{"id":91162,"date":"1967-10-23T00:00:00","date_gmt":"1967-10-22T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-calcutta-credit-corporation-vs-happy-homes-p-ltd-on-23-october-1967"},"modified":"2018-03-25T09:52:38","modified_gmt":"2018-03-25T04:22:38","slug":"the-calcutta-credit-corporation-vs-happy-homes-p-ltd-on-23-october-1967","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-calcutta-credit-corporation-vs-happy-homes-p-ltd-on-23-october-1967","title":{"rendered":"The Calcutta Credit Corporation … vs Happy Homes (P) Ltd on 23 October, 1967"},"content":{"rendered":"
Supreme Court of India<\/div>\n
The Calcutta Credit Corporation … vs Happy Homes (P) Ltd on 23 October, 1967<\/div>\n
Equivalent citations: 1968 AIR 471, \t\t 1968 SCR (2)\t 20<\/div>\n
Author: S C.<\/div>\n
Bench: Shah, J.C.<\/div>\n
           PETITIONER:\nTHE CALCUTTA CREDIT CORPORATION LTD., & ANR.\n\n\tVs.\n\nRESPONDENT:\nHAPPY HOMES (P) LTD.\n\nDATE OF JUDGMENT:\n23\/10\/1967\n\nBENCH:\nSHAH, J.C.\nBENCH:\nSHAH, J.C.\nSIKRI, S.M.\nSHELAT, J.M.\n\nCITATION:\n 1968 AIR  471\t\t  1968 SCR  (2)\t 20\n CITATOR INFO :\n RF\t    1969 SC1187\t (8)\n R\t    1987 SC 759\t (11)\n\n\nACT:\nTenancy-if  notice  to terminate tenancy  can  be  withdrawn\nwithout consent of other party.\n   Transfer of Property Act, Ss. 106, 111, 113-Notice not in\naccordance  with  s. 106-Accepted by other party  and  acted\nupon  if effective,Whether tenancy only\t determined  whether\npossession given up.\n  West\tBengal Premises Rent Control (Temporary\t Provisions)\nAct 17 of 1950, ss. 2(11), 12 and 13-If expression  'tenant'\nincludes 'statutory tenant ---Whether he can subjet.\n\n\n\nHEADNOTE:\n  By a lease commencing from January 1, 1939, for 12  years,\na building in Calcutta was let to AB and under the terms  of\nthe lease, subletting or parting with possession without the\nprevious consent of the landlord was prohibited.  After\t the\nexpiry\tof  the\t period\t of  the  lease,  AB  continued\t  in\npossession  but\t on  August 12, 1953,  served  a  notice  in\nwriting\t upon the landlord of their intention to vacate\t the\npremises  \"on August 31, 1953 at 3.30 P.M.\" By a  subsequent\nletter\ton  August 26, 1953, AB informed the  landlord\tthat\nthey did not intend to vacate the premises on August 31\t -is\noriginally  intimated,\tand  that their\t earlier  notice  be\ntreated\t as  cancelled.\t  Although, in\treply  the  landlord\nrefused\t to  agree to the withdrawal of the  notice  stating\nthat he had already arranged to let the premises to  another\nperson, AB continued in possession and on May 7, 1954 sublet\na  part\t of the premises to the\t respondent.   The  landlord\nthereafter instituted a suit for ejectment against AB  which\nwas settled on March 28, 1955 by a consent decree  whereupon\nAB handed over possession to the landlord of the por-tion of\nthe  premises  in their own occupation.\t The  landlord\tthen\nsued  the  respondent  for a decree for\t possession  of\t the\npremises  and mesne profits and a Single Judge of  the\tHigh\nCourt  decreed\tthe landlord's claim.\tThe  Division  Bench\nallowed the appeal and dismissed the landlord's claim.\nHELD  : The appeal must be allowed and the decree passed  by\nthe Trial Court restored.\n(i)On the expiration of the period of notice dated  August\n12, 1953. the tenancy of AB stood determined.  Once a notice\nis  served determining the tenancy or showing -an  intention\nto  quit on the expiry of the period of notice, the  tenancy\nis  at an end, unless with the consent of the party to\twhom\nthe notice is given, the tenancy is agreed to be treated  is\nsubsisting. [24C]\nTayleur v. Wildin, (1867-68) L.R. 3 Ex.\t Cases 303; referred\nto.\n(ii)A notice which does not comply with the requirements of\ns.  106 of the Transfer of Property Act in that it does\t not\nexpire at the end of the month of the tenancy, or the end of\nthe year of the tenancy, as the case may be, or of which the\nduration  is  shorter than the duration contemplated  by  s.\n106,  may  still be accepted by the party  served  with\t the\nnotice;\t and  if that party accepts and net,, upon  it,\t the\nparty  serving the notice will be estopped from denying\t its\nvalidity.  The landlord's refusal to agree to the withdrawal\nof the notice since he had already agreed to\n21\nlease  the  premises  to another person\t from  September  1,\nclearly\t showed' that the offer to terminate the tenancy  on\nAugust\t31, 1953 was accepted by him and he had\t acted\tupon\nthat offer.  