# Smt. Kaushal ya Devi v. Shri Mool Rai and others

- **Citation:** [1964] 4 S.C.R. 892
- **Court:** Supreme Court of India
- **Decided:** 1964
- **Case number:** Civil Appeal No. 168 of 1963
- **Bench:** A. K. Sarkar, M. H10Ayatullah, Shah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/smt-kaushal-ya-devi-v-shri-mool-rai-and-others-3190
- **Pages:** 29

## Headnote

Houses and Rents-Statutory Tenant and Contractual tenant-·
Difference-Right of sub-letting-Bombay Rents. Hotel and Lodging House Rates Control (Amendment) Ordinance, 1959-Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, ss.
12, 14 and 15.
The respondents granted to one Maneklal for five years a lease
of the ground and the first floor of a building named Anand Bhawan in the town of Ahmedabad. After the expiration of the period
of the lease, a suit was instituted by the respondent!' against Maneklal for a decree in tjectment and the realisation of arrears of
rent.
The suit was decreed.
However, Maneklal sublet a part of
the premises in his occupation to the appellant after the institution
of the suit against him but before the promulgation of the Bombay
Rents, Hotel and Lodging House Rates Control (Amendment)
Ordinance, 1959.
In execution of the decree, the respondents ob--
tained possession of the first floor but were obstructed as to the
rest by the appellant and two others who claimed to be sub-lessees
from Mancklal and thereby to have acquired rights of tenancy of
the ground floor upon determination of the tenancy of Maneklal.
The appellant filed a suit for a declaration that it was not
boulld
to
deliver possession of the premises in its occupation in
execution
of
the
decree
passed
against
Maneklal
and
for
an injunction
restraining the
respondents
form en forcing
the
decree.
The trial Court refused to grant the interim injunction
against the respondents.
The lower appellate court also
refused
to issue the interim injunction.
The High Court dismissed the
appeal of the appellant on the ground that a statutory tenant re-
.
-
-
...
4 S.C.R.
SUPREME COURT REPORTS
893
maining in possession after determination of its contractual tenancy
was in law
not competent to sublet
the
premises in whole
or in part and a person claiming to be a sub-tenant from a statutory
tenant could not effectively plead the protection of s. 14 of the
Bombay Rents, Hotel and Lodging House Rates Control Act, 1947
as amended by the Ordinance of 1959. The appellant came to this
Court by Special Leave.
Held (per Hidayatullah and Shah, ff. Sarkar, f. dissenting)
(i) Maneklal was a statutory tenant and as such had no right to sublet the premises and the appellant acquired no right of a tenant on
the determination of the right of Maneklal by virtue of '· 14 of the
Bombay Rents, Hotel and Lodging House Rates Control Act, 1947
as amended in 1959.
(ii) The appellant was bound by the decree obtained by the
respondents against Maneklal and it could not take advantage: of
the Transfer of Property Act and the Indian Registration (Bombay
Amendment) Act, 1939.
By s. 15( 1 ), all transfers and assignments of interests in the
premises and sub-letting of premises by tenants arc, subject to any
contract to the contrary, made unlawful.
This provision a.pplies only to contractual tenants and not to statutory tenants who
have no interest in the property., A statutory tenant cannot
sublet the premises because subletting involves a transfer of the
right to enjoy property for a certain period in consideration
of
price paid or promised and a statutory tenant has merely a personal right to resist eviction. Section 15(2) is in the nature of an
exception to s. 15(1). It applies to contractual tenancies. It protects subtenants of contractual tenants and removes the bar against
subletting imposed by s. 15(1) as well as by contract, proyided the
transferee is in possession of the premises at the commencement
of the Ordinance.
A statutory tenant is a person who nmains in ~Uf'2tion of
the premises let to him after the determination of or the expiration
of the period of the tenancy. He has no estate or interest in the
premises occupied by him. He merely enjoys the protection of the
law in that he cannot be turned out so long as he pays the standard rent and permitted increases, if any, and performs the other
conditions of the tenancy.
His right to remain in possession after
the

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•
1963
Smt.
Kaushal ya
Devi
v.
Shri Mool Rai
and others.
Gaiemlrogadkar, f.
1963
September, 5
892
SUPREME COURT REPORTS
[1964]
gations, and so, in ordering the transfer of the case pending against the petitioner, we are expressing no opinion
on the allegations made by the petitioner against the said
two parties or against the Chief Minister of Punjab.
Transfer ordered.
ANAND NIVAS (PRIVATE) LTD.
ti.
ANANDJI KALYANJI PEDRI & ORS.
(A. K. SARKAR, M. H10AYATULLAH AND SHAH JJ.)
Houses and Rents-Statutory Tenant and Contractual tenant-·
Difference-Right of sub-letting-Bombay Rents. Hotel and Lodging House Rates Control (Amendment) Ordinance, 1959-Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, ss.
12, 14 and 15.
The respondents granted to one Maneklal for five years a lease
of the ground and the first floor of a building named Anand Bhawan in the town of Ahmedabad. After the expiration of the period
of the lease, a suit was instituted by the respondent!' against Maneklal for a decree in tjectment and the realisation of arrears of
rent.
