JUDGMENT <NAME>, J.

1. This is an appeal from a judgment of a division bench of <ORG> cancelling a writ of prohibition issued by <NAME> against <ORG> to which a dispute between <ORG> and its workers had been referred under Section 10 of the Industrial Disputes Act, XIV of 1947.

2. Though a number of points were raised before <NAME> and before the division bench, the principal question raised by this appeal relates to the jurisdiction of the <ORG> constituted under the Act to entertain the dispute which had been referred to it. The controversy is firstly as to the scope of the Act, i.e., whether the Act has application to cases of private employers or is limited only to cases where either the <ORG> or <ORG>, or a local authority is the employer, and secondly, as to whether the dispute as to reinstatement of certain dismissed employees is a matter which is referable to the <ORG>.

3. On an application for a writ of prohibition and a writ of certiorari against the <ORG> restraining it from proceeding with the investigation of this dispute it was held by <ORG> that <ORG> was an employer and any dispute between it and its workers fell within the ambit of the Act. He, however, held that the dispute as to reinstatement of dismissed employees was outside the scope of the Act. A writ was accordingly ordered to issue. Against this decision an appeal was preferred by the Province of Bombay and another appeal by <ORG>. The appeal by the Province of Bombay contested the second finding of the Judge, while in the association's appeal the first finding was challenged. The learned Judges of the division bench by separate judgments dismissed the appeal preferred by the association and confirmed the decision of <ORG> on the first point. The appeal filed by the Province was allowed and the decision of <ORG> on the second point was set aside. It was held that the dispute as to reinstatement of dismissed employees was an "industrial dispute" between the employer and the employees within the meaning of the Act and the <ORG> had jurisdiction to adjudicate upon it. The same two points that were seriously canvassed before <ORG> were urged before us.

4. As regards the first contention raised on behalf of the association that the scope of the Industrial Disputes Act , 1947, is only limited to cases of industries or of undertakings carried on by <ORG> or local authority and that it does not include within its scope industries carried on by private individuals, we have no hesitation in repelling it. The argument on this point is based on the definition of the term "employer" given in Clause (g)(i) of Section 2 of the Act, which runs thus :

'Employer' means

(i) in relation to an industry carried on by or under the authority of any department of a Government in British India, the authority prescribed in this behalf, or where no authority is prescribed, the head of the department;

(ii) in relation to an industry carried on by or on behalf of a local authority, the chief executive officer of that authority.

"Industrial dispute" has been defined in Clause (k) of the same section in the following terms:

'Industrial dispute' means any dispute or difference between employers and employees, or between employers and workmen, or between workmen and workmen, which is connected, with the employment or non-employment or the terms of employment or with the conditions of labour, of any person.

It was contended that as the association did not fall within the definition of the word "employer" given in the Act (the definition being exhaustive), in its case there was no power to make a reference to the <ORG> and that the scope of the Act was limited to cases of <ORG>-run concerns or those in which a local authority was the employer. In our opinion, the definition given is neither exhaustive nor inclusive. In plain terms, the definition says that "employer" in relation to an industry carried on under the authority of any department of <ORG> in British India means the head of the department (where no other authority is prescribed) and in the case of an industry carried on by or on behalf of a local authority, it means the chief executive officer of the authority. In relation to such industries a definition has been given of the term "employer." As it was not easy in such cases to discover with certainty an individual or an officer who would answer that description, this definition indicates who shall be regarded as employer in the particular cases. No attempt, however, was made to define the term "employer" generally or in relation to other persons carrying on industries or running undertakings.

5. In the Trade Disputes Act, VII of 1929, this expression was denned in Section 2(c) in the following terms :

'Employer' in the case of any industry, business or undertaking carried on by any department of any Government in British India, means the authority prescribed in this behalf, or, where no authority is prescribed, the head of the department.

It was conceded by Mr. <NAME> that the definition given in Act VII of 1929 was a limited definition in relation to <ORG> departments only. He, however, urged that the definition had been worded differently therein. The word "means" was not used in the beginning of the definition but was so put in the context that it clearly indicated that the definition was restricted to businesses or undertakings of departments of <ORG>. In Act XIV of 1947, however, the <ORG> by saying "'employer' means" has made the definition exhaustive. In our judgment, there is no such difference in the meaning of the two definitions given in the Act of 1929 and in the Act of 1947. In one definition, the word "means" has been used after the industries had been particularized, and in the other it has been used in relation to those industries. The words "in relation" used in the definition make the intention of the <ORG> quite clear and they indicate that it was in relation to those particular industries only that the expression "employer" was defined. This interpretation is also consistent with the phraseology employed by the <ORG> in different sections of the Act. In Section 18 it has been laid down that a settlement arrived at in the course of conciliation proceedings under the Act or an award which was declared by the appropriate <ORG> to be binding shall be binding on all parties to the industrial dispute; and where a party referred to in Clause (a) or Clause (b) is an employer, his heirs, successors or assigns in respect of the establishment to which the dispute relates. It is difficult to apply this provision, in the Act to heads of <ORG> department. The manner in which the section is drafted shows that disputes concerning all industrial concerns whether owned by <ORG> or private person were included within the ambit of the Act.

6. The preamble to the Act gives a wide scope to it, when it says that it is expedient to make provision for the investigation and settlement of industrial disputes and for certain other purposes thereinafter appearing. It does not limit its sphere to businesses run only by the <ORG> or local authorities. The scheme of the Act fits in with the interpretation we are placing on the expression "employer", and any other construction of it would create incongruity and repugnancy between different sections of the Act. The Act was intended to be a more comprehensive law on trade disputes than its predecessor, the Trade Disputes Act, 1929. It was not denied that under that Act, the term "employer" included within its scope industries owned by persons other than <ORG> departments or local authorities. In the Act of 1947 an elaborate and effective machinery for bringing about industrial peace has been devised. Provision has been made for <ORG>, <ORG>, <ORG> and <ORG>, to achieve the object. Strikes and lockouts are made illegal without fourteen days' notice. It is, in our opinion, not possible to argue that this elaborate machinery was devised for the benefit of industries run by <ORG> and local authorities only and that the Trade Disputes Act, 1929, was repealed in order to exclude from its ambit industries run by private persons. The result is that the decision of <NAME> and of the division bench of <ORG> on the first point, in our opinion, is correct.

7. The principal contention in the case is that the dispute as to reinstatement is outside the jurisdiction of <ORG>. A number of demands made by the employees were referred to the <ORG>. No objection has been taken in respect to the thirteen out of the fourteen demands. The dispute as to reinstatement is worded as follows :

Such of the members of the <ORG> staff who joined the strike at the date of its commencement on January 2, 1947, and/or thereafter should be reinstated.

8. It was suggested that the dispute about reinstatement was not connected with the employment or non-employment of any person. This construction was accepted by <NAME> and he observed as follows (p. 63, ante):

It does not appear that no <ORG> of law either at common law or in equity would decree the enforcement of a contract which it could not supervise being carried out, and therefore make a decree without any sanction behind it. In these Circumstances it has always been held by <ORG>s of law that contracts wich entail performance on one part of personal service cannot be enforced, and a breach thereof could only be compensated by award of damages. Conversely, a wrongful dismissal is a breach of the contract and the <ORG> will not on the same principles decree a reinstatement of a dismissed employee. This question was considered in the leading case of <NAME> v. <ORG>, Ex parte Horatio Crowther &, Co., Ltd. [1947] 2 A.I.<NAME> 693. In that case it was held by Chief Justice <NAME> and Mr. Justice <NAME>, Mr. Justice <NAME> dissenting, that a direction to reinstate the workmen would be ultra vires the tribunal and that any direction in the form of a finding in that respect and allowing of the claim was equivalent to such a direction and that the award in so far as it related to that finding must be quashed.

9. The learned Judges of the division bench distinguished the case on which <NAME> placed reliance on several grounds, and reached the conclusion that under the Indian statute the <ORG> had full power to adjudicate upon all matters in dispute between the employers and workers and it was open to it to award reinstatement of a dismissed workman and that such an award was enforceable under the coercive machinery provided for in the Act. The view expressed by the division bench of <ORG> on this point has also been taken by <ORG> of Calcutta and Madras. The decision of <ORG> was given by Sir <NAME> and Mr. Justice <NAME> in a number of eases heard together and was considered by us in Civil Appeals Nos. VIII, IX, XI, XII, XIV, XVI, XIX, and XX of 1949, which were heard immediately after the present appeal. Mr. <NAME> and Mr. <NAME> addressed us at length in those appeals on this point and not only stressed and supplemented the arguments of Mr. <NAME> in this case but also elaborated them. We shall deal with all the arguments on this point here.

