# SAFALI ROY CHOUDHURY & ORS v. AMARENDRA KUMAR DUTTA

- **Citation:** [1976] Supp. 1 S.C.R. 595
- **Court:** Supreme Court of India
- **Decided:** 1976-05-06
- **Case number:** Civil Appeal No. 1599 of 1968
- **Bench:** P. N. Bhagwati, A. C. Gupta, S. Murtaza Fazal Ali
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/safali-roy-choudhury-ors-v-amarendra-kumar-dutta-7188
- **Pages:** 6

## Headnote

Interpretation of sratuteSr---Repea/ and saving prov'4ion-lntention of LeRis--
lature-Whether saving provisi'on can override new rights created by repealing
statute.
A
B
""
Transfer of Property Act, 1882-Sec. 5-52-Transfer of Property-List
..
'
'
Pendens-lf applies to rights created by a stature.
West Bengal Premises Rent Control (Temporary Provisions)
Act 1950C
West Bengal Premises 'Tenancy Acr 195&-Sec. 2(h), 16 and 40.
The respondent was the tenant of the suit premises and Dilip Narayan Roy
Choudhury was his sub-tenant. The tenant instituted a suit against the subtehant when the West Bengal Premises Rent Control (TemI'Orary Provisions)
Act, 1950 was in force seeking to evict the sub-tenant on the ground that
he was a defaulter in payment of rent. After the suit was instituted, West
Bengal Premises Tenancy Act, 19'56, was brought into operation. Section 40
of the subsequeht Act repealed the 1950 Act and further provided that notwithstanding the repeal of the said Act any proceedin2s pending on the date
of the repeal may be continued as if the said Act had been in force and
had not been repealed or had not expired. Section 16 of the 1956 Act cohfers
on the sub-tenant, on his complying with certain conditions the right to become
a tenant directly under the landlord ahd authorise the Rent Controller to pass
necessary orders directing that the sub-tenant shall become tenant directly
under the landlord from the date of the order. The sub-_tenant adopted proceedings under sectioh 16 of the Act against the superior landlord and in
February, 1957, the Rent Controller held that the. sub-tenant was entitled to
the declaration asked for over-ruling the: objections raised by the tenant. An
appeal filed by the tenant against the said order was dismissed. Thereafter,
the sub-tehant amended his written statement in the suit f.or eviction filed by
the tenant against him and pleaded that the relationship Of the lahdlord and
tenant between the tenant and the sulJ..tenant no lohger subsisted. The Munsiff
dismissed the application for eviction filed by the tenant on the ground that in
view of he order pa.ssed uhder the 1956 Act declaring the· sub-tenanL to be a
direct tenant under the landlord the relationship of landlord altd tenant between
the parties ceased. In a revision, the High Court piaintained the order rejecting
the application for evictioh but set aside the finding) that the relationship of the
landlord a'f!d tenant between the tenant and the sub-tenant ceased. The High
Court held that in spite of section 40 of the repealing Act, section 16(3) of the
Repealing Act must be' given effect to. Tub High Court, however, took the
view that the proceedings under section 16(3) having been initiated during the
pendency of the suit the principle of lis pendens would apply and, accordingly,
the <>Tiier under s. 16(3) would hot govern the suit.
In an appeal by special leave by the heirs ot the sub-tenant, the counsel
for the respondent did not rely on s. 52 of the Transfer of Property Act but
sought to support the decree Qn the ground that in view Of s. 40 of the Repeal'"
ing Act the entire proceedihgs under s. 16 was without jurisdiction.
Allowin!? the appeal,
D
E
F
G
HELD : ( 1) The doctrine of Tis pe1idens can have no application to this
H
case. The doctrine of tis pendens means that no party to the litigation can
aliehate the property in dispute so as to all'ect the other party and reatli upon
the foundation that it would plainly be impoS"SibJ~ that any action or suit could
be brought to a successful termination after alienation pendente lite. Section
A
B
c
D
E
F
G
H
596
SUPREME COURT REPORTS
(1976] SUPPLEMENTARY
5 of the .'J!ansfer of Property Act defines transfer of property as an act by
which a hving person conveys property to another.
