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The propriety of this decision has been challenged by Mr. Daphtary who appeared in support of the appeal and his contention is that the appellate Judges of the High Court misdirected themselves as to the elements necessary to create a tenancy of "holding over" under Section 116, Transfer of Property act, and that their approach to the evidence has not been a proper one.

It is argued that the tenancy contemplated by Section 116, Transfer of Property Act, is a new tenancy which is brought into being after the expiry of the old, if and when the conditions laid down in the section are fulfilled. The essential thing in a new tenancy is that the parties must be ad idem as to its terms. If this agreement or consensus is wanting, no tenancy can possibly come into existence, and the position of the lessee, whose lease has expired, must be considered to be that of a trespasser. It is said by the learned counsel that this is exactly what has happened in the present case. On the one hand, the defendants 2 and 3 when they remitted rents to the plaintiff did so, not for entering into a fresh agreement with the plaintiff but only to discharge what they conceived to be their existing legal obligation as statutory tenants under the provision of the Bombay Rent Restriction Order. On the other hand, the plaintiff did not accept the rents paid by defendants as rents at all, but only as compensation for wrongful use and occupation of the premises by the latter. Thus the parties were not ad idem upon the basis of which a new tenancy could be founded.

This argument, though plausible at first sight, does not appear to me to be sound. It is perfectly right that the tenancy which is created by the 'holding over" of a lessee or under-lessee is a new tenancy in law even though many of the terms of the old lease might be continued in it, by Implication; and it cannot be disputed that to bring a new tenancy into existence, there must be a bilateral act. What Section 116, Transfer of Property Act, contemplates is that on one side there should be an offer of taking a renewed or fresh demise evidenced by the lessee's or sub-lessee's continuing in occupation of the property after his interest has ceased and on the other side there must be definite assent to this continuance of possession by the landlord expressed by acceptance of rent or otherwise. It can scarcely be disputed 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. But, while all this may be conceded, I do not think that these principles are really of any assistance to the appellant in the present case.

"The propriety of this decision has been challenged by Mr. Daphtary who appeared in support of the appeal and his contention is that the appellate Judges of the High Court misdirected themselves as to the elements necessary to create a tenancy of "holding over" under Section 116, Transfer of Property act, and that their approach to the evidence has not been a proper one.

It is argued that the tenancy contemplated by Section 116, Transfer of Property Act, is a new tenancy which is brought into being after the expiry of the old, if and when the conditions laid down in the section are fulfilled. The essential thing in a new tenancy is that the parties must be ad idem as to its terms. If this agreement or consensus is wanting, no tenancy can possibly come into existence, and the position of the lessee, whose lease has expired, must be considered to be that of a trespasser. It is said by the learned counsel that this is exactly what has happened in the present case. On the one hand, the defendants 2 and 3 when they remitted rents to the plaintiff did so, not for entering into a fresh agreement with the plaintiff but only to discharge what they conceived to be their existing legal obligation as statutory tenants under the provision of the Bombay Rent Restriction Order. On the other hand, the plaintiff did not accept the rents paid by defendants as rents at all, but only as compensation for wrongful use and occupation of the premises by the latter.

Thus the parties were not ad idem upon the basis of which a new tenancy could be founded.

This argument, though plausible at first sight, does not appear to me to be sound. It is perfectly right that the tenancy which is created by the 'holding over" of a lessee or under-lessee is a new tenancy in law even though many of the terms of the old lease might be continued in it, by Implication; and it cannot be disputed that to bring a new tenancy into existence, there must be a bilateral act. What Section 116, Transfer of Property Act, contemplates is that on one side there should be an offer of taking a renewed or fresh demise evidenced by the lessee's or sub-lessee's continuing in occupation of the property after his interest has ceased and on the other side there must be definite assent to this continuance of possession by the landlord expressed by acceptance of rent or otherwise. It can scarcely be disputed 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. But, while all this may be conceded, I do not think that these principles are really of any assistance to the appellant in the present case.."