K.B. Asthana, J.
1. Kunj Behari Lal has filed this appeal from a concurrent decree of his eviction from an accommodation, which comprised a building and open land, of which the plaintiff-respondent, Shivjee Maharaj Virajman Mandir is the landlord.
2. The facts necessary for understanding the controversy involved in this appeal may be briefly stated as follows:--
The building and the open land appurtenant to it, enclosed in a compound, originally were the property of Chhitarmal, who endowed the same to Shivjee Maharaj. By a deed of lease dated 30-10-1937 the said properties were demised for a period of 20 years on an annual rent of Rs. 108/- to Lala Ratan Lal for the purpose of doing business by installing machinery on the land and raising constructions with the condition that the already existing constructions or the building were to be used by him and on the expiry of the term of the lease the vacant land and the existing building as such would be restored to the possession of the lessor and the lessee would be entitled to remove the superstructures of the construction raised by him during the subsistence of the lease. On 2-9-1952 by a deed of assignment Lala Ratan Lal transferred the lease-hold rights absolutely to the appellant, Kunj Behari Lal, and delivered possession to him. It has come in evidence on record that Lala Ratan Lal had raised certain constructions as permitted by the terms of the lease and they were also transferred to Kunj Behari Lal, who as assignee came into possession of the premises so demised. Lala Ratan Lal did not pay any rent to the plaintiff-landlord after he had made the assignment on 2-9-1952 and the half yearly rent sent by money orders by Kunj Behari Lal, the assignee, as per terms of the lease was always refused by the plaintiff-landlord. It appears from the evidence on record that the last money order sent by Kunj Behari Lal was refused in October, 1965 by the plaintiff-landlord. By a notice dated 21-8-1965, which was a composite notice, addressed to Lala Ratan Lal and Kunj Behari Lal, served upon them on behalf of the plaintiff-landlord, a demand was made from Lala Ratan Lal for payment of the arrears of rent within one month of the receipt thereof and the tenancy was terminated under Section 106 of the Transfer of Property Act on the expiry of the period of one month from the service of the notice. Lala Ratan Lal did not pay the arrears as demanded by the notice and Kunj Behari Lal did not vacate the premises by delivering possession to the plaintiff-landlord on the expiry of one month from the date of the service of notice. In the said notice, paper No. 7-A on record, Kunj Behari Lal was described as a sub-tenant of Lala Ratan Lal. Since the plaintiff-landlord failed to get vacant possession of the premises let out, the suit giving rise to this appeal was filed in the court of the Munsif of Chandausi. It was alleged, inter alia, in the plaint that though the lease, according to the terms thereof, stood determined on 31-10-1957, yet no suit was filed because the defendants always represented to the plaintiff's representative that they would be soon vacating the premises and the relations being good between the parties the plaintiffs agent did not file the suit and waited for amicable settlement Subsequently when it appeared that the defendants had no intention of acting upon their promise a notice was served on 21-8-1965, demanding the arrears of rent and terminating the tenancy. On the pleadings in the plaint Ratan Lal, who was impleaded as the first defendant, teems to have been treated some kind of tenant holding over or as statutory tenant and the tenancy was treated as one at will that is a monthly tenancy while Kunj Behari Lal, who was impleaded as second defendant, was described as a sub-tenant. In order to get over the bar of Section 3 of the U. P. (Temporary) Control of Rent and Eviction Act, it was pleaded that the first defendant was in default in payment of rent despite a demand by notice and that the defendants were guilty of making material alterations without the consent of the landlord in the accommodation let out.
3. The first defendant, Ratan Lal, did not take any interest in the proceedings beyond filing a written statement saying that he had transferred the lease-hold rights to the second defendant, Kunj Behari Lal, and he being no longer in possession was not interested. The second defendant, Kunj Behari Lal raised a serious contest. He denied the allegation of the plaintiff in regard to material alterations and also pleaded that he being the tenant, as an assignee, was not in default as he had been tendering rent regularly in terms of the lease which tender was wrongly and illegally refused by the plaintiff-landlord and that no notice of demand of arrears of rent or termination of his tenancy having been served upon him, he was not liable to be evicted and the suit of the plaintiff as against him was barred by the provisions of Section 3 of the U. P. (Temporary) Control of Rent and Eviction Act.
