
formance of an agreement of lease not registered and that it would be
unwise to hold that the payment of the standard rent fixed by the
G
Rent Controller having jurisdiction could be by any process of cons-
truction treated as payment under such an agreement of lease.
Therefore, it would appear fuat the appellant company was a tenant
during the period 1948-53 and on the expiry of the contractual
tenancy on 31st August 1953 it became a statutory tenant. A person
remaining in occupation of premises let to him after the determina-
H
tion of or expiry of the period of the tenancy is commonly, though in
(!) (1882] 21 Ch. D. 9.
BISWABANI (P.) LTD. v. s. K, DUTTA & ORS. (Desai, J.) 665

law not accurately, called a statutory tenant. In other words, he ac- A
quires the status of irremovability [see Anand Nivas (Private) Ltd.
case].(') Statutory tenant being a person who enjoys the status of
irremovability, would en joy the protection of the statute until he is
evicted from the premises under the enabling provisions of the statute.
A statutory tenancy would, therefore, come to a'n end on either the
B
surrender of premises by such a tenant or if a decree of eviction is
passed against him (Sec Hiralal V allabhram v. Kastorbhai [,a/bhai &
Ors.) ( 2 ) As the period reserved under the first lease expired on 31st
(
August 1953 and thereafter the tenant continued in possession, it be-
• came a statutory tenant under the West Bengal Premises Rent Control
(Temporary Provisions) Act, 1950. If thereafter an ineffective c
attempt was made to enter into a fresh contract of tenancy the status
of the appellant as tenant did not undergo any change and it continued
-I to be the tenant of the premises and the statutory tenancy would come
to an end if it surrenders posseision or is evicted by due process of law.
If the appellant thus continued to be a tenant it could uot be forcib-
D
ly evicted. If the premises enjoyed the protection of the West Bengal
Premises Tenancy Act, 1956, which was in force on 29th February
1960 when according to respondents 1 and 2 the period reserved under
the void lease expired, r:ospondents 1 and 2 cannot, ignoring the provi-
sions of the releYant Rent Restriction law and merely treating the appel-
lant as licensee or trespasser, ignoring its statns of irremovability, take E
over forcible possession. In such circumstances the appellant as tenant
would be entitled to protect its possession unless evicted in due course
of law and in order to protect its possession it can legitimately sue,
there being no bar in law, for a declaration of its status as tenant a'nd
for an injunction either prohibitory or mandatory, as the case may be.
The High Court really missed the core problem and with respect misled F
itself into invoking the provisions of s. 53A which the learned counsel
appearing for the present appellant declined to invoke in its favour
and came lo an unsustainable conclusion that under the consent decree
the parties agreed that the old tenancy would be wiped out and a new
• tenancy would be created for a period of 5 years expiring in February
1960. A still born attempt not clothed with legal formality cannot G
• destroy the existing status. The second lease never came into exis-
tence for want. of registration and more particularly the appellant was
not put in possession under the purported second lease which turns
j out to be void. The paradoxical approach manifested in the approach
is that if a valirl lease had come into existence on the expiry of it the H
{l) [1964] 4 S. C.R. 891.
{2) [1967] 3 S.C.R. 343.
666 SUPREME COURT REPORTS [1980] l S.C.R.

A appellant tenant would have continued in possession under the protec-
tion of the relevant Rent Restriction Act. However, if such an attempt ~-
at creating a fresh_ lease was ineffective or infructuous, how can such
an inchoate exercise destroy the existing rights which the High Court
I~
held to have been destroyed ignoring the very existence of West Bengal
Premises Tenancy Act, 1956? The High Court was further in error
in holding that if on the expiry of the agreed period of lease thete was
,,
a covenant for not getting any renewal of the lease the tenant would
he a trespasser, wholly overlooking the legal position as affirmatively {v
established that on the expiry of the contractual tenancy the te.nant
continues as a statutory tenant except where he surrenders possession
or is evicted under the enabling provisions of the relevant Rent Restric-
'•
c tion Act.
It thus clearly transpires that the appellant was a tenant and con-
tinued to be .a tenant and was entitled to protect its possession by
appropriate proceeding unless evicted in due course of law.
Before we conclude it is necessary to dispose of a contention in
,., '

D the form 1of a preliminary objection raised by Mr. Sen for the respon-
dents that the certificate granted by the High Court being invalid, the
appeal must fail on that account alone. Certificate granted by the High
Court leaves much to be desired. It is merely stated that it is a case
fit for appeal to the Supreme Court. It may be pointed out that the
appellant had prayed for a certificate under Article 133(1) (a), (b)
E and (c) as it stood at the relevant time in 1969: In the application for
· the certificate it was stated that the subject-matter of the suit and appeal
to the Supreme Court will exceed Rs. 20,000/- and that.judgment is
one of affirmance. It was also stated that the appeal involves a ques-
tion of general public importance and, therefore, a certificate may be
granted under Article 133(1)(a), (b) and (c). In the affidavit in
F opposition on behalf of respondents 1 and 2 it was stated that the value
of the subject-matter of dispute was less than Rs. 20,000 /- and the
appeal does not involve any question of law of· general public import-
ance which had to be determined by the Supreme Court. With these
two affidavits before it, the High Court granted certificate that it is a
G fit case for appeal to the Supreme Court. A certificate which the High •
Court grants must be supported by adequate reasons. · It is obligatory
upon the High Court to set out the question of public or private import-
ance which in their opinion falls to be detem1ined in the proposed
appeal (see Sohanlal Naraindas v. Laxmidas Raghunath Gadit,(') and I
Railway Board, Govt. of India v. M/s. Observer Publications (Pr -).
II Ltd.(')
(1) [197!j 1 s. c. c. 276.
(2) [1972! 3 S. C. R. 865.
BlSWAllANI (P.) LTD. ];, s. K. DUTTA & ORS. (Desai, /.) 667

In both tl1esc, cases the appeals were disposed of on merits and
the preliminary objection was merely noticed. However, in Nu11d
& Samont Co. Pvt. Ltd. v. Commissioner of Income-tax, Jlihar
& Orissa,(') this Court held that a certificate of fitness for appeal to
the Supreme Court issued by the High Court under s. 66A of the
Income-tax Act, 1922, will be defective if it docs not set out the sub-
stantial question of law which, in the view of the High Court, falls to
be determined by the Supreme Court, and following the decision in
India Machinery Stores P. Ltd. v. Commissioner of Income-Tax, Bihar
( and Orissa, (') the appeal was liable to be dismissed in view of the
• defective certificate. However, in both the cases after observing that
the certificate was defec:ive the appeals were disposed of on merits. In
this case a very substantial question of law of general public import-
ance is raised and it would be a travesty of justice if we now aismiss c
the appeal on the sole ground that the certificate is defective. It would
have been open to us to grant special leave on the question raised be-
fore us. Therefore, the preliminary objection must be overruled.
This appeal accordingly succeeds and is allowed and the judgment
D
and decree of the High Court as well as of the first appellate Court
are set aside and the judgment and decree of the trial court are restored
\\ith costs throughout.

N.V.K. Appeal allowed .

•

<
\

(!) [1970] 78 I. T. IC 268
(2) [1970] 78 I T, R s:1.