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SUPREME COURT OF INDIA
27th September, 1961.
B.P. SINHA, C.J.I., P.B. GAJENDRAGADKAR AND RAGHUBAR DAYAL, JJ.
Sivayogeswara Cotton Press, Devangere and others, Appellants
Versus
M. Panchaksharappa and another, Respondents.
Civil Appeal No. 324 of 1961.
Advocates appeared
Mr. C. K. Daphtary, Solicitor-General of India (M/s. J. B. Dadachanji, Ravinder Narain and O. C. Mathur, Advocates of M/s. J. B. Dadachanji and Co. with him), for Appellants; Mr. R. Ganapathy Iyer, Advocate and Mr. G. Gopalakrishnan, Advocate of M/s. Gagrat an Co., for Respondent No. 1.
– As held in the case of Sivayogeswara Cotton Press v. M. Panchaksharappa, AIR 1962 SC 413 = 1962(2) SCJ 85 = 1962 (3) SCR 876, on construction of the lease deed, it appears that a permanent lease was created.
– Where the tenancy is granted by an instrument in writing, the question whether the tenancy is permanent is a matter of construction, having regard to the terms of the deed and where the language of the deed is ambiguous, having regard also the object of the lease, the circumstances under which it was granted and the subsequent conduct of the parties. See Sivavogeswara Cotton Press v. M. Panchaksharappa, AIR 1962 SC 413 = 1962(3) SCR 876. If the origin of the tenancy is not known, the tenant may lead circumstantial evidence to establish permanent right of occupancy. The evidence of long possession coupled with other circumstances such as uniform payment of rent, construction of permanent structures, successive devolutions of property by transfer and inheritance may lead to the inference that the tenancy is permanent. See Bejoy Gopal Kukherji v. Pratul Chandra Ghose, AIR 1953 SC 153= 1953 SCR 930, followed, discussed and approved in the case of Atyam Veeraju v. Pechetti Venkanna, AIR 1966 SC 629 = 1966(1) SCWR 309 = 1966(2) SCD 903 = 1966(1) SCA323= 1966(1) SCR 831.
– The mere fact, that a lease provides for the interests there under to pass on the heirs of the lessee would not always mean that it is a permanent lease. Such a provision can be made in two ways resulting in two different consequences. A lease may provide a fixed period and then include a provision that in the event of the leasee dying before the expiry of such period, his heirs would be entitled to have the benefit of the lease for the remainder of the period. If the lease, on the other hand were for an indefinite period, and contains a provision for the rights there under being heritable, then such a lease, though ordinarily for the life time of the lessee, would be construed as permanent. In the case of Sivayoeswara Cotton Press v. M. Panchaksharappa, AIR 1962 SC 413 = 1962(3) SCR 876, the lease was intended to be heritable. But clause enabling the lease hold interest to be transferred doe not render such interest heritable – See decision in Chapsibhai Dhanjibhai Dand , AIR 1971 SC 1878 = 1971(2) SCA 61 = 1971 SCD 601.
Judgment
SINHA, C.J.I. : This appeal by special leave granted by this Court on April 20, 1961, is directed against the concurrent decisions of the Courts below decreeing the plaintiff s suit for ejectment on the ground that the defendant is a tenant at will and negativing the appellants claim to a permanent tenancy. The controversy between the parties depends upon the true construction of the lease dated October 26, 1914, executed between the predecessors in interest of the parties to the present litigation.
2. The facts leading up to this appear are as follows :-
3. One N. J. Gamodia of Bombay took on lease a piece of agricultural land measuring about 41/2 acres belonging to one Gurupadappa of Devangere City for the purpose of erecting a Ginning and Pressing Cotton Factory. The terms of the registered lease deed dated October 26, 1914, in so far as they are material for the determination of this appeal are better stated in the relevant portions of the deed itself :-
"1. For the 1st period of 20 (twenty) years commencing from the 1st October, 1914, and ending on the 30th day of September, 1934, you shall pay to me Rs. 350/(three hundred and fifty rupees) being the annual rent reserved every year in advance and obtain proper receipts of the payment from me. If before the expiration of the said period of 20 (twenty) years you will remove your factory from the said land hereby leased, you, are bound to pay me annually the rent of Rs. 350 (three hundred and fifty rupees) for the (torn) 20 (twenty) years but you are entitled to retain in possession of and the road till the 30th September, 1934.
2. After the expiration of the said period of 20 (twenty) years mentioned in the 1st clause hereby you shall be at liberty to continue the lease of the said land and the said road and keep the said land and the said road in your possession as long as you may desire to do. In case of your thus continuing the lease of the said land and the said road you shall pay to me annually the sum of Rs. 400 (four hundred rupees) as rent of the said land and the said road for 1st ten years beginning from the 1st October, 1934, and ending on the 30th September, 1944, and after the expiration of the period of ten years the annual rent payable by you for the said land and the said road will be Rs. 500 (five hundred rupees) per annum but, you shall always be at full liberty to give up the said land the said road and terminate this lease at any time you may desire so to do after the 1st October, 1934, and the rent payable in respect of the said land and the said road shall cease to be paid by you from the time you may give up the said land and the said road after the 1st October, 1934. But I agree and bind myself not to call upon you at any time to give up the possession of the said land and the said road as long as you may desire to keep the same for your purposes observing the terms of this agreement.
3. ...................................
4. ...................................
5. You are at full liberty to erect, as many buildings, godowns, factories, bungalows and other structures etc. as you may desire on the land hereby leased and to pull down, re-erect and make any alterations in the same as you may desire. I shall not noise any objection to your erecting any such structures on the land or to your use, and enjoyment of the land in any way or for any purpose as you may desire.
6. ...........................
7. I hold myself liable to pay always the annual assessment of the land hereby leased to Government; you shall not be liable for such land assessment. But you shall be liable to pay all fines and other taxes which the Government will hereafter impose for having converted the arable or cultivable land into land for factories and building purposes.
8. ...............................
9. ...............................
10. You shall be always entitled and have full liberty to sublet or re-let the said land together with the said road for any purpose to any other pers
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