10. The question for determination is whether the definition of the expression "industrial dispute" given in the Act includes within its ambit a dispute in regard to reinstatement of dismissed employees. The definition is, as pointed out by Lord <NAME> in <ORG> v. <ORG> [1943] A.C. 166, 191., worded in very wide terms which unless they are narrowed down by the meaning given to the term "workman" would seem to include all employees, all employment and all workmen, whatever the nature or scope of the employment may be. Reinstatement is the employment of a person non-employed and is thus within the words of Lord <NAME> "all employment." Thus it would include cases of re-employment of persons victimized by the employer. The words of the definition may be paraphrased thus :

any dispute which has connection with the workmen being in, or out of service or employment.

"Non-employment" is the negative of "employment" and would mean that disputes of workmen out of service e with their employers are within the ambit of the definition. It is the positive or the negative act of an employer that leads to employment or to non-employment. It may relate to an existing employment or to a contemplated employment, or it may relate to an existing fact of non-employment or a contemplated non-employment. The following four illustrations elucidate this point: (1) An employer has already employed a person and a trade union says "Please do not employ him." Such a dispute is a dispute as to employment or in connection with employment. (2) An employer gives notice to a union saying that he wishes to employ two particular persons. The union says "No." This is a dispute as to employment. It arises out of the desire of the employer to employ certain persons. (3) An employer may dismiss a man, or decline to employ him. This matter raises a dispute as to non-employment. (4) An employer contemplates turning out a number of people who are already in his employment. It is a dispute as to contemplated non-employment. Employment or non-employment" constitutes the subject-matter of one class of industrial disputes, the other two classes of disputes being those connected with the terms of employment and the conditions of labour. The failure to employ or the refusal to employ are actions on the part of the employer which would be covered by the term "employment or non-employment." Reinstatement is connected with non-employment and is therefore within the words of the definition. It will be a curious result if the view is taken that though a person discharged during a dispute is within the definition of the word "workman," yet if he raises a dispute about dismissal and reinstatement, it would be outside the words of the definition "in connection with employment or non-employment." It was contended that the words employment or non-employment" were employed in the same sense, just to remove any ambiguity that might arise if the word "employment" alone was used. In other words, the word "non-employment" has limited the meaning of the word "employment." To our mind the result is otherwise. The words are of the widest amplitude and have been put in juxtaposition to make the definition thoroughly comprehensive. Mr. <NAME> contended that the expression "in connection with employment or non-employment" excludes the question, of non-employment itself which must exist as a fact to supply the nexus with the dispute. The argument is, in our opinion, unsound. The words "in connection with" widen the scope of the dispute and do not restrict it by any means.

11. We shall next examine the Act, to determine its scope. The Act is stated in the preamble to be one providing for the investigation and settlement of industrial disputes. Any industrial dispute as defined by the Act may be reported to Government who may take such steps as seem to it expedient for promoting conciliation or settlement. It may refer it to <ORG> for advice or it may refer it to <ORG> for adjudication. The legislation substitutes for free bargaining between the parties a binding award by an impartial tribunal. Now, in many cases an industrial dispute starts with the making of number of demands by workmen. If the demands are not acceptable to the employer,and that is what often happens,it results in a dismissal of the leaders and eventually in a strike. No machinery for reconciliation and settlement of such disputes can be considered effective unless it provides within its scope a solution for cases of employees who are dismissed in such conditions and who are usually the first victims in an industrial dispute. If reinstatement of such persons cannot be brought about by conciliation or adjudication, it is difficult, if not impossible, in many cases to restore industrial peace which is the object of the legislation. Demand as to reinstatement may arise in several ways. It may be a demand of the workmen in service that-unless the dismissed workmen are reinstated, they will strike work. It may be a demand of the workmen on strike refusing to resume work unless persons victimized are put back in service or it may be a demand of the dismissed employees themselves. So far as one can see, reinstatement may be an essential relief to be provided for in any machinery, devised for settlement of industrial disputes. "Any dispute connected with employment or non-employment" would ordinarily cover all matters that require settlement between workmen and employers, whether those matters concern the causes of their being out of service or any other question, and it would also include within its scope the reliefs necessary for bringing about harmonious relations between the employers and the workers.

12. The interpretation we are placing on these words was accepted on a similarly worded definition in the English statutes on this subject. In the Industrial Courts Act, 1919, "trade dispute" has been denned as meaning any dispute or difference between employers and workmen, or between workmen and workmen connected with the employment or non-employment or the terms of the employment or with the conditions of labour of any person.

With a slight variation this definition is expressed in the same terms in Act XIV of 1947. In the Unemployment Insurance Act, 1935 (25 Geo. V, c. 8), Section 118(1)(u) "trade dispute" means :

any dispute between employers and employees or between employees and employees, which is connected with the employment or non-employment or the terms of employment or the conditions of employment of any persons, whether employees in the employment of the employer with whom the dispute arises or not. A dispute between employers and employers is not within the definition.

In our Act XIV of 1947 what was excluded by the last sentence of this section of the English Act has been expressly included. In Volume XXXIV of Halsbury's Laws of England (Hailsham Edition), in paragraph 605, it has been stated that disputes connected with the employment or non-employment of any persons were held to have arisen when the dismissal or reinstatement of some employee was demanded. Reference has been made in this connection to certain decisions given by umpires in industrial disputes.

13. Under Regulation 58-AA of the Defence Regulations, 1939, which deals with avoidance of strikes and lockouts, power was given to the Minister of Labour and <ORG> for making provision for establishing a <ORG> for the settlement of trade disputes and for regulating the procedure of the <ORG>. It was said in this Regulation that the expression "trade dispute" has the same meaning as in the Industrial Courts Act, 1919. On July 18, 1940, the Minister of Labour issued an order under Regulation 58-AA (The Conditions of Employment and National Arbitration Order, 1940). In Part V of the Order, the expression "trade dispute" was defined as follows :

'trade dispute' means any dispute or difference between employers and workmen, or between workmen and workmen connected with the employment or non-employment, for the terms of the employment or with the conditions of labour of any person.

It will be seen that the definition is identical with the one that was given in the Industrial Courts Act, 1919, and with slight immaterial variations, it is the same that we have got in the Indian Act .

14. In 1943, this definition was considered in R. v. National Arbitration Tribunal, Ex parte Keabble Press, Ltd. [1943] 2 A.E.R. 633. by <ORG>. In that case a member of a trade union had formerly been employed by a newspaper. The newspaper was ordered to cease publication for a time. When this ban on publication was lifted, the newspaper, according to the custom of the trade, applied to the union for suitable workmen. The union sent the former employee in question, but the newspaper refused to accept him in any position on their staff. The union insisted on his reinstatement and called a strike in consequence. It was contended that this was not a trade dispute within the meaning of the Conditions of Employment and National Arbitration Order, 1940, since it was a dispute between the employers and the union and not between the employers and their employees. This contention was repelled and it was held that in the circumstances the dispute was between the appellants and their workmen and <ORG> had jurisdiction to entertain the reference. It will be noticed that the whole dispute in this case related to reinstatement. It was not contended that the dispute as to reinstatement was outside the scope of the definition of the phrase "trade dispute." On the other hand, it was assumed that this dispute was within the ambit of the definition. In the judgment it was observed as follows (p. 638):

It is not disputed that the particular dispute in question relates to a subject-matter of the kind which is referable to the tribunal.

Reference may also be made to Section 5 of the Trade Disputes Act, 1906. "Trade dispute" is defined as:

Any dispute between employer and workmen and between workmen and workmen which is connected with (inter alia) the employment or non-employment of any person.