The tenants Was therefore determinated at\t3.30\np.m. on August 31, 1953 on acceptance by the landlord of the\nnotice dated August, 1953. [25A-C: F]\nThere  was  no\tforce in the contention\t that  in  order  to\ndetermine  a tenancy under the Transfer of property  Act  it\nthe instance of the tenant. there must be actual delivery of\nthe  possession.   That contention is contrary to  the\tplan\nterms of s. 111 (h) of the Act. [25H]\n(iii)  Considered in the light of the scheme and  object  of\nthe  Act the expression 'tenant' in cl. (e) of s. 12 (1)  or\nin  s. 13(2) must mean a contractual tenant alone and not  a\nstatutory  tenant.   The  definition  in  s.  12(1)  of\t the\nexpression  'tenent'  includes a statutory tenant,  but\t the\ndefinition does not apply it' there is anything repugnant in\nthe subject or context.\t Statutory tenant has no interest or\nestste\tin the permises4 Occupied by him, and it  cannot  be\nsaid  that  the\t legislaturw,  without\tmaking\tan   express\nprovision to that effect, intended to invest him with  power\nto  induct into the premises in his Occupation a person\t who\nwould  be  entitled 'to claim the right And  interest  of  a\ncontractual tenant. [31F.  G]\nAnand Nivas,(private) Ltd. v. Anandji Kalyanji Pedhi &\tOrs,\n[1964]\n4  S.C.R.  892;\t solomon  v.orwel,[1954]  I  All  E.R.\t 847\nKrishna Prosad\nBose v.smt.   sarajubala  Dassi and Anr., A.I.R. 1961\tCal.\n505; referred  to.\nIndra  Kumar Karnani V. Atual Chandra Patitiundi     &\tAnr,<\/a>\n[1965]\t3 S.C.R. 329,: distinguished.\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL\t APPELLATE     JURISDICTION    :    Civil     Appeal
\nNo.\t71     of    1965,
\nAppeal\tfrom\tthe judgment and decree\t dated\tFebruary  1,
\n1962, of the Calcutta High Court in Appeal No. 65 of 1959,
\nT.   P.\t Das,  M.  G.  Poddar and  V.  N.  Poddar,  for\t the
\nappellants.-\n<\/p>\n
A.   N. Sinha and S. N. Mukherjee  for the respondents.
\nThe Judgment of the Court was delivered by
\nShah, J. A building in the town of Calcutta belonging to the
\nthe  Chitpore  Golabari Company (Private) Ltd. was  let\t out
\nundeia Written lease for a period of twelve years commencing
\nfrom  January  1, 1939, to Messrs Allen Berry  &  Co.  Ltd.-
\nliereinafteicalled  ‘Allen Berry’.  Under the terms  of\t the
\nlease  sub-letting  or parting with the\t possession  of\t the
\ndeiiiised  premises  or\t any part  thereof  by\tthe  tenants
\nwithout the previous consent in writing of the landlord\t was
\nexpressly prohibited.  After the vxpiry of the period  Allen
\nBerry  continued to hold over the premises.  On\t August\t 12,
\n1953.\tAllen  Berry served a notice in\t writin(,  upon\t the
\nlandlord  intimating their intention to vacate the  premises
\n“oil  August  31,  .1953, at 3-30 P.m.”\t and  requested\t the
\nlandlord  to  arrange to take delivery\tof  possession.\t 13y
\nletter dated August 1953.  Allen Berry informed the landlord
\nthat  they  did\t not intented  to  vtcate  the\tpremises  on
\nAugust 31, 1953, as originilly intimated’
\n22<\/span>
\nor  at all, and that the notice dated August 12 ,  1953,  be
\ntreated\t as  cancelled.\t By letter dated  August  28,  1953,
\nattorney  of  the  landlord informed Allen  Berry  that\t the
\nearlier,  notice,  dated  August  12,  1953,  could  not  be
\nwithdrawn  except by mutual consent, and since the  landlord
\nhad  a-reed to lease the premises to Messrs. lop Rubber\t Co.
\n(India) Ltd. with effect from September, 1953, the  landlord
\nwas unable to; give his consent to such withdrawal, and that
\nit  would  insist upon Allen Berry vacatin the\tpremises  as
\nalready\t intimated.  Allen Berry addressed a letter  to\t the
\nlandlord  on September 14, 1.953, intimating that they\twere
\nholding\t over  the  premises  on the  expiry  of  the  lease
\n“according  to the provisions of the Rent Control Act”.\t  On
\nFebruary ‘-IO, 1954, the landlord called upon Allen Berry to
\nvacate\tand  deliver  possession of “the  premises,  on\t the
\nexpiry of March 31, 1954”.  Allen Berry failed to carry\t out
\nthe requisition, and on May 7, 1954, they sub-let a part  of
\nthe  ground  floor measuring approximately 2100 sq.  ft.  to
\nHappy Homes (P) Ltd.-respondent in this appeal.