4. Above then is the brief summary of the material pleadings of the parties.
5. The learned Munsif framed the necessary issues and having found on all material points of law and fact in favour of the plaintiff, decreed the suit. It was held that the first defendant was a statutory tenant from month to month after the determination of the lease and the second defendant was a sub-tenant It was also held that the first defendant, as the chief tenant, having defaulted in payment of rent, was liable to be evicted, as also he being guilty of making material alterations was liable to be evicted and the suit of the plaintiff wasj not barred by Section 3 of the U. P. (Temporary) Control of Rent and Eviction Act On appeal by the second defendant, the learned Civil Judge, who heard the appeal, dismissed it substantially on the ground that the first defendant, who was the chief tenant, not having appealed from the decree of eviction, the appeal by the second defendant, who was only a sub-tenant, was infructuous and incompetent The learned Judge briefly referred to the legal position arising from the assignment made by the first defendant in favour of the second defendant of the lease-hold rights and agreed with the view taken by the court below that the transaction amounted to creation of a sub-lease. The learned Civil Judge did not record any finding on the question of material alterations having been made by the defendants.
6. The main controversy in this appeal centres round the question as to what was the legal status of Kunj Behari Lal, the second defendant. Whether he was a tenant in his own right of the plaintiff-landlord, as an assignee of the term, or was a sub-tenant, or was simply in occupation on behalf of the first defendant Ratan Lal, or was a trespasser in possession of the accommodation in dispute are some of the questions which fell for determination on the learned arguments addressed before me at the bar.
7. Sri S. P. Gupta, appearing for the defendant-appellant, contended that Kunj Behari Lal, as an assignee of the term, became a tenant in his own right of the plaintiff-landlord by virtue of the privity of estate vesting in him and rent being payable by him for the demised property to the plaintiff-landlord he would be covered by the definition of 'tenant' under the U. P. (Temporary) Control of Rent and Eviction Act (hereinafter described as the Rent Control Act). Reliance was placed by the learned counsel on paragraph 640 of Chapter IV of Foa's General Law of Landlord and Tenant, Eighth Edition. In the said paragraph the learned Author writes
'The relationship of landlord and tenant may be created by assignment where the lessee assigns his term, or where the lessor assigns his reversion. The former assignment creates the relationship of landlord and tenant between the lessor and the assignee; the latter creates it between the assignee and the lessee; .............'
A decision of Calcutta High Court in Krishna Das Nandi v. Vidhan Chandra Rao : AIR1959Cal181 was also cited in support of this contention, wherein the learned Judges observed that
'under the General Law of Transfer of Property Act a tenancy is transferable in the absence of any contract to the contrary and the transferee becomes of such transferor a tenant under the General Law'.
8. The deed of transfer by Ratan Lal in favour of Kunj Behari Lal dated 2-9-1952 is paper no. 18 on record. It clearly shows that Ratan Lal transferred his term to Kunj Behari Lal on the condition inter-alia, that Kunj Behari Lal will pay the rent, under the terms of the lease, direct to the land-lord. Kunj Behari Lal on the basis of the transaction evidenced by the said deed came into occupation of the premises demised by the plaintiff-landlord to Ratan Lal by the deed dated 30-10-1937. When this happened the term under the original deed of lease was still to run for about 5 years. There cannot be any doubt that if what Foa's says in paragraph 640, quoted above, and if the Calcutta view in : AIR1959Cal181 (supra) as interpreted by the learned counsel is the law, then a relationship of landlord and tenant would be created between the plaintiff and Kunj Behari Lal. But I find some difficulties in the way of Sri S. P. Gupta, the learned counsel for the defendant-appellant It was observed by the Judicial Committee of the Privy Council in the case of Hansraj v. Bejoy Lal . 'The Transfer of Property Act, 1882, though founded on English Law and drafted in the first instance by eminent lawyers in England, has only applied the English Law in so far as it was considered applicable to India. Before, therefore, resorting to English decisions for determining the relations of landlord and tenant it should be seen what the law of India is.' I have, therefore, to determine the question of legal relationship between the plaintiff and the second defendant primarily on the basis of the provisions of the Transfer of Property Act read with the material provisions of the Rent Control Act.