15. In <NAME> v. <NAME> [1920] 2 Ch. I. a dispute arose whether non-unionist labour in general and members of <ORG> in particular should be employed to work along with the members of <ORG>. The workmen by their union objected to working with the members of <ORG> or to the employment of the members of that <ORG> in jobs on which the members of the union were engaged. <NAME> observed (p. 82):

The dispute was one which was connected with the employment of the members of the <ORG> whom the <ORG> persisted in regarding as in all essentials non-unionists. Whether the <ORG> was right in this view appears to me to be immaterial for the purposes of this case. It is sufficient that it objected to members of the <ORG> being employed on jobs on which members of the <ORG> were engaged. No doubt this attitude involves a contest between the National <ORG> and the Electrical Trade <ORG>, as it necessarily tends to draw men away from the <ORG>. But this consequence does not convert a trade dispute into something which is not a trade dispute.

The dispute in the case did not relate to reinstatement but concerned a wider field, i.e., "who could be taken into employment by the employer," with whom he could enter into a contract of service.

16. In <NAME> v. <NAME> [1921] 1 Ch. 1. Lord Sterndale M.R. observed that a dispute between workmen and workmen in connection with the employment of a person, namely, the plaintiff, the dispute being that the men in the shop insisted that no skilled man should be employed unless he belonged to <ORG>, was a "trade dispute" within the definition. The view of <NAME> was referred to with approval with the following remarks (p. 20):

...it is really almost a reductio ad absurdum of this section to say, as the respondents are bound to say, that it does not include any dispute between union and non-union men and that if union and non-union men are working in the same employment and the union men say, 'We will no longer work with the non-union men unless they join our union,' that is not a dispute between workmen and workmen connected with the employment or non-employment of any person. It seems to me that that is contrary to the words of the section. I do not think it is necessary to say where the limitation lies which is to be put upon this section. It is a question of fact in each case....

These observations very strongly suggest the view that we are taking of the definition.

17. The question for determination can therefore be properly worded in this way:

Can an unwilling employer or employee having no contract or employment be compelled to be served/or serve by the <ORG>, although the employer or the employee is not willing to do so?

Having regard to the general words in connection with the employment or non-employment" in the definition of industrial dispute, it seems clear that if there arises non-employment by reason of the termination of employment by the employer, it will be within the jurisdiction of the <ORG> to determine whether the termination was justifiable.

18. The strongest argument urged on behalf of the appellants was that to invest the <ORG> with jurisdiction to order re-employment amounts to giving it authority to make a contract between two persons when one of them is unwilling to enter into a contract of employment at all. It was strenuously urged that such a power does not exist in any <ORG>, and in the absence of express words, the <ORG> should not consider that the Industrial <ORG> has jurisdiction to do so on the ground that it is implied in the definition of "industrial dispute." This argument overlooks the fact that when a dispute arises about the employment of a person at the instance of a trade union, or a trade union objects to the employment of a certain person, the definition of industrial dispute would cover both those cases. In each of those cases, although the employer may be unwilling to do so, there will be jurisdiction in the <ORG> to direct the employment or non-employment of the person by the employer. This is the same thing as making a contract of employment when the employer is unwilling to enter into such a contract with a particular person. Conversely, if a workman is unwilling to work under a particular employer, a trade union may insist on his doing so, and the dispute will be about the employment of the workman by the employer and thus become an industrial dispute subject to the award of the <ORG>. Therefore, if the bringing about of such relationship is within the jurisdiction of the Industrial <ORG>, because such disputes are covered by the definition of the expression "industrial dispute", there appears no logical ground to exclude an award of reinstatement from its jurisdiction. It can equally direct in the case of dismissal that an employee shall have the relation of employment with the other party, although one of them is unwilling to have such relation.

19. Mr. Justice <NAME> was not prepared to place this interpretation on the definition in view of the decision of <ORG> in <NAME> v. <ORG>, Ex parte Horatio Crowther & Co., Ld. [1948] 1 K.B. 424. It was very strongly argued on behalf of the appellants that the interpretation placed on the definition of the words "trade dispute" in this decision by Chief Justice <NAME> and other learned Judges was the correct one and that the words of the definition" in connection with the employment and non-employment" did not include within their ambit a dispute regarding reinstatement. It is therefore necessary to examine with care what was exactly decided in <NAME> v. The <ORG>: Ex parte Horatio Crowther & Co., Ld. [1948] 1 K.B. 424.

20. What happened in that case was this. Since November, 1946, workmen employed by the applicants, a company, through their union had pressed for changes in wages and conditions of service. On March 28, 1947, the company gave the workmen on the manufacturing side of their business, including those in the union, notice terminating their employment as from April 4, On April 14 the matter was reported to the Minister of Labour and <ORG>, who referred it to <ORG>. The claim of the workmen included inter alia.

(1) The reinstatement from the date of dismissal of the workers dismissed." The award of the tribunal stated: "They find in favour of the claim set out in item (1) and award accordingly.

On an application for an order of certiorari to quash the award it was held:

(i) although at the date of the report to the Minister of Labour the contract of service between the company and the workmen had been terminated, there was nevertheless a 'trade dispute,' within the meaning of Article 7 of the Order of 1940, which had been properly referred under Article 2 (1);

(ii) a direction to reinstate the workmen would be ultra vires the tribunal, and, as (Croom-Johnson, J., disscntiente) the finding on item (1) of the claim was equivalent to such a direction the award in so far as it related to that finding must be quashed.

None of the three learned Judges expressly held that the claim of the workmen in item (1) above stated was not referable to the <ORG> as it was not within the ambit of the definition of "trade dispute" given in the Act. The learned Judges, however, took the view that though a dispute regarding reinstatement was referable to the <ORG>, an order for reinstatement could not be made. One of the Judges held that no such direction had actually been given by the award. The appellants contended that the decision that the direction qua reinstatement was in excess of the powers of the <ORG> could only be on the assumption that the <ORG> had no power to entertain this dispute because it was not covered by that expression as defined in the Act. It was argued that if there was no jurisdiction to award a particular relief in a certain matter, there could be no jurisdiction to entertain that matter. This contention of the learned Counsel, though plausible at first sight, is not sound. The word "jurisdiction" is used in two senses in law; one in a general sense and the other in a narrower sense. It may either mean what is ordinarily understood by that term when used with reference to the local jurisdiction of a <ORG>, or pecuniary jurisdiction of a <ORG>, or its jurisdiction with reference to the subject-matter of a suit; or it may mean the legal authority of a <ORG> to do certain things. It seems that in this latter sense the word lias been used in the English case when it was said that the direction to reinstate was ultra vires the <ORG>. The <ORG>, in one sense of the word "jurisdiction," may have power to entertain the dispute, though in another sense it may be said that it has exceeded its powers in granting a relief which it was not authorized to grant, just as a High <ORG> may have power to entertain an application for revision under Section 622 of the Code of 1882 and yet it may have no power to remand a case under Section 578 of that Code, or a Subordinate Judge may have jurisdiction to entertain a suit of a certain value, yet some of the reliefs claimed may not be legally permissible. As observed in <CITATION> , (1013) I.L.R. 41 Cal. 323 the term "jurisdiction" may mean the legal authority of a <ORG> to do certain things, namely, to make a particular order in a case over which it has jurisdiction.

21. In <NAME> v. Balkrishna <NAME> said as follows (p. 491) :

Jurisdiction...has two closely related, but distinct, senses. It means sometimes authority, sometimes the exercise of the authority, and this either in investigation or by way of command.

22. Their Lordships of the Privy Council, in <CITATION> (1943) L.R. 70 LA. 129 : s.c. 47 Bom. L.R. 525 remarked (p. 156) :

Jurisdictionif not a word of many meaningsis a word which may be used with either a wider or a narrower connotation,....

23. <NAME>, <NAME> when he held that the direction to reinstate was ultra vires the <ORG>, used the word "jurisdiction" in the sense that in the exercise of its authority it exceeded the powers conferred upon it by the statute or by general law or equity. This is clear from the following observations in his judgment (p. 430):

There are no express words either in the regulation or in the order which in terms give the tribunal any power to reinstate, but it is said that as they havepower to deal with any question relating to employment or non-employment, it follows that it must have the power to make an award of reinstatement. It seems to me it is a strong thing to say, looking at this regulation which alone gives force to the order, that a power is thereby impliedly given to the tribunal to grant a remedy which no court of law or equity has ever considered it had power to grant. If an employer breaks his contract of service with his employees, either by not giving notice to which the latter are entitled, or by discharging them summarily for a reason which cannot be justified, the workmen's remedy is for damages only. A court of equity has never granted an injunction compelling an employer to continue a workman in his employment or to oblige a workman to work for an employer. If a workman or any other employee who occupies a higher status than that usually implied by the term workman, breaks his contract with his employer, no injunction has ever been granted obliging that workman or employee to work for the employer. The most that has ever been done is that if the contract was one by which for a certain period a person has agreed to serve another exclusively, the workman or employee may be restrained from working for anybody else during the term for which he contractually engaged to serve his employer.