\nThe  landlord  then instituted a suit  against\tAllen  Berry
\nclaiming  a  decree in ejectment in respect of\tthe  demised
\npremises  -,Ind for mesne profits and other  reliefs.\tThis
\nsuit was settled on March 28, 1955 and a consent decree\t was
\npassed.\t The important recitals in the decree were that\t (1)
\nAllen  Berry  had surrendered the tenancy  by  notice  dated
\nAugust\t12, 1953-, (2) that they had hander over  possession
\nof  the portion of the in their occupation to the  landlord;
\n(3)  that the landlord will be it liberty either  to  retain
\nthe sub-tenant or to eject him; and (4) that the sub-tenancy
\nlad  been  created  without the ledge  and  consent  of\t the
\nlandlord.\n<\/p>\n
The  landlord then sued Messrs Happy Homes  (P)\t hereinafter
\ncalled ‘the respondent’ in the High Court of Calcutta for  a
\ndecree for possession of the premises in its occupation\t and
\nfor mesne profits.  The suit was resisted by the  respondent
\nprincipally  on two grounds : (i) that the tenancy of  Allen
\nBerry  was  not determined before the sub-letting  in  their
\nfavour Lind (ii) that even if it be held that the tenancy of
\nAllen Berry was determined before May 7, 1954, by virtue  of
\nthe provisions of the West Bengal.  Rent Control  (Temporary
\nProvisions) Act, 1950, the respondent became a direct tenant
\nof  the\t landlord and was entitled to the benefits  of\tthat
\nAct.\n<\/p>\n
S.P.  Mitra,  J.,  decreed the claim  of  the  landlord\t for
\npossession  of\tthe  premises  in  the\toccupation  of\t the
\nrespondent  and for mesne profits at the rate of  Rs.  495\/-
\nper month from March 1, 1955 till delivery of possession.
\nDuring the pendency of the appeal against the decree  passed
\n‘by  S. P. Mitra, J., the landlord transferred the  premises
\nto Messrs Calcutta Credit Corporation Ltd.  The landlord and
\nthe trans-\n<\/p>\n
23<\/span><\/p>\n
feree will collectively be, referred to hereinafter as\t“the
\nlandlords”.   A Division Bench of the, High  Court  reversed
\nthe  decree passed by S. P. Mitra, J., and ordered that\t the
\nclaim of the landlords be dismissed.\n<\/p>\n
Whether the tenancy of Allen.  Berry stood determined by the
\nnotice\tdated  August  12, 1953, may  first  be\t considered.
\nAllen  Berry  were tenants holding over in  respect  of\t the
\ndemised\t premises  after  the expiry of the  period  of\t the
\noriginal lease.\t By their notice dated August 12, 1953, they
\nintimated  their intention to vacate the premises on  August
\n31,  1953,  at\t3.30  P.M.  They  thereafter  withdrew\tthis
\nintimation  by letter dated August 25, 1953.   The  landlord
\ndid  not agree to the withdrawal of the notice dated  August
\n12,  1953, and insisted that possession of the demised\tpre-
\nmises  be delivered.  By cl. (h) of s. 11 1 of the  Transfer
\nof  property  Act, 1882, a lease of  immovable\tproperty  is
\ndetermined  on the expiration of a notice to  determine\t the
\nlease,\tor  to quit, or of intention to quit,  the  property
\nleased, duly given by one party to the other.  It was  urged
\non  behalf of the landlord that the notice of  intention  to
\nquit the property leased and to determine the lease given by
\nthe  tenant to the landlord could not be withdrawn, and\t the
\nrotation  of landlord and tenant may be restored only if  by
\nmutual\tagreement  between the landlord and tenant  a  fresh
\ntenancy was created.  Reliance in support of this contention
\nwas  placed upon the observations made in Foa”s General\t Law
\nof  Landlord & Tenant, 8th Edn., at P. 613 :\n<\/p>\n
\t      “A  notice  to quit cannot be “waived”  :\t for
\n\t      once a valid notice is liven, the tenancy will
\n\t      inevitably be deter-mined upon its expiration.
\n\t      But  though  the\tparties\t cannot\t waive\t the
\n\t      notice, they may nullify its operation as\t ‘to
\n\t      quitting\tby  agreeing upon  a  new  tenancy’,
\n\t      whether on the terms of the former or not,  to
\n\t      commence ‘from the time of its expiration.”;\n<\/p><\/blockquote>\n
and  upon similar observations in Woodfall on  Landlord\t and
\nTenant,\t Vol. 1, 26th Edn., Art. 2114, at p. 973;  and\tupon
\nthe  judment of the Court of Exchequer in Tayleur v.  Wildin
\n(1) Counsel for the respondent contended that the rights and
\nobligations  of the parties are governed by  the  provisions
\ncontained  in  s. 113 of the Transfer of Property  Act,\t and
\nthat  it  is  open to a tenant to  withdraw  the  notice  of
\nintention  to quit before the expiry of the period  thereof.