When the Legislature
in
exercise of its sovereign powers regulates or alters the rights Of landlord and
tenant, what it_ does is not transfer of property attracting the doctrine of /is
pendens. [599B, C-F]

## Text

I
595
SAFALI ROY CHOUDHURY & ORS.
v.
AMARENDRA KUMAR DUTTA
May 6, 1976
I
[P. N. BHAGWATI, A. C. GUPTA AND S. MURTAZA FAZAL ALI, JJ.]
Interpretation of sratuteSr---Repea/ and saving prov'4ion-lntention of LeRis--
lature-Whether saving provisi'on can override new rights created by repealing
statute.
A
B
""
Transfer of Property Act, 1882-Sec. 5-52-Transfer of Property-List
..
'
'
Pendens-lf applies to rights created by a stature.
West Bengal Premises Rent Control (Temporary Provisions)
Act 1950C
West Bengal Premises 'Tenancy Acr 195&-Sec. 2(h), 16 and 40.
The respondent was the tenant of the suit premises and Dilip Narayan Roy
Choudhury was his sub-tenant. The tenant instituted a suit against the subtehant when the West Bengal Premises Rent Control (TemI'Orary Provisions)
Act, 1950 was in force seeking to evict the sub-tenant on the ground that
he was a defaulter in payment of rent. After the suit was instituted, West
Bengal Premises Tenancy Act, 19'56, was brought into operation. Section 40
of the subsequeht Act repealed the 1950 Act and further provided that notwithstanding the repeal of the said Act any proceedin2s pending on the date
of the repeal may be continued as if the said Act had been in force and
had not been repealed or had not expired. Section 16 of the 1956 Act cohfers
on the sub-tenant, on his complying with certain conditions the right to become
a tenant directly under the landlord ahd authorise the Rent Controller to pass
necessary orders directing that the sub-tenant shall become tenant directly
under the landlord from the date of the order. The sub-_tenant adopted proceedings under sectioh 16 of the Act against the superior landlord and in
February, 1957, the Rent Controller held that the. sub-tenant was entitled to
the declaration asked for over-ruling the: objections raised by the tenant. An
appeal filed by the tenant against the said order was dismissed. Thereafter,
the sub-tehant amended his written statement in the suit f.or eviction filed by
the tenant against him and pleaded that the relationship Of the lahdlord and
tenant between the tenant and the sulJ..tenant no lohger subsisted. The Munsiff
dismissed the application for eviction filed by the tenant on the ground that in
view of he order pa.ssed uhder the 1956 Act declaring the· sub-tenanL to be a
direct tenant under the landlord the relationship of landlord altd tenant between
the parties ceased. In a revision, the High Court piaintained the order rejecting
the application for evictioh but set aside the finding) that the relationship of the
landlord a'f!d tenant between the tenant and the sub-tenant ceased. The High
Court held that in spite of section 40 of the repealing Act, section 16(3) of the
Repealing Act must be' given effect to. Tub High Court, however, took the
view that the proceedings under section 16(3) having been initiated during the
pendency of the suit the principle of lis pendens would apply and, accordingly,
the <>Tiier under s. 16(3) would hot govern the suit.
In an appeal by special leave by the heirs ot the sub-tenant, the counsel
for the respondent did not rely on s. 52 of the Transfer of Property Act but
sought to support the decree Qn the ground that in view Of s. 40 of the Repeal'"
ing Act the entire proceedihgs under s. 16 was without jurisdiction.
Allowin!? the appeal,
D
E
F
G
HELD : ( 1) The doctrine of Tis pe1idens can have no application to this
H
case. The doctrine of tis pendens means that no party to the litigation can
aliehate the property in dispute so as to all'ect the other party and reatli upon
the foundation that it would plainly be impoS"SibJ~ that any action or suit could
be brought to a successful termination after alienation pendente lite. Section
A
B
c
D
E
F
G
H
596
SUPREME COURT REPORTS
(1976] SUPPLEMENTARY
5 of the .'J!ansfer of Property Act defines transfer of property as an act by
which a hving person conveys property to another.
