# LACHOO MAL v. RADHEY SHYAM

- **Citation:** [1971] 3 S.C.R. 693
- **Court:** Supreme Court of India
- **Decided:** 1971-02-10
- **Case number:** Civil Appeal No. 18 of 1968
- **Bench:** K. S. Hegde, A. N. Grover
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/lachoo-mal-v-radhey-shyam-5233
- **Pages:** 6

## Headnote

U.P. Temporary Control of Rent and Eviction Act, 1947, ss. l(A)
•nd 3-Cons1ructio11 after 1951-Agreement that Act tho11/d •pp/ylf binding upon landlord-hidian Contract Act
(9 of 1872), a. 23Scope of.
The appellant was the tenant of the respondent's shop.
As
the
latter wanted to make sotlle constructions they entered into an agree·
~nt in 1962, according to which, the appellant was to vacate the shop
but re-occupy it on the same rent as soon as the construction was Cl)mpleted. It was also agreed that all the sections of the U.P. (Temporary)
Control of Rent and Eviction Act, 1947, shall be fully applicable to the
new tenancy. After the construction was completed the appellant resum·
ed possession and offered rent.
The respondent refused the rent and
filed a suit for ejectment. In appe'al, the High Court held that the ap·
pellant was not entitled to the protection of the Act, because, the respondent was entitled to rely on s. !A according to which nothing in the
Act shall apply to a building constructed on or after !st January, 1951,
and that the agreement was unlawful within the meaning of s. 23 of the
lndian Contract Act, 1872.
In appeal to this Court,
HELD : The general principle is that every one has a right to waive
the advantage of a law made for his benefit in his private capacity,
when a public right or public policy is not infringed thereby. Section lA
was meant for the benefit of owners of buildings constructed after tan·
uary 1, 1951. But there is no prohibition in bhe section against a land·
lord and his tenant entering into an agreement,. that they would not !>e
gove;;iecl by that section. If a particular owner did not want to avail
himself of the benefit of the section, there was no bar created by it to
his waiving or giving ·up or abandoning the advantage and no question
of pnlicy, or public policy is involved.
Therefore, the performance of
the agreement fa the present caae would not entail the transgression of,
any law and the agreement was not void under s. 23 of the
Indian
Contract Act. [696 C; 6<)7 D·E; 698 A-CJ
Nemlnath Appayya Hanumannavar v. Jamboorao Sateppa
Kocherl,
A.I.R. (1966) Mys, 154, approved.
Vita Food Products Incorporated v. Unus Co. Ltd. (in Liquldatio11),
(1939) A.C. 277 at 293, referred to.

