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Eruch J. Bapasola and anr. Vs. B.D. Mirchandani - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberO.C.J. Appeal No. 107 of 1952
Judge
Reported inAIR1954Bom56; (1953)55BOMLR582
ActsAdministration of Evacuee Property Act, 1950 - Sections 2, 4 and 18; Transfer of Property Act, 1882 - Sections 106; Constitution of India - Article 226; Rent Restriction Act
AppellantEruch J. Bapasola and anr.
RespondentB.D. Mirchandani
Appellant AdvocateM.V. Desai and ;N.A. Palkhivala, Advs.
Respondent AdvocateM.S. Vakil, Adv.
Excerpt:
.....but before we hold that the transfer of property act has been overridden by the administration of evacuee property act, we must be satisfied that there is some provision in the administration of evacuee property act which is inconsistent with the transfer of property act, and we have looked in vain for any provision which in any way deprives the landlord of his contractual rights under the transfer of property act. a statutory tenancy is a personal right enjoyed by a tenant who has ceased to be a contractual tenant. virendra motabhoy',air1951bom175 (c). both are judgments of division benches and it is difficult to contend now that as far as this court is concerned it is possible to argue that a statutory tenancy is anything more than a personal right enjoyed by the tenant. now, when we..........tendolkar j. who dismissed a petition filed by the appellants for a writ against the custodian of evacuee property. the petitioners purchased the property in question on 23-2-1950. one tyabji abdul kayum was in occupation of flat no. 1 on the ground floor of this property. on 22-9-1950, the petitioners gave a notice to the tenant terminating his tenancy as from 31-10-1950. on 19-10-1950, the order was passed declaring tyabji as an evacuee and on 26-10-1950, a notification was issued vesting the tenancy rights of the tenant tyabji abdul kayum in the custodian. on 23-3-1952, the petitioners went into possession of this flat. on 9-4-1952, the custodian allotted this flat to one ramchandani and on 2-5-1952, the petitioners filed this petition for a writ preventing the custodian from taking.....
Judgment:

Chagla, C.J.

1. This is an appeal from the judgment of Tendolkar J. who dismissed a petition filed by the appellants for a writ against the Custodian of Evacuee Property. The petitioners purchased the property in question on 23-2-1950. One Tyabji Abdul Kayum was in occupation of flat No. 1 on the ground floor of this property. On 22-9-1950, the petitioners gave a notice to the tenant terminating his tenancy as from 31-10-1950. On 19-10-1950, the order was passed declaring Tyabji as an evacuee and on 26-10-1950, a notification was issued vesting the tenancy rights of the tenant Tyabji Abdul Kayum in the Custodian. On 23-3-1952, the petitioners went into possession of this flat. On 9-4-1952, the Custodian allotted this flat to one Ramchandani and on 2-5-1952, the petitioners filed this petition for a writ preventing the Custodian from taking possession of this flat. The learned Judge below took the view that the petitioners were not entitled to the order they asked for.

2. Now, the question that arises is, what vested in the Custodian on October 26, 1950? The tenancy of Tyabji Abdul Kayum was a contractual tenancy. It was liable to be terminated by a proper notice given by the landlord and the landlord had given a proper notice on 22-9-1950. Pursuant to that notice the contractual tenancy would terminate on 31-10-1950, and therefore it seems that the only tenancy right which vested in the Custodian was the tenancy which was to last up to 31-10-1950. In other words, the Custodian was entitled to be in possession between 26-10-1950, and 31-10-1950, with all the rights that the tenant originally had. The 'contention put forward by Mr. Vakil on behalf of the Custodian is that once the tenancy right vested in the Custodian on October 26 1950, the notice given, by the landlord was of no effect and the tenancy did not terminate on 31-10-1950, but continued to vest in the Custodian. In putting forward this argument Mr. Vakil is encroaching not upon the rights of the tenant which are vested in the Custodian, but upon the rights of the landlord. Under the Transfer of Property Act a landlord has the right to terminate a contractual tenancy as provided by that Act, and unless there is something in the Administration of Evacuee Property Act which takes away that right, it is difficult to understand how the Custodian can claim to interfere with the contractual rights of the landlord. It must not be forgotten that the tenant is the evacuee and not the landlord and no rights of the landlord have vested in the Custodian. Therefore, we must be satisfied that there is some provision in the Administration of Evacuee Property Act which permits the Custodian to deprive the landlord of his right to put an end to a contractual tenancy as provided by law. It must also be borne in mind that when a property vests in the Custodian, it vests with all its incidents, and when the tenancy right vested in the Custodian on October 26 1950, it vested with this important incident that the tenancy was capable of being terminated by the landlord under the Transfer of Property Act. The Custodian could not take the property detached from its necessary incidents. He could not say, 'The tenancy will vest in me but it will not be liable to beterminated by the landlord under the Transfer of Property Act.'