Nor is there any provision in the regulation which imposes a penalty on the employer if he refuses, after the award, to re-employ the man, nor on the workman, if, in spite of an award, he refuses to work for an employer. Now suppose that after the award, the workman sued his employer. He would be met at once by the defence : 'I gave you the notice to which you were entitled and therefore you have no remedy against me for breach of contract.' Again, supposing that the employers out of deference to the award took the man back into their employment, I cannot find anything in the-order or regulation which would disentitle them from Riving notice the next day or next week in accordance with the terms of the contract to any individual workman or to all of them. It is true that this tribunal can do what no <ORG> can, namely, add to, or alter the terms or conditions of the contract of service. Express power so to do is given by the regulation, while there are no words conferring a power to reinstate or revive a contract lawfully determined.

From this it is clear that the learned Lord Chief Justice treated the matter of reinstatement on the footing of a relief of specific performance in law or equity. The discussion about the powers of a civil Court to enforce a contract under the Specific Relief Act is not directly relevant, because it is clear that if an employment is determined according to the terms of the contract, there will be no subsisting contract thereafter of which specific performance could be claimed. From the analogy of specific performance cases given by the Lord Chief Justice he appears to have held that the <ORG> had no power to award the relief of reinstatement, but it did not amount to a decision that the question, of reinstatement was not covered by the definition of the words "trade dispute." All that was held was that the <ORG> in the exercise of its jurisdiction had no power to grant the demand of reinstatement when the contract had been lawfully determined as a Court of equity or law could not give it and there was no specific provision in the statute empowering the <ORG> to grant that relief in such circumstances. The <ORG> was given the power to alter the terms and conditions of the contract of service, but in clear terms the power to reinstate was not conferred on it. As already pointed out, it was nowhere said that the question relating to employment or non-employment did not include within its ambit the question of reinstatement. The only observation that was referred to on this point runs thus (p, 431) :

It seems to me it is a strong thing to say, looking at this regulation which alone gives force to the order, that a power is thereby inipliedly given to the tribunal to grant a remedy which no court of law or equity has ever considered it had power to grant.

This observation does not concern itself with the definition of the expression "trade dispute" but only relates to the remedy which the <ORG> could eventually grant. The decision that the power to grant reinstatement could not be held to exist in the <ORG> was given because such an unusual power could not be held to have been conferred by implication. Moreover, this result was reached on a consideration of the terms of the statute that was under consideration before the <ORG> and which were materially different from, the Indian statute. Ill sub-para. (5) of Article 2 of that Order it was provided as follows :

Any agreement, decision or award made by virtue of the foregoing provisions of this article shall be binding on the employers and workers to whom the agreement, decision or award relates and, as from the date of such agreement, decision or as from such date as may be specified therein not being earlier than the date on which the dispute to which the agreement, decision or award relates first arose, it shall he an implied term of the contract between the employers and workers to whom the agreement, decision or award relates that the rate of wages to be paid and the conditions of employment to be observed under the contract shall be in accordance with such agreement decision or award until varied by a subsequent agreement, decision or award.

The award of the <ORG> was to become an, implied term of the contract by force of the statutory provisions. In other words, the relief given by the award relating to the rates of wages and conditions of employment was automatically to become a part of the contract between the parties and enforceable as such. Nothing was said about an award directing reinstatement and hence it was held that reinstatement was not contemplated by that statute. No provision corresponding to sub-para. (5) of Article 2 of the above order exists in the Indian Act .

24. Another reason which was described as a cogent one by the learned Chief Justice, in reaching his decision, was that even if the relief of reinstatement was given by the <ORG>, no method of compelling the employer to obey it, whether by means of prosecution or a civil action, had been provided in the regulation or the order. The question of enforceability of such a decision considerably affected the decision of his Lordship. It may be further noted that the Judges in that case were contrasting the provisions of the Regulation and Order 58-AA with Order 58-A which dealt with essential services only.

25. The case, however, is quite different so far as Act XIV of 1947 is concerned. It has provided a sanction against disobedience of the award of the arbitrator. There are means provided within the Act compelling the party to obey the award. We are therefore of the opinion that that decision does not in any way affect the interpretation that we have placed on the definition of the expression "industrial dispute" as including within its ambit a dispute as to reinstatement. The judgment in <ORG>. <ORG>: '<ORG> [1918] 1 K.B. 424, 435 negatived the power to grant the relief of reinstatement because, (a) such a relief was not ordinarily allowable in law or equity, (6) there was no provision in the English Order under which a directive in regard to reinstatement in an award could be made a part of the contract between the parties, like conditions of labour and employment, (c) no sanction or method was provided by which the relief, if granted, could be enforced, and (d) no suit at law was maintainable for obtaining such relief by the workmen. It was suggested 'in that decision that the <ORG> could make a recommendation as to reinstatement though it could not give a binding award.

26. It was argued that though a dispute as to wrongful dismissal of an employee and as to compensation for the same may be within the ambit of the definition, yet a dispute as to reinstatement was outside its scope. Two consequences naturally flow from a deeision that a dismissal was wrongful, (1) that the employee is entitled to damages and (2) that he is entitled to reinstatement. That the dispute regarding one relief is within the jurisdiction of the <ORG>, not qua the other, seems illogical. If the principal dispute which relates to wrongful dismissal or to a dismissal for an unjust cause or as a result of victimization is within the ambit of the definition, all that flows incidentally and consequentially from such a dispute (even if that consequential matter is by itself a dispute), cannot be held to be outside the scope of the words of the definition "employment or non-employment."

27. It was argued at the bar that an order of reinstatement would lead to startling results as such an order is a very unusual or extraordinary order in law, not being permitted by common law or equity. To our mind, the <ORG> is not concerned with the effects of an order, unless, of course, it is wholly incapable of enforcement. An order for reinstatement contained in an award can certainly be enforced by the coercive machinery provided by the statute.

28. It was pointed out that in Australia when the Commonwealth Conciliation and Arbitration Act was first passed in 1904, there was no provision therein for reinstatement or re-employment. That was expressly brought in by an amendment in 1912. Similarly, in America, there was no provision for reinstatement or re-employment till 1935 when it was also included in certain circumstances by express legislation. It was argued that these amendments deliberately made in the different statutes showed that without the amendment, re-employment or reinstatement of a person was not covered by the definition of trade dispute. We do not think that such a consequence necessarily follows. The <ORG> may have made the amendment to set at rest doubts which may have arisen. We have not before us the full history of the legislation in Australia or America on which reliance has been placed and we are therefore unable to consider this argument as sufficient to exclule the dispute about reinstatement or re-employment from the jurisdiction of the industrial dispute. However, relief by way of reinstatement has now been provided for expressly in a number of statutes. In Australia it was provided as early as 1912. It is provided in the several Orders relating to emergency legislation in England. The same has been provided for under the Defence of India Rules in India in Rule 81. In U.S.A. it is contained in the Commonwealth Conciliation and Arbitration Act , 1935. No extraordinary consequence has flown by providing this relief expressly even though the only method of enforcing such relief is by the coercive machinery of law. Moreover, the relief is not of such an unusual character that it may be wholly ruled out as one of the legal reliefs which the <ORG>s can grant. This relief of reinstatement is on the same footing as a relief of restitution. Restitution can be granted in integrum in certain cases. All that is required is that the ex-employee should be restored to his previous position so far as capacity, status and emoluments are concerned, and there is nothing extraordinary in such restoration being ordered when considered necessary in the interests of peaceful settlement of industrial disputes. Adjudication does not, in our opinion, mean adjudication according to the strict law of master and servant. The award of the <ORG> may contain provisions for settlement of a dispute which no <ORG> could order if it was bound by ordinary law, but the <ORG> is not fettered in any way by these limitations. In Volume I of "Labour Disputes and Collective Bargaining" by <NAME>, it is said at p. 536 that industrial arbitration may involve the extension of an existing agreement or the making of a new one, or in general the creation of new obligation or modification of old ones, while commercial arbitration generally concerns itself with interpretation of existing obligations and disputes relating to existing agreements. In our opinion, it is a true statement about the functions of an industrial <ORG> in labour disputes.

