M. Muthu (died) and four others vs Arulmigu Sundareswararswamy Devasthanam

The Appellants who suffered decree before the lower appellate Court has filed this second appeal.

The respondent/plaintiff filed a suit in O.S.No.6860 of 1986 before the Trial Court for ejectment. The 1st appellant/defendant was in possession

of the suit property bearing Door No.39, Bundar Street, Chennai-1. The monthly rent was Rs.5,000. There are four floors. Each floor is

measuring 3,121 sq.ft. The respondent/plaintiff issued a notice under Ex.A1 dated 21.6.1986 determining the tenancy. Thereafter the respondent

filed the said suit on the file of the City Civil Court, Chennai. The lower Court dismissed the suit on the basis that the plaintiff waived the notice by

accepting the rent subsequent to the issue of the notice and so the said suit without any notice cannot be sustained in law. Aggrieved by the same,

the respondent-temple filed appeal in A.S.No.315 of 1989 on the file of the II Additional City Civil Court, Chennai. The lower appellate Court

accepting the case of the appellant therein allowed the appeal and decreed the suit. Aggrieved by the same, the appellants have filed this second

appeal.

The learned counsel appearing for the appellants has submitted that though notice was given under Ex.A1 dated 21.6.1986, the appellants paid

the rent thereafter and the respondent received the same for the period prior to determination of tenancy and also thereafter so the suit is not

maintainable both under Sections 113 and 116 of the Transfer of Property Act, 1882, hereinafter called ''the Act''. In support of his submission,

the learned counsel has relied on the decisions in C. Sundaram v. Abdul Gani AIR 1972 Mad. 122, Kodaikanal Motor Union v. Nallathambi,

1969 (1) MLJ 147 , Chaturbhuj Sitaram Vs. Manjibai Hirachand and Another, , Tayabali Jaffarbhai Tankiwala Vs. Asha and Co. and Another, ,

and in Bhawanji Lakhamshi and Others Vs. Himatlal Jamnadas Dani and Others, .

The learned counsel for the respondent has submitted that though the rent was received, there was no intention to create fresh lease or for

continuation of the earlier lease. Without establishing such intention, by mere receipt of rent, the appellants cannot come forward with the defence

that the respondent had waived the notice and the suit is not maintainable in view of that. The learned counsel has also relied on the decisions of

Smt. Munni Devi and Another Vs. State of U.P. and Others, , J.V. Krishnamachary Vs. P.V. Ramamoorthy and Others, , Mrs.Achama George v.

R. Krisknaswamy, 1998 (1) LW 498, Vital Vel Press v. Sir Ranganathaswamy Temple, 1996 (1) LW 602, Bank of Rajasthan v. M/s. Sarin and

Co., 2000 (3) CCC 154 and in Bhuneshwar Prasad and Another Vs. United Commercial Bank and Others, .

In this case, there is no dispute about the issue of notice under Ex.A1 and the receipt of the same by the 1st defendant. The 1st defendant paid

the rent after the issue of notice of determination of tenancy, which is also not in dispute. So, it has to be decided whether the suit is maintainable

on the basis of Ex.A1, in the light of the admitted facts.

Mr.Mohanram, the learned counsel appearing for the appellant has submitted that since the 1st defendant paid the rent subsequent to the issue

of notice under Ex.A1 and the plaintiff received the same, it amounts to waiver of notice to quit and there is no other notice u/s 111 of the Act to

maintain the suit for ejectment. According to him, after issue of notice to quit, the plaintiff accepted the rent which has become due in respect of the

suit property and equally after the expiration of the notice, and so the notice issued under Ex.A1 has to be taken as waiver. The abovesaid

submission was made on the basis of Section 113 of the said Act. The learned counsel has also relied on Section 116 of the said Act in support of

his submission that since the lessor accepted the rent from the lessee after the determination of the lease granted to him, it has to be taken that the

lease is renewed u/s 106 of the said Act.

