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Sati Prasanna Mukherjee v. Md. Fazel
Structured Summary of the Judgment — Recovery of Premises No. 47A, Ripon Street, Calcutta
Factual and Procedural Background
This is a suit for recovery of premises No. 47A, Ripon Street, Calcutta, brought by the plaintiffs on the ground that they bona fide require the premises for their own use and occupation and for the purpose of building and re-building. The defendant's written statement raised two defences: (1) that the lease was for manufacturing purposes, and (2) denial of the plaintiffs' bona fide requirement as pleaded in the plaint.
The lease was dated 18-4-1929 in favour of the defendant for twenty years and expired on 30-4-1946 (Ex. A). After expiry the defendant remained on the premises on a monthly rent of Rs. 175 until a notice to quit dated 8-3-1948 asking the defendant to vacate on expiry of March 1948. Evidence was led on behalf of the plaintiffs through three witnesses: Uma Prasanna Mukherji, Debi Prasanna Mukherji (a plaintiff), and Sachin Bhattacharya (an employee).
There was an earlier partition of the original property (No. 47) into 47A and 47B. 47B was allotted to plaintiff Durga Prasanna and 47A was allotted to plaintiffs Nos. 1, 2, 4 and 5. The plaintiffs contend they have no house to live in Calcutta and thus require the premises.
Legal Issues Presented
- Was the lease for manufacturing purposes?
- Do the plaintiffs require the premises bona fide:
- for their own use and occupation; and
- for building and re-building?
Arguments of the Parties
Plaintiffs' Arguments
- The plaintiffs accepted the issues framed (as raised by Mr. Modak) and led evidence that they bona fide require the premises for their own occupation and for building and re-building; in particular, some plaintiffs have no house to live in Calcutta.
- They deny that the lease was for manufacturing purposes and deny knowledge or notice that the defendant used the premises for manufacturing, as alleged in the written statement.
Defendant's Arguments
- The defendant (through Mr. Meyer and junior Mr. Modak) defended mainly on the ground that the lease was for manufacturing purposes; as a consequence the notice to quit was said to be bad and insufficient.
- The defendant asserted varied uses in the lease: residential purpose, setting up a printing press, and ordinary business; the pleading also alleged manufacture of rubber and other manufactures in the premises (though no evidence of such manufacture was led).
- Mr. Meyer relied on a construction of the lease together with Section 106 of the Transfer of Property Act and cited prior authority (Jayanti Hosiery Mills v. Upendra Chandra Das) in support of a broad view that printing may amount to manufacture.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Jayanti Hosiery Mills v. Upendra Chandra Das, AIR 1946 Cal 317; 50 C.W.N. 441 | Considered for the proposition that certain industrial activities (e.g., hosiery/manufacturing) fall within the meaning of "manufacture" under Section 106; relied upon by defendant to argue printing is manufacture. | The court considered the observations in that decision (including the dictionary meaning quoted by B.K. Mukherjea, J.) but distinguished it. The court concluded that the lease in the present case, being for mixed purposes including dwelling and ordinary business and only "setting up a press", was not a lease for manufacturing purposes as contemplated by Section 106. |
| Ralston v. Smith, (1866) 11 H.L.C. 223 (observations of Lord Westbury) | Quoted to explain a broad judicial understanding of "manufacture" to include production, machinery, processes and improvements of processes. | The court respectfully followed Lord Westbury's observations to inform the popular meaning of "manufacture" but applied that meaning to hold that ordinary printing (printing simpliciter) is not necessarily manufacture within the meaning of Section 106. |
Court's Reasoning and Analysis
The court examined the two issues in turn, taking Issue No. 2 (bona fide requirement) first because the evidence was one way on that point in favour of the plaintiffs. On the facts the court noted the partition of the original property and the allotment of 47A to several plaintiffs, and accepted evidence that plaintiffs 1, 2, 4 and 5 had no house to live in Calcutta. On that basis the court held the plaintiffs bona fide required the premises for their own occupation and for building and re-building, answering Issue No. 2 in the affirmative.
Turning to Issue No. 1 (whether the lease was for manufacturing purposes) the court analyzed the lease clause (Cl. 2) which stated the defendant would occupy the premises "for dwelling purpose, for setting up a press & for ordinary business purposes" and considered the legal effect of Section 106 of the Transfer of Property Act (a "lease of immovable property for manufacturing purposes").