3. Mr. Vakil has relied on Section 4 as giving him the right to interfere with the contractual rights of the landlord. All that Section 4 provides is that the provisions of this Act & of the rules and orders made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any such law. Therefore if there is any provision in the Administration of Evacuee Property Act which is inconsistent with any other law. the provision in the Administration of Evacuee Property Act is to prevail. But before we hold that the Transfer of Property Act has been overridden by the Administration of Evacuee Property Act, we must be satisfied that there is some provision in the Administration of Evacuee Property Act which is inconsistent with the Transfer of Property Act, and we have looked in vain for any provision which in any way deprives the landlord of his contractual rights under the Transfer of Property Act. Then reliance is placed on Section 18 of the Act. That section has no application whatever to the facts of this case. That section deals with occupancy or tenancy rights and obviously it deals with subsisting occupancy or tenancy rights, and it provides that those rights will not be extinguished by reason of the fact that the Custodian becomes entitled to those rights. We are not dealing here with any subsisting rights; we are dealing with a tenancy which ceased to exist on 31-10-1950; and the question is whether there is anything in the Administration of Evacuee Property Act which prevents the provisions of the Transfer of Property Act taking effect by the landlord giving a notice to the tenant and terminating the tenancy. Therefore, in our opinion, it is impossible to contend that after 31-10-1950, the Custodian continued to remain a contractual tenant of the landlord.

4. In the alternative it is submitted by Mr. Vakil that on the contractual tenancy terminating the Custodian became a statutory tenant of the appellants. In our opinion that contention also is not tenable. A statutory tenancy is a personal right enjoyed by a tenant who has ceased to be a contractual tenant. It is the right of projection given personally to the tenant by the Rent Restriction Act, and in our opinion the personal right which the contractual tenant enjoys after his contractual tenancy has come to an end is not property within the meaning of the Administration of Evacuee Property Act. Mr. Vakil has relied on the definition of evacuee property', and that definition is 'any property in which an evacuee has any right or interest', and Mr. Vakil says that an evacuee has a right in this property to be a statutory tenant. Before this definition can apply there must be a property in which the evacuee must have a right or interest, and if the statutory tenancy is not property at all, no question of the application of this definition arises. Then reliance is placed on the definition of 'property' and that is defined as property of any kind and includes any right or interest in such property. It is true that the definition is very wide and it must be liberally construed, but even so in order to satisfy the definition what vests in the Custodian must either be property or it must be a right or interest in property. If a persona^ right to be protected under the Rent Restriction Act is neither property nor a right or interest in property, then such a personal right cannot vest in the Custodian.

5. Reliance has been placed by Mr. Vakil on a judgment of Sir Norman Macleod C. J. inRe Abubaker Hajee Abdulla' AIR 1924 Bom 513 (A). Undoubtedly there are observations of the Jearued Chief Justice which seem to support Mr. Valik's contention that when a person who is a statutory tenant becomes insolvent, the statutory tenancy vests in the Official Assignee. But when we look to the facts of that case, with respect to the learned Chief Justice, no question of statutory tenancy really arose. What vested in the Official Assignee in that case was the contractual tenancy, and as the tenant was in arrears of rent, the Official Assignee disclaimed the tenancy, and the question arose as to whether the disclaimer was proper and the landlord becameentitled to possession. But as against thisdecision there is a series of decisions of the appellate Court recently given which have laid down in emphatic terms that a statutory tenancy is merely a personal right given by the statute. See 'Baldeodas Manavir Prasad v. G.P. Sonavalla,' AIR 1948 Bom. 385 (B) and State of Bombay v. Virendra Motabhoy', : AIR1951Bom175 (C). Both are judgments of division benches and it is difficult to contend now that as far as this Court is concerned it is possible to argue that a statutory tenancy is anything more than a personal right enjoyed by the tenant. If it isa personal right, then a personal right cannot vest in the Custodian.

6. Reliance has also been placed on a judgment of this Court in 'M.R. Meher v. Sir Ebrahim Currimbhoy', O. C. J. Appeal No. 64 of 1950 D/- 11-4-1951 (unrep) (Bom) (D). There we were considering whether certain rights of Sir 'Currimbhoy Ibrahim under the Baronetcy Trust vested in the Custodian, and Mr. Vakil says that in that judgment we held that the personal right of Sir Currimbhoy Ibrahim vested in the Custodian, & if his personal right could vest, similarly the personal right of the statutory tenant could vest in the Custodian. Now, when we look at the facts of that case, we were considering the right of Sir Currimbhoy Ibrahim under the Baronetcy Trust to reside in a particular property and we were at pains to point out that Sir Currimbhoy had all the rights in that property that could be enjoyed by a tenant, and the only difference between a tenant and Sir. Currimbhoy was that there was no obligation upon Sir Currimbhoy to pay rent to anybody. It was on those facts that we held that the right of residence, which we held was a right in property of Sir Currimbhoy, vested in the Custodian. In this particular case a statutory tenancy does not create a right in property, and as it is not a right in property, it cannot vest in the Custodian.

7. The result, therefore, is that the appealmust succeed and the order made by TendolkarJ. will be set aside and an order will be passedin terms of prayer (d). Appellants must get thecosts throughout.

8. Appeal allowed


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