The suit was decreed.
However, Maneklal sublet a part of
the premises in his occupation to the appellant after the institution
of the suit against him but before the promulgation of the Bombay
Rents, Hotel and Lodging House Rates Control (Amendment)
Ordinance, 1959.
In execution of the decree, the respondents ob--
tained possession of the first floor but were obstructed as to the
rest by the appellant and two others who claimed to be sub-lessees
from Mancklal and thereby to have acquired rights of tenancy of
the ground floor upon determination of the tenancy of Maneklal.
The appellant filed a suit for a declaration that it was not
boulld
to
deliver possession of the premises in its occupation in
execution
of
the
decree
passed
against
Maneklal
and
for
an injunction
restraining the
respondents
form en forcing
the
decree.
The trial Court refused to grant the interim injunction
against the respondents.
The lower appellate court also
refused
to issue the interim injunction.
The High Court dismissed the
appeal of the appellant on the ground that a statutory tenant re-
.
-
-
...
4 S.C.R.
SUPREME COURT REPORTS
893
maining in possession after determination of its contractual tenancy
was in law
not competent to sublet
the
premises in whole
or in part and a person claiming to be a sub-tenant from a statutory
tenant could not effectively plead the protection of s. 14 of the
Bombay Rents, Hotel and Lodging House Rates Control Act, 1947
as amended by the Ordinance of 1959. The appellant came to this
Court by Special Leave.
Held (per Hidayatullah and Shah, ff. Sarkar, f. dissenting)
(i) Maneklal was a statutory tenant and as such had no right to sublet the premises and the appellant acquired no right of a tenant on
the determination of the right of Maneklal by virtue of '· 14 of the
Bombay Rents, Hotel and Lodging House Rates Control Act, 1947
as amended in 1959.
(ii) The appellant was bound by the decree obtained by the
respondents against Maneklal and it could not take advantage: of
the Transfer of Property Act and the Indian Registration (Bombay
Amendment) Act, 1939.
By s. 15( 1 ), all transfers and assignments of interests in the
premises and sub-letting of premises by tenants arc, subject to any
contract to the contrary, made unlawful.
This provision a.pplies only to contractual tenants and not to statutory tenants who
have no interest in the property., A statutory tenant cannot
sublet the premises because subletting involves a transfer of the
right to enjoy property for a certain period in consideration
of
price paid or promised and a statutory tenant has merely a personal right to resist eviction. Section 15(2) is in the nature of an
exception to s. 15(1). It applies to contractual tenancies. It protects subtenants of contractual tenants and removes the bar against
subletting imposed by s. 15(1) as well as by contract, proyided the
transferee is in possession of the premises at the commencement
of the Ordinance.
A statutory tenant is a person who nmains in ~Uf'2tion of
the premises let to him after the determination of or the expiration
of the period of the tenancy. He has no estate or interest in the
premises occupied by him. He merely enjoys the protection of the
law in that he cannot be turned out so long as he pays the standard rent and permitted increases, if any, and performs the other
conditions of the tenancy.
His right to remain in possession after
the determination of the contractual tenancy is personal. It is ·not
capable of being transferred or assigned and devolves on hi' death
only in the manner provided in the Act.
On the other hand, the
right of a contractual tenant is an estate or interest in the premises
and in the absence of a contract to the contrary, is transferable and
the
premises may be sub-let by him.
Roe v. Russel, [1928] 2 K. B. 117, Lewis v. Reeves, [1951] 2
All E. R. 855, Krishna Prasad Bose v. Sm. Sarajubala Dassi, A.I.R.
1961 cal. 505 and Solomon v.
Orwell, [1954] I All E. R. 874,
referred to.
1963
Anand Nivas
Private Ltd.
v.
Anandji
Kalyanji'
Pedhi and
Others.
1963
Anand Nivas
Private Ltd.
v.
Anandji
Kalyanji'
Pedhi and
Others.
Sark,ar, /.
894
SUPREME COURT REPORTS
[1964]
Per Sarkar, /, ( 1) The word 'tenant' in s. 13(1)(e) of the
Bombay, Rents, Hotel and Lodging House Rates Conrtol Act,
1947 includes not only contractual tenants but also statutory tenants
and a statutory tenant has the power to sublet.
There is no justification for the view that sub-letting by a statutory tenant of a
part of the demised premises results in a parting with possession of
the premises or that such parting deprives him of the protection
of the Act. Section 13( I) ( e) of the Bombay Act implies that a statutory tenant can sublet a part of the premises lawfully. Section
15 of the Bombay Act deals not only with contractual tenants
but also with statutory tenants. The result is that the sub-letting
by Maneklal of the premises must be held to have been lawful.
(ii) The appellant was not bound by the decree obtained by
the respondent against Maneklal. It is true that a sub-tenant under the
general law of landlord and tenant is bound by the decree obtained by
the landlord against the tenant for possession, though he was not made
a party to the suit, but where a statue like the Bombay Act gives
sub-tenant a right to continue in possession even after determination of the tenancy of the statutory tenant, the sub-tenant is not
bound by the decree and his tenancy does not come to an end with
.the tenancy of the superior tenant.