The learned counsel for the respondent/plaintiff has submitted that mere demand and receipt of the amount mentioned as rent cannot be

construed as renewal of lease and waiver of notice to quit. According to him, the tenant has not established that such receipt of rent was with the

consent of waiving the notice and to renew the lease. According to him, there is no such evidence available, and the lower appellate Court has

found that such intention or consent has not been established. The learned counsel pointing out the evidence of P.W.1 has also submitted that the

amount received was only by way of damages.

To appreciate the contention raised by the learned counsel for the appellant, it is beneficial to extract the relevant provision itself, as the appellant

is trying to take advantage of the provision, namely, Section 113 of the Act, which reads as follows:-

Waiver of notice to quit: A notice given u/s 111, clause (h), is waived, with the express or implied consent of the person to whom it is given,

by any act on the part of the person giving it showing an intention to treat the lease as subsisting.

Illustrations (a) A, the lessor, gives B, the lessee, notice to quit the property leased. The notice expires. B tenders and A accepts, rent which has

become due in respect of the property since the expiration of the notice. The notice is waived.

(b) A, the lessor, gives B, the lessee notice to quit the property leased. The notice expires, and B remains in possession. A gives to B as lessee a

second notice to quit. The first notice is waived.

To invoke the said provision, (1) the express or implied consent of the person to whom the notice u/s 111, clause (h) was given is necessary to say

that the notice is waived. (2) Insofar as the person who gives the notice, it is stated that any act by him should be with an intention to treat the lease

as subsisting. Once a valid notice to quit has been served under clause (h) of Section 111 of the Act, the lease automatically comes to an end on

expiration of the period of such notice. But it is open to the parties by an agreement expressed or implied to create new tenancy on expiration of

the one or continue old lease and treat it as subsisting. Such a waiver is contemplated in the above said provision. But, to establish wavier of notice

on the part of the person giving it, there must be evidence of intention to treat the lease as subsisting. The inference that there was an intention of

creating renewal of tenancy or treating the tenancy as still subsisting is a question of fact to be determined in each case.

Insofar as the present case is concerned, we have to test the facts to find out the availability of such intention, as the 1st defendant-tenant has

come forward with such a case. The mere act of the landlord receiving the amount sent as rent is one from which one cannot impute to the landlord

the intention of creating renewal of tenancy, of treating the tenancy still subsisting, as it has to be decided on the basis of the evidence available in

the case and from the conduct of the plaintiff who served the notice under Ex.A1 determining the tenancy.

The Division Bench of the Bombay High Court in the decision in Chaturbhuj Sitaram Vs. Manjibai Hirachand and Another, , relied on by the

learned counsel for the appellants, has dealt with the scope of the said provision with reference to the Illustration A of the same. In the said case,

even though the notice was issued and lease was determined by the conduct of the plaintiff who filed a suit for ejectment and accepting the rent

from the defendant for a period subsequent to the date of determination of the tenancy, while considering the said fact, the Bombay High Court has

held as follows:-

Waiver can evidently be inferred from the conduct of the person serving notice indicating an intention to treat the lease as subsisting. But in the

absence of any other circumstances, acceptance of rent which has become due in respect of the premises since the expiration of the notice

amounts to waiver of the notice. That is made clear by Illustration (a) to Section 113. That Illustration says: A, the lessor, gives B, the lessee,

notice to quit the property leased. The notice expires. B tenders, and A accepts, rent which has become due in respect of the property since the

expiration of the notice. The notice is waived. It must, therefore, be held that in this case, by acceptance of rent by the plaintiff for a period after the

date of the expiry of the notice, the notice served by the plaintiff was waived. The only ground given by the plaintiff on which she claimed that she

should be absolved from the liability which arise by reason of her conduct in accepting rent was that she was a female and that she unknowingly

and out of simplicity, accepted the postal Money Order sent by the defendant, without appreciating the legal consequences of the acceptance.

Ignorance of law does not, in our judgment, be speak an intention of the plaintiff not to waive the notice.