\nCounsel also contended that the tenancy was not\t determined,
\nbecause\t the notice served by Allen Berry was not  a  notice
\n“duly given” within the meaning of s. 1ll of the Transfer of
\nProperty Act.\n<\/p>\n
Section 113 of the Transfer of Property Act provides:
\n(1)  (1867-68) L. R. 3 Ex.  Cases 303.\n<\/p>\n
24<\/span><\/p>\n
\t      “A  notice under section 111, clause  (h),  is
\n\t      waived, with the express or implied consent of
\n\t      the person to whom it is given, by any act  on
\n\t      the  part of the person giving it\t showing  an
\n\t      intention to treat the lease as subsisting.”\n<\/p><\/blockquote>\n
Clearly s. 113 contemplates waiver of the notice by any\t act
\non the part of the person giving it, if such an act shows an
\nintention  to  treat the lease as subsisting and  the  other
\nparty gives his consent-express or implied thereto.  The law
\nunder  the Transfer of Property Act on the question in\thand
\nis not different from the law in England.  Once a notice  is
\nserved\tdetermining the tenancy or showing an  intention  to
\nquit on the expiry of the period of the notice, the  tenancy
\nis at an end, unless with the consent of the other party  to
\nwhom the notice is given the tenancy is agreed to be treated
\nas  subsisting.\t It was held in Tayleur v. Wildin(1) that  a
\nnotice\tdetermining  a\ttenancy\t cannot\t be  withdrawn.\t  In
\nTayleur\t v.  Wildin(1) an annual tenancy of a farm  under  a
\nwritten\t lease commencing on Lady Day, i.e., March  25,\t was
\ndetermined by a notice by which the landlord called upon the
\ntenant\tto  quit the farm at the expiration of\tthe  current
\nyear’s\ttenancy.  Before the expiry of the year of  tenancy,
\nthe  arrears  of rent were paid up by the  tenant,  and\t the
\nnotice was withdrawn and the tenant continued in  occupation
\nof  the farm under the terms of the original agreement.\t  It
\nwas  held  by the Court of Exchequer that  the\ttenancy\t was
\ndetermined  by the notice to quit, and a surety for  payment
\nof  rent  under the original lease was not liable  for\trent
\nfalling\t due after the expiry of the notice.  Kelly  C.\t B.,
\nobserved that whether the notice is given by the landlord or
\nthe  tenant,  the party to whom it is given is\tentitled  to
\ninsist\tupon  it,  and it cannot be  withdrawn\twithout\t the
\nconsent\t of  both.  The consent of the parties makes  a\t new
\nagreement,  and the rent became, due under a new  agreement.
\nln’  our  judgment,  that principle applies to\tthe  law  of
\nlandlord & tenant in India.  Therefore on the expiration  of
\nthe  period of notice dated August 12, 1953, the tenancy  of
\nAllen Berry stood determined.\n<\/p>\n
But, it was contended, the notice intimating an intention to
\nquit at 3-30 P.m. on August 31, 1953, was not a notice “duly
\ngiven”\twithin the meaning of s. 111(h) of the- Transfer  of
\nProperty Act.  It is not necessary to decide for the purpose
\nof this case whether the month of the tenancy of Allen Berry
\nexpired\t on the midnight of the first day of every  calendar
\nmonth for’, in our judgment, a notice which is defective may
\nstill  determine  the  tenancy, if it  is  accepted  by\t the
\nlandlord.  A notice which complies with the requirements  of
\ns. 106 of the Transfer of Property Act operates to terminate
\nthe tenancy, whether or not the party
\n(1)  (1867-68) L.R. 3 Ex.  Cases 303.\n<\/p>\n
25<\/span><\/p>\n
served\twith  the notice assent,; thereto.  A  notice  which
\ndoes  not  comply  with the requirements of S.\t106  of\t the
\nTransfer of Property Act in that it does not expire with the
\nend  of the month of the tenancy, or the end of the year  of
\nthe tenancy, as the case may be, or of which the duration is
\nshorter\t than the duration comemplated by S. 106, may  still
\nbe accepted by the party served with the notice and if\tthat
\nparty  accepts\tand acts upon it, the  part.),\tserving\t the
\nnotice\twill  be estopped from denying\tits  validity.\t The
\ndefect in the notice served by one, party may undoubtedly be
\nrelied\tupon  by the other party and he may plead  that\t the
\ntenancy\t does not stand determined but after the  notice  is
\naccepted  by  the other party who acts upon  it,  the  party
\nserving the notice cannot contend that the notice served  by
\nhim  was defective, and on that account the tenancy was\t not
\ndetermined., The reason of the rule is clear.  A tenancy  is
\ndetermined by service of the notice in the manner prescribed
\nby  S. 111 (h) read with S. 106 of the Transfer of  Property
\nAct.   If  the\tnotice is duly\tgiven,\tthe  tenancy  stands
\ndetermined on the expiry of the period of the tenancy.\tEven
\nif the party served with the notice does not assent thereto,
\nthe  notice  takes effect.  If the notice is  defective,  it
\ndoes  not operate to terminate the tenancy by force  of\t the
\nstatute.   But a tenancy is founded in contract, and  it  is
\nalways open to the parties thereto to agree that the tenancy
\nshall  be determined otherwise than by notice served in\t the
\nmanner\tprovided by S. 106 of the Transfer of Property\tAct,
\nor  by\ta  notice  of a duration  shorter  than\t the  period
\nprovided  by the Act.  If the parties so agree, the  tenancy
\nwill conic to an end.\n<\/p>\n
The landlord according to the terms of the agreement by\t its
\nletter\tdated August 28, 1953, informed Allen Berry that  it
\ndid not agree to the withdrawal of the notice, since it\t had
\nalready\t agreed to lease out the premises to  Messrs  Dunlop
\nRubber Co. (India) Ltd. with effect from September 1,  1953.
\nThe  content,,, of the letter clearly prove, in the  absence
\nof any evidence to the contrary, that the offer to terminate
\nthe tenancy on August 31. 1953, was accepted by the landlord
\nand  the  landlord had acted upon that offer.\tThe  tenancy
\nstood  determined as proposed by Allen Berry.\tAllen  Berry
\ncould  not  thereafter\tclaim, in the, absence\tof  a  fresh
\nagreement, that there was a subsisting contractual tenancy.
\nWe are unable to agree with counsel for the respondent\tthat
\nin  order  to  determine a tenancy  under  the\tTransfer  of
\nProperty  Act  at the instance of a tenant.  There  must  be
\nactual\t delivery  of  possession  before  the\ttenancy\t  is
\neffectively determined.\t That contention is contrary to\t the
\nplain  terms of S. 111 (h) of the Transfer of Property\tAct.