9. It is true that the Transfer of Property Act is not exhaustive of the law relating to property but in regard to subject matters which have been codified under that Act, I think, it is only such provisions which will govern the rights and liabilities of the parties. Chapter V of the Transfer of Property Act deals with leases of immovable property. That Chapter contains a catena of sections as to what a a lease, who is lessor and who is lessee; how leases are made, what are the rights and liabilities of the lessor and the lessee, the determination of the lease and certain other topics have been dealt therein. Section 105 of the Act says
'a lease of immovable property is a transfer of right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms.' This section further says
'the transferor it called the lessor, and the transferee is called the lessee.' Sub-section (c) of Section 108 of the said Act lays down that the lessor shall be deemed to contract with the lessee that, if the latter pays the rent reserved by the lease and performs the contract binding on the lessee, he may hold the property during the time limited by the lease without interruption and that the benefit of such contract shall be annexed to and go with the lessee's interest as such, and may be enforced by every person in whom that interest is for the whole or any part thereof from time to time vested. Then by Sub-section (j) of that section the lessee is conferred a right to transfer absolutely the whole or any part of his interest in the property, and any transferee of such interest may again transfer it. However, it is provided that the lessee shall not, by reason only of such transfer, cease to be subject to any of the liabilities attaching to the lease. The law thus having been codified as to what a lease is, who is the lessor and who is the lessee, the rights of the lessee to enjoy the benefit arising out of the contract, the right of the lessee to transfer his interest absolutely to another in the property leased, the right of such assignee and the liabilities of the essee, it will not be permissible to my mind to determine the relationship between the plaintiff and the second defendant, Kunj Behari Lal, on the basis of paragraph 640 n Fao's General Law of Landlord and Tenant, quoted above. It would be noted hat nowhere in the scheme of Chapter V of the Transfer of Property Act a transferee or an assignee of the absolute interest of the lessee in the property leased has been described as a lessee or tenant. I do not think a transferee from a lessee can be said to be a lessee or tenant of the original lessor since Section 105 of the Act confines the relationship of lessor and lessee to the parties to the contract by which the right of enjoyment of the immovable property is transferred for a certain time express or implied, or in perpetuity, in consideration of a price paid. The emphasis, as I think, in the scheme of Chapter V is on the contractual relationship. There being no privity of contract between the original lessor and the transferee from the lessee, the transferee will not become the lessee or tenant of the original lessor, though such transferee of the term will be able to enjoy the benefit of the leased property because of the statutory provision under Sub-section (c) of Section 108 of the Transfer of Property Act
10. Thus the Indian law as codified under the Transfer of Property Act does not appear to have recognised the English law as summarised by Foa that a relationship of landlord and tenant can also be created between the original lessor and a third party by a lessee by assigning his term in favour of such third party. Indeed the English law as summarised in Halsbury's Third Edition does not go to the extent as summarised by Foa in paragraph 640. The relevant paragraphs in Vol. 23 of Halsbury's third Edition, which are in my opinion paragraphs 367, 369 and 371, referred to by Sri K. C. Saxena, learned counsel for the plaintiff-respondent, do not anywhere lay down that an assignee of the term becomes a tenant of the original lessor. The learned Judges of the Calcutta High Court in : AIR1959Cal181 , as I find from the reported judgment, have not quoted any authority Indian or English in holding that a transferee becomes a tenant of the original lessor, but if that were the meaning to be given to their observation, then with great respect to them I do not find myself in agreement with their view. Certain decisions were cited at the bar before me which tend to show that the doctrine of privity of estate has been recognised by the courts in India, even by our Supreme Court, and Sri Saxena appearing for the respondent, has not disputed it but as discussed above the applicability of that doctrine does not help the defendant-appellant for claiming a direct relationship with the plaintiff-respondent by substituting himself in the place of Ratan Lal in the original deed of lease dated 30-10-1937. As assignee from Ratan Lal the defendant-appellant Kunj Behari Lal will certainly be entitled to the benefit of the contract between Ratan Lal and the plaintiff to long as the term of the lease lasted, being entitled to it under Sub-section (c) of Section 108 of the Transfer of Property Act, but that does not mean that he enjoys that benefit because he becomes a tenant of the plaintiff. He may enjoy such a benefit on the principle of privity of estate vesting in him which, appears to be the underlying basis of Sub-section (c) of Section 108 of the Transfer of Property Act. It may further be noted here that the lessee is not absolved of his liabilities merely by assigning his term to a third person. He continues to be bound by the terms of the lease. Again, this provision in the Transfer of Property Act in Clause (j) of Section 108 may be rooted on the old English doctrine of contractual obligation or the privity of contract but the law as codified in the Transfer of Property Act keeps alive the distinction between a lessee, who is a tenant, and his assignee. There is nothing in the scheme of the Transfer of Property Act which merges the personality of an assignee of a lessee into that of the lessee so as to vest in him the privity of contract also. Unless there were a privity of contract between the original lessor and the assignee of the lessee, I do not think, under Section 105 of the Transfer of Property Act, an assignee can claim himself to be lessee of the original lessor or the tenant of the original lessor or the original landlord,
11. In the case of Kishan Lal v. Ganpat Ram Khosla : 2SCR17 an observation made in paragraph 7 at page 1556 was pressed into service by Sri S. P. Gupta in support of his contention that the assignee from the lessee is a tenant. I may quote the observation relied upon.