29. It was argued that the use of the definite article "the" before "employment" and the absence of the same before "non-employment" showed that employment and non-employment were two parts of the same event. It was contended that having regard to the order in which the words "employment and non-employment" were used, the dispute must start with the employer. If the employee objected to non-employment and the employer contended that he did not want the employee, the dispute was not covered by the words, because the phrase started with the word "employment." This argument, which is based solely on the sequence of the words "employment and non-employment", does not deserve serious consideration. The absence of the article "the" before "non-employment" also leads to no conclusion about the nature of dispute covered by the expression. The word "the" before "employment," grammatically read, will also be connected with non-employment.

30. It was argued that the Industrial Disputes Act should be interpreted so as to avoid repugnancy with the provisions of the Contract Act . In our opinion, no question of repugnancy arises, as the question before the <ORG> is what disputes were covered by the definition of "industrial dispute" in Act XIV of 1947. Once a particular dispute is found to fall under the "definition of industrial dispute in the Act, the jurisdiction to decide the same rested with the <ORG>.

31. On behalf of the appellants it was also urged that the contention of the labour unions was that the Industrial Disputes Act was framed to prevent victimization mid to prevent the employers from interfering with workmen forming unions so as to be in a position to do collective bargaining. It was pointed out that the <ORG> had made ample provision in Act XIV of 1947 to prevent this mischief. Act XIV of 1947 was an Act to amend the Trade Unions Act of 1926. In Section 28(A:) of the Amending Act , unfair practices by employers were enumerated and by Section 32(a) of the Amending Act it was provided that any employer found guilty of unfair practice as defined in Section 28(k) shall be punishable with fine which may extend to Rs. 1,000. A closer examination of the Indian Trade Unions Act of 1926, read with the Amending Act , however, shows that the main object of these enactments was the registration and formation of trade unions and not for the purpose of defining the relations between the employers and the employees. Section 28(k) of the Amending Act XIV of 1947 was enacted to prevent employers from interfering with the formation of trade unions and against preventing workmen from joining or helping in forming or working such unions. Reading the two Acts together, it is clear that they were not made to protect against the victimization of workmen as a result of an industrial dispute and this contention is repelled.

32. It was contended that the reinstatement of the discharged workmen was not an industrial dispute because if the union represented the discharged employees, they were not workmen within the definition of that word in the Industrial Disputes Act . This argument is unsound. We see no difficulty in the respondents (union) taking up the cause of the discharged workmen and the dispute being still an industrial dispute between the employer and the workmen. The non-employment "of any person" can amount to an industrial dispute between the employer and the workmen, falling under the definition of that word in the Industrial Disputes Act , it was argued that if the respondents represented the undischarged employees there was no dispute between them and the employer. That again is fallacious, because under the definition of industrial dispute, it is not necessary that the parties to the proceedings can be the discharged workmen only. The last words in the definition of industrial dispute, viz. "any person" are a complete answer to this argument of the appellants.

33. <ORG> v. <ORG> [1943] C. 166 was relied upon to help us in determining the meaning of "industrial dispute" in Act XIV of 1947. "Trade dispute" in the (English) Industrial Courts Act, 1919, was denned in the same terms as "industrial dispute" in Act XIV of 1.947. In that ease the question was in respect of the claim for remuneration of officers who ceased to serve the local Government staff in order to undertake war service in the forces of the Grown or civil defence to the level of remuneration which those officers would have received if they had continued to serve in their civil capacity. The Court held that this was a dispute about the terms of their employment. Lord <NAME> in his judgment at p. 189 expressly stated :

I cannot see any good reason why the respondents should not agree in advance to make it a condition of employment with their employees generally that this would be done. Nor can I see why, if the employees insist on that condition and the respondents refuse it, there is not a trade dispute.

That decision, therefore, does not help us in deciding whether the dispute about reinstatement is covered by the words "employment or non-employment" in the definition of "industrial dispute."

34. We are, therefore, of the opinion that no question of the jurisdiction of <ORG> is involved in the case so as to entitle <ORG> to issue any of the high prerogative writs in the case. The <ORG> has jurisdiction to adjudicate on the dispute and it can be trusted to do its duty and it cannot be said that it will give the reinstatement relief unless it thinks it is necessary to do so.

35. The result, therefore, is that the appeal fails and is dismissed with costs.


JUDGMENT <NAME> <NAME>

1. Plaintiffs are lessors of 31-3, <ORG> and <ORG> were lessees under a registered lease, dated 21st December 1920, for a term of three years from 6th November 1919 at a rent of Rs. 500 per month. That lease contained the following clause:

Provided further that if the lessees shall regularly and punctually pay the rent hereby reserved and duly observe and perform the covenants and conditions on their part to be observed and performed, then the lessees shall be entitled to a renewal of this demise for a further period of three years on the same terms and conditions as are contained in these presents except that the monthly rent shall be six-hundred rupees instead of five-hundred rupees and that there will be no covenant for a further renewal.

2. Also a covenant not to assign or sub-let or part with the possession of the said demised premises without the consent in writing of the lessors first had and obtained, but such consent shall not be unreasonably withheld.

3. The original term having expired on 5th November 1922 the lessees continued in occupation and in November 1923 the plaintiffs sued them for rent in arrear (Suit No. 3017 of 1923) setting out in their plaint the renewal clause and complaining inter alia that for January, February and March 1923 the lessees had paid rent at the rate of Rs. 500 only "in breach of the covenants in the said lease," The lessees by their written statement denied that they had paid only Rs. 500 for January, February and March and said that they had paid the rent in full for these months and also for April and May 1923 and that for June they had paid Rs. 500 leaving Rs. 100 owing. They admitted a certain sum as due and owing on this basis, namely, Rs. 2,647, and for this judgment was obtained on admission.

4. It seems that the lessees had erected a factory or workshop and some sheds on the premises and had certain plant, machinery and other things thereupon. They were being financed by or accommodated with a loan from the appellant bank, <ORG>, by means of a cash credit loan account. On 18th February 1924 a registered mortgage deed was entered into by these parties which contained the following operative words:

And this Indenture also witnesseth that in further pursuance of the said agreement and in consideration of the premises the <ORG> doth hereby transfer and assign unto the <ORG> first all that piece or parcel of land containing by measurement one Bigha and ten chittaks situate and lying at 31-3, Marquis Street, particularly mentioned and described in the first Schedule hereunder written and all other premises comprised in and demised by the said lease of twenty first December one thousand nine hundred and twenty aforesaid or expressed so to be and all that the benefit and advantages thereunder; secondly all those the workshop factory buildings and sheds machineries, apparatus, tools, implements, plants and stores which have been or may hereinafter be erected and are used in connexion with the business carried on by the <ORG> on the demised premises or at No. 5, Chowringhee.... To have and to hold unto the <ORG> as to the premises first herein before transferred and assigned for all the residue now unexpired of the terms created by the said lease subject to the payment of the rents reserved by the said lease and performance of the covenants and conditions in the said lease contained and as to all other the premises hereby transferred and assigned unto the <ORG> absolutely and for ever, subject to a proviso for redemption. There was a declaration that in case of default by the company the bank should be entitled to enter into possession of the said land, hereditaments and premises and to seize and sell the machinery, etc. Also that the deed should be construed as an English mortgage as defined in the Transfer of Property Act , 1882.

And the Company doth hereby covenant with the <ORG> that the Company now hath full power and absolute authority to grant convey and transfer and assign the said premises herein comprised and hereby mortgaged unto the <ORG> in manner aforesaid that the said lease dated twenty-first day of December 1920 is still valid and subsisting...to hold and enjoy etc,

5. The Company went into voluntary liquidation at some date in November or December 1924 which does not appear clearly from the record and in February 1925 a compulsory winding up order was made against it, a Mr. <NAME> being appointed official liquidator. The plaintiffs had several grounds of forfeiture had they chosen to proceed to forfeit the term - rant was in arrear for over a month, the, covenant against assignment had been broken and the Company had gone into liquidation.