\nWe are therefore of the opinion that by virtue of the notice
\ndated August 12, 1953, and acceptance
\nL 10 Sup CI\/68-3
\n26<\/span>
\nthereof\t by  the landlord, the tenancy of  Allen  Berry\t was
\ndetermined  at\t3-30  P.m.  on\tAugust\t31,  1953.   It\t  is
\nunnecessary  in\t that view to consider\twhether\t the  notice
\ndated February 20, 1954, requiring Allen Berry to vacate and
\ndeliver possession of the premises to the landlord on expiry
\nof March 31, 1954, was a valid notice.\n<\/p>\n
Counsel\t for  the respondent urged that\t granting  that\t the
\ntenancy of Allen Berry stood determined by the notice  dated
\nAugust\t12,  1953, and acceptance thereof by  the  landlord,
\nAllen  Berry acquired the status of “statutory tenants”\t and
\ncould  claim  protection of the West  Bengal  Premises\tRent
\nControl\t (Temporary  Provisions) Act 17 of  1950,  and\twere
\ncompetent by virtue of the provisions of that Act to sub-let
\nthe premises in their occupation.\n<\/p>\n
In  Anand Nivas- (Private) Ltd. v. Anandji Kalyanji Pedhi  &
\nOrs.<\/a>(1), this Court in dealing with the analogous provisions
\nof  the Bombay Rents, Hotel and Lodging House Rates  Control
\nAct,  1947, explained the nature -of the right and  interest
\nof  a “statutory tenant” in premises in his occupation.\t  It
\nwas observed at p. 908 by the majority of the Court :\n<\/p>\n
\t      “A  person  remaining  in\t occupation  of\t the
\n\t      premises let to him after the determination of
\n\t      or  expiry  of the period of  the\t tenancy  is
\n\t      commonly, though in law not accurately, called
\n\t      a\t statutory tenant”.  Such a person is not  a
\n\t      tenant at all he has no estate or interest  in
\n\t      the  premises occupied by him.  He has  merely
\n\t      the  protection  of  the statute\tin  that  he
\n\t      cannot  be turned out so long as he  pays\t the
\n\t      standard rent and permitted increases, if any,
\n\t      and  performs  the  other\t conditions  of\t the
\n\t      tenancy.\t His right to  remaining  possession
\n\t      after  the  determination of  the\t contractual
\n\t      tenancy  is  personal : it is not\t capable  of
\n\t      being transferred or assigned, and devolves on
\n\t      his  death only in the manner provided by\t the
\n\t      statute.”\n<\/p><\/blockquote>\n
In  Solomon v. Orwell (2) , Denning L. J., in  dealing\twith
\nthe  provisions\t of the Landlord and Tenant  (Rent  Control)
\nAct, 1949, spoke as follows :\n<\/p>\n
\t      “When  a statutory tenant sub-lets a  part  of
\n\t      the  premises, he does not thereby confer\t any
\n\t      estate  or  interest  on\tthe  sub-tenant.   A
\n\t      statutory\t tenant\t has no estate\tor  interest
\n\t      himself, and he cannot carve something out  of
\n\t      nothing.\t The sub-tenant, like the  statutory
\n\t      tenant,\thas   only  a  personal\t  right\t  or
\n\t      privilege.  The question is :\n<\/p><\/blockquote>\n
\t       (1)\t[1964]\t    4\t   S.C.R.\t892.\n\t      (2) [1954] 1 All E.R. 874.\n\t      27<\/span>\n<\/pre>\n
\t      What  is the position of the  sub-tenant\twhen
\n\t      the  statutory  tenancy comes to an  end\t?  A
\n\t      statutory\t tenancy may, of course, come to  an
\n\t      end  without a notice to quit, e.g.  by  death
\n\t\t\t    (if there are no entitled relatives) o
\nr by  the
\n\t      delivery\tup of the premises to the  landlord.