'The true position was, therefore, that the Company did not immediately on the service of the notice cease to be a tenant, and Khosla, because he was let into possession became an assignee of the rights of the Company as a tenant and he could not bo regarded as a trespasser' (underlining is mine).
Sri S. P. Gupta wanted me to read that the words 'as a tenant' apply to Khosla, who was an assignee from the tenant. It appears to me an impossible construction. The words 'as a tenant' apply in the context to the Company which was the assignor. The learned Judges of the Supreme Court were emphasising the fact that the Company as a tenant put Khosla, the assignee, into possession and, therefore, Khosla was not a trespasser as he was put into possession by the tenant. There is nothing in : 2SCR17 (Supra), which is declaratory of the law by the Supreme Court, that an assignee of the term from the lessee becomes a tenant of the original lessor. What that case declares is that Khosla as an assignee, from the tenant, having been put in possession by the tenant, was not a trespasser but was amenable to the jurisdiction of the Rent Controller in the same manner as the Singer Sewing Machine Company, the tenant. The attempt of Sri Gupta on behalf of the defendant-appellant to establish that the appellant became a tenant in his own right on the basis of the doctrine of privity of estate fails.
12. In this connection now I have to examine the argument of Sri Gupta grounded on the definition of 'tenant' in the Rent Control Act. Clause (g) of Section 2 of the said Act defines,
' 'tenants' means the person by whom Cent is, or but for a contract, express or implied, would be payable for any accommodation'.
The submission was that since the liability to pay the rent under the contract of lease is a covenant running with the land that liability will fasten itself to Kunj Behari Lal, the assignee of the term, and he would be the person by whom rent is payable for the accommodation. I do not think it is possible to give an extended meaning to the definition of the 'tenant' in the Rent Control Act as that to my mind, would frustrate the very purpose of the Act itself. That would permit a lessee or tenant who for all practical purposes under the Scheme of the Act is the allottee, to assign his tenancy to a third person and that third person in his turn may assign it to a fourth person and so on, each of them becoming tenant one after the other and retain possession of the accommodation without securing any allotment order under the Rent Control Act. That would frustrate the very scheme of the Act. It is of no avail, as suggested by Sri Gupta, that such persons could be prosecuted for breach of the provisions of the Rent Control Act but the legal right to remain in occupation as tenant could not be defeated. I think the definition, under the Rent Control Act, of 'tenant' is based on the doctrine of privity of contract and not on the doctrine of privity of estate. To extend the definition to persons who enjoy the benefit of a contract of lease as assignees simply because they are liable to pay rent will amount to ignoring the very basis of that definition which emphasises the contractual relationship. The very definition mentions of a contract express or implied as an exception to the liability for payment of rent. That is indicative that the payability of rent under the definition arises out of a contract and not on some doctrine in equity such as doctrine of privity of estate.
13. Having held above that Kunj Behari Lal, the second defendant, neither became a tenant of the plaintiff under the Transfer of Property Act nor for the purpose of the Rent Control Act, the attack on the decree of the court below based on the lack of any notice, terminating his tenancy and demanding the arrears of rent from him fails.