But the learned Judge of this Court, while dealing with the scope of Section 113 of the Act in the decision in C. Sundaram Vs. V.T. Abdul

Ghani, , has held as follows:-

In the present case, the contention that mere acceptance of rent by the respondent subsequent to the expiry of notice Ex.A-6, must be held

waiver cannot be accepted for more than one reason. As already pointed out, to constitute a waiver u/s 113, not only the acts of parties must

coalesce but there should also be a consensus of minds. That is why the section says that there should be some act on the part of a person giving

the notice showing an intention to treat the lease as subsisting and such act must be with the express or implied consent of the person to whom the

notice is given. The acceptance of rent by the lessor merely as a prudential act without the necessary animus to nullify the notice of termination

given earlier will not constitute an act on his pan with the express or implied consent of the lessee to treat the lease as subsisting. Moreover, there

must also be evidence to show that the lessee construed the act of receipt of rent by the lessor as an intention to treat the lease as subsisting and

then made further payment of rent to manifest his express or implied consent to the continuance of the lease. The evidence on record does not

show when and how the rent was remitted to the respondent. It would appear that, after the notice, the appellant sent the rent through money

order, but whether it was sent periodically, month after month, or in instalments covering the rent for several months, is not known. There is no

evidence by the appellant that he construed the receipt of rent by the respondent as an act of waiver and therefore, he consciously performed his

obligation as a tenant by remitting the rent every month. In such circumstances, it is not open to the appellant to contend that the appellate Judge

has not given the full effect of Section 113 to his case and therefore the order of ejectment is wrong.

Though the learned counsel for the appellant tried to distinguish the said decision from the facts of the present case, I am not able to accept the

same. According to him, the learned Judge has taken such a view only because there is no evidence in that case to show as to when and how the

rent was remitted to the respondent. In the present case, though such evidence is available, it is the specific case of P.W.1 in his evidence that the

amount paid was received only as damages and not rent. Moreover, the learned Judge has come to the above conclusion that there must be

necessary animus, which has to be established to nullify the notice of termination given earlier.

Even in the decision of this Court in J.V. Krishnamachary Vs. P.V. Ramamoorthy and Others, , Bellie, J., has held as follows:-

A close reading of the section would show that notice of termination is waived by an act on the part of the landlord showing an intention to treat the

lease as subsisting. No doubt receiving rent by the tenant is an act on the part of the landlord, but the question is whether that act alone, bereft of

any intention to treat the lease as subsisting, will constitute waiver. That intention can be expressed or implied from the circumstances. After the

termination of tenancy there is no question of payment of rent but the tenant is liable to pay damages as long as he does not vacate the premises in

pursuance of the notice. The landlord may take action against him in pursuance of the notice soon after the expiry of the notice or later after some

time. In any case the tenancy is at an end. If in the meanwhile the tenant sends money by money order terming it to be rent and if the landlord

receives it, it does not necessarily mean that the landlord receives rent treating the tenancy as subsisting. As said above, the tenant will be liable to

pay damages for illegally occupying the premises and if the landlord has received the money sent by money order by the tenant as the rent it is

more probable that the landlord has received it for damages payable by the tenant. Therefore unless there is something more, apart from the

receipt of money sent by money order by the tenant, to show that the landlord received that money treating the tenancy subsisting it cannot be said

that he has waived the notice.

Again in the decision in Vital Vel Press v. Sri Ranganathaswamy Temple, 1996 (1) LW 602, the learned Judge has taken similar view and held

as follows:-

Again, going by the provisions of Section 113 of the Transfer of Property Act, a mere acceptance of rent alone is not sufficient. There must be

intention on the part of the lessor to treat the lease as subsisting. No evidence has been let in this case, and there is also no circumstance elicited by

the appellant to show that the plaintiff wanted the lease to continue. The said contention also has to fail.

