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Devji Keshavji and Co. Vs. Dahibai Bhailal Shah and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. No. 2073 of 1969
Judge
Reported inAIR1971Bom285; (1970)72BOMLR267; ILR1970Bom1048; 1970MhLJ547
ActsBombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Sections 5, 5(3), 12, 13 and 14; Transfer of Property Act - Sections 106 and 109; Bombay Tenancy and Agricultural Lands Act, 1948 - Sections 88
AppellantDevji Keshavji and Co.
RespondentDahibai Bhailal Shah and ors.
Advocates:A.G. Parikh, Adv.
Excerpt:
.....sections 106, 109--'landlord' whether means person having right to possession of premises as tenant.;a tenant of certain premises owned by respondent no. 1 sub-let a portion of it in his possession to respondent no. 2 and the remaining portion to the petitioner. in a suit for ejectment filed by respondent no. 1 against his tenant, to which the petitioner was made a party, a decree was passed against the tenant but respondent no. 1 agreed to recognise the petitioner as his direct tenant of the entire premises and granted to him a lease for one year. the petitioner thereafter demanded rent from respondent no. 2 for the portion of the premises in his occupation and on his refusal to pay the rent, filed an ejectment suit against him. it was admitted by the petitioner that respondent..........nos. 2 and 3 filed revisional application no. 154 of 1963 against the decision in the standard rent application and appeal no. 386 of 1963 against the decision in the declaratory suit. the appellate bench held that respondents nos. 2 and 3 were the direct tenants of respondent no. 1, that the petitioner had not become their landlord and fixed the standard rent at rs. 292-30. by this application the petitioner challenges the decision of the bench in appeal no. 386 of 1963.5. the only question raised is, whether by reason of the lease for a year the petitioner becomes the landlord of respondents nos. 2 and 3 for all purposes within the rent act.6. mr. parikh places reliance upon section 109 of the transfer of property act. it provides inter alia that the transferee of part of interest.....
Judgment:
ORDER

1. Respondent No. 1 is the owner of the building known as Neela Bhuvan, M/s. Bindraban Jain and Sons was a tenant of a godown consisting of four galas on the ground floor. The tenant sub-let three galas out of them to respondent No. 2 and the remaining to the petitioner. Respondent No. 1 filed a suit for ejectment against the tenant, M/s. Bindraban Jain and Sons being R. A. E. Suit No, 813/4237 of 1956. The petitioner on its own application was made a party to the suit. A Decree was passed against the original tenant on July 13, 1959 and the suit against the petitioner was dismissed and respondent No. 1 agreed to recognize the petitioner as direct tenant of the entire godown. The petitioner paid all arrears of rent to respondent No. 1 upto July 31. 1959 in respect of the entire godown, costs and Municipal taxes. Respondent No. 1 granted a lease for one year commencing from August 1, 1959. The date of the lease is December 4, 1959. The petitioner admits that respondent No. 2 became the direct tenant of respondent No. 1 under Section 14 of the Bombay Rent Act and the petitioner her contractual tenant.

2. After obtaining the lease the petitioner demanded rent from respondent No. 2, but respondent No. 2 refused to pay the rent to the petitioner denying petitioner's right as landlord. The petitioner, therefore, terminated the tenancy of respondent No. 2 by letter dated March 10, 1960. The petitioner filed the ejectment suit No. 241/2220 of 1960 against respondent No. 2 for the three galas inter alia for non-payment of rent for more than six months. Res-pondent No. 2 by its sole surviving partner, respondent No. 3, filed a declaratory suit No. 291/2743 of 1960 against the petitioner and respondent No. 1 that respondent No. 2 was a tenant of respondent No. 1. that they are liable to pay rent to respondent No, 1 only and that the petitioner had no right. Respondent No. 2 also filed an application for fixing of the standard rent for the three galas in its possession the application being R. A. E. No. 487/SR of 1960. All the three matters were heard together,

3. The trial Court dismissed the suit of respondents Nos. 2 and 3, held that the petitioner was their landlord, fixed the standard rent at the contractual rent and rejected the petitioner's prayer for ejectment.

4. Respondents Nos. 2 and 3 filed revisional application No. 154 of 1963 against the decision in the standard rent application and Appeal No. 386 of 1963 against the decision in the declaratory suit. The Appellate Bench held that respondents Nos. 2 and 3 were the direct tenants of respondent No. 1, that the petitioner had not become their landlord and fixed the standard rent at Rs. 292-30. By this application the petitioner challenges the decision of the Bench in Appeal No. 386 of 1963.

