V.S. Deshpande, J.
(1) An order for eviction of the appellant from the premises belonging to the respondent was passed by the Controller under proviso (i) to section 14(1) of the Delhi Rent Control Act, 1958 (hereinafter called the Act). The order was confirmed by the Rent Control Tribunal. Hence this second appeal by the tenant under section 39 of the Act.
(2) The appellant occupied the premises of the respondent landlord from October-November 1961. According to the landlord, she did so from the very beginning in the capacity of a servant of the respondent master. The respondent is a doctor while the appellant is a nurse. The respondent's contention is that the occupation of the premises by the appellant from the very inception was by virtue of the employment though a formal agreement of the conditions on which the appellant occupied the premises came to be executed in March 1962. The appellant on the other hand contended that she was an ordinary tenant of the respondent who was an ordinary landlord from October 1961 though she admitted to have executed the agreement in favor of the respondent in March 1962, which is at Exhibit Al. According to this agreement the appellant was to occupy the premises only so long as she served the respondent as a nurse. The respondent was to pay to her a salary of Rs. 30.00 per month.
(3) The respondent later on terminated the services of the appellant by a notice dated 8th November 1965 and asked her to vacate the premises in accordance with the above agreement. As the appellant refused to vacate the premises, the respondent filed a petition for eviction under section 14(l)(i) of the Act and obtained an order of eviction against the appellant from the Controller which was confirmed by the Rent Control Tribunal.
(4) On hearing the learned counsel Shri D.P. Wadhwa for the appellant and Shri Makhija for the respondent the following questions arise for decision in this appeal, namely :-
(1)Whether the premises were 'let' to the appellant 'by reason of her being in the service or employment of the landlord' within the meaning of proviso (!) to section 14(1) of the Act (2) Whether 'the appellant accepted from the respondent 'a new lease' from March 1962 within the meaning of the Illustration to clause (f) of section 131 of the Transfer of Property Act? (3) Is the agreement at Exhibit at contrary to the provisions of the Act? (4) is the appellant protected by sub-section (9) of section 14 of the Act from eviction?
(5) The legal position on the above questions appears to be as follows:-
1.The word 'let' used in proviso (i) to section 14(1) according to the learned counsel for the appellant, must be construed to refer only to the first letting or to the first creation of a tenancy by the induction of the tenant into the possession of the premises. According to him, proviso (;) of section 14(1) requires that the first letting of the premises itself should be by reason of the service or employment and that an ordinary tenancy cannot be converted into a tenancy of the nature contemplated by proviso (;) by a subsequent agreement during the subsistence of the ordinary tenancy. Reading the Act as a whole, it does not appear that the word 'let' is used in the Act to mean only the first letting and not the creation of a subsequent tenancy during the currency of a previous one. For instance, sub-section (6) of section 14 contemplates that a transferee from a landlord may apply for the eviction of the tenant after the expiry of five years from the date of the transfer under proviso (e) to section 14(1). The same word 'let' is used in proviso (e) also. The transferee landlord would not be a person who inducted the tenant into the possession of the premises. But even he is able to get the benefit of proviso (e) if he can show that the premises were let for residential purposes and that they were required by him for his own residence etc. The word 'let' is an ordinary word and is not a term of art. It has, thereforee, to be construed in ita ordinary sense. It simply means the creation of a tenancy. Under the provisions of the general law such as the Transfer of Property Act, a tenancy may be created even when the tenant happens to be in possession from before the creation of the tenancy. For instance, an owner may sell his own house to another person though he is in possession of the house and agree with the purchaser to continue in possession as a tenant. I am unable to agree with the contention, thereforee, that the word 'let' used in the Act means only the first letting and not a subsequent one. Even if, thereforee, it is assumed in favor of the appellant that she was in possession of the premises as an ordinary tenant of the respondent landlord, the tenancy of the nature contemplated by proviso (1) to section 14(1) can be substituted later in place of the original tenancy and the said proviso (i) can be invoked after the change in the nature of the tenancy.