The court observed that the words of Section 106 require that the lease itself, at inception, must be for manufacturing purposes; a lease for mixed or multiple purposes is not a lease "for manufacturing purposes" within Section 106 but falls within "any other purpose" language in the section. The court rejected reliance on etymology alone and adopted a "popular" meaning of manufacture: production of a new or different article or a process that converts one kind of article into another.
Applying that test, the court held that "printing simpliciter" is not necessarily manufacture. The court found that the phrase "for setting up a press" does not necessarily mean the lease was for manufacturing purposes. The court also noted procedural and legal difficulties in accepting the defendant's contention: if the lease were a lease for manufacturing purposes it would be deemed a lease from year to year under Section 106 and, as such, would require registration under Section 107; no registered instrument existed. The court held that a lease "deemed" to be a lease from year to year is nonetheless subject to the statutory requirement of registration under Section 107.
The court emphasized that whether a lease is for manufacturing purposes depends on the agreement between landlord and tenant at the time of grant: both parties must know and agree that the lease is for manufacturing purposes at inception. Subsequent user by the tenant without the landlord's agreement does not convert a lease into one for manufacturing purposes under Section 106.
On the factual record the court found no evidence of rubber manufacture or other manufacturing alleged in the written statement. The court was also not satisfied with the defendant's evidence and found the defence of a manufacturing lease to be a last-minute, inspired defence rather than genuine. For these reasons the court answered Issue No. 1 in the negative.
Consequently, the court decreed judgment for the plaintiffs in terms of prayer (a) of the plaint with mesne profits at the rate of rent from 1-4-1948 until delivery of possession. The defendant was ordered to pay mesne profits and send them to the plaintiffs' solicitor (without prejudice to the defendant's rights and contentions). The plaintiffs were awarded costs and the decree was certified for two counsel. Execution of the decree was stayed for a fortnight after it is drawn up.
Holding and Implications
Holding: The suit was decreed. The court held that (1) the plaintiffs bona fide require premises No. 47A, Ripon Street, for their own occupation and for building and re-building (Issue No. 2 answered in the affirmative); and (2) the lease was not for manufacturing purposes within the meaning of Section 106 of the Transfer of Property Act (Issue No. 1 answered in the negative).
Direct consequences and orders made by the court:
- Decree for recovery of possession in favour of the plaintiffs (suit decreed).
- Mesne profits awarded to the plaintiffs at the rate of rent from 1-4-1948 until delivery of possession; the defendant ordered to continue paying mesne profits and to send them to the plaintiffs' solicitor (without prejudice to his rights).
- Costs awarded to the plaintiffs; decree certified for two counsel.
- Execution of the decree is stayed for a period of one fortnight after it is drawn up.
Broader implications: The opinion explains and applies the interpretation of "manufacturing purposes" under Section 106 of the Transfer of Property Act to the facts of a mixed-purpose lease (dwelling, setting up a press, ordinary business). The judgment confines its reasoning to the construction of the lease and statutory requirements for leases deemed to be from year to year under Sections 106 and 107; it does not announce any broader binding rule beyond the statutory interpretation and the factual conclusions in this case.
JUDGMENT
1. This is a suit for the recovery of premises No. 47A, Ripon Street, Calcutta, on the ground that the plffs. bona fide require the said premises for their own use & occupation & for the purpose of building & re-building. The defence taken in the written statement is two-fold: one is that the lease was for manufacturing purposes, & the other is a denial of the bona fide requirement of the plffs. upon the grounds mentioned in the plaint.
2. Mr. Modak, learned junior of Mr. Meyer, raised two issues as follows:
1. Was the lease for manufacturing purposes?
2. Do the plffs. require the premises bona fide—
(a) for their own use & occupation;
(b) for building & re-building?
3. These issues have been accepted by Mr. S.K Basu appearing for the plffs.
4. Evidence has been adduced on behalf of the plffs. The first witness was Uma Prasanna Mukherji, the son of plff. 1 Sati Prasanna Mukherji; & the next witness was the plff. Debi Prasanna Mukherji, & the third witness was Sachin Bhat-tacharya, an employee of the plffs.
5. I will take issue No. 2 first for consideration because I consider the evidence is all one way under this issue, & that is in favour of the plffs.
