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It is plain that the assent under Section 116 is a free and voluntary assent. If that assent has been procured by some other means and is not an act of free volition, such an assent is not sufficient to bring into existence a tenancy of the nature described in Section 116. Acceptance of rent becomes an unequivocal act signifying assent, because after the determination of the lease there is no liability for payment of rent, and if the landlord accepts rent, voluntarily and without objection, from the tenant holding over, it gives rise to only one inference, and that is that the landlord has accorded recognition to the continuance of his possession. In a case under Bihar Act III of 1947 there is nothing like wrongful possession after the determination of the lease, and a person holding over is also a tenant in the eye of law. In such a case acceptance of rent does not introduce any change in the legal position. When such a tenant continues to be a tenant under the law of the land, the landlord has no option but to treat him as such and accept rent from him, and when rent is accepted under compulsion of law, such acceptance cannot be regarded as a free assent of the landlord to the continuance of the tenancy and waiver of the determination of the lease. Therefore, in a case governed by Bihar Act III of 1947 acceptance of rent cannot be regarded such an unequivocal act of the landlord as to bring into existence a new tenancy, as envisaged in Section 116 of the Transfer of Property Act. I do not mean to suggest that the acceptance of rent is of no consequence at all. Two alternatives are possible: the acceptance of rent by the landlord may be attributable either to the fact that the tenant has become a statutory tenant in law and the landlord must accept rent from him, or to his assent to the creation of a new tenancy.

There is no escape from this position, and in such a situation the mere acceptance of rent cannot be regarded as conclusive in determining whether a new tenancy was created. It becomes purely a question of fact, and, in my opinion, each case must be determined on its own facts. It will be a matter for judicial investigation in every case whether the acceptance of rent is attributable to the statutory tencancy which automatically comes into existence after the expiry of the lease or to the landlord assenting to a new tenancy coming into existence.

A similar view was expressed by the Court of Appeal in another case, namely, Shuter v. Hersh, (1922) 1 KB 438 (C). This case lays down that where a tenant remains in possession under the provisions of the Increase of Rent &c. Restrictions Act, 1920, after receiving notice to quit, there is no necessity for the landlord to give the tenant a fresh notice to quit before raising the rent to the extent permitted by the Act unless a new tenancy has been actually created, and the mere fact that the landlord accepts rent after giving the notice to quit cannot be taken as a waiver by him of the notice to quit so as to create a new tenancy.

12. A Divisional Bench of the Bombay High Court, relying upon the aforesaid English decisions, has expressed a similar view in Baldeodas Mahavir Prasad v. G.P. Sonavalla, AIR 1948 Bom 385 (D). That was a case under the Bombay Rents, Hotel Rates and Lodging House Rates (Control) Act, and there also the possession of the tenant after the determination of the tenancy was not unlawful under that Act.

The Division Bench has held that when a tenant of certain premises to which Bombay Act VII of 1944 applies continues in possession after the termination of his tenancy by notice to quit, he becomes a statutory tenant whom the landlord cannot eject so long as the tenant carries out the conditions laid down in Section 9 of that Act. It further lays down that the mere acceptance of rent is not by itself sufficient to bring into existence a new tenancy as contemplated by Section 116, Transfer of Property Act, as it used to be prior to the passing of the Rent Restriction Act, and, therefore, in order to show that a new tenancy has been created under Section 116, Transfer of Property Act, it must be shown that the acceptance of rent by the landlord was attributable to his assenting to a new tenancy coming into force.