## Text

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LACHOO MAL
v.
RADHEY SHYAM
February 10, 1971
[K. S. HEGDE AND A. N. GROVER, JJ.}
U.P. Temporary Control of Rent and Eviction Act, 1947, ss. l(A)
•nd 3-Cons1ructio11 after 1951-Agreement that Act tho11/d •pp/ylf binding upon landlord-hidian Contract Act
(9 of 1872), a. 23Scope of.
The appellant was the tenant of the respondent's shop.
As
the
latter wanted to make sotlle constructions they entered into an agree·
~nt in 1962, according to which, the appellant was to vacate the shop
but re-occupy it on the same rent as soon as the construction was Cl)mpleted. It was also agreed that all the sections of the U.P. (Temporary)
Control of Rent and Eviction Act, 1947, shall be fully applicable to the
new tenancy. After the construction was completed the appellant resum·
ed possession and offered rent.
The respondent refused the rent and
filed a suit for ejectment. In appe'al, the High Court held that the ap·
pellant was not entitled to the protection of the Act, because, the respondent was entitled to rely on s. !A according to which nothing in the
Act shall apply to a building constructed on or after !st January, 1951,
and that the agreement was unlawful within the meaning of s. 23 of the
lndian Contract Act, 1872.
In appeal to this Court,
HELD : The general principle is that every one has a right to waive
the advantage of a law made for his benefit in his private capacity,
when a public right or public policy is not infringed thereby. Section lA
was meant for the benefit of owners of buildings constructed after tan·
uary 1, 1951. But there is no prohibition in bhe section against a land·
lord and his tenant entering into an agreement,. that they would not !>e
gove;;iecl by that section. If a particular owner did not want to avail
himself of the benefit of the section, there was no bar created by it to
his waiving or giving ·up or abandoning the advantage and no question
of pnlicy, or public policy is involved.
Therefore, the performance of
the agreement fa the present caae would not entail the transgression of,
any law and the agreement was not void under s. 23 of the
Indian
Contract Act. [696 C; 6<)7 D·E; 698 A-CJ
Nemlnath Appayya Hanumannavar v. Jamboorao Sateppa
Kocherl,
A.I.R. (1966) Mys, 154, approved.
Vita Food Products Incorporated v. Unus Co. Ltd. (in Liquldatio11),
(1939) A.C. 277 at 293, referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 18 of
1968.
Ap~ by special leav~ from the judgment and, order dated
April 14, 1967 of the Allahabad High Coun in Second Appeal
No. 307 of 1965.
694
SUPREME COURT REPORTS
'
[1971]3 S.C.R.
V. M. Tarkunde; Umlila Kapoor and R. K. Khanna, for the'
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appellant.
'
S. V. Gupte and M. Iii· Goswami, for the respondent.
The Judgment of the ~ourt was delivered by
Grover, J. This is an appeal by specilj].
leave from
a
judgment of the Allahabad High Court and involves the question
whether the appellant, who was the tenant, was entitled to the
benefit of s. 3 of U.P. (Temporary) Control of Rent and Eviction
Act, 194 7, hereinafter called the "Act".
The facts are not in dispute.
The appellant had been occupying a shop in Mathura oelonging to the respondent from a very
lbng time at a monthly rental of Rs. 18.37. In 1962 the respondent wanted to construct rooms on the upper storey of the shop for
his own residence.
Thisl construction could possibly be made
only if the appellant vacated the shop for some period. On June
4, 1962, the appellant and the respondent entered into an agreement.. · After reciting the. ab6ve facts it was agreed that the shop
would be vacated by thel ~ppellant on the condition that as soon
as the required construction had been completed he would resume
possession of the shop. ' At this stage the following clauses of
the agreement may be set out.
"1. On this day the second party has withdrawn
his possession from
1 the shop bearing No. 1/2C, situate
at Tilakdwar, and !fas given the same to the first party.
2. The first patty shall get the shop constructed
within thirty days and would then hand over the possession of the sanie to the second party.
!
3. At present a. sum of Rs.
18-6-0 per mensem,
which includes house tax and water tax, ·is being paid
by ·the second party to the first party as rent.
After
the c0nstruction of' the shop, the first part}' shall be
entitled to ·get the. s~ine amount as rent from the second
party.
All the s~ti6ns of the U.P. Rent Control and
Eviction Act shall be fully applicable to .this house. The
first party shall in no case be entitled to derive benefits
from it as the property built after 1-1-SL"
After the construction had been made and the appellant had
resumed his possession ,of the shop the appellant offered rent to
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the respondent but the latter did not accept the same. Ultimately
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he 'deposited the rent frbm April 1, 1962 to July 31, 1963 in
court under s. 7 C of the Act. The respondent served a notice
dated April 20, 1963 apparently under the provisions of the
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LACHOO v. RADHEY SHYAM (Grover, J.)
695
Transfer of Property Act purporting to terminate the tenancy of
the appellant.
This was followed by a suit which the respondent
filed for ejectment of the appellant and for
arrears of rent,
damages etc.
The Munsif dismissed the suit holding that the
appellant was entitled to the protection conferred by s. 3 of the
Act which was applicable.
The District Judge, on appeal, took
the contrary view and decreed the suit. The High Court affim1ed the judgme!J.t of the District Judge.
It was held, inter-a/ia,
that the respondent was entitled to rely on s. 1-A of the Act and
the appellant could not be given the benefit of s. 3.
Now there can be no manner of doubt that the tenancy
between the appellant and the respondent was governed by the
provisions of the Act prior to the reconstruction of the premises.
It appears to have been accepted that when the respondent made
the re-construction after the agreement mentioned above in 196~
the buildings came to be constructed within the terms of s. 1-A
of the Act.
That section s~,y5' that nothing in the Act shall apply
to any building or part of a building which was under. erection
or was constructed on or after January 1, 1951.
It will ·have to
be decided whether it was open to the respondent 'to give up the
benefit of this provision or waive it by means of an agreement of
the nature which was entered into between the appellant and the
respondent in June 1962.
According to the preamble on the cessation of the applicability
of sub-rule 2 of rule 81 of the Defence of India Rules after September 30, 1946 it was considered expedient owing to the shortage of accommodation in the State of Uttar Pradesh to provide
for the continqance during a limited period of powers to control
the letting and the rent of accommodation and to prevent the eviction of tenants therefrom.
Section 3 imposed restrictions on eviction.
No suit could be filed in any civil court against the tenant
