PETITIONER: THE CALCUTTA CREDIT CORPORATION LTD., & ANR. Vs. RESPONDENT: HAPPY HOMES (P) LTD. DATE OF JUDGMENT: 23/10/1967 BENCH: SHAH, J.C. BENCH: SHAH, J.C. SIKRI, S.M. SHELAT, J.M. CITATION: 1968 AIR 471 1968 SCR (2) 20 CITATOR INFO : RF 1969 SC1187 (8) R 1987 SC 759 (11) ACT: Tenancy-if notice to terminate tenancy can be withdrawn without consent of other party. Transfer of Property Act, Ss. 106, 111, 113-Notice not in accordance with s. 106-Accepted by other party and acted upon if effective,Whether tenancy only determined whether possession given up. West Bengal Premises Rent Control (Temporary Provisions) Act 17 of 1950, ss. 2(11), 12 and 13-If expression 'tenant' includes 'statutory tenant ---Whether he can subjet. HEADNOTE: By a lease commencing from January 1, 1939, for 12 years, a building in Calcutta was let to AB and under the terms of the lease, subletting or parting with possession without the previous consent of the landlord was prohibited. After the expiry of the period of the lease, AB continued in possession but on August 12, 1953, served a notice in writing upon the landlord of their intention to vacate the premises "on August 31, 1953 at 3.30 P.M." By a subsequent letter on August 26, 1953, AB informed the landlord that they did not intend to vacate the premises on August 31 -is originally intimated, and that their earlier notice be treated as cancelled. Although, in reply the landlord refused to agree to the withdrawal of the notice stating that he had already arranged to let the premises to another person, AB continued in possession and on May 7, 1954 sublet a part of the premises to the respondent. The landlord thereafter instituted a suit for ejectment against AB which was settled on March 28, 1955 by a consent decree whereupon AB handed over possession to the landlord of the por-tion of the premises in their own occupation. The landlord then sued the respondent for a decree for possession of the premises and mesne profits and a Single Judge of the High Court decreed the landlord's claim. The Division Bench allowed the appeal and dismissed the landlord's claim. HELD : The appeal must be allowed and the decree passed by the Trial Court restored. (i)On the expiration of the period of notice dated August 12, 1953. the tenancy of AB stood determined. Once a notice is served determining the tenancy or showing -an intention to quit on the expiry of the period of notice, the tenancy is at an end, unless with the consent of the party to whom the notice is given, the tenancy is agreed to be treated is subsisting. [24C] Tayleur v. Wildin, (1867-68) L.R. 3 Ex. Cases 303; referred to. (ii)A notice which does not comply with the requirements of s. 106 of the Transfer of Property Act in that it does not expire at the end of the month of the tenancy, or the end of the year of the tenancy, as the case may be, or of which the duration is shorter than the duration contemplated by s. 106, may still be accepted by the party served with the notice; and if that party accepts and net,, upon it, the party serving the notice will be estopped from denying its validity. The landlord's refusal to agree to the withdrawal of the notice since he had already agreed to 21 lease the premises to another person from September 1, clearly showed' that the offer to terminate the tenancy on August 31, 1953 was accepted by him and he had acted upon that offer. The tenants Was therefore determinated at 3.30 p.m. on August 31, 1953 on acceptance by the landlord of the notice dated August, 1953. [25A-C: F] There was no force in the contention that in order to determine a tenancy under the Transfer of property Act it the instance of the tenant. there must be actual delivery of the possession. That contention is contrary to the plan terms of s. 111 (h) of the Act. [25H] (iii) Considered in the light of the scheme and object of the Act the expression 'tenant' in cl. (e) of s. 12 (1) or in s. 13(2) must mean a contractual tenant alone and not a statutory tenant. The definition in s. 12(1) of the expression 'tenent' includes a statutory tenant, but the definition does not apply it' there is anything repugnant in the subject or context. Statutory tenant has no interest or estste in the permises4 Occupied by him, and it cannot be said that the legislaturw, without making an express provision to that effect, intended to invest him with power to induct into the premises in his Occupation a person who would be entitled 'to claim the right And interest of a contractual tenant. [31F. G] Anand Nivas,(private) Ltd. v. Anandji Kalyanji Pedhi & Ors, [1964] 4 S.C.R. 892; solomon v.orwel,[1954] I All E.R. 847 Krishna Prosad Bose v.smt. sarajubala Dassi and Anr., A.I.R. 1961 Cal. 505; referred to. Indra Kumar Karnani V. Atual Chandra Patitiundi & Anr, [1965] 3 S.C.R. 329,: distinguished. JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 71 of 1965,