2.The Illustration to section 111(f) of the Transfer of Property Act says that a lease of immovable property determines by implied surrender when a lessee accepts from the Lesser a new lease of the premises during the continuance of the existing lease. It is significant that section 111(e) refers to the determination of a lease by express surrender which generally requires the giving up of possession by the tenant in favor of the landlord. Another distinct mode of determination of the lease is implied surrender under section 111(f). This is also called a surrender by operation of law. Various instances of such implied surrender are to be found in judicial decisions. It is necessary for the application of section 111(f) read with the Illustration thereof that a new lease must come into existence between the landlord and the tenant during the currency of the existing lease. What is a new lease would of course be a question to be decided on the circumstances of each case. But a convenient test is that when the terms of the existing lease are so changed that the new lease is incompatible with the existing lease, then the existing lease would be deemed to have been impliedly surrendered within the meaning of section 111(f). In the present case, if it is assumed that the appellant was an ordinary tenant of the landlord then the terms of occupation agreed to between the parties by the agreement at Exhibit at were totally different. By the new terms, the tenant was not to pay any rent to the landlord and was to stay in the premises only during the currency of the employment. The landlord was on the other hand to pay the tenant Rs. 30.00 for her services. The new terms are thus incompatible with an ordinary tenancy if it existed between the parties prior to March 1962.
It may be that the object of the new agreement in March 1962 was not to demand a surrender of the premises from the appellant in favor of the respondent. But section 111(f) would apply even if the tenant is a party to some act which has some object other than that of a surrender but which object cannot be effected whilst the nature of the existing tenancy continues to be the same and the validity of which act the tenant is by law estopped from disputing. (Lyon V. Reed (1844) 13 M W. 2851 and fewer V. Wake (1900) I Q.B. 4262.
Another test of a new tenancy is a change in the relationship between the parties. The agreement of March 1962 replaced an ordinary tenancy by new one which had a double character, namely, (a) the relationship of a tenant and landlord and (b) the relationship of master and servant. The agreement in fact does not concede the status of a tenant to the appellant at all. However, even if it is conceded that she was a tenant, yet it is undeniable that the tenancy was not of an ordinary kind but of a special kind from March 1962 onwards. For this reason also the new tenancy was inconsistent with the old one. It operated, thereforee, as an implied surrender of the old tenancy under section 111(f) of the Transfer of Property Act.
3.The agreement of March 1962 creates the kind of tenancy which is expressly contemplated by proviso (i) to section 14(1). It is, thereforee, not contrary to the Act. If a tenant were to agree to forgo the protection of the Act in favor of the landlord, it may be argued that such an agreement would be void being contrary to the Act and as there is no estoppel against a statute based on public policy, the tenant may not be estopped from claiming the protection of the Act inspire of an agreement not to claim the benefit of the Act. But Exhibit at is not an agreement waiving the benefit of the Act but is on the contrary an agreement contemplated by the Act.
4.Sub-section (9) of section 14 protects the possession of the tenant who is sought to be evicted under proviso (i) to section 14(1) if there is a bona fide dispute between him and the landlord as to whether the tenant has ceased to be in. the service or in the employment of the landlord. Such a dispute may arise when the termination of the employment is not at the sweet will of the master but is governed by the provisions of the Constitution or of a statute such as Article 311 of the Constitution and the Industrial Disputes Act, 1947. But the relationship between the parties is purely one of master and servant not protected by any statute other than the proviso (i) to section 14(1). Subsection (9) of section 14 has, thereforee, no application to this case.
(6) The appellant is a lady and hardship to her by eviction may be lessened by giving her some time to vacate the premises. The appellant' . is thereforee, granted six months' time to vacate the premises provided she goes on paying rent as ordered by the Controller under section 15(2) of the Act.
(7) E appeal is dismissed but without any order as to costs. Appeal dismissed.