5. The only question raised is, whether by reason of the lease for a year the petitioner becomes the landlord of respondents Nos. 2 and 3 for all purposes within the Rent Act.

6. Mr. Parikh places reliance upon Section 109 of the Transfer of Property Act. It provides inter alia that the transferee of part of interest of a lessor, in the absence of a contract to the contrary, would be entitled to all the rights of the lessor and if the lessee so chooses be subject to his liabilities. No doubt, the section gives him all the rights, but liabilities remain where they are, unless the lessee elects to make the transferee subject also to liabilities as held in Ram Anant Singh v. Shankar Singh, ILR (1908) All 369. Mr. Parikh relies upon the statement in Sir Dinshaw Mulla's Transfer of Property Act at page 670. 1966 Edition, where the following appears: 'The landlord who during the currency of a yearly or monthly lease, grants a lease for a term of years, cannot give notice to quit after the commencement of such lease for years, as his immediate reversion is then transferred to the tenant for years.'

There is no doubt that the observation is based on the principle that the tenancy of a monthly or annual tenant can be terminated by notice under Section 106 and in a suit against him he has no defence, and the lessor for years has a higher interest. Can the same result follow under the Kent Act?

7. Section 12 of the Rent Act places certain restrictions on the landlord of the premises. He is not entitled to evict the tenant so long as he is ready and willing to pay the rent and observes other conditions of the tenancy. This right of the tenant is subject to Section 13 which enables the landlord to evict the tenant under certain limited circumstances. Section 5(3) of the said Act defines the words 'landlord' in a comprehensive manner to include even a person who is receiving or is entitled to receive the rent. But the word carries this meaning unless there is anything repugnant thereto in the subject or context. The definition is widely worded in order to see that those who receive the rent carry on the obligations which are imposed on the owner by the Act. Thus a rent collector or a rent-farmer is held to be a landlord, (see Bombay Municipal v. Charandas. 30 Bom LR 169 AIR 1928 Bom 104, Emperor v. Dattatraya Biniwala 50 Bom LR 169 = AIR 1948 Bom 239 and Mishrimal Chhogalal v. N. B. Patel : (1963)65BOMLR15 . He cannot however eject the tenant on the ground that he needs the premises. On the other hand, though a rent-farmer is a landlord in relation to the actual tenant sitting in the property, the owner continues to be the landlord as he is entitled to receive the rent from his tenant. See Emperor v. Jaffer Cassam Moosa 30 Bom LR 1442 = AIR 1928 Bom 528; Emperor v. Aziz Gaffoor 30 Bom LR 1439 AIR 1928 Bom 527 and Oakley v. Wilson (1927) 3 KB 279. This is so because the later part of the definition clearly includes those 'who would so receive the rent or be entitled to receive the rent if the premises were left to a tenant' There can be no doubt that respondent No. 1 continues to be the landlord of the premises. The further portion of the section clearly excludes a tenant such as the petitioner for it says 'and includes any person not being a tenant who from time to time derives title under a landlord; and further includes in respect of his sub-tenant a tenant who has sub-let any premises.' Having regard to the words of the Section. I am clearly of the view that in the case of derivative title from the landlord, a tenant of the landlord would not be a landlord for all purposes in relation to a sitting tenant who is a direct tenant of the landlord, at least for all purposes as long as the Rent Act continues. It must also be remembered that even this definition is subject to context,

8. Now, what is the scheme of the Act. Before a particular meaning can be given to the words used, the Court must see the context and the subject, Wider definition is intended for enforcing the obligations imposed by the provisions of the Act. In other cases, wider definition could not have been intended.