14. The next question then arisen whether Kunj Behari Lal could be said to be a sub-tenant. On a plain reading of the deed dated 2-9-1952, which is an absolute transfer of the right to enjoy the premises demised, it cannot be said that any relationship of landlord and tenant as such arose between Ratan Lal and Kunj Behari Lal. There may be some tenability in the contention of Sri S. P. Gupta, for the appellant, that no sub-lease was intended to be created but that alone does not solve the problem. There is equal tenability in the argument of Sri K. C. Saxena, learned counsel of the plaintiff-respondent, that for the purposes of Rent Control Act the transaction evidenced by the deed dated 2-9-1952 would amount to subletting by Ratan Lal to Kunj Behari Lal within the meaning of the Rent Control Act. Further Sri K. C. Saxena submitted that when subletting is prohibited without the permission of the District Magistrate or without the consent of the landlord under the Rent Control Act and assuming it confers a lesser interest, then a priori it follows that a transfer by the tenant of a larger interest is also ruled out under the scheme of the Rent Control Act, therefore, an absolute assignment of the tenancy to a third person by the tenant will not be tolerated. It is unfortunate that under our Rent Control Act the prohibition clause is under Sub-section (3) of Section 7 which in so many words refers to sub-letting unlike the provisions of similar Acts in some other States which expressly prohibit assignments of the tenancy but I do not think I am doing any violence to the provisions of Sub-section (3) of Section 7 of the Rent Control Act, if I were to construe the word 'sub let' as simply meaning letting in by a subordinate, that is to say by the lessee who is subordinate to the lessor, bringing in at his own initiative without the previous permission in writing of the District Magistrate or of the landlord, a third person into the accommodation and delivering to him the possession. The word 'let' has not been defined under the Rent Control Act but an idea as to its meaning can be gathered from Sub-section (2) of Section 7 of the Act which empowers a District Magistrate by general or special order to require a landlord to let or not to let to any person any accommodation which is, or has fallen vacant, or is about to fall vacant. When the District Magistrate requires a landlord to let an accommodation to any person it will mean that the landlord will be under a duty to put that person in possession for the purpose of enjoying the property as a tenant on payment of rent. In that context when it is said that a tenant will not sublet under Sub-section (3) of Section 7 it only means that letting by a person who has been let into the accommodation under Sub-section (2) of Section 7 is not permitted. I have no difficulty in holding that when an assignee of a term is put in possession by the lessee of the accommodation to enjoy it on the same terms and conditions as of the original lease, then for the purposes of the Rent Control Act what the tenant has done will amount to sub-letting the accommodation. The words 'sublet the whole accommodation' used in Clause (e) of Section 3 of the Rent Control Act also clearly indicate that when the tenant parts with the possession of the whole of the accommodation let out and puts a third person in possession then he is liable to be evicted by the landlord.
15. However, an ingenious argument was advanced by Sri S. P. Gupta to the effect that an absolute assignment of the term being permitted under Clause (j) of Section 108 of the Transfer of Property Act, such a provision will be deemed to constitute a term of the contract of lease hence the assignment even if it amounted to subletting, being permitted by the terms of the lease it could not be said within the meaning of Clause (e) of Section 3 of the Rent Control Act that the sub-letting was without the permission of the landlord. It is to be noted that Clause (j) of Section 108 of the Transfer of Property Act confers a right on the lessee to make a sub lease also. If for the purposes of the application of the Rent Control Act the provisions of clause (j) of Section 108 were to be read as amounting to a permission by the landlord to sub-let then the Sub-clause (e) of Section 3 of the Rent Control Act will be rendered nugatory as every tenant then could claim that a general permission to sublet existed. I am not prepared to accept an argument which leads to such a result. If this argument were to be accepted then even in case of monthly tenancy of an accommodation when the District Magistrate has allotted the accommodation the landlord when letting in the allottee must always in writing prohibit subletting that is enter into a contract to the contrary. What is contemplated by Sub-section (e) of Section 3 is that if the tenant wants to secure protection from eviction even though the general law may have conferred on him a right of subletting, he must obtain permission of the landlord to sublet. Moreover, the provisions of Rent Control Act in the field where they operate will render the general provisions of the Transfer of Property Act inapplicable. When there is a clear provision under the Rent Control Act that for subletting the whole or part of the accommodation there must be a permission of the landlord, benefit cannot be taken by an erring tenant of the provisions of Clause (j) of Section 108 of the Transfer of Property Act.