6. The bank in November had entered into possession and put up a notice-board with the name of the bank. That the plaintiffs' solicitors did not know of the terms of the deed of 18th February 1924 or that it purported to be an absolute assignment of the premises is dear. The correspondence shows that the bank repudiated liability to pay rent claiming inter alia that by merely taking, possession of the assets mortgaged to them they were not in possession of the-premises. It seems that from 17th November 1924 to some date in March 1925 various executions were levied on the assets, but in what way this affects the bank's position is not intelligible to me. The plaintiffs' solicitors continued to allege by their letter that the bank, was in occupation, that it was liable for rent or at least to pay for use and occupation. They continued also to claim against the company, At last, on 30th June 1925 they gave both the-company and the bank notice to quit at the end of July, but; the liquidator could not get the bank to do so, and on 27th August 1925 the plaintiffs brought this suit for rent against both.

7. The plaint was originally based as against the bank on the allegation that the bank were mortgagees of goods which they had kept on the premises and were in occupation of the premises "without the leave or license of the plaintiff." The suit came on for hearing; on 21st April 1926 when certain issues, were framed and learned Counsel for the Bank contended that the plaint disclosed no cause of action against his clients. The plaintiffs in the meantime had come to know the terms of the mortgage deed. They obtained leave to amend and the amended plaint proceeded as against the bank on the basis that by taking an assignment of the term the bank made itself liable for the rent but it alleged in supplement of this contention that the bank had been in possession of the premises and claimed to hold the bank liable till the premises should be vacated.

8. The defence to the amended plaint; denied that the lease had been renewed and contended that the company, after the expiry of the original term, were only monthly tenants and had been so treated by the plaintiffs. It alleged that the company thereafter had no lease. It denied that the bank was ever in possession or had ever been recognized as transferees of any lease or as tenants.

9. The learned Judge has held that after the expiry of the original term the defendant company was not merely in the position of a tenant holding over by the month and in this I think he is clearly right. The question is one of fact and although it is not impossible that a tenant should hold over at an enhanced tent cf Mayor of Thetford v. <NAME> [1845] 8 Q.B. 95 it is clear that these lessees remained in possession under the renewal clause of the lease as persons who had exercised the option given to them by this clause and whose right so to do had been acknowledged by the lessors and acted on by both parties. This appears abundantly from the pleadings in suit No. 3017 of 1923 as from the terms of the mortegage-deed of 18th February 1924. The drafting of that deed proceeded on the basis that the lease of 21st December 1920 was a registered instrument, which by its own force created two terms or at least that in February 1924, there was a residue un-expired of the term granted by the lease of 1920. This view may be technically incorrect, but it is clear enough that the company were in possession under the renewal clause.

10. Having found that the company were not merely holding over with the landlord's consent as contemplated by Section 116 , Transfer of Property Act , and finding that the mortgage deed of February 1924 was expressed to contain an absolute assignment of the lessee's right the learned Judge has held the appellant bank liable for the rent which accrued due after the date of the deed. He did not decide the question whether the appellant bank was or was not in possession of the premises from November 1924 onwards, but treated them as liable to pay the rent by privity of estate.

11. The main contention of the appellant bank in this appeal is that the renewal clause is not itself a lease for a new term commencing in November 1922, but is a mere covenant or agreement to grant a future lease, provided that the lessees should comply with certain conditions and should be desirous of obtaining a fresh term; that the assignee of a person in possession under an agreement for a lease has no privity of estate with the lessor; and that, apart from privity of contract such as would arise by the assignee's attorning tenant to the lessor, the only way in which the lessor could claim to hold an assignee liable upon the covenants which run with the land, is by making out a right to specific performance, on the principle illustrated by the case of <NAME> v. <NAME> [1882] 21 Ch. D. 9. On this last point it is contended : (1) that as laid down in <NAME> v. Shyer [1922] 1 K.B. 184, the plaintiffs must make a proper case for specific performance on their pleadings, showing that they were ready and willing to grant a proper lease and to accept the appellant bank as assignee of the term. This, it is said, is particularly necessary in view of the notice to quit given to the appellant bank on the 80th June 1925, by the plaintiff's solicitors; (2) that as shown by the case of Purchase v. <ORG> [1915] 1 K.B. 184 equity will not grant specific performance for the purpose of making a mortgagee liable to the lessor for rent and convenants. To do so would be contrary in effect to the principles laid down In <NAME> v. <NAME> [1848] 2 Phillips 717 and <NAME> v. <NAME> [1857] 8 De. G.M. & G. 816. It is denied that the appellant bank did enter into possession of the premises but it is admitted that they entered upon the land to take possession of the mortgaged chattels. Possession, however, is immaterial according to the appellants' argument save as an element in any question of privity of contract, and as the possession, if any, in this case was accompanied from the first by denial of possession and a refusal to admit liability for rent there can be no question here of privity of contract and possession is altogether immaterial. Neither the original nor the amended plaint makes the case that the bank entered into possession or was accepted by the lessors as tenant; indeed the original plaint is to the contrary.

12. I propose first to decide the question of fact whether the appellant entered into possession of the premises, that is to say, went upon the land and occupied it claiming to have exclusive right of occupation. On that point we have the correspondence and the evidence of <NAME> No evidence has been given by the appellant bank on this question. I pay much more attention to what the appellant bank said and did vis a vis the company than I do to such a letter as that of 15th December 1924, by 4he bank's solicitors to the plaintiffs' solicitors. I find as a fact that the bank entered into possession of the premises and was in possession of the premises down to the institution of the suit.

13. The law of India as to the liability of assignees of leaseholds is in no way in a satisfactory condition. The Transfer of Property Act , by Section 105 defines lease as a "transfer of a right to enjoy" and by Section 107 a lease of immovable property from year to year or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument.

14. By Section 108 it is provided that the benefit of the covenant of quiet enjoyment shall be annexed to and go with the lessee's interest as such, and may be enforced by every person in whom that interest is, for the whole or any part thereof, from time to time vested.

15. It is also provided that the lessee may transfer absolutely or by way of mortgage or Sub-lease whole or any part of his interest in the property and any transferee of such interest or part may again transfer it. The lessee shall not, by reason only of such transfer, cease to be subject to any of the liabilities attaching the lease.

16. By Section 109 the principle applied in case3 of assignment of the reversion is that the lessor can part with his rights to the assignee bat cannot substitute his assignee in hi3 place to shoulder his liabilities except with the lessee's consent. These would appear to be the only express provisions bearing upon the present question, though it is true that as between mortgagor and mortgagee Section 65 provides that the mortgagor of the leasehold is responsible for the payment of the rent so long as the mortgagee is not in possession.

17. The English law upon this subject depends entirely upon a distinction between the legal and equitable estates, a distinction for which the Transfer of Property Act has left no room in India and which is not to be imported into Indian law. By English law, a term is not merely a right but an estate : <NAME> v. <NAME>  5 B. & C. 111. Notwithstanding the language of Section 105 , Transfer of Property Act , such cases as <NAME> v. <NAME>  17 Mad. 296 show that this principle has always bean recognized in India. Even since <NAME> v. <NAME>  1 Br. & B. 238 overruled <NAME> v. Jaques  2 Douglas 455 a mortgagee who takes a legal assignment of the term is" liable in England for such covenants as run with the land like any other assignee of the legal estate; but no equitable mortgagee is so liable and there is no equity on the part of the lessor to compel such a mortgagee to accept a transfer of the legal estate even when the assignee goe3 into poasassion of the premises. The commonest case in practice is the mortgage by sub-demise which is devised to exclude privity of e3tate. These are authorities which are difficult to apply when the distinction between law and equity has been eliminated, and the provisions of the Transfer of Property Act give little assistance to overcome the difficulty. The statute indeed contributes difficulties of its own as Section 108 says that "the lessee may transfer absolutely or by way of mortgage" while Section 58 as part of its definition of an English mortgage employs the phrase;

transfers the mortgaged property absolutely to the mortgagee but subject to a proviso t<ORG>t <ORG> will re-transfer it to the mortgagor upon payment of the mortgage money.