When the Legislature
in
exercise of its sovereign powers regulates or alters the rights Of landlord and
tenant, what it_ does is not transfer of property attracting the doctrine of /is
pendens. [599B, C-F]
(2) It is true that in view of s. 40 of the Repealing Act a pending proceeding may be cohtinued as if the Repealing Act was not passed. This, however,
does not ll)ean that even if the 1'956 Act created a new right in favour Of the
tepant, he would be denied this right because a suit for ejectment wag pendin~
against him when the Act came into force. The intention of the Legislature,
which is para.mount, is clear to upgrade the sub-tenant and make him ~ tenant
directly under the superior landlord. A sub-tenant is a tenant with.ID. the meaning of s. 2(h) of the Repealing Act. Thus, the suit must continue under the
1950 Act but the right ac'l,uired by the sub-tenant under 1956 Act has to be
given effect to and the smt decided accordihgly. Therefore, the relationship
of landlord and tenant ·ceased between the parties on the date when the order
under s. 16 was made. (599F-H, 600B-CJ
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1599 of 1968.
Appe:;! by Special Leave from the Judgment and Order dated the
16th February 1968 of the Calcutta High Court in Civil Rule No. l 030
of 1967.
D. N. Mukherjee and N. R. Chaudhury for the Appellants.
Sukumar Ghosh for the Respondent.
The Judgment of the Court was delivered by
GUPTA, J.
This appeal by special leave is directed against a
Judgment of the Calcutta High Court setting aside in revision the finding of the trial court on the issue whether the relationship of landlord
and tenant subsisted between the parties in a suit for ejectment. Th.e
issue which arises on the interaction of two statutes, t)le West Bengal
Premises Rent Control (Temporary Provisions)
Act, 1950 and the
West Bengal Premises Tenancy Act, 1956, which repeals the earlier
Act but keeps it alive for proceedings pending on the date of repeal,
involves the question,-is the right conferred on the sub-tenant by the
1956 Act of being declared a tenant directly under lhe superior landlord available to a sub-tenant against whom a suit for ejectment was
pending when that Act came into force ? The appeal turns on the
answer to this question.
The mate.rial facts leading to the impugned order are these. The
respondent was a tenant of premises No. 17 /lE Gopal Nagar Road,
Alipore, Calcutta, and his lan'.tlord was one Jagabandhu Saha, the
owner of the ~ouse, Dllip Narayan. Roy Chowdhury was a sub-tenant
under. the respondent in. respect of the ground,. floor flat paying a
monthly rent Qf Rs. 75/-. The. respondent instituted a suit in the
Munsifs court at Alipore on March 21, 1956 when the West Bengal
Premises Rent Control (Temporary Provisions) Act,
1950 was in
force, seeking to evict Roy Chou~hury 011 .the. grpuru\;that he was a
defaulter ip payment ,of rent. This Act was a temporary statute due
to expire on March 31, 1956, bilt on that date the West Bengal PremiEes Tenancy Act,_ 1~56 w~s btpug~~ in.to. operatio11 repe,aling the
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SAFALI ROY v. A. K. DUTTA (Gupta, ].)
597
temp<>rary Act before it expired. · The material part of section 40 of
the f956 Act which repealed the 1950 Act is as follows :
"Repeal and savings.-(1) The West Bengal Premises
Rent Control (Temporary Provisions) Act, 1950 (in this
section referred to as the said Act), is hereby repealed;
(2) Notwithstanding the repeal of the said Act :-
B
(a) any proceeding pending on the 31st day of
March, 1956, may be continued, or,
(b) x
x
x
as if the said Act had been in force and had not
been repealed or had not expired : "
Section 16 of the 1956 Act confers on the sub-tenant the right to become a tenant directly under the landlord.