16. What I have discussed above leads to the result that in assigning the tenancy rights by the deed dated 2-9-1952, in so far as the provisions of the Rent Control Act were concerned, Ratan Lal sublet the accommodation in suit to Kunj Behari Lal. There being no evidence on record that the permission of the plaintiff was obtained Of that the plaintiff in any way recognised Kunj Behari Lal as the occupant so as to operate as an estoppel against him, the evidence on the other hand being that the plaintiff never accepted rent from Kunj Behari Lal, the view taken by the court below that Ratan Lal as the tenant was guilty of sub-letting within the meaning of Clause (e) of Section 3 of the Rent Control Act cannot be said to be legally erroneous.
17. It is not disputed and it could not be disputed by Sri Gupta, for the defendant-appellant, that despite the assigning of the term Ratan Lal remained under a liability to pay rent but he made a contradictory argument when he said that Ratan Lal ceased to be a tenant. The contradiction is obvious on his own argument The definition clause under the Rent Control Act would draw in within its purview Ratan Lal also as he was liable to pay rent, which liability is not disputed. That creates another difficulty for me to accept, for the purpose of the Rent Control Act that Kunj Behari Lal was a tenant of plaintiff as I find it impossible to concede to the position that there would be simultaneously two different tenants of the same accommodation liable to pay rent not as co-tenants or joint tenants or tenants in common but under a doctrine of equity developed by English courts which doctrine, as I have said above, will have no application for applying the statutory law under the Rent Control Act or under the Transfer of Property Act. For the purpose of Rent Control Act, therefore, Ratan Lal would be the tenant, no mattes for the time being the actual occupant was Kunj Behari Lal who was enjoying the benefit of the contract. As already discussed above, both under the Transfer of Property Act and under the Rent Control Act it is the privity of contract which is the basis of the codified law and not the privity of estates as developed by the English courts.
18. It is not necessary for me to consider the correctness of the finding recorded by the Court of first instance on the question of material alterations made in the accommodation, as what I have found above will be conclusive of the appeal Ratan Lal, the tenant, not having paid the arrears of rent despite a notice of demand having been served upon him, he ceased to be protected by Section 3 of the U. P. (Temporary) Control of Rent and Eviction Act and the plaintiff as landlord was entitled to evict him by terminating his tenancy and the second defendant will go along with him.
19. It is also not necessary for me to consider a fine question raised by Sri K. C. Saxena, for the defendant-respondent, as to the rights of Kunj Behari Lal after the expiry of the original term of the lease on 31-10-1957, though there appears to be some plausibility in the argument that even assuming Kunj Behari Lal had rights as an assignee on the basis of the doctrine of privity of estate, that would come to an end after the lapse of 20 years from the date of the original lease in favour of Ratan Lal as that was the term of the lease and he wax only assignee of the term.
20. I, however, find force in the tub-mission of Sri Gupta, on behalf of the defendant-appellant, that the court below erred in not permitting the defendant appellant, Kunj Behari Lal, to remove the superstructure of the constructions raised or acquired by him on the land in dispute. In any case, I find from the decree that it is not clear. I must make it clear that Kunj Behari Lal, the defendant-appellant, has a right to remove the superstructure belonging to him on the land in dispute and the decree requires modification to that extent only. It was, however, urged that there has been some agreement between the plaintiff and the first defendant about the removal of superstructures. How far that agreement will affect the rights of the second defendant or what is their value may be questions to be decided by the execution court. I do not see how the rights of second defendant, who was also occupying the land as an assignee and not as a trespasser, to remove the superstructures raised or acquired by him can be defeated.
21. For the reasons given above, while dismissing the appeal and confirming the decree of the court below, I direct that in the decree after the words 'defendant No. 1' the words 'and defendant No. 2' be also added. The plaintiff-respondent would be entitled to the costs of this appeal.