1. Plaintiffs are the owners of a building at Vithalwady and let the first floor to Ramjilal Ramswarup on the 15th November 1917 at a rental of Rs. 40 per mensem.
2. Plaintiffs say that Ramjilal Ramswarup's rent was in arrears and he had sub-let the premises contrary to the terms of his lease Therefore, they gave notice terminating the tenancy on the 10th November 1920.
3. In the meantime, however, on the 26th October 1920, Ramjilal Ramswarup was adjudicated insolvent and left Bombay. On 28th October 1920, the Official Assignee's auctioneers wrote that they had taken away Ramjilal Ramswarup's moveables and vacated the premises. The plaintiffs went there that day. Plaintiff No. 3 says he found defendants in possession of two rooms and that he locked the other two.
4. On 29th October 1920, the Official Assignee sent a notice of his intention to disclaim the leasehold, and on 7th December 1920 the Official Assignee disclaimed tenancy as from that date. Squabbles about possession between the plaintiffs and defendants went on, which led to proceedings in the Police Court. Plaintiffs filed this suit on 17th December 1920.
5. There is now no question as to Ramjilal Ramswarup's occupation. He has vacated the premises and his tenancy has terminated. The suit is against the defendants who claim to be sub-tenants of Ramjilal Ramswarup.
6. Now the effect of the insolvency was not to terminate the tenancy but to vest the leasehold in the Official Assignee. The locking up of the rooms by the plaintiffs on the 28th October was not a re-entry by the landlord, for the lease gives no power of re-entry. Plaintiffs were then only taking action for the protection of their property. The disclaimer of the 7th December, although it operated to relieve the Official Assignee of personal liability to pay rent as from the date of adjudication, did not operate on the leasehold interest until the date of disclaimer, i.e., the 7th December. But before that date the tenancy had been determined by notice, Ex. 2, on the 10th November 1920 This notice is proved and is admitted by the defendants in their letter of the 29th October, Ex. 10.
7. If the tenancy had been terminated by the disclaimer, the subtenants' rights could have been saved by Section 62 of the Presidency Towns Insolvency Act, or by Section 116 of the Transfer of Property Act. But as it is the tenancy was terminated by notice on the 10th November 1920, and, therefore, the defendants were tenants on sufferance after that date.
8. Mr. Coltman contends that even though the defendants are sub-tenants, they are entitled to the protection of the Bombay Rent Act, first, because the word 'tenant' in Section 9 includes a subtenant; and, secondly, because under Section 9(3) the fact that the landlord's interest has terminated is not in itself deemed to be a sufficient cause for dispossession. The term 'tenant' is defined in Section 2(d) as 'any person by whom or on whose account rent is payable for any premises, and includes every person from time to time deriving title under a tenant.
9. Granting that the sub-tenant derives title from the tenant, still he is not within the definition unless rent is payable by him or on his account to the landlord. But this is not the case, for there is no privity of contract between him and the landlord. Even if he pays the tenant's rent under the headlease, he does so as the agent of the tenant and not on his own account. The term 'tenant' in Section 9 does not include a sub-tenant, unless of course the suit is filed by the tenant on the under-lease, in which case the tenant is the landlord qua the sub-tenant and the subtenant is his tenant.
10. As to the other branch of the argument, the termination of the landlord's interest refers to cases of assignment of the lessor's interest and perhaps even to the death of a Hindu widow lessor. In either case the assignee or the remainderman succeeds to the estate and in the case of the assignee becomes landlord by derivative title. But granting that the tenant derives title from the landlord, he is not for that reason within the definition unless he is entitled to receive rent under the headlease. He is not entitled to receive rent from the sub-tenant because there is no privity of contract between the bead lessor and the sub-tenant. He is, therefore, not the sub-tenant's landlord qua the head lease. The extinction of a tenant's title, therefore, does not bring the case within Section 9(3); and in truth the defendants are not sued as tenants or by a landlord.
11. The defendants as sub-tenants hold on a precarious title and when the tenancy under the head-lease terminates, their right to possession terminates too. Unlike trespassers they come in by right but like trespassers they hold over without right, and in this suit they are in the same position as trespassers. It is, therefore, not necessary to find on the issue as to reasonable and bona fide requirement, or indeed on the issue as to the number of rooms which were sub-let to them.
12. The plaintiffs have given false evidence when they pretend ignorance of the sub-tenancy. For, I believe they received Bamjilal Samswarup's rent from the defendants from February to August and even made repairs on defendants' requisition last rains. On the other hand, defendants have behaved no better for they set up at one time a false case of an agreement of direct tenancy from the plaintiffs, which has been subsequently abandoned.
13. Therefore, following the ordinary rule, I think this is a case in which costs should follow the event.
14. Decree, therefore, that the defendants do give vacant and peaceful possession of the premises in suit to the plaintiffs and pay compensation at the rate of Rs. 35 per month from 11th November 1920 till date of delivery of possession. Defendants to pay plaintiffs' costs of this suit.