Even the Apex Court in the decision in Associated Hotels of India Ltd., Delhi Vs. S.B. Sardar Ranjit Singh, , while considering the scope of

the said provision, namely, Section 113 of the Act, has held that waiver is an intentional relinquishment of the known act and there cannot be no

waiver unless the person against whom the waiver is claimed had full knowledge of his right and of facts enabling him to take effectual action for the

enforcement of such rights.

In view of the abovesaid decisions of the Apex Court and this Court, the decision of the Bombay High Court in Chaturbhuj Sitaram Vs.

Manjibai Hirachand and Another, cited by the learned counsel for the appellant may not extend any support to the appellant''s case. So, from the

above cited decision, it is clear that in order to constitute waiver as contemplated u/s 113 of the Act, the abovesaid two ingredients must be

concurrently existing. Otherwise, the act of acceptance of rent by itself without reference to the intention of the lessor cannot be deemed to be

waiver. In addition to the receipt of the rent by the landlord to establish waiver there should be other conclusive evidence to show that the landlord

is inclined to treat the lease as subsisting. Though such intention can be gathered from the facts and circumstances of each case, they are not

available in this case. Moreover, as stated earlier, it is the specific case of P.W.1 that the amount received though as rent was only towards

damages. So, the appellant cannot claim any benefit u/s 113 of the Act in support of their case that in view of the payment of amount as rent,

Ex.A1 notice should be treated as waiver.

Though the appellants/defendants have not defended their case on the basis of Section 116 of the Act before the Courts below, the learned

counsel for the appellant, on the basis of the available facts has submitted that in view of the fact that the appellants remain in possession after the

determination of the lease granted to them, and the respondent/plaintiff accepted the rent from them, it has to be taken that the lease is renewed

further, in the absence of an agreement to the contrary. According to the learned counsel, since the respondent/plaintiff received the rent without

any protest and also after issuance of Ex.A1 notice and after the expiry of the period of determination of the lease, it has to be construed that the

lease has been renewed further.

To appreciate the abovesaid contention, it is necessary that Section 116 of the Act has to be extracted, which is as follows:-

Effect of holding over: 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 of underlessee, 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.

Illustration (a) A lets house to B for five years. B underlets the house to C at a monthly rent of Rs.100. The five years expire, but C continues in

possession of the house and pays the rent to A. C''s lease is renewed from month to month.

(b) A lets a farm to B for the life of C. C dies, but B continues in possession with A''s assent. B''s lease is renewed from year to year.

On the expiration of the term of lease the lessee can determine the lease by putting the lessor into possession of the property. But, if he remains

in possession, the lessor has right to determine the lease by a notice u/s 111 clause (b). But, if the lessor assents to the lessee continue in

possession, the relationship of landlord and tenant does not legally come to an end and the lease renewed from year to year or from month to

month, if (1) the lessee pays rent which the lessor accepts; or (2) the lessor otherwise assents to the lessee continue in possession.

In the present case, the second clause mentioned above will not apply as admittedly there is no assent by the lessor. It is the case of the

appellants/defendants that in view of payment of rent which has been accepted by the lessor, the first clause in Section 116 of the Act will apply.

But, even acceptance of rent is not itself a conclusive proof of the assent of the landlord to the continuance of the lease in possession and it raises

only a rebuttable presumption of assent, and acceptance of rent is only an act from which assent may be inferred or presumed. Such inference and

presumption can be only on the basis of pleadings and evidence. In this case, admittedly, the renewal of lease u/s 116 of the Act was not pleaded

nor given any evidence to that effect. To arrive at a conclusion that the lease has been renewed, it has to be established that such receipt is with

intention to permit the lessee to continue in possession as lessee. The appellants/defendants have not established the same as held by the lower

appellate Court on the basis of evidence.

As defined in ""Law of Lexicon"", the word ""accept"" means, ""to receive with approval or satisfaction"", ""to receive with intent to retain"", ""means

something more than to receive"".