A decree obtained by a landlord against his tenant does not give him a right to evict a subtenant like the appellant wJ10 is entitled to the benefits of s. 14
of the Act.
Section 52 of the Transfer of Property Act cannot be resorted
to by the respondents in the present case to evict the appellant.
Baker v. Turner, [1950] A. C. 401, Keever v. Dean, [1924]
1 K. B. 685, Roe v. Russel, [1928] 2 K. B. 117, Campbell v. Lill,
(1926) 135 L. T. 26, Vevindrarnuthu Pillai v. Maya Nandan, (1920)
I. L. R. 43 Mad. 696 and Yusuf v. foytish Chandra Banerji, (1932)
I. L. R. Cal. 739, referred to.
CIVIL APPELLATE JuRISDICTION : Civil Appeal No. 168
of 1963.
Appeal by special Leave from the judgment and decree
dated May 1, 1962, of the Gujarat High Court in Appeal
from Order No. 46 of 1962.
I. M. Nanavati, f. B. Dadachanji, 0. C. Mathur and
Ravinder Narain, for the appellant.
S. T. Desai, M. M. Shah and I. N. Shroff, for the respondents.
September 5, 1963. A. K. Sarkar, J. delivered a dissenting opinion. The Judgment of M. Hidayatullah and
J. C. Shah, JJ. was delivered by Shah, J.
SARKAR J.-In my opinion this appeal should succeed.
The respondent landlords demised certain premises to
-
-
-
4 S.C.R.
SUPREME COURT REPORTS
895
Maneklal Mafatlal for a term of five years from March
5, !95G. The tenant continued in possession after the
expiry of the term under the protection from eviction
given by the Bombay Rents and Lodging House Rates
(Control) Act, 1947 which came into force on February
2, 1948.
On April 27, 1956, the landlords filed a suit
against him for eviction for non-payment of rent and
obtained a decree on June 22, 1960. While this suit was
pending the tenant sub-let a part of the demised premises
to the appellant. In execution of the decree the landlords
got possession of a small part of the premises which was
in the actual occupation of the tenant. As to the rest, the
sub-tenants in possession including the appellant resisted
eviction. The appellant in fact filed a suit against the
landlords claiming that under s. 14 of the Act it had upon
the determination of the interest of the tenant in the premises by the decree against him become their direct tenant
of the portion sub-let to it and asking for a permanent
injunction restraining the landlords from evicting it. Jn
that suit the appellant made an application for an interim
injunction but the application was rejected by the trial
Court and an appeal therefrom, by the appellate Court.
The appellant then moved the .High Court of Gujarat in
revision and the High Court confirmed the orders of the
Courts below holding that after the expiry of the term,
the tenant had no power of sub-letting and the appellant,
therefore, was not a sub-tenant and it was not entitled to
any injunction. The correctness of this judgment of the
High Court is challenged in this appeal.
The protection under which the tenant in this case
stayed on after the expiry of his lease was given by sub-s.
(1) of s. 12 of the Act which provides that a landlord
shall not be entitled to the recovery of possession of any
premises so long as the tenant pays rent and observes and
performs the conditions of the tenancy as provided in the
section. The tenant contemplated in sub-s. (1) of s. 12'
is plainly a tenant whose had come to an end. The Act
at v~rious places uses the word "tenant" as including such
a person and also defines the word "tenant" in s. 5 ( 11) (b)
as inclnding "any person remaining, after the determination of the lease, in possession, with or without the assent
of the landlord, of the premises leased to such person .... "
1963
Anand Nivas
Private Ltd.
v.
Anandji
Kalyanji
Pedhi and
Others.
Sarkar, f.
•
.•
•
1963
Anand Nivas
Private Ltd.
v.
Anandji
Kalyan;i
Pedhi and
Others.
Sark_ar, f.
SUPREME COURT REPORTS
[1964]
Such a person has been called a statutory tenant and I
shall also use that description for economy of expression.
The landlords contend that though by virtue of s.
12(1) of the Act the tenant could not be evicted after the
expiry of his lease, yet he had then lost all interest in the
demised premises and could not, therefore, sub-let the
same. Now it may be that under the general law of landlord and tenant, a tenant has no right to sub-let after the
expiry of the lease but we have here a statute which has
altered that law in many ways. The power of tenant
to sub-let cannot therefore be decided by reference to the
general law of landlord and tenant but the Act must be
examined to see how it affects that power. In my opinion such a power in a statutory tenant is contemplated
by the Act and in particular by cl. ( e) of sub-s. ( 1) of s. 13.
That section lays down the circumstances in which a landlord notwithstanding the bar in s. 12 ( 1), can get a decree
in ejectment against the tenant and the part of it to which
1 wish to refer is in these terms :
·
S. 13. (1) "Notwithstanding anything contained in
this Act but subject to the provisions of section 15, a
landlord shall be entitled to recover possession of any
premises if the Court is satisfied-
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ·- ..
