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Rao Saheb Anandrao Mahagaonkar Vs. Eknath Dnyanoba Patil - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 1328 of 1958
Judge
Reported in(1959)61BOMLR1123
AppellantRao Saheb Anandrao Mahagaonkar
RespondentEknath Dnyanoba Patil
DispositionPetition dismissed
Excerpt:
.....lands act (bom. lxvii of 1948), section 27-transfer of property act (iv of 1882), section 108(j)-tenant sub-letting portion of land held, by him under lease-whether such sub-letting entails forfeiture of lease.;under section 27 of the bombay tenancy and agricultural lands act, 1948 (as it stood before its amendment) sub-letting by a tenant of a portion of the lands held by him under a lease does not entail a forfeiture of the lease.;chimnabai rama naik v. ganpat jagannath naik (1956) special civil application no. 198 of 1956, decided by shah and vyas, jj., on june 21, 1956 (unrep.). differed from.;church v. brown (1808) 15 vas. 258; 33 e.r. 752, grove v. portal [1902] 1 ch. 727, cook v. shoesmith [1951] 1 k.b. 752, esdaile v. lewis [1956] 2 all.e.r. 357, swarnamayee debee v. afaraddi..........3384 of 1958 the contention of the petitioner-landlord was that his tenants had sub-let all the lands leased out to them. the tribunals below have, however, held that only a portion of the demised lands was sub-let by the tenants. in spl. c.a. no. 1328 of 1958 the contention of the petitioner-landlord was that most of the lands were sub-let by the tenants and the tribunals have upheld a part of this contention. we, therefore, proceed on the basis that only a portion of the demised lands was sub-let by the respondents-tenants, and the question which we have to consider is whether as a result of this the leases in favour of the respondents are liable to be terminated at the instance of the petitioners.3. section 27 of the bombay tenancy and agricultural lands act, 1948, when the.....
Judgment:

Mudholkar, J.

1. The petitioners in both these petitions under Article 227 of the Constitution are landlords of certain lands and had sought possession of those lands from the respective respondents in the two petitions on the ground that these respondents had forfeited the tenancies in their favour because they had sub-let all the lands or some of the lands, which were leased out to them.

2. It may be pointed out that in both the petitions before Us a number of fields were leased out to the respective respondents in the two petitions by their landlords under a single lease one of which reserved a single rent with respect to the demised lands. In Spl. C.A. No. 3384 of 1958 the contention of the petitioner-landlord was that his tenants had sub-let all the lands leased out to them. The Tribunals below have, however, held that only a portion of the demised lands was sub-let by the tenants. In Spl. C.A. No. 1328 of 1958 the contention of the petitioner-landlord was that most of the lands were sub-let by the tenants and the Tribunals have upheld a part of this contention. We, therefore, proceed on the basis that only a portion of the demised lands was sub-let by the respondents-tenants, and the question which we have to consider is whether as a result of this the leases in favour of the respondents are liable to be terminated at the instance of the petitioners.

3. Section 27 of the Bombay Tenancy and Agricultural Lands Act, 1948, when the sub-leases were effected by the respondents stood thus:

27. (1) No sub-division or sub-letting of the land or assignment of any interest held by a tenant shall be valid. Such sub-division, sub-letting or assignment shall make the tenancy liable to termination.

Provided that nothing in this sub-section shall prejudicially affect the rights of a permanent tenant or any tenant the duration of whose tenancy is presumed to be coextensive with the duration of the tenure of the landlord under Section 83 of the Bombay Land Revenue Code, 1879.

Then follows Sub-section (2) with which we are not concerned. The petitioners' contention is that the lease being one and indivisible, no sooner a tenant sublet any portion of the demised property, the landlord became entitled to terminate the entire lease in favour of the tenant. On the other hand, it is contended on behalf of the respondents-tenants that the right of the landlord to terminate the tenancy of a tenant accrues under Section 27 only when the tenant makes a sub-division of the demised lands or sub-lets or assigns the entire demised lands. In support of the contention that the leases are liable to be terminated in their entirety Mr. Paranjape for the petitioner relies upon a decision of a Division Bench of this Court in Chimnabai Rama Naik v. Ganpat Jagannath Naik (1956) Special Civil Application No. 198 of 1956, decided by Shah and Vyas, JJ. On June 21, 1956. There the learned Judges observed:.If sub-letting of a part of the land involves termination of the tenancy, it is not open, in the absence of any express provision made by the Legislature, to impose upon the landlord a new contract in respect of the remaining land which is not sub-let. A contract of tenancy is one and indivisible and must stand or fall as a whole and when it is provided by the Legislature that a contract is to be terminated on account of some act on the part of the tenant it cannot be said that the termination is in respect of a part of the contract and not of the whole contract. If sub-letting involves the consequences of termination of the tenancy, having regard to the terms of Sections 14 and 27 of the Act, we are of the view that it must amount to termination of the entire tenancy and not of the tenancy in so far as it relates to the land which has been sub-let.