Appeal from the judgment and decree dated February 1,
1962, of the Calcutta High Court in Appeal No. 65 of 1959,
T. P. Das, M. G. Poddar and V. N. Poddar, for the
appellants.-
A. N. Sinha and S. N. Mukherjee for the respondents.
The Judgment of the Court was delivered by
Shah, J. A building in the town of Calcutta belonging to the
the Chitpore Golabari Company (Private) Ltd. was let out
undeia Written lease for a period of twelve years commencing
from January 1, 1939, to Messrs Allen Berry & Co. Ltd.-
liereinafteicalled ‘Allen Berry’. Under the terms of the
lease sub-letting or parting with the possession of the
deiiiised premises or any part thereof by the tenants
without the previous consent in writing of the landlord was
expressly prohibited. After the vxpiry of the period Allen
Berry continued to hold over the premises. On August 12,
1953. Allen Berry served a notice in writin(, upon the
landlord intimating their intention to vacate the premises
“oil August 31, .1953, at 3-30 P.m.” and requested the
landlord to arrange to take delivery of possession. 13y
letter dated August 1953. Allen Berry informed the landlord
that they did not intented to vtcate the premises on
August 31, 1953, as originilly intimated’
22
or at all, and that the notice dated August 12 , 1953, be
treated as cancelled. By letter dated August 28, 1953,
attorney of the landlord informed Allen Berry that the
earlier, notice, dated August 12, 1953, could not be
withdrawn except by mutual consent, and since the landlord
had a-reed to lease the premises to Messrs. lop Rubber Co.
(India) Ltd. with effect from September, 1953, the landlord
was unable to; give his consent to such withdrawal, and that
it would insist upon Allen Berry vacatin the premises as
already intimated. Allen Berry addressed a letter to the
landlord on September 14, 1.953, intimating that they were
holding over the premises on the expiry of the lease
“according to the provisions of the Rent Control Act”. On
February ‘-IO, 1954, the landlord called upon Allen Berry to
vacate and deliver possession of “the premises, on the
expiry of March 31, 1954”. Allen Berry failed to carry out
the requisition, and on May 7, 1954, they sub-let a part of
the ground floor measuring approximately 2100 sq. ft. to
Happy Homes (P) Ltd.-respondent in this appeal.
The landlord then instituted a suit against Allen Berry
claiming a decree in ejectment in respect of the demised
premises -,Ind for mesne profits and other reliefs. This
suit was settled on March 28, 1955 and a consent decree was
passed. The important recitals in the decree were that (1)
Allen Berry had surrendered the tenancy by notice dated
August 12, 1953-, (2) that they had hander over possession
of the portion of the in their occupation to the landlord;
(3) that the landlord will be it liberty either to retain
the sub-tenant or to eject him; and (4) that the sub-tenancy
lad been created without the ledge and consent of the
landlord.
The landlord then sued Messrs Happy Homes (P) hereinafter
called ‘the respondent’ in the High Court of Calcutta for a
decree for possession of the premises in its occupation and
for mesne profits. The suit was resisted by the respondent
principally on two grounds : (i) that the tenancy of Allen
Berry was not determined before the sub-letting in their
favour Lind (ii) that even if it be held that the tenancy of
Allen Berry was determined before May 7, 1954, by virtue of
the provisions of the West Bengal. Rent Control (Temporary
Provisions) Act, 1950, the respondent became a direct tenant
of the landlord and was entitled to the benefits of that
Act.
S.P. Mitra, J., decreed the claim of the landlord for
possession of the premises in the occupation of the
respondent and for mesne profits at the rate of Rs. 495/-
per month from March 1, 1955 till delivery of possession.
During the pendency of the appeal against the decree passed
‘by S. P. Mitra, J., the landlord transferred the premises
to Messrs Calcutta Credit Corporation Ltd. The landlord and
the trans-
23
feree will collectively be, referred to hereinafter as “the
landlords”. A Division Bench of the, High Court reversed
the decree passed by S. P. Mitra, J., and ordered that the
claim of the landlords be dismissed.