( e) that the tenant has, since the coming into operation of this Act, unlawfully sub-let the whole or
part of the premises or assigned or transferred in
any other manner his interest therein;"
This clause plainly contemplates a tenant sub-letting
and this is not in dispute. But it is said that the tenant
here referred to is one whose lease has not expired-whom
I will for short call a contractual tenant-as to whose
power to sub-let there is no question. The reason given
in support of this view is that a statutory tenant having
no interest in the premises cannot certainly assign or transfer his interest in the demised premises and, therefore, the
word "tenant" in cl. ( e) of s. 13( 1) must in relation to
assignment and transfer by a tenant be understood as a
contractual tenant. That being so, and as it is unlikely
that the word had been used in different meanings in the
-
-
..
>
-
.4 S.C.R.
SUPREME COURT REPORTS
B'JJ
same clarue, it must mean only a contractual tenant in
relation to sub-letting also.
I am unable to accept this contention. The word
"tenant" has been given various meanings by the definition clause in the Act. All those meanings must be given
to that word wherever it occurs in the Act unless the
context otherwise requires. If a statutory tenant cannot
transfer or assign his interest-as to which I express no
opinion-cl.
(e) of s. 13(1) cannot, of course, be contemplating him as doing so. That, however, would not show
that definition of "tenant" as a statutory tenant would not be
available for deciding what kind of tenants were contemplated by cl. ( e) when it said that a tenant unlawfully
sub-letting would be liable to eviction.
In all other
clauses in s. 13( 1) the word "tenant" clearly includes both
a statutory and a contractual tenant and, therefore, the
section contemplates the word
"tenant" being used in
more than one sense. The fact that the clarue talks of
a contractual tenant alone assigning does not provide a
context p-cventing the word "tenant" when it talks of
the tenant sub-letting, as being understood in the sense of
a statutory tenant.
Another contention advanced draws its force from the
word "sub-let". It proceeds on the basis that the word
"sub-let" can only mean transfer of an estate. It is said
that cl. ( e) by using the word "sub-let" indicated that it
did not contemplate a statutory tenant as he could not
sub-let for he had no interest in the demised premises.
No authority has been brought to our attention in support
of the contention that letting or sub-letting necessarily
means transfer of estate or property and I do not think
that it is well founded. Decisions of Courts in England
to which I will later refer, have held that a statutory
tenant who has no estate or property in the demised premises, can sub-let. When the clause talks of a statutory
tenant sub-letting, it may not be contemplating transfer
of property. The Act undoubtedly creates rights in the
tenant in respect of the property. He can maint;μn an
action for trespass against any one including the landlord,
illegally depriving him of the possession of property. He
has at least this interest in the property that he can require
possession of it to be delivered to him. It is not as if his
1963
Anand N£vas
Private Ltd.
v.
Anandji
Kalyanji
Pedhi and
Others.
Sarkar, /.
1963
Anand Nivas
Private Ltd.
v.
Anand#
Kalyanji
Pedhi and
Others.
Sarkar, /.
898
·SUPREME COURT REPORTS
[1%4]
right is one only of a personal action in damages. The·
sub-letting contemplated in cl. ( e) of s. 13( 1) may be of
this statutory right in the property. It would be no answer to this to say that the right is personal, for the right
would not be personal in the strict sense if it can be sublet. In Baker v. Turner(') Lord Porter approved of the
observation of Scrutton L. J. in Keeves v. Dean(2 ) about
a statutory tenant that "Parliament has certainly called
him a tenant, and he appears to me to have something
more than a personal right against his landlord".
Then it was said that under the clause unlawful subletting as also unlawful ·assignment and transfer were·
grounds for eviction and if the clause implied a power in
the statutory tenant to lawfully sub-let it also must equallT
imply in him a power to lawfully assign or transfer his.
interest in the tenancy. It was contended that sii\'ce it
. was impossible for a statutory tenant to assign or transfer
any interest in the premises as he had none, it would follow
that he could not lawfully sub-let either.
In the first
place, I do not think that the word "unlawfully" in·
the clause applies to "assigned or transferred"; I think as
the clause stands it applies only to sub-letting. The Act
furthermore nowhere states what is an unlawful assignment or transfer of a tenant's interest. It would undoubtedly have done so if it contemplated unlawful assignment or transfer. It is significant that it specifically talks
of lawful and unlawful sub-letting in ss. 14 and 15. Nor
can it be said that the unlawful assignment or transfer
contemplated by cl. ( e) is one which is against the terms
of the contract of tenancy, for it would be unnecessary t<>
provide that an unlawful assignment or transfer by a
contractual tenant, that is, an assignment or transfer which
is contrary to the terms of the contract of tenancy, would
justify an order for possession as in such a case the protection against eviction under s. 12 ( 1) would have been
lost by non-observance of a condition of the tenancy.
Therefore, it seems to me that the present contention of
the landlords wholly lacks foundation.