6. Originally premises No. 47, Ripon Street, was one entire property, which has now been sub-divided into two portions marked 47 ‘A’ & 47 ‘B’. There was a partition proceeding between the plffs. & No. 47B, Ripon Street has been allotted to the plff. Durga Prasanna. 47 ‘A’ Ripon Street has been allotted to the plffs. Nos. 1, 2, 4 & 5. Plffs. 1, 2, 4 & 5 have no house to live in Calcutta, & I am satis-fled on the evidence that they bona fide require the said premises for their own use & occupation & for the purpose of building & rebuilding. (After discussion of the evidence the judgment proceeds:) I therefore, hold that the plffs. bona fide require the said premises for their own occupation & for building & re-building & I answer issue No. 2 in the affirmative.
7. Mr. Meyer has mainly defended the suit on issue No. 1. His submission is that the notice in this case is bad & insufficient on the ground that the lease was for manufacturing purposes.
8. The facts of the case may be briefly stated: There was a lease dated 18-4-1929, in favour of the defendant for twenty years, which expired on 30-4-1946. The lease is an exhibit & appears in the agreed brief of documents, which has been marked by consent as Ex. A. On the expiry of the lease it is the pltfs' case that the deft. was allowed to remain as a tenant on a monthly rent of Rs. 175/- according to the English calendar month until the notice dated 8-3-1948, which is also to be found in the brief of documents. The notice to quit asked the deft. to vacate on the expiry of the month of March 1948.
9. The evidence on the point so far as is material has been on the following lines. The lease was taken by the deft. for various purposes, mainly for residential purpose of the deft. himself & for the purpose of setting up a printing press & for ordinary business purposes. It is denied on behalf of the plffs. that the lease was for manufacturing purpose. (After discussion of the evidence the judgment proceeds): I am not satisfied with the evidence that the deft. gave & the method & manner of his giving evidence, & the deft's demeanour has left this impression in my mind that the defence of manufacturing lease was a last minute & inspired defence & was not a genuine & bona fide defence. Mr. Meyer for the deft. realised this difficulty & confined himself mostly to a question of the construction of the lease & of Section 106 of the Transfer of Property Act.
10. The relevant clause in the lease is to be found in Cl. 2, the material portion of which runs as follows:
“I shall pay the rent Rs. 175/- per month according to the English calendar month & I shall occupy, the same for dwelling purpose, for setting up a press & for ordinary business purposes.” On this Mr. Meyer has argued that the lease is for manufacturing purpose within the meaning of Section 108 of the Transfer of Property Act. He has relied on the decision in ‘Jayanti Hosiery Mills v. Upendra Chandra Das’, AIR (33) 1946 Cal 317 : 50 CWN 441. After giving the most careful consideration to Mr. Meyer's argument I have come to the conclusion that such a lease as in the present case on a proper construction does not bear the meaning that Mr. Meyer wants to give it. In my opinion the language of Section 106 of the Transfer of Property Act is of great importance. The language so far as it concerns the present case is “a lease of immovable property for manufacturing purposes”. On a construction of those words it seems to me that the very lease itself must be for manufacturing purpose & the purpose of the lease must be for manufacture. In other words, if the lease is for mixed or multiple purposes, like dwelling purpose, ordinary business purpose, as well as setting up a printing press, that is not a lease for manufacturing purpose within the meaning of Section 106 of the Transfer of Property Act, but in my opinion is within the meaning of the words “any other purpose” used later in the section.
11. The etymological meaning of the word ‘manufacture’ is of little help in this connection. It comes from the Latin word ‘manus’, the hand, & ‘facere’, to make or produce. The word ‘manufacture’ ‘therefore etymologically means any thing that is made or produced by hand. But the word manufacture has acquired a much larger mean in & connotation than what its etymological origin implies.
12. Mr. Meyer has argued that printing is manufacture. I am unable to accept such a broad proposition. Printing of books or printing of documents is in my opinion not necessarily manufacture. Had it been so then when a typist in Counsel's Chambers types out manuscripts he can be said to be manufacturing. I do not think that is manufacture. In so far as ordinary printing is making a copy or an imitation I am not of the opinion that printing is necessarily manufacture. In the decision of ‘Jayanti Hosiery Mills v. Upendra Chandra Das’, 50 C.W.N 441 : AIR (33) 1946 Cal. 317, B.K Mukherjea, J. made the observations in connection with a hosiery business, & points out that according to dictionary meaning manufacture means “to work up materials into forms suitable for use” & that such materials may not only be the original raw material but may also be partly or wholly manufactured articles which themselves may be used for manufacturing some other article.