Whether the tenancy of Allen. Berry stood determined by the
notice dated August 12, 1953, may first be considered.
Allen Berry were tenants holding over in respect of the
demised premises after the expiry of the period of the
original lease. By their notice dated August 12, 1953, they
intimated their intention to vacate the premises on August
31, 1953, at 3.30 P.M. They thereafter withdrew this
intimation by letter dated August 25, 1953. The landlord
did not agree to the withdrawal of the notice dated August
12, 1953, and insisted that possession of the demised pre-
mises be delivered. By cl. (h) of s. 11 1 of the Transfer
of property Act, 1882, a lease of immovable property is
determined on the expiration of a notice to determine the
lease, or to quit, or of intention to quit, the property
leased, duly given by one party to the other. It was urged
on behalf of the landlord that the notice of intention to
quit the property leased and to determine the lease given by
the tenant to the landlord could not be withdrawn, and the
rotation of landlord and tenant may be restored only if by
mutual agreement between the landlord and tenant a fresh
tenancy was created. Reliance in support of this contention
was placed upon the observations made in Foa”s General Law
of Landlord & Tenant, 8th Edn., at P. 613 :
“A notice to quit cannot be “waived” : for
once a valid notice is liven, the tenancy will
inevitably be deter-mined upon its expiration.
But though the parties cannot waive the
notice, they may nullify its operation as ‘to
quitting by agreeing upon a new tenancy’,
whether on the terms of the former or not, to
commence ‘from the time of its expiration.”;
and upon similar observations in Woodfall on Landlord and
Tenant, Vol. 1, 26th Edn., Art. 2114, at p. 973; and upon
the judment of the Court of Exchequer in Tayleur v. Wildin
(1) Counsel for the respondent contended that the rights and
obligations of the parties are governed by the provisions
contained in s. 113 of the Transfer of Property Act, and
that it is open to a tenant to withdraw the notice of
intention to quit before the expiry of the period thereof.
Counsel also contended that the tenancy was not determined,
because the notice served by Allen Berry was not a notice
“duly given” within the meaning of s. 1ll of the Transfer of
Property Act.
Section 113 of the Transfer of Property Act provides:
(1) (1867-68) L. R. 3 Ex. Cases 303.
24
“A notice under section 111, clause (h), is
waived, with the express or implied consent of
the person to whom it is given, by any act on
the part of the person giving it showing an
intention to treat the lease as subsisting.”
Clearly s. 113 contemplates waiver of the notice by any act
on the part of the person giving it, if such an act shows an
intention to treat the lease as subsisting and the other
party gives his consent-express or implied thereto. The law
under the Transfer of Property Act on the question in hand
is not different from the law in England. Once a notice is
served determining the tenancy or showing an intention to
quit on the expiry of the period of the notice, the tenancy
is at an end, unless with the consent of the other party to
whom the notice is given the tenancy is agreed to be treated
as subsisting. It was held in Tayleur v. Wildin(1) that a
notice determining a tenancy cannot be withdrawn. In
Tayleur v. Wildin(1) an annual tenancy of a farm under a
written lease commencing on Lady Day, i.e., March 25, was
determined by a notice by which the landlord called upon the
tenant to quit the farm at the expiration of the current
year’s tenancy. Before the expiry of the year of tenancy,
the arrears of rent were paid up by the tenant, and the
notice was withdrawn and the tenant continued in occupation
of the farm under the terms of the original agreement. It
was held by the Court of Exchequer that the tenancy was
determined by the notice to quit, and a surety for payment
of rent under the original lease was not liable for rent
falling due after the expiry of the notice. Kelly C. B.,
observed that whether the notice is given by the landlord or
the tenant, the party to whom it is given is entitled to
insist upon it, and it cannot be withdrawn without the
consent of both. The consent of the parties makes a new
agreement, and the rent became, due under a new agreement.
ln’ our judgment, that principle applies to the law of
landlord & tenant in India. Therefore on the expiration of
the period of notice dated August 12, 1953, the tenancy of
Allen Berry stood determined.