We agree with the learned Judges that a contract of tenancy is one and indivisible and must stand or fall as a whole, unless, of course, the Legislature provides for termination of a part of a lease as it has done while enacting the provisions of Sections 13(1)(e) and 14 of the Bombay Rents, Hotel and Lodging House Bates Control Act, 1947. That, however, is not a point which falls for decision in the case before us. What we have to decide is whether the effect of sub-letting by tenants of portions of lands held by them under a lease brings about a forfeiture of their tenancies. This, of course, must depend upon the language used by the Legislature in Section 27 of the Act which is the only provision under which a landlord gets the right to terminate the tenancy of a tenant on the ground of sub-letting. The opening words of Section 27(1) show that what is prohibited and what is rendered invalid is the sub-division or sub-letting of the land leased out by the landlord to his tenant. This must necessarily mean the entire land which was leased out by the landlord to the tenant and not a portion of it. It must be borne in mind that under Section 108(j) of the Transfer of Property Act a lessee has, in the absence of a contract to the contrary, a right to transfer absolutely or by way of mortgage or sub-lease the whole or any part of his interest in the demised property. The provisions of this section are applicable to tenancies governed by the Bombay Tenancy and Agricultural Lands Act, 1948, because of the provisions of Section 3 thereof. The question is what is the extent to which a tenant's right under Section 108(j) of the Transfer of Property Act is limited or taken away by Section 27(1) of the Bombay Tenancy and Agricultural Lands Act, 1948. It has been held in a number of hi English cases that an undertaking not to sub-let or to assign the premises is not broken by a sub-lease or assignment of a part of those premises.

4. The earliest case on the point is Church v. Brown [1808] 15 Vas. 258; 33 E.R. 752 which is referred to at page 411 of Cheshire's Modern Real Property. In that case it was held that a covenant placing a restriction on the tenant's right to sub-let the premises must be construed very strictly. This view was followed in Grove v. Portal [1902] 1 Ch. 727 and also in certain Indian decisions to which we will advert presently. These decisions and several others were considered by the Court of Appeal in Cook v. Shoesmith [1951] 1 K.B. 752 and it was held that on its true construction, the undertaking in the agreement 'not to sub-let' was not broken by sub-letting part of the premises, for the verb 'to sublet' must have an object and its only possible object was the house which was the subject-matter of the agreement. In Esdadle v. Lewis [1956] 2 All.E.R. 357, the majority of Judges following the decision in Cook v. Shoesmith and the earlier cases construed the words 'no sub-letting allowed without the written consent of the landlord' as prohibiting the sub-letting of the entire premises demised, and not of part of them.

5. The two earlier English decisions were followed by the Calcutta High Court in Swarnamayee Debee v. Afaraddi (1932) I.L.R. 60 Cal. 47. In that case a lease provided (p. 48) :

We shall not be able to transfer the said karsha right in any way by gift or sale, or to grant any karsha settlement in respect thereof, or to encumber the same in any way. If we do so, your right of khas possession will accrue.

It was held that the forfeiture of the lease was to be incurred by the lessee and the right of re-entry was to accrue to the lessor in the event of the lessee's transferring or encumbrancing the entire leasehold and that a usufructuary mortgage of a part of the holding would not, therefore, cause forfeiture of the tenancy. This decision was followed by the same High Court in Keshab Chandra v. Gopal Chandra : AIR1937Cal636 , where it was held that a restrictive covenant or a covenant entailing forfeiture of a tenancy in a case of alienation contained in a lease must be strictly construed against the lessor and that a covenant against alienation by a lessee must relate to transfer of the entire leasehold. In Venkataramana Bhatta v. Krishna Bhatta : AIR1925Mad57 , following Grove v. Portal it was held that a clause in the lease prohibiting alienation by the lessee operated only with respect to the alienation of the whole of the demised premises and not with respect to partial alienation.