for his eviction from any accommodation except on one or more
of the grounds mentioned in sub-s. ( 1) of that section without the
permission of the District Magistrate or of . the Commissioner to
whom a revision lay against the order of the District Magistrate.
SectioP 5 contained provisions relating to control of rent.
The
ether provisions of the Act need not be noticed.
It has never
been disputed that the Act was -enacted for affording protection
to the tenants against eviction except in the manner provided by
the Act. It was also meant to regulate the le!tting of accommodatibn, fixing of rent etc., the provisions relating to which were all
intended to confer benefits on the tenants against unreasonable
and capricious demands of the landlords. At the same time it
appears that the legislature was conscious of the fact that the Act
might retard and slacken the pace of construction of new ~uild
ings because the la.'1.dlords would naturally be reluctant to invest
696
SUPREME COURT REPORTS
!
[1971] 3 S.C.R
money in properties the letting of which would be governed by
the stringent provisions of the Act.
It was for that purpose that
the saving provision in s. 1-A seems to have been inserted.
The
essential question that has to be resolved is whether S. 1-A was
merely in the nature of an exemption in favour of the landlords,
with· regard to the buildings constructed after January 1, 1951
and conferred a benefit ort them which they could give up or
waive by agreement or contractual arrangement and whether the
consideration or object of
1 such an agreement would not be lawful within the meaning of s. 23 of the Indian Contract Act.
The general principle
1is that every one has a right ;to waive
and to agree to waive the advantage of a law or rule made solely
for the benefit and protection of the individual in his private capacity which may be dispensed with without infringing any public
right or public policy.
Thus the maxim which sanction the nonobservance of the statutory provision is cuilibet licat renuntitire
juri pro se introducto_
(See Maxwell on Interp!etation of Statutes, Eleventh Edition, pages 375 & 376.) If there is
any
express prohibition against contracting out of a statute in it then
no question can arise of apy one entering into a contract which
is so prohibited but where there is no such prohibition it will have
to be seen whether an Ad: is intended to have a more extensive
operation as a matter of public policy. In Halsbury's Laws of
England, Volume 8, Third Edition, it is stated in paragraph 248
at page 143 :
'
"As a general ~e, any person can enter into a binding
contract to waive the benefits conferred upon him by an
Act of Parliament, or, as it is said, -can contract himself
out of the Act, unless! it can be shown that such an
agreement is in the circumstances of the particular case
contrary to public wlicy. Statutory conditions ·may,
however, be imposed in such terms that they cannot be
waived by agreement, and, in certain circumstances, the
legislature has expressly provided that any such agreement shall be void."
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In the footnote it is pointed out that there are many statutory proG
visions expressed to apply "notwithstanding any agreement to the
contrary", and also a stipulation by which a lessee is deprived of
his right to apply for relief against forfeiture for breach of covenant (Law of Property Act, 1925). Section 23 of the Indian
Contract Act provides :
"The consideration. or object of an agreement ii.
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lawful, unless--
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it is forbidden by law; or
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I.ACHOO v. RADHEY SHYAM (Grover, J.)
is of such a nature that, if pennitted, it would defeat
the provisions of any law; or is fraudulent; or
involves or implies injury to the person or property
of another; or
the Court regards it as immoral, or opposed to
public policy.
In each of these cases, the consideration or object
of an agreement is said to be unlawful.
Every agreement of which the object or consideration is unlawful is
void."
697
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It has never been the case of the respondent that the consideration or object of the agreement which was entered into in June
1963 was forbidden by law.
Reliance has been placed mainly
on the next part of the section, namely, that it is of such a nature
that it would defeat the provision of any law and in the present
case it would be s. 1-A of the Act.
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<.
Now s. 1-A does not employ language containing a prohibition against or impose any restriction on a landlord and a tenant
entering into an agreement that they would not be governed by
that section.
We concur with the view expressed in Neminath
Appayya Hanumannavar v. Jamboorao Satappa Kocheri(') that
the words "if permitted it would defeat the provisions of any
law" in s. 23 of the Contract Act defer to perfonnance of a:t
agreement which necessarily entails the transgression of the provisions of any law.
What makes an agreement, which is otherwise legal, void is that its performance is impossible except by
disobedience of law.
Clearly no question of illegality can arise
unless the performance of the unlawful act was necessarily the
effect of an agreement.
The following observations of Lord
Wright in Vita Food Products Incorporated v. Unus Company
Ltd.(~) (in Liquidation) are noteworthy in this connection :
"Nor must it be forgotten that the rule by which
contracts not expressly forbidden by statute or declared
to be void are in proper cases nullified for disobedience
to a statute is a rule of public policy only, and public
policy understood in a wid·~r sense may at times be better
served by refusing to nullify a bargain save on serious
and sufficient grounds."
We. are unable to hold that the perfonnance of the agreement
which was ent~red inte> between the parties in the present case
would involve an illegal or unlawful act.
In our judgment s. 1-A.
(I) AJ.R [1966] Mysore 154.
(2) [1939] A.C. 277, 293.
SUPREME COURT REPORTS
(1971] 3 S.C.R.
-was meant for the benefit of owners of buildings which were under
erection or were constructed after January 1, 1951. If a particular owner did not wish to avail of the benefit of that section
there was no bar created by it in the way of his. waiving or giving
up or abandoning the advantage or the benefit c9ntemplated by
the section. No question of policy, much less public policy,
was involved and such a benefit or advantage could alway.:1 be
waived. That is what was done in the present case and we are
unable to agreei with the High Court that the consideration or
object of the agreement entered into between the parties in June
1962 was unlawful in view of s. 23 of the Contract Act.
In the result the appeal is .allowed, the judgment of the High
Court is set aside and that of the trial court restored. The appel·
tant will be entitled to his costs in this court.
·
V.P.S.
Appeal allowed.
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