But, it was contended, the notice intimating an intention to
quit at 3-30 P.m. on August 31, 1953, was not a notice “duly
given” within the meaning of s. 111(h) of the- Transfer of
Property Act. It is not necessary to decide for the purpose
of this case whether the month of the tenancy of Allen Berry
expired on the midnight of the first day of every calendar
month for’, in our judgment, a notice which is defective may
still determine the tenancy, if it is accepted by the
landlord. A notice which complies with the requirements of
s. 106 of the Transfer of Property Act operates to terminate
the tenancy, whether or not the party
(1) (1867-68) L.R. 3 Ex. Cases 303.
25
served with the notice assent,; thereto. A notice which
does not comply with the requirements of S. 106 of the
Transfer of Property Act in that it does not expire with the
end of the month of the tenancy, or the end of the year of
the tenancy, as the case may be, or of which the duration is
shorter than the duration comemplated by S. 106, may still
be accepted by the party served with the notice and if that
party accepts and acts upon it, the part.), serving the
notice will be estopped from denying its validity. The
defect in the notice served by one, party may undoubtedly be
relied upon by the other party and he may plead that the
tenancy does not stand determined but after the notice is
accepted by the other party who acts upon it, the party
serving the notice cannot contend that the notice served by
him was defective, and on that account the tenancy was not
determined., The reason of the rule is clear. A tenancy is
determined by service of the notice in the manner prescribed
by S. 111 (h) read with S. 106 of the Transfer of Property
Act. If the notice is duly given, the tenancy stands
determined on the expiry of the period of the tenancy. Even
if the party served with the notice does not assent thereto,
the notice takes effect. If the notice is defective, it
does not operate to terminate the tenancy by force of the
statute. But a tenancy is founded in contract, and it is
always open to the parties thereto to agree that the tenancy
shall be determined otherwise than by notice served in the
manner provided by S. 106 of the Transfer of Property Act,
or by a notice of a duration shorter than the period
provided by the Act. If the parties so agree, the tenancy
will conic to an end.
The landlord according to the terms of the agreement by its
letter dated August 28, 1953, informed Allen Berry that it
did not agree to the withdrawal of the notice, since it had
already agreed to lease out the premises to Messrs Dunlop
Rubber Co. (India) Ltd. with effect from September 1, 1953.
The content,,, of the letter clearly prove, in the absence
of any evidence to the contrary, that the offer to terminate
the tenancy on August 31. 1953, was accepted by the landlord
and the landlord had acted upon that offer. The tenancy
stood determined as proposed by Allen Berry. Allen Berry
could not thereafter claim, in the, absence of a fresh
agreement, that there was a subsisting contractual tenancy.
We are unable to agree with counsel for the respondent that
in order to determine a tenancy under the Transfer of
Property Act at the instance of a tenant. There must be
actual delivery of possession before the tenancy is
effectively determined. That contention is contrary to the
plain terms of S. 111 (h) of the Transfer of Property Act.
We are therefore of the opinion that by virtue of the notice
dated August 12, 1953, and acceptance
L 10 Sup CI/68-3
26
thereof by the landlord, the tenancy of Allen Berry was
determined at 3-30 P.m. on August 31, 1953. It is
unnecessary in that view to consider whether the notice
dated February 20, 1954, requiring Allen Berry to vacate and
deliver possession of the premises to the landlord on expiry
of March 31, 1954, was a valid notice.
Counsel for the respondent urged that granting that the
tenancy of Allen Berry stood determined by the notice dated
August 12, 1953, and acceptance thereof by the landlord,
Allen Berry acquired the status of “statutory tenants” and
could claim protection of the West Bengal Premises Rent
Control (Temporary Provisions) Act 17 of 1950, and were
competent by virtue of the provisions of that Act to sub-let
the premises in their occupation.
In Anand Nivas- (Private) Ltd. v. Anandji Kalyanji Pedhi &
Ors.(1), this Court in dealing with the analogous provisions
of the Bombay Rents, Hotel and Lodging House Rates Control
Act, 1947, explained the nature -of the right and interest
of a “statutory tenant” in premises in his occupation. It
was observed at p. 908 by the majority of the Court :
“A person remaining in occupation of the
premises let to him after the determination of
or expiry of the period of the tenancy is
commonly, though in law not accurately, called
a statutory tenant”. Such a person is not a
tenant at all he has no estate or interest in
the premises occupied by him. He has merely
the protection of the statute 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 remaining possession
after the determination of the contractual
tenancy is personal : it is not capable of
being transferred or assigned, and devolves on
his death only in the manner provided by the
statute.”