13. The word ‘manufacture’ must in this context in my opinion be construed in a popular sense. The popular concept is that there must be production of a new or a different article or the process must be such as converts one kind of article into Lnother kind. The observations of Lord Westbury, “Lord Chancellor in ‘Ralston v. Smith’, (1866) 11 H.L.C 223 at p. 246 are material on the point. They are:
“Your Lordships are well aware that by the large Interpretation given to the word ‘manufacture’ it not only comprehends productions, but it also comprehends productions, but it also comprehends the means of producing them. Therefore in addiction to the thing produced it will comprehend a new machine or a new combination of machinery. It will comprehend a new process or an improvement of an old process.”
14. I respectfully follow these observations as denoting what ‘manufacture’ means. In my judgment the word ‘manufacturing’ in Section 106 of the Transfer of Property Act should on given its commonly understood meaning, which is neither the etymological meaning nor the technical meaning as applied to mechanical industry or commerce. Applying these tests & giving the popular meaning to the word “Manufacture” I am unable to hold that printing simpliciter is always manufacture. This is so far as the construction of the words used in Section 106 of the Transfer of Property Act is concerned.
15. On the construction of the words in the particular lease I am also of the view that these words do not mean that the lease in this case was for manufacturing purposes. The material words in the lease are “for setting up a press”. Those words by themselves in my opinion do not mean necessarily manufacture. Therefore, it cannot be said that this is a lease for manufacturing purpose.
16. Mr. Meyer's argument that the lease in this case was for manufacturing purpose leads to a legal difficulty. Under Section 106 of the Transfer of Property Act if the lease is for manufacturing purpose it will be deemed to be a lease from year to year. A lease from year to year under Section 107 of the Transfer of Property Act, can be made only by a registered instrument. In this case there is admittedly no registered instrument & it is a case of holding over under oral arrangement. Although Section 106 of the Transfer of Property Act provides that a lease for manufacturing purpose will be “deemed” to be a lease from year to year that does not in my view exclude such lease from the operation & requirement of Section 107 of the Transfer of Property Act. A lease which under the law is “deemed” to be a lease from year to year” is in my view nonetheless “a lease from year to year” under S. 107 of the Act & must therefore satisfy the statutory requirement of registration subject of course to the provision of Section 53 of the Transfer of Property Act. No question of S. 53‘A’ of the Act arises here nor has any Issue been raised on that point. I am therefore unable to hold that there is a lease for manufacturing purpose in this case & answer Issue No. 1 in the negative.
17. In this case what are the facts? The deft. houses a library there. The deft. himself resides there. The deft. submits that the power of subletting is also given in the lease itself. Surely these are not manufacturing purposes. The ether purpose is ordinary business purpose, which is also not necessarily manufacturing purpose. The setting up of the printing press again is not necessarily manufacturing purpose. In the written statement it is pleaded that there was manufacture of rubber & other manufactures carried on in the premises. No evidence whatever has been given either of rubber manufacture or any other manufactures. It is also pleaded in the written statement that the plff. had full knowledge & notice that the deft. was using the said premises for manufacturing purposes. On behalf of the pies, knowledge of notice has been denied. I need only add that in my view a lease for manufacturing purpose must be a lease which at its inception is for that purpose. The lease at the time of the grant by the landlord must be impressed which the purpose of manufacture. The fact that the premises after being taken is actually being used by the tenant for manufacture does not make the lease for manufacturing purpose within the meaning of Section 106 of the Transfer of Property Act. It is necessary to emphasise that a lease or a tenancy must be by agreement between the landlord & the tenant & both the parties must know that the lease is for manufacturing purpose at the time of the grant. If that to not so then the nature of subsequent user of the premises by the tenant without agreement of the landlord will not convert such a lease into one for manufacturing purpose. In those circumstances, there will be judgment for the plfs. in terms of prayer (a) of the plaint with mesne profits at the rate of rent from: 1-4-1948, until delivery of possession. The plfs. are entitled to the costs of the suit. Certified for two counsel. The deft. will go on paying mesne profits & send them to the plff's solicitor without prejudice to his rights & contentions. The decree is not to be executed for a fortnight after it is drawn up.
K.S
18. Suit decreed.
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