But assume I am wrong; that cl. (e) contemplates un-·
lawful assignment or transfer of a tenant's interest in the:
1[1950] A. C. ~01, ~16.
2 (192~] I K. B. 655, 644 ..
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-
-
-
4 S.C.R.
SUPREME COURT REPORTS
899
demised premises.
A statute can well authorise a statutory tenant to assign or transfer his interest in the demised
premises. Indeed s. 17 of the English Rent Act of 1957
provides for the transfer of a statutory tenancy.
It cannot be said that assignments or transfers of statutory tenancies are inconceivable. It has to be remembered that there
is no authority for the proposition that a statutory tenant
has no interest in the demised premises and this is at the
basis of the theory, which I think is misconceived, that
a statutory tenant cannot transfer his tenancy. It is true
that he has no estate or property in the
demised premises, but that is a different matter. He has none the
less an interest, a right in the premises occupied by him,
which he may be empowered to transfer. Lastly, I am
unable to agree that because a statutory tenant cannor
transfer, assuming that to be so, that would show that the
word "tenant" in cl. ( e) must be understood as referring
to a contractual tenant only. I think the word must have
the meanings given in the definition including the meaning of a statutory tenant unless the context otherwise indicates. No such indication can be said to be present
merely because the word in one part of the clause refers
to a contractual tenant only.
In Roe v. Russel, (1) the Court of appeal in England
held that s. 4(l)(h) of the Rent and Mortgage Interest
(Restrictions) Act, 1923 which provided that no order for
ejectment of a tenant from a dwelling house shall be made
unless "(h) the tenant without the consent of the landlord has .......... assigned or sub-let the whole of the
dwelling-house or sub-let part of the dwelling-house, the
remainder being already sub-let", indicated that a statutory tenant had the power to sub-let a part of the pre-.
mises. In this case it had been held that the statutory
tenant had no estate or property as a tenant at all but had
a purely personal right to possess, but that did not create
any difficulty in the way of the Court holding that he had
power to sub-let. All subsequent cases in England have
accepted that Roe v. Russel(') has laid down the law
correctly. I entirely agree with that view. In Campbel[
v. Lill,(
2 ), which is an earlier case and which took the
same view as Roe v. Russel,(') the argument that s_
1 [ 1928] 2 K. B. 117.
(2) (1926) 135 L. T. 26.
1963
Anand Nivas
Private Ltd.
v.
Anandji
Kalyanji
Pedhi and
Others.
Sarkar, f.
1963
Anand Nivas
Private Ltd.
v.
Anandji
Kalyanji
Pedhi and
Others.
.Sarkar, f.
900
SUPREME COURT REPORTS
[1964]
4(1)(h) of the English Act of 1923 dealt only with.contractual tenants was expressly rejected on the ground that
the word meant both contractual and stamtory tenants
throughout the section and it would be contrary to all
canons of interpretation to give it a restricted meaning
only in cl. (h). I wish also to observe that the English
provision made an assignment by a tenant a ground for
eviction but none the less the word "tenant" was mentioned as referring to a statutory tenant. It was not said
that since the tenant contemplated was one who could
assign, it must have been that a contractual tenant only was
contemplated. These arguments, it will be remembered,
were also advanced in this case.
Now the similarity between s. 13(1)(e) of the Bombay Act and s. 4 ( 1) (h) of the English Act is obvious. If
the English provision implied that a stamtory tenant
could sub-let part of the premises, there would be no reason for saying that s. 13(1)(e) of the Bombay Act did
not imply a power in a stamtory tenant to sub-let lawfully
for what was penalised was only an unlawful sub-letting.
There is, therefore, some support for the view that I have
taken. The learned Judge in the High Court did not
question the correctness of the decision in Roe v. Russd (')
but sought to distinguish it from the present case on
grounds which I have earlier discussed. I find that case
indistinguishable for the purpose of interpreting s. 13 ( 1) ( e)
of the Bombay Act.
·
Indeed if cl. (e) of s. 13(1) did not contemplate subletting by a statutory tenant as the landlords contend, the
result would be most anomalous. Therefore, in my view,
the Act provides a context which indicates that the word
. "tenant" in that clause had been used as including a statutory tenant. Suppose a statutory tenant does acmally sublet and he and his sub-tenant are content to carry out
their bargain, as happened in the present case, then the
landlord would not be able to take advantage of s. 13(1) (e)
and evict the tenant if the contention of the landlords in
this case is correct, for, ex hypothesi, the sub-letting by
the tenant was ineffective and, therefore, as good as not
made at all. The result would be that a contractual tenant sub-letting would forfeit the protection under s. 12 ( 1)
1[1928] 2 K. B. 117.
-
.
-
4 S.C.R.
SUPREME COURT REPORTS
901
while a statutory tenant in fact doing so ·would still be
entitled to the protection of the Act. This ";'.Ould put a
statutory tenant in a better position than the contractual
tenant. An interpretation of the Act which leads to such
a result would be most unnatural and it is one that I am
unable to accept.
