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Allahabad High Court
Ahmad Husain vs Riaz Ahmad And Ors. on 29 June, 1914
Equivalent citations: 25 Ind Cas 186
Author: S Lal
Bench: S Lal


Sunder Lal, J.

1. One Muhammad Ahmad owned the house in suit which he mortgaged with possession on 5th March 1912 to the plaintiff. Two days later, i.e., on 7th March 1912, the plaintiff gave the house on rent to his mortgagor who executed an agreement to hold the house for five years as a tenant at a rent of Its. 2 per mensem. One of the conditions of the agreement was that in case of non-payment of rent the lessor was entitled to eject the lessee, notwithstanding that the term of five years had not expired.

2. Muhammad Ahmad entered into possession of the house let, but paid no rent at all, and on 20th August 1912 the plaintiff sent him a notice calling upon him to vacate the house by the end of the month of the tenancy. Muhammad Ahmad, however, died the same day, leaving the first three defendants as his heirs and legal representatives. It also appears that Muhammad Ahmad had sub let the house to the fourth defendant, Ali Bakhsh. The plaintiff thereupon issued fresh notices to defendants Nos. 1 to 3 (the heirs of Muhammad Ahmad) and as a matter of precaution gave a similar notice to defendant No. 4. He now sues for their ejectment from the house and for the recovery of arrears of rent. The suit was filed on 10th September 1912.

3. The defences of Riaz Ahmad (defendant No. 1) is that the arrears of rent were offered to the plaintiff, and. on 24th August 1912 it was caused to be sent to him by money order by Ali Bakhsh, the sub-lessee.. The plaintiff returned it also.” He pleaded that the plaintiff was not entitled to sue before the expiration of the term of five years. The fourth defendant, Ali Bakhsh, also filed a written statement in which he referred to the money order sent by him for arrears of rent on 24th August 1912, which the plaintiff refused to accept.

4. The Munsif found that the money order for the arrears of rent was duly sent as alleged by the defendants to the plaintiff, which he had refused to take, and that the plaintiff’s story that the money order reached him after the institution of the suit was not credible.’ As the defendant ‘So. 4 had already deposited in Court the sum of Rs. 12 * due on account of the rent in arrears and as he was willing to deposit the costs of the suit too in course of the day, the learned Munsif, applying the provisions of Section 114 of the Transfer of Property Act of 1882 dismissed the suit. The plaintiffs appealed against the said decree to the Court below and urged that Ali Bakhsh, the sublessee, had no right to deposit the rent, that he was a trespasser so far as the plaintiff was concerne 1 and that the Court below has erred in applying the provisions of Section 114 of the Transfer of Property Act, 1882, to this case. The learned Subordinate Judge dismissal the appeal and the plaintiff has now appealed to this Court.

5. Under Section 114 of that Act where a lease of immoveable property has determined by forfeiture for non-payment of rent and the lessor sues to eject the lessee, if at the hearing of the suit the lessee pays or tenders to the lessor the rent in arrear, together with interest thereon and his full costs of the suit, the Court may in lieu of making a decree for ejectment pass an order relieving the lessee against the for feature and thereupon the lessee shall hold the property leased as if the forfeiture had not occurred. It is noticeable that the right to make the payment of the rent in arrears, as a condition precedent to relief being given under the section, is reserved to the lessee. Under Section 108 (j) of the Act in the absence of a contract to the contrary (and there is no contract to the contrary in this case), the lessee may transfer absolutely, or by way of mortgage of sublease, the whole or any part of his interest in the property* * * The lessee shall not by reason only of such transfer cease to be subject to any liabilities attaching to the lease.” The sub-lease to defendant No. 4 was, therefore., a good transfer and recognized by the lessor by his sending a notice to him. The rule as to relief for forfeiture for non-payment of rent is thus stated in Lord Halsbury’s Laws of England, Volume 18, page 544: “The proviso for re-entry on non-payment of rent is regarded in equity as merely a security for rent, and accordingly, provided that the lessor or other persons interested can be put in the same position as before the lessee is entitled to be relieved against the forfeiture on payment of the rent and any expenses to which the lessor has been put.”

6. Under the English Law, an under-lessee is entitled to claim relief from forfeiture, on the same way as the tenant (see page 545 of the same work) under the Common Law Procedure, 1852 (15 and 16 Vic, Section 76) There is no similar statutory enactment-in India. Relief against forfeiture for non-payment of rent used to be granted in India long before the enactment of the Transfer of Property Act. It is still granted on equitable grounds in the case of agricultural leases to which the provisions of the Transfer of Property Act do not apply. I have not been able to lay my finger on any case decided in India in which an under-lessee has been given the privilege that Section 114 of Transfer of Property Act confers upon the lessee, nor am I aware of any decided case to the contrary. In England a liberal interpretation has been placed upon the term “tenant” as used in Section 4, George II, C. 28, which has been held to include an under-lessee Moore v. Smee (1907) 2 K.B. 8 : 76 L.J.K.R. 658 : 96 L.T. 594 . In my opinion where a lessee is permitted by law to transfer mortgage, or sub-lease his rights, as in this case, the transferee of the rights must be deemed to stand in the shoes of the transferor for the purpose of making payment of the rent in arrears and costs of the suit under Section 114 of the Act. I am inclined to think that he is as much entitled to be relieved of the forfeiture as the original tenant. This is more especially so where the original tenant has transferred his entire rights to the defendant. The heirs of the original lessee are certainly entitled to pray for the relief which the lessee is entitled to and ask for relief against forfeiture under Section 114, Act IV of 1882. I see no reason for holding that the assignee of the rights of the tenant should be in a worse position. 1 dismiss the appeal but without costs, as the respondents have not appeared.

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