Sub-section (2) of section 16 provides inter-alia that where before the commencement of
this Act, the tenant, with or without the consent of .the landlord, has
sublet any premises either in whole or in part, the tenant and every
sub-tenant must give notice to the landlord of such subletting within
the prescribed period. Sub-section (3) of section 16 provides that in
any such case where the landlord had not consented in writing or
denies that he gave oral consent, the Rent Controller on an application made to him either by the landlord or the sub-tenant shall make
an order declaring that the tenant's interest in so mnch of the premises
as has been sublet shall cease and that the sub-tenant shall become a
tenant directly under the landlord from the date of the order. The
Rent Controller is also required to fix the rent payable by the subtenant to the landlord from the date of the order.
Sub-tenant Roy
Choudhury served a notice under section 16(2) of the 1956 Act upon
the superior landlord and applied under section 16(3) for being declared a tenant directly under him. On July 31, 1956 the Rent Controller recorded a finding on this application that Roy Choudhury was
entitled to the declaration asked for overruling the objections raised
by the respondent.
On February 23, 1957 the Rent Controller concluded the proceeding under section 16(3) by finally declaring that
the sub-tenant was a tenant directly under the superior landlord with
effect from that date, and fixing the rent payable by him. The appeal
preferred by the respondent from this order was dismissed by the
appellate authority.
In the meantime, on August 21, 1956 the respondent had made
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an application under section 14(4) of the 1950 Act in the suit for eviction which was pending.
Section 14(4) of the 1950 Act permitted
the landlord to make an application in the suit for an order on the
tenant to deposit month by month the rent at the rate at which it was
last paid and also the arrears of rent, if any, and provided that . on
failure to deposit the arrears of rent or the rent for any month within :a:
the period prescribed for such deposits, the court would make an order
striking out the tenant's defence against ejectment so that the tenant
would be in he same position as if he had not defended the claim to
A
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598
SUPREME COURT REPORTS
[1976] SUPPLEMENTARY
ejectment.
On this application the Munsif on September 26, 1956
directed the appellant to deposit a certain sum as arrears of rent and
also rent month by month at the rate of Rs. 75/-. After the declaration of tenancy under section 16(3), Roy Choudhury was permitted
to amend his written statement in the suit by adding a paragraph questioning the relationship of landlord and tenant between the respondent
and himself. It is unnecessary to refer to the various proceedings in
the snit that followed, in the course of which the High Court was moved more than once by either party.
On January 24, 1965 Roy Choudhury died and the present appellants were substituted in his place in
the suit as his heirs and legal representatives.
On November 1, 1965
the Munsif framed an additional issue, being issue No. 9, which was
as follows :
"Has the alleged relationship of landlord and tenant between the parties been determined
by final
orders dated
31-7-56 and 23-2-57 passed by the R. C. (Rent Controller)
Calcutta in Case No. 243B of 1956 ?"
The Munsif took up for consideration the application under section
14 ( 4) and the additional issue No. 9 together and by his order dated
February 20, 1967 found that the Rent Controller had jurisd[ction to
pass the order under section 16 ( 3) declaring the defendant to be a
direct tenant under the superior landlord, and that the relationship of
landlord and tenant between the parties ceased by virtue of the order
made under section 16(3). The additional issue No. 9 was accordingly decided in favour of the defendant and the application under
section 14(4) of the 1950 Act was dismissed.
The plaintiff moved
the High Court in revision against this order.
The revision case was
disposed of on February 16, 1968, the learned Judge maintained the
order rejecting !he application under section 14(4) but set aside the
finding on issue No. 9 and held that "for the purposes of the'present
suit for ejectment there is a relationship of landlord and tenant". The
propriety of this order is cha1lenged by the tenant defendants.
In the course of his Judgment the learned Judge
recorded the
following findings :
(i) "The validity or the binding nature of the order under
sei;tion 16(3) of the 1956 Act cannot be challenged nor
can it be found in this suit to be inoperative".
(ii) The rights arising out of a valid proceeding under section
16(3) cannot be overlooked in spite of the non-obstante
clause in section 40 of the 1956 Act and the effect of the
order under section 16(3) has to be considered in the
suit.
(iii) As the proceeding under section 16(3) was started during
the pendency of the suit, the principle underlying section
52 of the Transfer of Property Act should apply to this
case and "the decision made in the proceeding under section 16(3) would not control the decision in the ejectment suit''.
'
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SAFALI ROY v. A. K. DUTTA (Gupta, J.)
