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Satwant Kaur Vs. Abdul Kadar Abdul Subhan and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. No. 1297 of 1961
Judge
Reported inAIR1967Bom71; (1966)68BOMLR221; ILR1966Bom944
ActsBombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Sections 5(11) and 14
AppellantSatwant Kaur
RespondentAbdul Kadar Abdul Subhan and ors.
Appellant AdvocateJ.L. Nain, ;P.L. Nain and ;R.C. Kulchandani, Advs.
Respondent AdvocateV.L. Singbal, Adv.
Excerpt:
it was ruled that if the sub-tenancy came into existence before the bombay rents, hotel and lodging house rates control act, 1947 came into effect, then in the event of death of sub-tenant, the heirs of the deceased sub-tenant would become tenant as per section 5(11)(a) of the act - - 1) was bad in law. 1. as the other defendants had also interest in the tenancy, the notice was bad in law......a hair cutting saloon on the ground floor of that building. hafizabai had sublet the premises to abdul subhan, father of respondents 1, 3, 4, 5 and 6 and husband of respondent no. 2 his sub-tenancy in favour of abdul subhan had been created before the coming into force of the bombay rents. hotel and lodging house rates control act 1947 (hereinafter referred to as the act). abdul subhan died on 22nd december 1950 leaving behind the respondents as his heirs. he also left another wido, who died in 1954, with whom we are no longer concerned. in 1952 the plaintiff filed a suit in ejectment against hafizabai. on 24-6-1954 a decree in ejectment was passed against hafizabai. when the plaintiff tried to execute the decree, respondent no. 1, original defendant no. 1 offered obstruction. he.....
Judgment:
ORDER

(1) The facts giving rise to this application briefly are that the petitioner-plaintiff purchased a building Jawahar Nivas in 1948. One Hafizabai was the tenet of a hair cutting saloon on the ground floor of that building. Hafizabai had sublet the premises to Abdul Subhan, father of respondents 1, 3, 4, 5 and 6 and husband of respondent No. 2 His sub-tenancy in favour of Abdul Subhan had been created before the coming into force of the Bombay Rents. Hotel and Lodging House Rates control Act 1947 (hereinafter referred to as the Act). Abdul Subhan died on 22nd December 1950 leaving behind the respondents as his heirs. He also left another wido, who died in 1954, with whom we are no longer concerned. In 1952 the plaintiff filed a suit in ejectment against Hafizabai. On 24-6-1954 a decree in ejectment was passed against Hafizabai. When the plaintiff tried to execute the decree, respondent No. 1, original defendant No. 1 offered obstruction. He claimed to be a sub-tenant in possession of the premises. The plaintiff then took out an obstructionist notice. This was discharged on 24-6-1955 Defendant No. 1 subsequently made an application for fixation of standard rent. On 25-4-57 the plaintiff served a notice on defendant No. 1 terminating his tenancy on different grounds. On 5th September, 1957 the plaintiff filed a suit against defendant No. 1 for possession of the premises and for arrears of rent. On 11-12-1957 defendant No. 1 filed a written statement, in which he contended that the subtenancy had devolved on all the heirs of Abdul Subhan and that as no notice had been served on the other heirs of Abdul Subhan, the notice terminating the tenancy served on him (defendant No. 1) was bad in law. On 12-6-1958 defendants Nos. 2 and 6 made an application for being made parties to the suit. They were joined, but the plaintiff did not claim any relief against them. The learned trial Judge decree the suit against the defendant No. 1 Against the order made by him the defendants appealed to a Bench of the Court of Small Causes. The appeal was allowed and the decree of the trail Court, in so far as it awarded possession of the premises to the plaintiff and mesne profits, was set aside. Against that order this revision application has been filed.

(2) The defendants' case is that after the death of Abdul Subhan they were all subtenants of the premises and that after the termination of the tenancy of Hafizabai they became tenants of the plaintiff under clause (11) in section 5 read with section 14 of the Act. This clause, as it stood on the date on which the suit was filed, defined tenant as follows:

' 'Tenant' means any person by whom or on whose account rent is payable for any premises and includes-

(a) such sub-tenants and other persons as have derived title under a tenant before the coming into operation of this Act:

(b) any person remaining,after the determination of the lease, in possession, with or without the assent of the landlord, of the premises leased to such person or his predecessor who has derived title before the coming into operation of this Act.'

There are two other sub-clauses (aa) and (c) in this clause, but it is not necessary to refer to them, as they have no application in the present case. The appeal Court appears to have taken the view that the defendants had become tenants by reason of sub-clause (b), Mr, Nain has contended that this view is erroneous. There is force in his arguments and we feel doubtful whether the defendants would come within the scope of sub-clause (b). It seems to us, however, that the defendants would fall under sub-clause (a0. The sub-tenancy in favour of Abdul Subhan had admittedly been created before the coming into force of the Act. After Abdul Subhan died, the interest in this sub-tenancy devolved on all his heirs, who are defendants Nos. 1 to 6, & not only on one of them defendant No. 1. Mr. Nain has contended that as the defendants themselves acquired interest in the sub-tenancy after the death of Abdul Subhan in 1950, that is, after the Act came into force, they cannot be said to be persons who have acquired title before the commencement of the Act. he has urged that only those persons who are covered by Clause (a) who themselves and not whose predecessors-in-title have derived title before the coming into force of the Act. This will be a very narrow construction of sub-clause (a). If this interpretation is accepted, the position will be that even though interest in sub-tenancy is inheritable, the heirs of a sub-tenant will not get the protection of the Act, if he happened to die after the Act came into force. This could not have been intended. the intention appears to have been to protect all sub-tenant in whose case sub-tenancies had been created before the coming into operation of the Act Mr. Nain has further laid stress on the words 'derived title under a tenat' and has argued that these words have reference to only those persons who themselves have derived title under a tenant. He has urged that the heirs of a sub-tenant derive title from the deceased sub-tenant and not from the tenet and that consequently sub-clause (a) cannot apply to them. There is not force in this argument. After the death of a sub-tenant, his heirs acquire all his interest in the sub-tenancy. They become liable for the payment of the rent to the tenant and also for due fulfilment of the other conditions of the sub-tenancy. A direct relationship of landlord and tenant is then established between them and the tenant They therefore, also derive title under the tenant.

(3) We are therefore, unable to accept the above arguments of Mr. Nain. In our opinion the heirs of a person, whose sub-tenancy had been created before the Act came into force, also come within the scope of sub-clause (a).

(4) In the present case Hafizabai was the tenant of the premises at the time when Abdul Subhan died. After his death all the defendants became the sub-tenants of Hafizabai. Consequently sub-clause (a) would apply and after Hafizabai ceased to be a tenant, the defendants became the tenants by reason of the sub-clause.

(5) It is admitted that the notice terminating the tenancy had been given only to defendant No. 1. As the other defendants had also interest in the tenancy, the notice was bad in law. The plaintiff is consequently not entitled to possession of the premises.

(6) Rule discharged. Having regard to the circumstances in the case,we direct that each party should bear its own costs throughout. The order directing the plaintiff to pay the costs of the appeal in the Small Cause Court is set aside.

(7) Rule discharged.


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