While dealing with the scope of the word ""accept"", which finds place in Section 31 of the Mysore Sales Tax Act, 1957, the learned Judge of

the Karnataka High Court in the decision in T. Nanjappa and Sons Vs. Assistant Commissioner of Commercial Taxes, Mysore Division, Mysore

and Another, , has held as follows:-

In all circumstances, it would mean or imply that he who accepts a thing regards what he is accepting as adequate, sufficient or satisfactory. In the

context of composition of an offence, it may and should reasonably be regarded as indicating that the satisfaction received or agreed to be received

is as sufficient a satisfaction as actual punishment or as a sufficiently satisfactory substitute for punishment"".

From the abovesaid decision, it is clear that mere act of receipt of amount cannot be construed as it is accepted for the purpose mentioned u/s 116

of the Transfer of Property Act.

The learned counsel for the appellant submitted that mere acceptance of rent is enough to invoke the benefits given u/s 116 of the Act. In

support of his submission, the learned counsel has relied on the decision in Bhawanji Lakhamshi and Others Vs. Himatlal Jamnadas Dani and

Others, . In the said decision, lessors gave a notice on 7.8.1959 terminating the tenancy by the end of September 1959. The suit was filed on

22.10.1959. The lessee confine to remain in possession paying rent at the rate of Rs.75 per month. The trial Court held that the tenancy terminated

by efflux of time, but the lessees continued in possession by virtue of the immunity from eviction conferred by the Act and so they were not holding

over within the meaning of Section 116 of the Transfer of Property Act, notwithstanding the fact that rent was accepted by the lessors. On appeal,

the judgment and decree of the trial Court were reversed. The High Court relying on the decision in Ganga Dutt Murarka Vs. Kartik Chandra Das

and Others, , held that no case was made out for new tenancy for holding over u/s 116 of the Act, as the appellant obtained status of removability

under the Act and there was no contractual tenancy. The Apex Court while considering the abovesaid facts on the basis of scope of Section 116

of the Act, has held as follows:-

The act of holding over after the expiration of the term does not create a tenancy of any kind. If a tenant remains in possession after the

determination of the lease, the common law rule is that he is a tenant on sufferance. A distinction should be drawn between a tenant continuing in

possession after the determination of the term with the consent of the landlord and a tenant doing so without his consent. The former is a tenant at

sufferance in English Law and the latter a tenant holding over or a tenant at will. In view of the concluding words of Section 116 of the Transfer of

Property Act, a lessee holding over is in a better position than a tenant at will. The assent of the landlord to the continuance of possession after the

determination of the tenancy will create a new tenancy. What the section contemplated is that on one side there should be an offer of taking a new

lease evidenced by the lessee of sub-lessee remaining in possession of the property after his term was over and on the other side there must be a

definite consent to the continuance of possession by the landlord expressed by acceptance of rent or otherwise.

According to the learned counsel, the Apex Court has categorically found that acceptance of rent amounts to giving definite consent to the

continuance of possession by the landlord. I am not able to accept the said contention of the learned counsel, basing on the said decision of the

Apex Court. In the said decision, it is specifically stated that there must be a definite consent to the continuance of possession by the landlord

expressed by acceptance of rent. The said finding is based on the finding given by the Apex Court in Ganga Dutt Murarka Vs. Kartik Chandra

Das and Others, , in which it is held as follows:-

...held that where a contractual tenancy, to which rent control registration applied, had expired by efflux of time or by determination by notice to

quit and the tenant continued in possession of the premises, acceptance of rent from the tenant by the landlord after the expiration or determination

of the contractual tenancy will not afford ground for holding that the landlord had assented to a new contractual tenancy. It was further held that

acceptance by the landlord from the tenant, after the contractual tenancy had expired, of amounts equivalent to rent, or amounts which were fixed

as standard rent, did not amount to acceptance of rent from a lessee within the meaning of Section 116 of the Transfer of Property Act.