\n\t      When  the statutory tenancy comes to  an\tend,
\n\t      the  subtenant’s right automatically comes  to
\n\t      an   end\tunless\tthere  is   some   statutory
\n\t      protection afforded to him.”\n<\/p><\/blockquote>\n
It  was\t urged that the West Bengal  Premises  Rent  Control
\n(Temporary  Provisions) Act 17 of 1950\texpressly  conferred
\nupon  a statutory tenant the right to sub-let  the  premises
\nand a sub-tenant inducted into the premises by the statutory
\ntenant acquires, on the determination of the tenancy of\t the
\nstatutory  tenant,  the rights of a tenant of  the  premises
\nunder the landlord.  Reliance in that behalf was placed upon
\nthe definition of “tenant” in s. 2 (II) and, ss. 12 & 13  of
\nthe  Act.  The expression “tenant” is defined in s.  2\t(II)
\nas, meaning any person by whom rent is, or but for a special
\ncontract  would be, payable for any premises,  and  includes
\nany  person  who is liable, to be sued by the  landlord\t for
\nrent.\tSection\t 12  grants protection\tto  tenants  against
\neviction.   By sub-s. (1), insofar as it is material, it  is
\nprovided :\n<\/p>\n
\t      “(1) Notwithstanding anything to the  contrary
\n\t      in  any other Act or law, no order  or  decree
\n\t      for the recovery of possession of any premises
\n\t      shall  be made by any court in favour  of\t the
\n\t      landlord against a tenant, including a  tenant
\n\t      whose lease has expired :\n<\/p><\/blockquote>\n
\t      Provided that nothing in the sub-section shall
\n\t      apply to any suit for decree for such recovery
\n\t      of possession,\n<\/p><\/blockquote>\n
\t      (a)  against a tenant who has transferred\t his
\n\t      tenancy  right  in  whole\t or  in\t part\twith
\n\t      possession otherwise than by sub-lease;\n<\/p><\/blockquote>\n
\t      (b)   against such transferee;\n<\/p><\/blockquote>\n
\t      (c)against  a  tenant who has  sub-let  the
\n\t      whole  or a major portion of the premises\t for
\n\t      more than seven consecutive months:
\n\t      Provided that if a tenant who has sublet major
\n\t      portion of the premises agree to possess as  a
\n\t      tenant the portion of the premises not sub-let
\n\t      on  payment  of rent fixed by the\t Court,\t the
\n\t      Court  shall pass a decree for ejectment\tfrom
\n\t      only a portion of the premises sub-let and fix
\n\t      proportionately fair rent for the portion kept
\n\t      in  possession  of such tenant  which  portion
\n\t      shall  thenceforth constitute  premises  under
\n\t      clause (8) of section 2 and the rent so -fixed
\n\t      shall be deemed standard rent
\n\t      28<\/span>
\n\t      fixed  under  section 9, and  the\t rights\t and
\n\t      obligations of the sub-tenants of the  portion
\n\t      from which the tenant is ejected shall be\t the
\n\t      same as of sub-tenants under the provisions of
\n\t      section 13;\n<\/p><\/blockquote>\n
Section\t  12(1)\t  confers  protection  to   a\ttenant-which
\nexpression includes a tenant whose lease has expired-against
\neviction  by  any order or decree of the  Court.   But\tthat
\nprotection is lost in cases contemplated by cls. (a) to\t (i)
\nof sub-s. (1).\n<\/p>\n
If  a  tenant  has sub-let the premises let to\thim  in\t its
\nentirety, lie loses the protection of s. 12.  If he has sub-
\nlet  a\tmajor portion of the premises for  more\t than  seven
\nconsecutive  months,  he also loses the protection.   It  is
\nimplicit that if the tenant has sub-let only a small portion
\nof   the  premises  occupied  by  him  does  not  lose\t the
\nprotection.   The  tenancy continues, and the  subtenant  of
\nsuch a small portion would, it is apprehended be entitled to
\nremain\tin possession.\tWhere, however, a major\t portion  of
\nthe  premises  has  been sub-let, it would be  open  to\t the
\ntenant\tto offer to possess as a tenant the portion  of\t the
\npremises  not sub-let by him.  In that case the\t sub-tenants
\nwould  have the same rights and privileges as are  conferred
\nby s. 13.  Section 13 provides :\n<\/p>\n
\t      “(1)Notwithstanding  anything  contained\tin
\n\t      this  Act,  or in any other law for  the\ttime
\n\t      being  in force, if a tenant inferior  to\t the
\n\t      tenant of the first degree sublets a whole  or
\n\t      in  part the premises. let to him except\twith
\n\t      the consent of the’ landlord and of the tenant
\n\t      of a superior degree above him, such sub-lease
\n\t      shall  not be binding on\tsuch  non-consenting
\n\t      landlord, or on such non-consenting tenant.
\n\t      Explanation.-In this sub-section-\n<\/p><\/blockquote>\n
\t      (a)”a  tenant of the first degree” means\ta
\n\t      tenant  who  does\t not hold  under  any  other
\n\t      tenant;\n<\/p><\/blockquote>\n
\t      (b)”a tenant inferior to the tenant of  the
\n\t      first   degree”\tmeans\ta   tenant   holding
\n\t      immediately or mediately under a tenant of the
\n\t      first degree;\n<\/p><\/blockquote>\n
\t      (c)”landlord”  means  the\t landlord  of\ta
\n\t      tenant of
\n\t      the first degree.\n<\/p><\/blockquote>\n
\t      (2)Where\tany premises or any part  thereof
\n\t      have
\n\t      been orhas  been sub-let by “a  tenant  of
\n\t      the first
\n\t      degree”  or by “a tenant inferior to a  tenant
\n\t      of   the\t first\tdegree”,   as\tdefined\t  in
\n\t      explanation  to sub-section (1), and the\tsub-
\n\t      lease is binding on the landlord of such
\n\t      29<\/span>
\n\t      last mentioned tenant, if the tenancy of\tsuch
\n\t      tenant  in either case is lawfully  determined
\n\t      otherwise than by virtue of a decree in a suit
\n\t      obtained\tby the landlord by reason of any  of
\n\t      the,  grounds specified in clause (h)  of\t the
\n\t      proviso to sub-section (1) of section 12,\t the
\n\t      sub-lessee  shall be deemed to be a tenant  in
\n\t      respect of such premises or part, as the\tcase
\n\t      may be, holding directly under the landlord of
\n\t      the tenant whose tenancy has been\t determined,
\n\t      on  terms\t and conditions on  which  the\tsub-
\n\t      lessee would have held under the tenant if the
\n\t      tenancy\tof  the\t latter\t had  not  been\t  so
\n\t      determined:\n<\/p><\/blockquote>\n
\t      Provided………….\n<\/p><\/blockquote>\n
We are not directly concerned in the present -case with sub-
\ns. 1 of s. 13.\tThat sub-section only deals with sub-letting
\nby  a tenant inferior to “the tenant  of  the  first degree.