18. Now, there are indications in the Indian authorities of an attempt to strike out a new line and to hold as it is expressed in a well-known text-book (Sir <NAME> Law of Mortgage) that a mortgagee, simply as such, cannot be sued as the assignee of the mortgagor on the covenants in the lease but that where the subject of the mortgage is leasehold property and the mortgagee is put in possession of it ha becomes liable as a rule to pay the rent. The Chief Indian cases appear to be as follows : E. Macnaghten v. <NAME> [1878] 2 C.L.R. 323, Kannye Lall Sett v. Nistarini Dassi [1884] 10 Cal. 443, <CITATION>  12 Cal. 185 , <NAME> v. Anjelu  17 Mad. 296, <CITATION>  21 Bom. 311, <NAME> v. <NAME>  29 Bom. 391 and <CITATION>  40 Mad. 1111.

19. Where this doctrine comas from unless it be an adaptation of the opinions expressed by Lord <NAME> and Mr. Justice <NAME> in <NAME> v. <NAME> [1780] 2 Douglas 455, it is not easy to say and in the ease of <CITATION>  40 Mad. 1111, Wallis, C.J., has questioned it, holding that apart from privity of contract a mortgagee cannot be liable for rant and covenants in any casa in which he has not taken a transfer of the whole interest of the lease and that a simple mortgage as defined by Section 58 , Transfer of Property Act , and illustrated by the document in <NAME> case  29 Bom. 391, is not such a transfer.

20. <NAME>, J., in the last-mentioned case affirmed the following proposition:

In India there being an equity of redemption in the lessee (mortgagor) and there being no distinction between his legal and equitable estates, his "whole estate" is not transferred by the mortgage.

21. Notwithstanding the discrepancy already alluded to between the language of Section 58 , Transfer of Property Act and the language of Section 108 , Clause (j), this proposition seems to me to be too broad to be a correct statement of the Indian law. The reasoning of Dallas, C.J., in <NAME> v. <NAME>  1 Br. & B. 238, seems to me to be valid in India with reference to such a mortgage as that with which we are concerned in the present case:

The assignment of a lease for the whole term, whether absolute or subject to a proviso for reassignment in a certain event, is as far as concerns the interest to be transferred precisely the same; and the assignment as in the present case, is of all the right, title and interest of the assignor in the lease assigned. So completely does the interest piss from the one and vest in the other, that there is a covenantto re-assign when the money shall be re-paid. The whole interest is, therefore, assigned and the whole is to be re-assigned. It vests then absolutely, till such re-assignment, in the party who is to re-assign, and is not loss absolute, because, by agreement between the immediate parties, to which the lessor is no party, the assignor may, in as event which may or may not happen, entitle himself to a re-conveyance by the money being repaid.

22. I am not prepared to hold that in India the lessor does not part with his "whole estate" under an English mortgage. His right to redeem is a right on certain conditions to get it back and in India this right cannot be looked on as an "equitable estate existing" before reassignment.

23. Again if in the present case the plaintiffs' right to succeed depends upon their showing that they are entitled as against the appellant bank to claim specific performance of a mere agreement for a lease, then in my judgment their suit must fail. I am not satisfied that it is in consonance with any principle of equity that a mortgagee should be compelled to perfect his title at the suit of the lessor, for the purpose of enabling the lessor to cast upon him the burden of the covenants of the lease in the absence of any privity of contract between these parties. It is true that in Purchase v. <ORG> [1915] 1 K.B. 184, the assignees while they had done acts which showed that they had accepted the assignment, had never been in possession of the premises. The judgment of <ORG>, is guarded by the sentence:

I do not think it is necessary to say how the case might have stood if the defendants had ever taken possession.

24. But I have the greatest difficulty in seeing how possession taken in the circumstances of the present case can alter the position. I do not consider that either the pleadings or the evidence before us entitles us against the appellant bank to proceed on the basis of specific performance.

25. Apart from specific performance of the covenant for renewal, what is the effect of the Transfer of Property Act when applied to the facts of the present case? The statute uses the word "lease" not merely for interests which can only be created by registered instrument, but for all interests of the character defined by Section 105 . Section 106 speaks of a "lease from month to month" and Section 116 which deals with the effect of holding over says that the lease is in the absence of an agreement to the contrary renewed from year to year or from month to month according to the purpose for which the property is leased as specified in Section 106 .

26. This provision must I think be regarded as supplemental to and in qualification of Clause (a) Section 111 which states 1 that a lease determines by efflux of the time limited thereby. But I do not think it can be read as meaning that if there 1 is no agreement to the contrary the lease is renewed from month to month, but that if there is an agreement for any other period then the lease is renewed for that period however long. This r would seriously trench upon the policy of t Section 107 . The intention of Section 116 is in my judgment that the lessee holding over with the landlords' mere consent has still a lease but only from month to month : he gets this, but no greater interest; and he does not even get this if there be an agreement with the landlord that he is to be a mere licensee, tenant on sufferance or tenant-at-will. The tenant continuing in occupation under a special agreement for a further lease is a different case from the tenant holding over merely by consent, but if for any reason his agreement has to be disregarded he can fall back upon the landlords' mere consent and claim his rights under Section 116 . If the matter be regarded in the first instance as between lessor and lessee the position is that the the latter is either : (1) by virtue of the doctrine of specific performance or otherwise clothed with the estate and right given by the special agreement; or (2) the holder of a lease from month to month. It is doubtless true that if at the expiry of the original term the person who continues in occupation is not the lessee, but his representatives or assigns, there is nothing in Section 116 to enable the lessor by mere consent to convert such representative or assign into a monthly tenant. Such a person in the absence of agreement is a trespasser : cf. <NAME> v. <NAME>  31 Mad. 163. But where the original lessee holds over by consent and becomes a tenant I see nothing in the Transfer of Property Act to justify the view that his interest is not assignable, though of course the lessor can determine it by giving the notice specified in Section 106 , The stipulation against assignment does not involve that the assignment is void though it might have been made a ground of forfeiture.

27. In these circumstances I am not of opinion that the appellate bank is in a position to escape liability for rent by reason of the fact that the company had not obtained a formal registered instrument creating a fresh form of three year3. Their assignment was an absolute assignment of the whole interest o£ the company and if the doctrine of privity of estate is to be applied under the Transfer of Property Act at all it is as applicable to the interest of a tenant holding over by consent as to any other infrared within Section 105 . The appellant bank cannot set up the covenant for renewal to exclude Section 116 and at the same time deny to the lessors' any right which specific performance would give to them. By English law, choses in action were not assignable at law and the doctrine of covenants running with, the land is applicable only to demises under seal. Such principles cannot be imported into the Indian statute and in any case we are here concerned merely with rent and not with collateral covenants and with the liability of an assignee who took his assignment on 18th February 1924 and who entered into possession in November 1924.

28. I think the appellants are not only liable for the rent since November 1924, but since February 1924 up to the 15th August 1925 as claimed, The notice be quit given on 30th June 1925 for the end of July would appear to be bad as the monthly tenancy was from the 6th of the month to the 5th of the next.

29. I think the appeal should be dimissed with costs.

Buckland, J.

30. This appeal is against a judgment of <NAME>, dated the 24th May 1926 whereby he held thai} the appellant bank was liable for rent of the premises No. 31/3, Marquis Street, from the 19th February 1924 and for interest.

31. The date from which he has held the bank to be so liable is the date of an instrument in writing whereby the defendant company by way of mortgage assigned to the appellant bank their leasehold interest in the premises and certain moveable property there situated.

32. The company were lessees of the premises under a lease for three years from the 6th November 1919 with an option to extend it for a further period of three years at an enhanced rent. At the expiry of the term the lessees continued in occupation of the demised premises. That they ever exercised the option in any formal manner does not appear. The lease does not so require not that the option shall be exercised at any particular point of time. The lessees would have had the right had they exercised the option to call upon the lessors to execute a lease in their favour for a further term of there years, though such right may have become modified by subsequent events. The lessees, however, did not do so whether the option is to be taken as having been exercised or not. They went into voluntary liquidation towards the end of 1924, and on the 12th February 1925 a compulsory winding up order was made. By that time the appellant bank had taken steps under their assignment.