The Apex Court, in the abovesaid decision has also relied on the decision in AIR 1949 124 (Federal Court) , in which it is held that the assent

of the landlord which is founded on acceptance of rent must be acceptance of rent as such and in clear recognition of the tenancy right asserted by

the person who pays it. In view of the abovesaid discussion by the Apex Court, the submission of the learned counsel for the appellant cannot be

accepted that the Apex Court has come to the conclusion that mere payment of rent should be taken as definite consent to the continuance of

possession by the tenant. So, the abovesaid decision of the Apex Court (supra) will not improve the case of the appellant.

I would like to deal with certain other decisions which deal with the scope of Section 116 of the Act, while considering the scope of Section

116 of the Act, the Division Bench of Calcutta High Court in the decision in Karnani Industrial Bank Ltd. v. Bengal Province AIR 1949 Cal. 47

has held as follows: -

In the view we have taken it is not necessary for us to express any positive opinion with regard to the interpretation of Section 116, Transfer of

Property Act, on which the conclusion of the learned lower Court was based. We may, however, say that we think there is some force in the

argument that acceptance of rent, as in the present case, long before the expiry of the lease, raises only a presumption of assent which may be

rebutted by cogent evidence. Section 116 lays down the conditions which require to be satisfied in order that a lease should be renewed from

month to month or from year to year. They are: (1) the lessee remains in possession of the demised property and (2) the lessor accepts rent or

otherwise assents to his continuing in possession. The use of the words otherwise assents denotes in our opinion that the acceptance of rent is only

a fact from which assent may be inferred or presumed.

Even in the decision in Manoharlal and Another Vs. Brajrajkishore and Another, , the learned Judge has taken similar view and held as

follows:-

(5) There can be no doubt that a tenancy cannot be created by a unilateral act; like any other contract, there must be an offer by one party and its

acceptance by the other. The tenancy may be implied from the conduct of the parties, e.g., where rent is paid by one party and accepted by the

other; see Govindrao v. Sarjabai AIR 1926 Nag. 62. It is, however, necessary that the rent should be offered, as also accepted, with the clear

intention of creating a tenancy before the relationship of landlord and tenant can be deemed to be established between the parties.

The learned Judge of the Allahabad High Court in the decision in Deep Chand Vs. Babu Ram, , following the decisions in Ganga Dutt Murarka

Vs. Kartik Chandra Das and Others, and Bhawanji Lakhamshi and Others Vs. Himatlal Jamnadas Dani and Others, , has held as follows:-

For the respondent reliance was placed on a Supreme Court decision in Bhawanji Lakhamshi and Others Vs. Himatlal Jamnadas Dani and

Others, . This decision of the Supreme Court was in my judgment not correctly appreciated by the lower appellate Court. In para 9 of this report

the Supreme Court observed: what the section contemplated is that on one side there should be an offer of taking a new lease evidenced by the

lessee of sub-lessee remaining in possession of the property after his term over and Ganga Dutt Murarka Vs. Kartik Chandra Das and Others, on

the other side there must be a definite consent to the continuance of possession by the landlord expressed by acceptance of rent or otherwise.

Applying this test to the present case it appears that both the conditions formulated by the Supreme Court are present in this case. There was

evidence of an offer of taking a new lease on the part of the lessee evidenced by remaining in possession of the property after expiry of the term

and on the other side there is evidence of definite consent on the part of the respondent-landlord to the appellant''s continuance in possession, the

same being expressed by acceptance of rent on 31.10.1972. That being so, the conditions posted by Section 116 of the Transfer of Property Act

were fully satisfied in this case and the appellant became a tenant of the respondent in the disputed shop by holding over. In Column 1 page 820 of

the same report referring to its observations in the case of Ganga Dutt Murarka Vs. Kartik Chandra Das and Others, the Court cautioned that

mere acceptance of amounts equivalent to rent by a landlord from a tenant in possession after the lease had been determined either by efflux of

time or by notice to quit cannot be regarded a new agreement of tenancy. In Bhawanji Lakhamshi and Others Vs. Himatlal Jamnadas Dani and

Others, also the Supreme Court had referred with approval to observations made in Davies v. Bristow, 1920 (3) KB 428 to the following effect:

Where a tenant of a house to which the increase of Rent and Control (War Restrictions) Act applies, holds over after the expiry of a notice to quit,

and pays rent, the landlord is not to be taken by accepting it to assent to a renewal of the tenancy on the old terms, for he has no choice but to

accept the rent, but he could not sue in trespass for mesne profits for the tenant not withstanding the notice to quit, shall not be regarded as a

trespasser so long as he pays the rent and performs the other conditions of the lease.