It is not contended that such an anomalous result
was intended but it is said that even if the word "tenant"
in cl. (e) of s. 13(1) is understood as referring to a contractual tenant only, there is no anomaly, for the statutory tenant would by sub-letting render himself liable to
eviction under other provisions of the Act though not
under s.
13(l)(e). It was contended that a statutory
tenant is entitled to protection only so long as he remains
in possession and by sub-letting the statutory tenant would
be forfeiting his right to protection under s. 12 ( i) of the
Act. Therefore it was said that a statutory tenant subletting would not be in a better position than a contractual tenant doing so.
I am unable to accede to the proposition that a statutory tenant sub-letting a part of the premises has so parted
with the possession thereof as to forfeit his claim to protection under s. 12(1). It has to be remembered that in
the present case the tenant had not parted with the entirety of the premises by sub-letting. In Roe v. Russel(')
it was said at p. 134, "when an individual is placed, as
the statutory tenant undoubtedly was, in the position of
having an exclusive personal possession of his premises, he
is necessarily in a position in which he c;m place a third
person in actnal possession of a part of the premises,
while retaining possession of the remainder, and that
totally irres_Qective of whether his own right to exclusive
undisturbed possession is purely personal or amounts to
something of the nature of an estate or interest in the
premises. In Campbell v. Lill(') it was said, "The policy
of the statute is to give protection only to persons in occupation within the meaning of the statute and it aimed at
persons who had parted with possession and such parting
is deemed to have taken place if the tenant assigns or
sub-lets the whole of the premises or sub-lets part of them,
the remainder being already sub-let. In the present case
(1) [1928] 2 K.B. 117.
2[1926] 135 L. T. 26.
1963
Anand Nivas
Private Ltd.
v.
Anandji
Kalyanji
Pedhi and
Others.
Sarkar, f.
1963
Anand Nivas
Private Ltd.
v.
Anandji
Kalyanji
Pedhi and
Others.
Sarkar,/.
902
SUPREME COURT REPORTS
[1964]
the tenant -sub-let a portion only and remained in possession of the remainder. In these circumstances, I think
the tenant is protected."
Both these cases show that under the English Act,
a statutory tenant cannot be said to have parted with possession by sub-letting part of the demised premises. It
would appear that under the Bombay Act there is even
less reason for saying that· a statutory tenant sub-letting
a part of the demised premises has gone out of possession
of them, for I find nothing in that Act which justifies
the view that in order to be entitled to protection the
statutory tenant must himself be in possession of the entire
premises. On the other hand, the English Increase of
Rent and Mortgage Interest .(Restrictions) Act, 1920 by
sub-s. (1) of s. 15 provided that "a tenant who by virtue
of the provisions of this Act retains possession of any
dwelling-house. . . . . . . . shall, so long as he retains possession, observe and be entitled to the benefit of all the
terms and conditions of the original contract of tenancy".
Notwithstanding this the view in England has been that
.parting with possession of a portion of the demised premises by way of sub-letting does not deprive a tenant of
·his protection under the Act. I do not find any such
express provision in our Act regarding a statutory tenant's
possession of the premises. If the Act contemplated a
·statutory tenant sub-letting-and that is the basis on which
I am examining the effect of sub-letting under s. 12(1)
it cannot by providing that by doing so, he would be so
far out of poss~ssion as to cease to be entitled to the protection of the Act.
Such an interpretation of the Act
would result in one part of the Act contradicting another
.and would be wholly unacceptable. I find no justification in any case for the view that sub-letting by a statutory tenant of a part· of the demised premises results in
a parting with possession of the premises or that such
parting deprives him of the protection of the Act. I think
·that s. 13(1) ( e) clearly indicates that a statutory tenant
has the power to sub-let.
I now set out s. 14 of the Act on which the claim of
,the appellant is based.
S. 14. "Where the interest of a tenant of any premises is determined for any reason, any sub-tenant
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-
'
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4 S.C.R.
SUPREME COURT REPORTS
903
to whom the premises or any part thereof have been
lawfully sul>-let before the commencement of the
Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Ordinance, 1959 shall, subject to
the provisions of this Act, be deemed to become the
tenant of the landlord on the same terms and conditions as he would have held from the tenant if the
tenancy had continued."
It is not in dispute that the sub-letting took place
before the date mentioned in this section.
It was contended that the word "interest" in the section showed
that it contemplated only sul>-letting by a contractual
tenant. I am unable to agree for reasons earlier set out.
As I have already said, a statutory tenant has an interest
in the premises and when the section talks of the interest
of a tenant being determined, it obviously means in the
case of a statutory tenant, determined by a decree or by
· such a tenant giving up the protection of the Act. In
this case the interest of the tenant was determined by the
decree that was passed against him. I may here state that
the Ordinance mentioned in the section came into force
on May 21, 1959.
I, therefore, find that the appellant became a sul>-
tenant before the date mentioned in s. 14 and the interest of the tenant who sul>-let to it had been determined.
