The Custodian of Evacuee Property does not have the power to terminate a lease or take possession of property under the Administration of Evacuee Property Act, 1950, if the lease was entered into prior to August 14, 1947, and the person in possession is not an unauthorized person.

Chagla, C.J.

1.. One Ebrahim Yusuf Gardee let out the Edward Theatre on 5th May 1948, to a partnership consisting of the respondent and one Munehershaw B. Billimoria. The term of the lease was five years and that term expired on 30th September 1948. On 7th September 1949, the Edward Theatre was declared to be evacuee property by the Custodian of the Evacuee Property. On 10th September 1949 the Custodian called upon the respondent, who had by then become the sole lessee of the lease (the right, title and interest of his partner having been assigned to him) to pay the rent to him as the Custodian of the property, On 3lst May 1950, the Custodian served a notice upon the respondent terminating his tenancy at the end of one month, viz. 30th June 1950. Thereupon the respondent filed a petition in this Court for an order under Section 45, Specific Relief Act, requiring the Custodian to forbear from demanding surrender of possession of the Edward Theatre. This petition came on before Shah J. and the learned Judge granted the relief sought by the petition. From that order the Custodian has come in appeal before us.

2. The first contention that was urged by Mr. Seervai, on behalf of the Custodian, was that the power to take possession of the Edward Theatre was conferred upon the Custodian under Section 12 of the Administration of Evacuee Property Act. Now when we turn to that section we find that it deals with the power of the Custodian to vary or cancel leases or allotments of evacuee property ; but the section in terms says that the Custodian may cancel any allotment or terminate any lease or agreement under which any evacuee property is held or occupied by any person where such allotment or lease was granted after 14th August 1947. Therefore, it is clear that under this section the power conferred upon the Custodian cannot be exercised with regard to a lease granted or agreement made prior to 14th August 1947. Therefore, if in this case we find that the respondent held the property under a lease granted in his favour prior to 14th August 1947, the Custodian would not be in a position to exercise the power conferred upon him under this section.

3. When we turn to the lease, which is for a term of five years, we find that there is a provision under Clause 28 thereof for continuation of the lease. Clause 28 provides that if prior to the expiration of the term two calendar months notice is not given by either the lessor or the lessee the parties shall be deemed to have intended to continue the use and occupation of the premises let by the lease on a tenancy running from month to month, and the tenancy shall be subject to all the terms and conditions of the lease which are not inconsistent with such monthly tenancy and the monthly tenancy shall be terminable by one months notice. Therefore, it is clear that under Clause 28 on the expiry of the term of five years the lease would not terminate by influx of time. The lease would continue thereafter on the same terms and conditions with only this difference that the subsequent tenancy which would come into existence would not be for any fixed period but would be tenancy from month to month. Therefore if the respondent continued on the premises after 30th September 1948, when the five years term fixed by the lease expired, he continued as a monthly tenant under this very lease which terminated on 30th September 1948. In any view of the case, the tenancy of the respondent would be attributable to an agreement which was arrived at on 5th May 1943, and the terms of that agreement would have to be found in the lease which was executed on 5th May 1943. If that be the true position, then it is clear that the tenancy of the respondent was not under a lease or agreement which was granted or entered is to after 14th August 1947. If that be the true position, then it would not be competent to the Custodian to cancel the lease under Section 12 nor to take possession of the premises under Sub-section