\nIn  the present case, Allen Berry were direct  tenants\tfrom
\nthe  landlord  and  initially were  “tenants  of  the  first
\ndegree”.  Sub-section (2) deals with cases of sub-letting by
\ntenants\t of the first degree or by a tenant inferior to\t the
\ntenant of the first degree as defined in the Explanation  to
\nsub-s. (1), and such sub-lease is binding on the landlord of
\nsuch last mentioned tenant.  It is provided thereby that  if
\nthe tenancy of such tenant is lawfully determined  otherwise
\nthan for personal occupation, the sub-leasee will be  deemed
\nto  be a tenant in respect of such premises or part  thereof
\nand  will  hold directly under the landlord  of\t the  tenant
\nwhose tenancy has been determined.\n<\/p>\n
Counsel for the respondent contended that a sub-tenant of  a
\nstatutory  tenant is entitled to the protection of s.  13(2)
\nof   Act  17  of  1950,\t and  relied  upon   the   following
\nobservations  made by this Court in Indra Kumar\t Karnani  v.\n<\/p>\n
Atul Chandra Patitundi and    Anr. (1) :\n<\/p>\n
\t      “Section\t13(2) refers to both the classes  of
\n\t      subleases and states that if the sub-lease has
\n\t      been made by a tenant of the first degree, the
\n\t      sub-lessee  shall be deemed to be a tenant  in
\n\t      respect of the premises demised to him if\t the
\n\t      tenancy of such tenant is lawfully  determined
\n\t      under the provisions of the Act otherwise than
\n\t      by  virtue of a decree in a suit\tobtained  by
\n\t      the  landlord by reason of any of the  grounds
\n\t      specified\t in cl. (h) of the proviso  to\tsub-\n<\/p>\n
\t      section\t      (1)\t  of\t     section\n<\/p>\n
\t      12. . . . . . . . . . . . . It follows that in
\n\t      the  case\t of sub-letting by a tenant  of\t the
\n\t      first  degree  no consent of the\tlandlord  to
\n\t      subletting   is\trequired  as   a   condition
\n\t      precedent for acquisi-\n<\/p>\n
\t      (1)[1965] 3 S.C.R. 329.\n<\/p>\n
\t      30<\/span><\/p>\n
\t      tion  by the sub-lessee of the  tenants  right
\n\t      but  in the case of sub-letting by  a  ten-ant
\n\t      inferior to the tenant of the first degree the
\n\t      consent of the landlord and also of the tenant
\n\t      of the superior degree above him- to -the sub-
\n\t      letting  is necessary if the sub-lessee is  to
\n\t      acquire the rights of the tenant\tcontemplated
\n\t      by S. 13 (2).”\n<\/p>\n
But the Court decided in Indra Kumar Karnant’s case(1)\tthat
\na  covenant  in\t the lease prohibiting a  tenant  from\tsub-
\nletting, in respect of premises governed by the West  Bengal
\nPremises Rent Control (Temporary Provisions) Act 17 of\t1950
\ndoes  not prevent the sub-tenant under a contractual  tenant
\nfrom setting up the claim that he has become entitled  under
\ns. 13 (2) of the Act to the rights of the tenant in  respect
\nof the premises or part thereof sub-let to him.\t The case is
\nnot  an\t authority for the proposition that a  tenant  whose
\ntenancy\t is  determined,  and who  continues  to  remain  in
\noccupation merely by virtue of the protection conferred upon
\nhim by the statute is entitled to sub-let.\n<\/p>\n
Counsel\t then contended that the Legislature  has,  notwith-
\nstanding  the  disabilities  of the,  statutory\t tenant,  by
\nexpress\t enactment  conferred  upon  him  the  privilege  of
\ninducting  into the premises held by him a  sub-tenant,\t who
\nwould  be  entitled  to claim the rights  of  a\t contractual
\ntenant\tagainst the landlord in the events mentioned in\t the
\nproviso\t to S. 12 (1) (c) and s. 13 (2).  Relying  upon\t the
\ndefinition of tenant in s. 2(11) of the Act, counsel  argued
\nthat  in s. 12 the expression “tenant” includes a  statutory
\ntenant\tas well as a contractual tenant, and that if a\tsub-
\ntenant in respect of a part of the premises is -protected by
\nthe express provision contained in the provision 12(1)(c), a
\nsub-tenant  of the entire premises whether the tenant  is  a
\ncontractual  tenant  or a statutory tenant  is\tentitled  to
\nprotection  of the Act.\t According to counsel ss. 12(1)\t (c)
\nproviso\t and  13(2) are parts of a single  scheme,  and\t the
\nexpression   ‘tenant’  in  both\t the  sections\tincludes   a
\nstatutory tenant, and sub-tenants inducted by the  statutory
\ntenants\t in the premises are entitled to the  protection  of
\nthe Act.  Reliance in support of this contention was  placed
\nupon  a\t Full Bench judgment of the Calcutta High  Court  in
\nKrishna\t Prosad Bose v. Smt.  Sarajubala Dassi and  Anr.  (2
\nwherein it was held that a tenant under the -Act includes an
\nextenant,  that is, a tenant whose contractual\ttenancy\t has
\ncome to an end, but who is still in possession (occupation)-
\nactual\tor constructive-of the premises; and such  a  tenant
\nwho continues in possession by virtue of protection  against
\neviction  under\t the  West  Bengal  Premises  Rent   Control
\n(Temporary Provisions) Act, 1950, is entitled to sub-let the