The appellant has however still to prove that "the premises had been lawfully sul>-let to it. The only provision
in the Act which declares a sub.letting to be unlawful
is s. 15. That section is in these terms :
S. 15. (1) Notwithstanding anything contained in
:111Y law, but subject to any contract to the contrary,
it shall not be lawful after the coming into operation
of this Act for any tenant to sub-let the whole or any
part. of the premises let to him or to assign or transfer m any other manner his interest therein :
Pr_ovid~d that the ~tate Government may, by notification m the Official Gazette, permit in any area
the transfer of interest in premises held under such
leases or class of lea.ses and to such extent as may be
specified in the notification.
(2) Notwithstanding anything contained in any
judgment, decree or order of a Court or any contract,
1963
Anand Nivas
Private Ltd.
v.
Anandji
Kalyanji
Pedhi and
Others.
Sarkar, f.
1963
Anand Nivas
Private Ltd.
v.
Anandji
Kalyanji
Pedhi and
Others.
Sarkar, f.
904
SUPREME COURT REPORTS
[1964]
the bar against ~uh-letting, assignment or transfer of
premises contained in sub-section ( 1) or in any contract shall, in respect of such sub-lessees, assignees or
transferees as have entered into possession despite the
bar before the commencement of the Bombay Rents,
Hotel and Lodging House Rates Control (Amendment) Ordinance, 1959 and as continue in possession
at such commencement, have no effect and be deemed
never to have had any effect.
It is said that the section is confined only to contractual tenancies. The argument is that su~s. ( 1) makes
sub-letting by contractual tenants after the date mentioned
unlawful excepting where the contract otherwise provides
and that sub-s. (2) s;ives from this illegality certain varieties of sub-lettings by the tenants. It is however not in
dispute that if the section applies to sub-lettings by statutory tenants, then the present sub-letting to the appellant
would be saved by silb-s. (2).
It is said that the words "but subject to any contract
to the contrary" in sub-s. (1) of s. 15 show that that section was intended to refer to sulY-lettings by contractual
tenants only. It seems to me that even if those words are
applicable only when a contractual tenant sub-lets, as to
which I have some doubts, that would not lead to the
conclusion· that the tenant there referred to is only a contractual tenant. Those words would only be applicable
where a covenant permitting sub-letting is contained in
the lease. Take a case of a contractual tenant where the
lease contains no covenant permitting him to sub-let. In
silch a case those words would have no application even
though the tenant is a contractual tenant. Therefore where
there is no contract about granting of sub-leases, the
section may still be applicable and in such a case there
would be no reason to support the view that it is concerned with a contractual tenant only. The section would
have to be interpreted in such a case without reference to
the words in question. It would then surely apply to a
statutory tenant who, as I have said, can sub-let. It cannot therefore be said that s. 15 deals only with a contractual tenant.
•
But what happens if s. 15 does not apply to a statutory tenant? It was said that that would then show that
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r, -
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'
4 S.C.R.
SUPREME COURT REPORTS
a statutory tenant cannot at all sub-let. If apart from s. 15,
the proper reading of the Act is, as I have earlier said,
that a statutory tenant has the power to sub-let, I do not
see that this section would provide a ground sufficiently
strong to outweigh all the considerations which have led
me to that view. The only result then, if s. 15 applies to
a contractual tenant alone, would be that a sub-letting by
a tenant would not have been made unlawful by the section. If that is so, then also the appellant's claim under
s. 14 would become w1challengable. Whatever view i'
taken of s. 15, it is impossible to say that the section makes
the sub-letting ~o the appellant in the present case unlawful. It is unnecessary to go into any question of the Act
contemplating a sub-letting which was unlawful for rea·
sons other than those mentioned in it, for it has not been
contended that the sub-letting in the present case was for
any such reason unlawful. The result is that the sub-letting to the appellant must be held to have been lawful.
One other matter remains to be dealt with. It w:u
said, and this is not in dispute, that the sub-letting to the
appellant took place after the landlords had filed their
suit against the tenant which resulted in a decree for
ejectment to which I have earlier referred. It was contended that the appellant was, therefore, bound by the
decree in view of s. 52 of the Transfer of Property Act.
On behalf of the appellant it was said that that section
was amended so far as Bombay was concerned by Bombay
Act 14 of 1939 and the amended section required certain
notice to be given before the sub-letting could be affected
by the principle of lis pendens stated in the section. I
do not think it necessary to deal with this contention for
in my view, even s. 52 as it stands in the Transfer of Property Act without any amendment does not affect the
sub-letting in this case.
The first thing that I wish to point out is that, that
section does not make any transfer of property illegal.
Therefore, the section does not justify the view that the
sub-letting to the appellant, assuming it was a transfer of
property, as to which doubts may legitimately arise, was
in any way unlawful or invalid. If any authority is needed for this proposition, reference may be made to Veyin58-2 S C lndia/64
1963
Anand Nivas
Private Ltd.
v.
Anandji
Kalyanji
Pedhi and
Others.
Sarkar, /.
1963
'Anand Nivas
Private Ltd.
·v.
Anandji
. Kalyanfi
Pedhi and
Others.
Sarkar, f.