The learned Judge of the same High Court in the decision in Smt. Munni Devi and Another Vs. State of U.P. and Others, , has held as

follows:-

As observed by the Supreme Court in Associated Hotels of India Ltd., Delhi Vs. S.B. Sardar Ranjit Singh, that waiver is an intentional

relinquishment of a known right. There can be no waiver unless the person against whom the waiver is claimed had full knowledge of the facts

enabling him to take effectual action for the enforcement of such rights. Waiver is distinct from estoppel. Waiver is an agreement to release or not

to assert a right, whereas estoppel is a rule of evidence. On the facts of this case, mere acceptance of rent after notice to quit u/s 106, Transfer of

Property Act would not amount to waiver of notice. It was not made out that the clerk who accepted the rent was aware of the giving of notice in

question and had accepted payment of rent despite that knowledge.

The Rajasthan High Court in the decision in Gordhan Vs. Ali Bux, , has held as follows:-

Section 116 of the Transfer of Property Act provides that if a lessee remains in possession of immovable property after the determination of the

lease and the lessor of his legal representative accepts rent from the lessee or otherwise assents to his continuance in possession, the lease is

renewed from year to year or from month to month, according to the purpose for which the property was leased, in the absence of any agreement

to the contrary. In the present case, it is not alleged by the defendant that any rent was paid by him and was accepted by the lessor, the plaintiff in

respect of any period after the expiry of the lease. There is also no evidence of the landlord having assented to the continuance of the defendant in

possession of the premises after the expiry of the period of one year. Mere delay in taking steps to evict the tenant could not lead to an inference

that the lessor assented to the continuance of the tenant nor a presumption of holding over could be drawn merely an account of service of notice

to quit by the lessor, as giving of such notice does not constitute assent or recognition of tenancy.

Again, the Division Bench of the Calcutta High Court in the decision in Karnani Industrial Bank Ltd. v. Bengal Province AIR 1949 Cal. 47, on

the basis of the discussions made in the decisions in Bhawanji Lakhamshi and Others Vs. Himatlal Jamnadas Dani and Others, , Ganga Dutt

Murarka Vs. Kartik Chandra Das and Others, and in AIR 1949 124 (Federal Court) , has held as follows:-

..held that where a contractual tenancy, to which rent control legislation applied, had expired by efflux of time or by determination by notice to quit

and the tenant continued in possession of the premises, acceptance of rent from the tenant by the landlord after the expiration or determination of

the contractual tenancy will not afford ground for holding that the landlord had assented to a new contractual tenancy. It was further held that

acceptance by the landlord from the tenant, after the contractual tenancy had expired, of amounts equivalent to rent, or amounts which were fixed

as standard rent, did not amount to acceptance of rent from a lessee within the meaning of Section 116 of the Transfer of Property Act.

Further, the learned Judge of the Kerala High Court in the decision in Padmanabha Pillai Vs. Sankaran Viswambaran, , has arrived at similar

view, and held as follows:-

Section 116, Transfer of Property Act, dealing with the effect of holding over provides that if a lessee or under- lessee remains in possession

after determination of the lease and the lessor or his legal representative accepts rent or otherwise assents to his continuing in possession, in the

absence of an agreement to the contrary, the lease is renewed from year to year or month to month according to the purpose for which the

property is leased as specified in Section 106. The tenancy created by holding over is a new tenancy in law by implication even though many of the

terms of the old lease may continue in it. But in order to create a new tenancy there must be a bilateral act. What Section 116, Transfer of

