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In Re: Abubaker Haji Abdulla - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai
Decided On
Case NumberInsolvency Application No. 1923
Judge
Reported inAIR1924Bom513; (1924)26BOMLR627; 83Ind.Cas.809
AppellantIn Re: Abubaker Haji Abdulla
Excerpt:
.....insolvency act (iii of 1909), (sections 62, 66--insolvent a statutory tenant--tenancy vests in official assignee on adjudication--disclaimer by official assignee--tenancy comes to an end--landlord can obtain order for possession by motion before insolvency court.;an application for the public examination of an insolvent must be made before the insolvent applies for his discharge. it is too late to make the application when the petition is on the board for final hearing, except in very special circumstances.; (1) that the statutory tenaney to which the insolvent became entitled was hia property within the meaning of section 52 of the presidency towns insolvency act, was vested by the adjudication order in the official assignee, and came to an end by the disclaimer of the official..........premises without paying rent. the present applicant, the owner of the premises, called upon the official assignee to declare whether he claimed any interest in the tenancy of the portion of her premises let to the insolvent which in consequence of the insolvency had vested in the official assignee. the official assignee sent a notice disclaiming his interest in the tenancy. the applicant now asks for an order directing the insolvent to put her in possession of the portion of the premises in his occupation, contending that the order can be made under section 66 of the presidency towns insolvency act.2. in the ordinary course a monthly tenancy could be put an end to by the landlord by giving notice, and there would be no necessity to call upon the official assignee to decide whether he.....
Judgment:

Norman Macleod, C.J.

1. One Abubaker Haji Abdulla was adjudicated insolvent on or about October 20, 1923. At that time he was a monthly tenant of certain premises belonging to one Bai Rehmabai at a monthly rent of Rs. 50. At the date of adjudication the insolvent was in arrears of rent, and since the adjudication he has remained in possession of the premises without paying rent. The present applicant, the owner of the premises, called upon the Official Assignee to declare whether he claimed any interest in the tenancy of the portion of her premises let to the insolvent which in consequence of the insolvency had vested in the Official Assignee. The Official Assignee sent a notice disclaiming his interest in the tenancy. The applicant now asks for an order directing the insolvent to put her in possession of the portion of the premises in his occupation, contending that the order can be made under Section 66 of the Presidency Towns Insolvency Act.

2. In the ordinary course a monthly tenancy could be put an end to by the landlord by giving notice, and there would be no necessity to call upon the Official Assignee to decide whether he should claim any interest in the tenancy. But the Bombay Rent (War Restrictions) Act No. II of 1918 has made this difference, that the monthly tenant becomes a statutory tenant who cannot be ejected so long as he pays the standard rent. The questions, therefore, are whether the statutory tenancy, to which the insolvent became entitled, is his property within the meaning of Section 62 of the Insolvency Act, and is vested by the adjudication order in the Official Assignee, and if it is so vested, whether, on the Official Assignee disclaiming any interest in that property, the owner of the premises is entitled to an order for delivery against the insolvent. The question whether a statutory tenancy is property within the meaning of Section 167 of the Bankruptcy Act, 1914, arose in Parkinson v. Noel [1923] 1 K.B. 117. The plaintiffs having let to the defendant a dwelling house to which the Increase of Rent and Mortgage Interest (Restrictions) Act, 1920, applied, the defendant retained possession of it after the expiration of the term under the provisions of that Act, and when the defendant was adjudicated bankrupt, the trustee in bankruptcy disclaimed any interest in the house. The plaintiff then brought an action against the defendant for possession. It was held that the statutory tenancy was property within the meaning of Section 167 of the Bankruptcy Act and passed under Section 53 to the trustee in bankruptcy, that on disclaimer thereof by the trustee, the bankrupt's interest in the premises ceased to exist and was no longer available for his benefit: consequently the plaintiffs were entitled to judgment. It is quite clear that the applicant would be entitled to file a suit for possession, because, apart from the disclaimer of the Official Assignee, the insolvent has excluded himself from the benefit of the Rent Act by not having paid the rent. The applicant, however, contends that by a motion before this Court he can obtain an order for possession which would have the same effect as an order for possession in an ejectment suit. In In re Finley. Ex parte Clothworkers' Company this point was not directly in issue, but the operation of a 55 of the Bankruptcy Act of 1883, which corresponds to Section 66 of the Presidency Towns Insolvency Act, was considered. At p. 485 of the judgment there is the following passage:--

Now the operation of those clauses, [Sub-section 6 and Sub-section 4 of Section 55] in the simple case of a lease is not very difficult to ascertain. If there is nothing more than a lease, and the lessee becomes bankrupt, the disclaimer determines his interest in the lease under Sub-section 8. He gete rid of all his liabilities, and he loses all his rights by virtue of the disclaimer. There is no need of any provision for vesting the property in the landlord, but the natural and legal effect of Sub-section 2 is that the reversion will become accelerated. There is nothing that I can see to be vested in the landlord. But he may require delivery of possession, and, if so, he can get it under Sub-section 6.

3. The disclaimer of the Official Assignee having put an end to the interest of the insolvent in his statutory tenancy of the premises, I think the landlord under Section 66 is entitled to the order which he asks for. There will be an order directing the insolvent to deliver over possession of the premises in his occupation to the applicant.


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