6. The question is whether the principle deducible from these cases should be applied to the present case, because here what we are considering are the provisions of an Act of the Legislature and not of a covenant in a contract between the parties. It seems to us that the fact that what we have to consider now is a statute does not make any difference. After all, we have to interpret the meaning of certain words used by the Legislature. It would, therefore, be relevant for us to bear in mind the interpretation placed on similar words by different Courts even though those Courts were considering not statutory provisions but covenants in contracts between the parties. Mr. Paranjape referred us to Craies on Statutory Law, page 6, and said that we were precluded from doing so. The passage on which he relies is as follows:

Contracts. In the construction of a contract there cannot be said to be any rules of law applicable, but 'the governing principle is to ascertain the intention of the parties to the contract through the words they have used', which words 'are to be taken in the sense which the common usage of mankind has applied to them in reference to the context in which they are found'. Lord Wright has recently said: 'I deprecate in general the attempt to enunciate decisions on the construction of agreements as if they embodied rules of law...the decision as to each must depend on the consideration of the parties' contract read in the light of the material circumstances of the parties in view of which the contract is made'. It is seldom, in construing 'mercantile contracts, that any technical or artificial rule of law can be brought to bear on their construction; the question really is the meaning of the language', and 'the grammatical meaning is as in other cases, the meaning to be adopted, unless there be reason to the contrary'....

In Reid v. Reid (1886) 31 Ch. D. 402 the Court rejected as useless for the construction of the Married Women's Property Act, 1882, decisions as to the meaning of covenants in marriage settlements, on the ground that such cases must be approached with a presumption that they were intended to exclude the husband from acquiring the property of his wife if it should fall into possession during coverture; whereas, in dealing with the Act, no such presumption arose. And in Midland Ry. v. Robinson (1889) 15 A.C. 1927, in construing the word 'mines' in the Railways Clauses Act, 1845, Lord Horschell said: 'In dealing with this case, it must be remembered that all your lordships have to do is to interpret the words of the enactment, and not lay down, even if it were possible, any general rule as to the interpretation of the word 'mines'. I doubt whether much assistance is to be obtained from cases in which a construction has been put upon that word in instruments embodying merely agreements between the parties to them, unaffected by any statutory enactment. In such agreements, in the absence of a distinct indication of the contrary intention, it is always to be assumed that the reserved mines are only to be worked in such a manner as is consistent with the surface remaining undisturbed'.

7. It is no doubt true that decisions based upon the construction of covenants in contracts ought not to be referred to for the purpose of construing the provisions of an Act, but it does not follow that the construction placed by the Courts upon certain words used in a document is not to be considered when it is necessary for a Court to construe the same words occurring in a statute. Indeed, that is not what is laid down in any of the decisions referred to by Craies. We cannot, therefore, accept the contention of Mr. Paranjpe.

8. The decisions on which reliance was placed by Mr. Gokhale were not cited at the Bar before Shah and Vyas JJ. in Chimnabai Rama Naik v. Ganpat Jagannata Naik, It cannot, therefore, be said that the learned Judges had occasion to examine the law on the point fully. That being the position, we think that it would not be improper for us to come to a different conclusion on the particular question which was also before the learned Judges. On the basis of the decisions of the Courts in India and in England, we, therefore, come to the conclusion that the mere fact that some of the lands covered by the lease were sub-let by the lessees does not entail a forfeiture of the lease.

9. If in fact there was a single lease by the landlords in both the cases as is contended for by the petitioners, then upon the view we have taken it would follow that the tenants would not incur forfeiture of their leases in so far as they concern those lands which were actually sub-let by them. We need not say anything more on that point, because the petitioners have secured relief with regard to these lands before the Revenue Tribunal and the tenants' petitions to this Court challenging the correctness of the decision of the Revenue Tribunal have been dismissed summarily by this Court.

10. An elaborate argument was advanced before us on behalf of the petitioners by Mr. Paranjape and on behalf of the respondents by M/s. Gokhale and Vaidya on the question as to whether the Mamlatdar has power to grant relief against forfeiture where the tenant has sub-let any portion of the leased land without the permission of his landlord. It is, however, not necessary for us to deal with this matter upon the view which we have taken on the other point.

11. Another point taken by Mr. Paranjape was that the order of remand passed in his case by the Revenue Tribunal was erroneous. In our opinion, it is not necessary to deal with this point either, because, assuming that the order of remand is erroneous, the point which has now been raised before us, viz., the effect of sub-letting only a portion of the demised lands, could have been raised before us even if the Revenue Tribunal had not thought it fit to remand the case.

12. Upon this view, therefore, we discharge the rules and dismiss these petitions. Costs of these petitions will be borne as incurred.


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