Property Act, contemplates is that there should be an offer to take a renewed or fresh lease evidenced by the lessee''s continuing in possession and

the definite assent of the landlord evidenced by receipt of rent or otherwise. If it is by acceptance or rent it must be as such and in clear recognition

of the tenancy. Acceptance of rent unless explained on any other hypothesis may be evidence of assent depending upon the facts and

circumstances of each case, but it is not the only evidence or basis. Each case will depend on its merits in that respect, where the contract of

tenancy has expired but the tenant continues in possession by way of statutory protection, it cannot be said to be an offer on the part of the tenant

to take a renewed or fresh lease simply by continuing in possession. In such a case while the statutory tenancy continues, acceptance of rent by

landlord by itself will not afford ground of holding that he assented to a new tenancy. The position is not different even when a petition for eviction

has been allowed by the Rent Control Court. Rent Control legislations in some other State provide that though a person continuing in possession

after the determination of the tenancy also may come within the meaning of tenant, a person against whom an order for eviction was passed will not

come within the definition of tenant. But Section 2(6), Kerala Rent Control Act, 1965, defines tenant as including a person continuing in possession

after determination of the tenancy in his favour. There is no provision that a tenant will not include one against whom an order for eviction has been

made. Therefore it must be held that even after an order for eviction the position of the tenant is the same and the statutory tenancy will continue.

The statutory tenancy is not determined by the order for eviction alone. He will be continuing to hold the building under the old terms and

conditions. In a case where eviction petition is dismissed there is Section 11(15). In cases where eviction is allowed also the tenancy must be

deemed to have continued under the old terms and conditions till the tenant is actually evicted from the holding. Mere acceptance of amounts

equivalent to rent by the landlord from such a tenant, who continues in possession as a tenant after the lease has been determined cannot be

regarded as evidence of a new agreement of tenancy. As per fiction of law he is entitled to continue in possession on the same terms and

conditions and he is bound to pay rent. The landlord is entitled to receive the same. In such a case it will be for the tenant to establish that the

payment and receipt were not as statutory tenant, but as legal rent indicating assent. In such a situation the mere payment and acceptance of rent

by themselves cannot be taken as evidence of a new lease arrangement. There must be independence evidence of assent on the part of the lessee

showing that the landlord has assented. These positions are well established and if at all any authorities are necessary they could be had from the

decisions in Kal Khurskroo v. Bal Jerbal, AIR 1939 FC 124; Gooderham & Worts Ltd. v. C.R. Corporation, AIR 1939 PC 90; Ram Barai

Singh Vs. Tirtha Pada Misra, ; Ganga Dutt Murarka Vs. Kartik Chandra Das and Others, ; Vasu Vs. Kallianikutty, ; Bhawanji Lakhamshi and

Others Vs. Himatlal Jamnadas Dani and Others, and Firm Sardarilal Vishwanath and Others Vs. Pritam Singh, .

From the discussions made in the above cited decisions, it is clear that there should be evidence to show that acceptance of the rent by the

landlord with the intention to permit the tenant to continue as tenant, which is not available in this case. As a matter of fact, P.W.1 has deposed that

the amount received is only by way of damages. Moreover, the defendants have taken the lease of the building consisting of four floors each floor

measuring about 3,121 sq.ft. on a monthly rent of Rs.5,000. The property is situated in a prime locality of the Chennai city. The

appellants/defendants are not only running their own shop therein but also sub-let to other tenants. Even according to the plaintiff in 1986 the entire

floors measuring 12,464 sq.ft. would fetch rent not less than Rs.30,000 per month. The lower appellate Court taking into consideration the

evidence available on record has found that there is no evidence to the effect that the plaintiff has received the rent with the intention to permit the

defendant to continue to be in possession as tenant. In view of the said factual finding of the lower appellate Court, the case of the

appellants/defendants cannot be accepted either u/s 113 or u/s 116 of the Act.

For all the reasons stated above, this second appeal is dismissed with costs and the judgment and decree of the lower appellate Court are

confirmed. Connected C.M.Ps. are closed.