In Solomon v. Orwell (2) , Denning L. J., in dealing with
the provisions of the Landlord and Tenant (Rent Control)
Act, 1949, spoke as follows :
“When a statutory tenant sub-lets a part of
the premises, he does not thereby confer any
estate or interest on the sub-tenant. A
statutory tenant has no estate or interest
himself, and he cannot carve something out of
nothing. The sub-tenant, like the statutory
tenant, has only a personal right or
privilege. The question is :
(1) [1964] 4 S.C.R. 892.
(2) [1954] 1 All E.R. 874.
27
What is the position of the sub-tenant when
the statutory tenancy comes to an end ? A
statutory tenancy may, of course, come to an
end without a notice to quit, e.g. by death
(if there are no entitled relatives) o
r by the
delivery up of the premises to the landlord.
When the statutory tenancy comes to an end,
the subtenant’s right automatically comes to
an end unless there is some statutory
protection afforded to him.”
It was urged that the West Bengal Premises Rent Control
(Temporary Provisions) Act 17 of 1950 expressly conferred
upon a statutory tenant the right to sub-let the premises
and a sub-tenant inducted into the premises by the statutory
tenant acquires, on the determination of the tenancy of the
statutory tenant, the rights of a tenant of the premises
under the landlord. Reliance in that behalf was placed upon
the definition of “tenant” in s. 2 (II) and, ss. 12 & 13 of
the Act. The expression “tenant” is defined in s. 2 (II)
as, meaning any person by whom rent is, or but for a special
contract would be, payable for any premises, and includes
any person who is liable, to be sued by the landlord for
rent. Section 12 grants protection to tenants against
eviction. By sub-s. (1), insofar as it is material, it is
provided :
“(1) Notwithstanding anything to the contrary
in any other Act or law, no order or decree
for the recovery of possession of any premises
shall be made by any court in favour of the
landlord against a tenant, including a tenant
whose lease has expired :
Provided that nothing in the sub-section shall
apply to any suit for decree for such recovery
of possession,
(a) against a tenant who has transferred his
tenancy right in whole or in part with
possession otherwise than by sub-lease;
(b) against such transferee;
(c)against a tenant who has sub-let the
whole or a major portion of the premises for
more than seven consecutive months:
Provided that if a tenant who has sublet major
portion of the premises agree to possess as a
tenant the portion of the premises not sub-let
on payment of rent fixed by the Court, the
Court shall pass a decree for ejectment from
only a portion of the premises sub-let and fix
proportionately fair rent for the portion kept
in possession of such tenant which portion
shall thenceforth constitute premises under
clause (8) of section 2 and the rent so -fixed
shall be deemed standard rent
28
fixed under section 9, and the rights and
obligations of the sub-tenants of the portion
from which the tenant is ejected shall be the
same as of sub-tenants under the provisions of
section 13;
Section 12(1) confers protection to a tenant-which
expression includes a tenant whose lease has expired-against
eviction by any order or decree of the Court. But that
protection is lost in cases contemplated by cls. (a) to (i)
of sub-s. (1).
If a tenant has sub-let the premises let to him in its
entirety, lie loses the protection of s. 12. If he has sub-
let a major portion of the premises for more than seven
consecutive months, he also loses the protection. It is
implicit that if the tenant has sub-let only a small portion
of the premises occupied by him does not lose the
protection. The tenancy continues, and the subtenant of
such a small portion would, it is apprehended be entitled to
remain in possession. Where, however, a major portion of
the premises has been sub-let, it would be open to the
tenant to offer to possess as a tenant the portion of the
premises not sub-let by him. In that case the sub-tenants
would have the same rights and privileges as are conferred
by s. 13. Section 13 provides :
“(1)Notwithstanding anything contained in
this Act, or in any other law for the time
being in force, if a tenant inferior to the
tenant of the first degree sublets a whole or
in part the premises. let to him except with
the consent of the’ landlord and of the tenant
of a superior degree above him, such sub-lease
shall not be binding on such non-consenting
landlord, or on such non-consenting tenant.