The scheme of the Rent Act is to protect tenants from eviction and that is because of scarcity of accommodation. It prevents landlords from receiving premia for granting of lease and enables him to recover possession only under some limited circumstances. One of such purpose is for his own reasonable and bona fide occupation. Even here the Court has to decide the question whether greater hardship will be caused to the tenant by the passing of the decree than to the landlord by refusing to pass the decree. This could be easily by-passed by accepting the present contention- A landlord may charge a heavy pugree and grant a short term lease say for five years or even for only one year as in this case to another. This other may have a need and thus he may be able to obtain a decree. The landlord may repeat the performance again and again. In this connection, I may refer to the well-established rule of construction. It is that a statute should be so construed as will suppress the mischief and advance the remedy and avoid evasions for the continuance of the mischief. (Maxwell on Interpretation of Statutes. 9th Edition, page 118). A construction which facilitates evasion on the ground of inconvenience is to be avoided (ibid p. 204). The Rent Act which is intend-ed for the public good, preventing evictions except under limited circumstances denned in the Act, must be so construed as not to enable the landlord to evade the Act. It is true that in doing so it should be reasonably construed. In fact the provisions of the Rent Act are being circumvented by creating 'licences' and to. accept the present contention would mean doing away with the Rent Act. I am of the opinion that for the purposes 'of Sections 12 and 13' 'landlord' means the person in whom the reversion is vested and not merely a right to the possession of the premises as a tenant. In fact, the later portion of the definition as shown earlier, excludes any such construction, though of course in other cases, it applies.

9. Under the Act of 1948 as If originally existed even a purchaser of the building after a particular date was not entitled to evict the tenant on the ground of personal requirement. That provision has been repealed. When that provision existed, it could never have been contended that a tenant for a term could evict the tenant though not a purchaser after that date. No doubt that provision is removed thus entitling the purchaser to obtain possession of the premises. That does not mean that an assignee of a right lesser than or equal to that of the tenant should be entitled to evict the tenant,

10. Mr. Parikh relies upon some cases decided under the Transfer of Property Act which, in my view, have no application as the rights in the present case must be governed by the Special Act. The following cases however support him. In Bhogilal v. Subramania Iyer : AIR1954Mad514 the owner granted a lease for a period of twentyfive years. Relying upon the decisions in Parbhu Rani v. Tek Chand, AIR 1919 Lah 31 and Kannyan v. Alikutti AIR 1920 Mad 838 the Court held that the lessee for a term was a landlord and entitled to evict the tenant for his personal requirement. In Ganapati Joti Kumbhar v. Jaysinghrao Abasaheb. : AIR1956Bom749 the question arose under Section 88 of the Bombay Tenancy and Agricultural Lands Act, 1943. Relying upon the passage in Sir Dinshaw Mulla's Transfer of Property Act under Section 109 the Court held that a lessee for a term would be entitled to the rights of the landlord and claim benefit of Section 88. With respect none of these cases consider the question in the context of the scheme of the Rent Act or the Tenancy Act but they have applied Section 109 of the Transfer of Property Act. With the ratio of the first decision with respect I cannot agree. The second decision is under a different Act and is not relevant though with respect I confess, I doubt its correctness. Reliance is placed on the decision in Sheshmal Kasturchand v. Vyankatesh Sheshgiri Nayak, Civil Revn. Apphis. Nos. 1019, 1020 and 1021 of 1955 (Bom) decided by Shah. J. on August 6, 1956. This case has clearly no application. One Kamath was the tenant of business premises in Shops Nos. 2 to 5. He also obtained tenancy of shops Nos. 10 to 12 and let these out to different tenants. Shop No. 11 was occupied by the petitioner-firm as his sub-tenant. He mortgaged the business to one Damodar Thakersey and got all rent bills transferred to the name of Damodar Thakersey, who thus became the tenant i. e. an assignee of the whole Interest of tenant. Later one Vyankatesh Sheshgiri purchased the business from Kamath, paid off the mortgagee and eventually the bills in respect of all the shops were transferred to him. He thus became the transferee of the tenant's interest i.e. the whole of the landlord's interest vis-a-vis the petitioner-firm. But the transfer was not by a registered document He then filed the suit for eviction against the sub-tenants. It was conceded before the learned Judge that the petitioner-firm became direct tenant of the landlord under Section 14. The learned Judge made general observations in regard to the effect of Section 109 of the Transfer of Property Act, but had no need to consider and did not consider the question in the context of the Rent Act, for the reason that the right to reversion of the petitioner's landlord which was transferred to Sheshgiri by his getting the tenancy from the landlord was not created by a registered document. The observations, therefore, cannot be an authority for the construction of the word 'landlord' in the subject and context of Sections 12 and 13 of the Rent Act.

11. There is one more circumstance in this case. The so-called lease is only for a year. After the expiry of the year the petitioner's tenancy became admittedly, monthly tenancy, which is in no way superior to that of respondents 2 and 3. It is obvious that the attempt was to get round the provisions of the Rent Act and enable the petitioner to evict respondent No. 2 in an indirect manner. On the date when the suit was decided, its rights were not in any way superior to those of the respondents.

12. There is thus no merit.

13. Petition dismissed.


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