33. It has been contended that the appellant bank did not take possession of the demised premises. In addition to the oral evidence the bank's letter of the 11th November 1924, in which it said that they intend to take possession of the properties mortgaged and "we appoint 2 o'clock tomorrow to take possession" leaves but little room for a decision favourable to the bank on this point. The learned Judge, however, has not decided this question nor in the view which he took was it necessary that he should do so. He held that the appellant bank was liable, for rent of the premises from the date of the assignment on the ground of privity of estate.

34. This conclusion has been assailed on appeal on the ground that the lessees did no1; exorcise the option and that whatever right the lessor might have had to require specific performance, had the option been exercised, never arose. So far there is not much difficulty. But the appeal his further been argued upon the facting that the option was exercised, the lessees being taken to have continued in possession under the renewal clause and that therefore a state of affairs arose within the principle of <NAME> v. <NAME> [1882] 21 Ch. D. 9.

35. It is contended that in such circumstances the appellant bank would be liable for the rent, This point has been argued at length by learned Counsel but Purchase v. <ORG> [1915] 1 K.B. 184, which has been cited in argument, makes it clear that the principle of <NAME> v. Lonsdale [1882] 21 Ch. D. 9 cannot be invoked against mortgagees who take an assignment of leaseholds by way of security. Bat apart from that decision the lessors are not in a position to allege, as must be done where specific performance is claimed, that they are, and at all material times have been, ready and willing to execute a lease in favour of the appellant bank, for on the 30th June 1925 through their solicitors they gave the appellant bank notice to quit.

36. If the case stood there the appellant bank might be entitled to succeed but there is another aspect of it which has yet to be considered.

37. The lease in fact was never renewed, but the lessees remained in possession of the premises after it had determined. This prima facie brings them within Section 116 , Transfer of Property Act . The words "in the absence of a contract to the contrary" must be taken as relating to what follows them in the section, that is to say, a contract inconsistent with the renewal of the lease from year to year or from month to month, as the case may be. There is nothing inconsistent with that in. the covenant for renewal in the original lease; rather I should say that by holding over the lessees indicated their intention to take advantage of it (a question which must in each case be dependent upon the form of the renewal clause and provision as to notice), though until they gave notice of renewal they might be deemed to be holding over as provided by this section. There is to my mind no third alternative view open, for it cannot by any process of argument be contended that the lessees were mere trespassers.

38. If then the lessees are regarded as being tenants from month to month under Section 116 , Transfer of Property Act , after the expiration of the lease the final question still to be determined is what is the effect of the assignment of <ORG> 1924.

39. The Transfer of Property Act contains no definite provision as to the relative rights and obligations of the lessor and an assignee of the. lessee's interest. Section 108(j) permits the transfer absolutely or by way of mortgage or sub-lease of the lessee's interest in the property and provides that the lessee shall not by reason only of such transfer cease to be subject to any of the liabilities attaching to the lease. It is a matter of inference that the sub-section contemplated that while the liability of the lessee is preserved the assignee of the lessee may become liable to the lessor. But it does not say so and so far as the point has been considered the view appears to have been taken that the subsection cannot be construed as having that effect though liability may be established otherwise.

40. Section 65(d) which is to be found in the chapter on mortgages deals with the case of a mortgage of a lease for a term of years. By the latter part of the sub-section taken with the section itself the mortgagor is deemed to contract with the mortgagee that he will so long a3 the security exists and the mortgagee is not; in pos383sion of the mortgaged property pay the rent reserved by the lea e or, if the lease is renewad, the renewal lease, etc. This section also lends itself to the inference that where the mortgagee enters into possession of the mortgaged property he becomes liable to the lessor for the rent. But as to this too the comment has been made that the section only deals with the rights and liabilities of the mortgagee and mortgagor.

41. There are authorities from which it may be argued that possession is a determining factor but upon examination I do not think they support that view. In <NAME> v. <NAME> [1878] 2 C.L.R. 323, a case decided before the Transfer of Property Act , 1882, the judgment in favour of the plaintiff appears to be based upon the mortgagee's possession. The report, however, states that the mortgage was in the English form, though in the judgment itself it is stated that the contract between the plaintiff and the appellant who had taken a transfer of the mortgage from the transferee of the original mortgagee, was not before the Court. Though I think certain principles can be deduced as running through the later cases this authority to my mind is uncertain as a guide, though the principles to which I shall presently allude in to way conflict with it. In <NAME> v. <NAME>  10 Cal. 443 it was decided that a mortgagee of leasehold property who is put into possession under circumstances which amount to an assignment or transfer of the leasehold interest becomes liable as a rule to pay the rent. The learned Chief Justice, however, in his judgment observed that Section 65 which relates to the duties of mortgagors contains no rules applicable to the case which was therefore governed by the general law. He seems to have regarded possession not as imposing liability per se, but as evidence from which he arrived at the conclusion that the lessee's interest had been wholly transferred. This was followed in <NAME> v. <NAME>  12 Cal. 185.

42. In <NAME> v. <NAME> [1894] 17 Mad. 293, Section 65 was not referred to but Section 108(j) was said not to exclude the liability of the assignee which was founded on the privity of estate created by the assignment and arising from the vesting of the assignor's interest in the assignee. <NAME> v. <NAME>  26 Cal. 338 is a case which might at first sight appear to support the appellant bank, but though the learne Judges held that the lessor on the expiration of the original lease made a bargain with the lessee to hold over on an enhanced rent they also very definitely decided that the assignment did not pass the lease as well as the stock-in-trade and fixtures of the lessor who was a veterinary surgeon and livery stable-keeper. I agree with the learned Chief Justice in what he has said as to the observations of <NAME>, J., in <NAME> v. <NAME>  29 Bom. 391 which has been commented upon by <NAME>, C.J., in <NAME> v. <NAME> Mad. 1111, where the learned Chief Justice observed that in his opinion the authorities did not support the decision. I venture to think with all respect to the learned Judge that he overlooked that the decisions cited by him were founded on a complete assignment of the lessee's interest in each case and he seems to have regarded them as based upon an implication of Section 65 , Transfer of Property Act . It is also to be observed that the mortgage in that case was not a mortgage in the English form, a material distinction which must be borne in mind in considering this class of cases.

43. <CITATION>  40 Mad. 1111 the English cases and the sections of the Transfer of Property Act were considered with reference to a mortgage of which the form is not given but which the judgment indicates was not in the form of an English mortgage as defined in Section 58(e) of the Transfer of Property Act for he was not an out and out transfer of the mortgagor's interest. The head note to the report, in that it does not distinguish between one form of mortgage from another, is misleading for the learned Chief Justice in his judgment differentiated as regards privity of estate between mortgages where the lessee mortgage his whole interest and where a subsidiary interest is carved out of the lessees interest.

44. The authorities to which I have referred, with the exception of <NAME> v. <NAME> [1905] 29 Bom. 391 appear uniformly to require that for the mortgagee to be liable for rent the whole of the lessee's interest must have been transferred. Where the mortgage is in the English form but little question arises; the difficulty is in those cases where the mortgage is in the form more generally employed in the mofussil. In those cases, as I read them, liability is not based upon possession as such, but the fact of possession has been taken into account as a matter for consideration in determining whether the whole interest of the lessee has bean transferred to the mortgages.

45. In the case with which we are concerned the whole interest of the lessees was assigned. The English rule as laid down in <NAME> v. <NAME> [1819] 1 Br. & B. 238 has been quote by the learned Chief Justice and I need not repeat it. A similar rule has been followed in India in cases to which I have referred and indeed in <CITATION>  40 Mad. 1111 the learned Chief Justice in referring to <NAME> v. Anjelu  17 Mad. 196 and <NAME> v. Nistarini Dassee  10 Cal. 443, accepted the view that it obtained in this country in cases of a complete transfer of the lessee's interest.

46. Though the lessee's only interest, apart from their right to a renewal of the lease, a point with which I have already dealt, was, at the date of the assignment, their interest as tenants who were holding over under Section 116 Transfer of Property Act, nevertheless in my judgment that was an assignable interest which was assigned by the document of the 19th February 1924 and the appellant bank is liable for the rent. I agree that the appeal should be dismissed with costs.