Explanation.-In this sub-section-
(a)”a tenant of the first degree” means a
tenant who does not hold under any other
tenant;
(b)”a tenant inferior to the tenant of the
first degree” means a tenant holding
immediately or mediately under a tenant of the
first degree;
(c)”landlord” means the landlord of a
tenant of
the first degree.
(2)Where any premises or any part thereof
have
been orhas been sub-let by “a tenant of
the first
degree” or by “a tenant inferior to a tenant
of the first degree”, as defined in
explanation to sub-section (1), and the sub-
lease is binding on the landlord of such
29
last mentioned tenant, if the tenancy of such
tenant in either case is lawfully determined
otherwise than by virtue of a decree in a suit
obtained by the landlord by reason of any of
the, grounds specified in clause (h) of the
proviso to sub-section (1) of section 12, the
sub-lessee shall be deemed to be a tenant in
respect of such premises or part, as the case
may be, holding directly under the landlord of
the tenant whose tenancy has been determined,
on terms and conditions on which the sub-
lessee would have held under the tenant if the
tenancy of the latter had not been so
determined:
Provided………….
We are not directly concerned in the present -case with sub-
s. 1 of s. 13. That sub-section only deals with sub-letting
by a tenant inferior to “the tenant of the first degree.
In the present case, Allen Berry were direct tenants from
the landlord and initially were “tenants of the first
degree”. Sub-section (2) deals with cases of sub-letting by
tenants of the first degree or by a tenant inferior to the
tenant of the first degree as defined in the Explanation to
sub-s. (1), and such sub-lease is binding on the landlord of
such last mentioned tenant. It is provided thereby that if
the tenancy of such tenant is lawfully determined otherwise
than for personal occupation, the sub-leasee will be deemed
to be a tenant in respect of such premises or part thereof
and will hold directly under the landlord of the tenant
whose tenancy has been determined.
Counsel for the respondent contended that a sub-tenant of a
statutory tenant is entitled to the protection of s. 13(2)
of Act 17 of 1950, and relied upon the following
observations made by this Court in Indra Kumar Karnani v.
Atul Chandra Patitundi and Anr. (1) :
“Section 13(2) refers to both the classes of
subleases and states that if the sub-lease has
been made by a tenant of the first degree, the
sub-lessee shall be deemed to be a tenant in
respect of the premises demised to him if the
tenancy of such tenant is lawfully determined
under the provisions of the Act otherwise than
by virtue of a decree in a suit obtained by
the landlord by reason of any of the grounds
specified in cl. (h) of the proviso to sub-
section (1) of section
12. . . . . . . . . . . . . It follows that in
the case of sub-letting by a tenant of the
first degree no consent of the landlord to
subletting is required as a condition
precedent for acquisi-
(1)[1965] 3 S.C.R. 329.
30
tion by the sub-lessee of the tenants right
but in the case of sub-letting by a ten-ant
inferior to the tenant of the first degree the
consent of the landlord and also of the tenant
of the superior degree above him- to -the sub-
letting is necessary if the sub-lessee is to
acquire the rights of the tenant contemplated
by S. 13 (2).”
But the Court decided in Indra Kumar Karnant’s case(1) that
a covenant in the lease prohibiting a tenant from sub-
letting, in respect of premises governed by the West Bengal
Premises Rent Control (Temporary Provisions) Act 17 of 1950
does not prevent the sub-tenant under a contractual tenant
from setting up the claim that he has become entitled under
s. 13 (2) of the Act to the rights of the tenant in respect
of the premises or part thereof sub-let to him. The case is
not an authority for the proposition that a tenant whose
tenancy is determined, and who continues to remain in
occupation merely by virtue of the protection conferred upon
him by the statute is entitled to sub-let.