5·99
It thus appears that the High Court was of the view that in spite
of section 40 providing that a pending proceeding would continue to be
governed by the provisions of 19 50 Act as if that Act had not been
repealed or had not expired, the order made under section 16(3) of
the 1956 Act must be given effect to.
The High Court however held
that the proceeding under section 16(3) having been initiated during
the pendency of the suit, the principle of !is pendens should apply and
accordingly the order under section 16(3) would not govern the suit.
Before us, counsel for the respondent did not rely on section 52 of
th~ Transfer of Property Act, but sought to support the decree on the
ground that in view of section 40, the entire proceeding under section
16(3) was without jurisdiction. The doctrine of !is pendens can of
course have no application to this case.
Section 52 of the Transfer
of Property Act forbids alienations pendente lite providing inter alia
t.'iat the property forming the subject matter of a pending suit cannot
be transferred or otherwise dealt with by any party to the suit so as
to affect the rights of any other party under any decree or order which
may be made therein, except under the authority of the court and on
such terms as it may impose. The doctrine of lis pendens means that
no party to the litigation can alienate the property in dispute so as to
affect the other party, and rests "upon this foundation, that it would
plainly be impossible that any action or suit could be brought to a
successful termination if alienations pendente lite were permitted to
prevail".
[Observation of Turner L. J. in Bellamy v. Sabine, (1857)
1 D. & J. 566 (584) quoted with approval by the Privy Council in
Faiyaz Husain Khan v. Munshi Prag Narain & Others, 34 I.A. 102
(105).] But a sub-tenant who avails of the provisions of section 16(3)
which extinguishes the tenant's interest in the portion of the premises
sublet and confers on the sub-tenant the right to hold the tenancy
directly under the superior landlord, cannot be said to have alienated
property pendente lite.
Section 5 of the Transfer of Property Act
defines transfer of property as an act by which a living person conveys
property to another.
When the legislature in exercise of its sovereign
powers regulates the relations of landlord and tenant, altering or abridging their rights, what it does is not transfer of property attracting
the doctrine of !is pendens.
As stated already, counsel for the respondent put his case on the
provisions of section 40 of the 1956 Act.
According to him the snit
must continue to be governed by the 1950 Act even after its repeal
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in view of section 40, unaffected by the provisions of the 1956 Act.
Section 40 of the 1956 Act keeps alive a proceeding pending on the
G l
date when the 1950 Act was repealed as if it is still in force and has
not been repealed.
This however does not mean that even if the 1956
Act created a new right in favonr of the sub-tenant, he would be denied this right because a suit for eject.men! was pending against him
when the Act came into force.
'Tenant' as defined in section 2(h)
of the 19 5 6 Act includes a person continuing in possession after the
termination of his tenancy until a decree or order for eviction has
H
been made against him.
A sub-tenant is also a tenant, and when the
order under section 16(3) was made no decree or order for eviction
had been passed against him.
That being so, we do not see why he
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SUl'IU!)(IB COURT RBl'OllTS
[1976] SUl'l'LBMBNTARY
should not be entitled to the benef\t conferred by section 16 ( 3) . The
intention of the legisl11ture, which is paramount, is clear-to upgrade
the sub-tenant and make him a tenant directly under the superior
landlord.
This is a new right given to the sub-tenant, and though
the pem;jipg proceeding may continue to be regulated by the repealed
statute in view of section 40, there is nothing in that section to suggest
that the sub-tenant against whom a suit was pending will be denied
this .additional right.
The High Court has held ~t_!he e.ffect of !h~
order under section 16(3) must be considered in the suit.
Thus the
suit may continue in spite of the repeal of the 1950 Act, but the right
acquired by the sub-tenant under the 1956 Act has to be given effect
to and the suit decided accordingly. It must therefore be held that
the relationship of landlord and tenant ceased between the parties on
the date when the order under section 16(3) was made.
The appeal is allowed, the order of the High Court appealed from
is set aside and that of the tria1 court restored.
The appellants will
be entitled to their costs in this Court and in the High Court.
P.H.P.
Appeal allowed.
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