SUPREME COURT REPORTS
[1964]
dramuthu Pillai v. Maya Nandan.(') All that s. 52 does
is to provide that pending a litigation concerning property, the property cannot be transferred so as to affect
the rights of any party thereto under the decree that may
be passed in the suit. The only effect then of the section
is that the rights of the decree-holder under the decree
are not to be affected by the transfer.
Now the rights of a landlord who gets a decree for
possession of property against his ten.mt are those mentioned in 0. 21, r. 35 of the Code, namely, to obtain delivery of it "if necessary, by removing any person bound
by the decree who refuses to vacate the property". It is
true that a sub-tenant under the general law of landlord
and tenant is a person bound by the decree obtained by
the landlord against the tenant for possession, though he
was not made a party to the suit. The reason for this is
that the sub-tenant's right to remain in possession came to
an end with the determination of the tenancy of the
tenant : see Yusuf v. Jyotish Chandra Banerji('). Where
however a statute like the Act in the present case gives
the sub-tenant a right to continue in possession even after
the determination of the tenancy of the superior tenant,·
he would not be a person bound by the decree for his
tenancy has not come to an end with the tenancy of the
superior tenant. A sub-tenant to whom the premises were
lawfully sub-let, would under s. 14 of the Act be such a
person. That being so, a decree obtained by a landlord
against his tenant does not give him a right to evict a
sub-tenant who is entitled to the benefit of s. 14. Section 52 could not be resorted to by the landlords in the
present case to evict the appellant.
I would for these reasons allow the appeal.
SHAH, J .-A lease of the ground and the first floors
of a building named 'Anand Bhavan' in the town of
Ahmedabad was granted by the trustees of the trust named
"Anandji Kalyanji Pedhi" to one Maneklal, for five years
commencing from March 5, 1950 at a monthly rental of
·Rs. 2,000/ .. A suit instituted by the trustees in the Court
of Small Causes (which is the OJurt competent under
(') {1920) .r.r.;.R. 43 Mad. 696.
( 2 ) (1932) l.L.R. 59 Cal. 73?.
•
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' -
} ' -
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4 S.C.R.
SUPREME COURT REPORTS
907
s. 28 of the Bombay Rents, Hotel and Lodging House
Rates Control Act 57 of 1947-hereinafter called 'the
Act'-to entertain the suit) against Maneklal after the
expiration of the period of the lease for a decree in
ejectment and for arrears of rent was decreed on June 22,
1960.
In execution of the decree the trustees obtained
possession of the first floor but were obstructed as to the
rest by a private limited company called-"Anand Nivas
Private Ltd."-and two others who claimed to be sub-lessees from Maneklal and thereby to have acquired rights
of tenancy of the ground floor upon the determination of
the tenancy of Maneklal.
Anand Nivas Private Ltd-which will hereinafter be
called 'the Company'-filed Suit No. 2814 in the Court of
Small Causes at Ahmedabad for a declaration that it was
not bound to deliver possession of the premises in its
. occupation in execution of the decree in the suit filed by
the trustees against Maneklal and for an injuction restraining the trustees from enforcing the decree.
The
Company's application for an injuction restraining the
trustees from obtaining possession in enforcement of the
decree obtained by them against the tenant was dismissed
by the Court of First Instance.
In appeal against that
order the District Judge, Ahmedabad refused an interim
injuction restraining the trustees from executing the
decree pending the hearing and disposal of the appeal.
The High Court of Gujarat was then moved against that
order by a petition invoking its revisional jurisdiction. At
the hearing, the petition was, by order of the· Court, converted into an appeal from order refusing to grant an injuction.
The High Court dismissed the appeal holding
that a "statutory tenant" remaining in possession after
determination of his contractual tenancy was in law not
competant to sublet the premises in whole or in part and
a person claiming to be a sub-tenant from a statutory
tenant could not effectively plead the protection of s. 14
of the Act as amended by Ordinance III of 1959 or Bombay Act 49 of 1959. With special leave, the Company
has appealed to this Court.
The Company sets up its claim to protect its possess10n on the plea that it had acquired the rights of a
1963
A'lfand Nivas
Private Ltd.
v.
Anand#
Kalyanji
Pedhi and
Others.
Shah f.
1963
Anand Nivas
Private Ltd.
v.
Anand ii
Kalyanji
Pedhi and
Others.
Shah J.
908
SUPREME COURT REPORTS
[1964]
tenant by virtue of s. 14 of the Act. This plea is supported
on two grounds :
(i) that the contract of tenancy in favour of the
tenant expressly authorised him to .sublet, and the
tenant having lawfully sublet the premises the Company acquired on the determination of the interest of
the tenant the rights of a tenant under the landlord;
and
(ii) in any event, on the determination of the
statutory tenancy of the tenant, by virtue of Ordinance
III of 1959 issued by the Goveronr. of Bombay, retrospectively amending s.
15 of the Act the Company
acquired the rights of a tenant under the landlord.
In the view of the High Court clause ( i) of the lease
restricted "the ordinary rights of the tenant to sublet under
s.