Counsel then contended that the Legislature has, notwith-
standing the disabilities of the, statutory tenant, by
express enactment conferred upon him the privilege of
inducting into the premises held by him a sub-tenant, who
would be entitled to claim the rights of a contractual
tenant against the landlord in the events mentioned in the
proviso to S. 12 (1) (c) and s. 13 (2). Relying upon the
definition of tenant in s. 2(11) of the Act, counsel argued
that in s. 12 the expression “tenant” includes a statutory
tenant as well as a contractual tenant, and that if a sub-
tenant in respect of a part of the premises is -protected by
the express provision contained in the provision 12(1)(c), a
sub-tenant of the entire premises whether the tenant is a
contractual tenant or a statutory tenant is entitled to
protection of the Act. According to counsel ss. 12(1) (c)
proviso and 13(2) are parts of a single scheme, and the
expression ‘tenant’ in both the sections includes a
statutory tenant, and sub-tenants inducted by the statutory
tenants in the premises are entitled to the protection of
the Act. Reliance in support of this contention was placed
upon a Full Bench judgment of the Calcutta High Court in
Krishna Prosad Bose v. Smt. Sarajubala Dassi and Anr. (2
wherein it was held that a tenant under the -Act includes an
extenant, that is, a tenant whose contractual tenancy has
come to an end, but who is still in possession (occupation)-
actual or constructive-of the premises; and such a tenant
who continues in possession by virtue of protection against
eviction under the West Bengal Premises Rent Control
(Temporary Provisions) Act, 1950, is entitled to sub-let the
premises and the sub-tenant may claim the benefit and
protection of S. 13 (2).
(1) [1965] 3 S.C.R. 329.
(2) A.I.R. 1961 Cal. 505.
31
We are unable to agree with the contention raised by counsel
for the respondent. In our view, since–a statutory tenant
has merely a personal right_ to protect his possession,
and has no estate or interest in the premises occupied by
him, he cannot convey an estate or interest which he does
not possess. A statutory tenant by parting with possession
forfiets the protection of the Act, and unless the statute
expressly provides or clearly implies otherwise, the person
inducted by cannot claim the protection of the Act. In our
judgment, cl. (c) ‘of S. 12(1) applies only to a case in
which the tenant has an interest in the estate which he
could sub-let. Similarly, s. 13 contemplates a case in
which a contractual tenant has sub-let the premises. If it
be held that the expression ‘tenant’ in s. 13(2) and in cl.
(c) of s. 12(1) includes a statutory tenant, an estate or an
interest in the demised premises would be conferred by him
upon a transferee which the tenant himself does not possess,
and that a tenant who has acted contrary to the provisions
of cls. (m), (o) & (p) of s. 108 of the Transfer of Property
Act, or has used the property for immoral or illegal
purposes, or has committed acts of negligence and default
which may materially deteriorate the condition of the
premises, or has otherwise been guilty of conduct which is a
nuisance or annoyance to occupiers of adjoining or
neighbouring premises including the landlord, or has failed
to pay rent exceeding two months and has thereby incurred
liability to forfeit the protection of the statute granted
to him by s. 12(1) and whose right has been forfeited by due
notices, may still sub-let the premises and the sub-lessee
would then be entitled to claim the right under s. 13(2) on
the determination of the tenancy of the tenant.
Considered in the light of the scheme and object of the Act,
the expression “tenant” in cl. (c) of s. 12 (1) or in s. 13
(2) must, in our judgment, mean a contractual tenant alone
and not a statutory tenant. The definition in s. 2 ( 1 1 )
of the expression “tenant” includes a statutory tenant. But
the definition does not apply if there is anything repugnant
in the, subject-or context. A statutory tenant has no
interest or estate in the premises occupied by him, and we
are unable to hold that the Legislature without making an
express provision to that effect intended to invest him with
power to induct into the premises in his occupation a person
who would be entitled to claim the right and interest of a
contractual tenant. If the view which has appealed to the
High Court of Calcutta be accepted, a statutory tenant whose
right of occupation is determined by a notice to quit,
because of conduct which entails forfeiture of the
protection of the Act, may induct a sub-tenant so as to
defeat the claim of the landlord, and presumably a tenant
sued in ejectment may also exercise that privilege, for the
fight if granted would enure till a decree in eject-
32
ment is passed. The Legislature has not made any such
express provision, and no provision to that effect which
makes the right of the landlord conferred by the Act to
obtain a decree in ejectment against his tenant wholly
illusory may be implied.
The appeal is therefore allowed and the decree passed by the
trial Court restored with the modification that mesne
profits will be payable from September 1, 1953 at the rate
of Rs. 495/per month till delivery of possession. The
landlords will be entitiled to their costs in this,Court and
before the, Division Bench of the High Court.
R.K.P.S.
Appeal allowed.
33