\npremises  and  the  sub-tenant may  claim  the\tbenefit\t and
\nprotection of S. 13 (2).\n<\/p>\n
(1) [1965] 3 S.C.R. 329.\n<\/p>\n
(2) A.I.R. 1961 Cal. 505.\n<\/p>\n
 31<\/span><\/p>\n
We are unable to agree with the contention raised by counsel
\nfor the respondent.  In our view, since–a statutory  tenant
\nhas  merely a personal right_ to protect    his\t possession,
\nand  has no estate or interest in the premises\toccupied  by
\nhim,  he cannot convey an estate or interest which  he\tdoes
\nnot possess.  A statutory tenant by parting with  possession
\nforfiets  the protection of the Act, and unless the  statute
\nexpressly provides or clearly implies otherwise, the  person
\ninducted by cannot claim the protection of the Act.  In\t our
\njudgment,  cl.\t(c) ‘of S. 12(1) applies only to a  case  in
\nwhich  the  tenant has an interest in the  estate  which  he
\ncould  sub-let.\t  Similarly, s. 13 contemplates\t a  case  in
\nwhich a contractual tenant has sub-let the premises.  If  it
\nbe held that the expression ‘tenant’ in s. 13(2) and in\t cl.\n<\/p>\n
(c) of s. 12(1) includes a statutory tenant, an estate or an
\ninterest  in the demised premises would be conferred by\t him
\nupon a transferee which the tenant himself does not possess,
\nand  that a tenant who has acted contrary to the  provisions
\nof cls. (m), (o) & (p) of s. 108 of the Transfer of Property
\nAct,  or  has  used  the property  for\timmoral\t or  illegal
\npurposes,  or has committed acts of negligence\tand  default
\nwhich  may  materially\tdeteriorate  the  condition  of\t the
\npremises, or has otherwise been guilty of conduct which is a
\nnuisance   or  annoyance  to  occupiers\t of   adjoining\t  or
\nneighbouring premises including the landlord, or has  failed
\nto  pay rent exceeding two months and has  thereby  incurred
\nliability  to forfeit the protection of the statute  granted
\nto him by s. 12(1) and whose right has been forfeited by due
\nnotices,  may still sub-let the premises and the  sub-lessee
\nwould then be entitled to claim the right under s. 13(2)  on
\nthe determination of the tenancy of the tenant.
\nConsidered in the light of the scheme and object of the Act,
\nthe expression “tenant” in cl. (c) of s. 12 (1) or in s.  13
\n(2)  must, in our judgment, mean a contractual tenant  alone
\nand not a statutory tenant.  The definition in s. 2 ( 1 1  )
\nof the expression “tenant” includes a statutory tenant.\t But
\nthe definition does not apply if there is anything repugnant
\nin  the,  subject-or  context.\tA statutory  tenant  has  no
\ninterest  or estate in the premises occupied by him, and  we
\nare  unable to hold that the Legislature without  making  an
\nexpress provision to that effect intended to invest him with
\npower to induct into the premises in his occupation a person
\nwho  would be entitled to claim the right and interest of  a
\ncontractual  tenant.  If the view which has appealed to\t the
\nHigh Court of Calcutta be accepted, a statutory tenant whose
\nright  of  occupation  is determined by a  notice  to  quit,
\nbecause\t  of  conduct  which  entails  forfeiture   of\t the
\nprotection  of\tthe Act, may induct a sub-tenant  so  as  to
\ndefeat\tthe claim of the landlord, and presumably  a  tenant
\nsued in ejectment may also exercise that privilege, for\t the
\nfight if granted would enure till a decree in eject-\n<\/p>\n
32<\/span><\/p>\n
ment  is  passed.   The Legislature has not  made  any\tsuch
\nexpress\t provision,  and no provision to that  effect  which
\nmakes  the  right of the landlord conferred by\tthe  Act  to
\nobtain\ta  decree  in ejectment against\t his  tenant  wholly
\nillusory may be implied.\n<\/p>\n
The appeal is therefore allowed and the decree passed by the
\ntrial  Court  restored\twith  the  modification\t that  mesne
\nprofits\t will be payable from September 1, 1953 at the\trate
\nof  Rs.\t 495\/per  month till delivery  of  possession.\t The
\nlandlords will be entitiled to their costs in this,Court and
\nbefore the, Division Bench of the High Court.
\nR.K.P.S.\n<\/p>\n
Appeal allowed.\n<\/p>\n
33<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India The Calcutta Credit Corporation … vs Happy Homes (P) Ltd on 23 October, 1967 Equivalent citations: 1968 AIR 471, 1968 SCR (2) 20 Author: S C. Bench: Shah, J.C. PETITIONER: THE CALCUTTA CREDIT CORPORATION LTD., & ANR. Vs. RESPONDENT: HAPPY HOMES (P) LTD. DATE OF JUDGMENT: 23\/10\/1967 BENCH: SHAH, J.C. BENCH: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-91162","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nThe Calcutta Credit Corporation ... vs Happy Homes (P) Ltd on 23 October, 1967 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/the-calcutta-credit-corporation-vs-happy-homes-p-ltd-on-23-october-1967\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The Calcutta Credit Corporation ... vs Happy Homes (P) Ltd on 23 October, 1967 - 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