Sultan Singh, J.
(1) Smt Ahmedi Begum is the owner of the property known as 'Dharampur Lodge' situated near Clock Tower, Subzi Mandi, Delhi. Sardar Sardul Singh Caveeshar in terms of the registered lease deed executed on 12th April, 1948 was inducted as a tenant in the said property for five years on a monthly rent of Rs. 1000.00 . On 3rd April, 1953 another lease deed was executed between the aforesaid parties for a further period of five years. The tenant was in arrears of rent and he failed to pay the same in spite of a notice of demand dated 3rd June, 1957. His tenancy was also terminated by the said notice.
(2) On 28th August, 1957 Smt. Ahmedi Begum filed a suit for eviction and recovery against the said tenant. On 31st August, 1959 the Subordinate Judge, 1st Class, Delhi passed a decree for ejectment and recovery of Rs. 32.554/4.00 . The decree-holder took out execution in the court of the Subordinate Judge which was transferred to this court under the Delhi High Court Act, 1966.
(3) Under the terms of the two lease deeds between the aforesaid parties, the tenant Sardar Sardul Singh Caveeshar was authorised to sublet the whole or part of the property. He accordingly sublet various portions of the said property to numerous persons. He also sublet a portion of the said property to Manphool Singh Sharma (appellant in E.F.A (OS) No. 7 of 1971) in April, 1948 on a monthly rent of Rs. 25.00 and another portion to Yog Raj Goswami (appellant in E.F.A (OS) No. 9 of 1972) in August, 1955 on a monthly rent of Rs. 25.00 . On 1st September 1956 the tenant sublet the entire property to Surinder Kumar Sharma by a registered lease deed. The sub-tenant Surinder Kumar Sharma was further authorised by the registered lease deed to sublet any portion of the said property. The tenant by letter dated 5th December, 1956 directed all the occupants-sub-tenants in the property to attorn to the sub-tenant Surinder Kumar Sharma. The appellants in these two appeals accordingly attorney as sub-tenants under the sub-tenant Surinder Kumar Sharma. The appellants allege that they sent separate notices regarding creation of sub-tenancy in their favor under Section 17 of the Delhi Rent Control Act, 1958 (hereinafter called the 1858 Act'). The appellants claim that they have been in occupation of the premises in their possession as lawful subtenants and as the decree for ejectment was passed against the tenant on 31st August, 1959, they became direct tenants under the landlady-decree-holder. Both the appellants filed separate applications/ objections in May, 1968 in the Execution Case No. 15 of 1967 pleading the said facts. They claim that they are not liable to be dispossessed in execution of the ejectment decree and that they have become tenants directly under the decree-holder. Their applicants/ objections were dismissed by the learned single Judge by the two judgments dated 17th August, 1971 and 21st November, 1972. These two appeals have arisen out of the said two judgments.
(4) In order to appreciate the contentions of the appellants it is necessary to give some other facts. As already stated, Surinder Kumar Sharma was inducted as a sub-tenant by the tenant S. Sardul Singh Caveeshar with effect from 1st September, 1956 and he was authorised to further sublet any portion of the sard property. On 8th January, 1968 the sub-tenant Surinder Kumar Sharma filed an application/objection (1.R. No. 1329 of 1968 in Execution Case No. 15 of 1967) seeking protection against dispossession in execution of the said ejectment decree on the ground that he was a lawful sub-tenant and on passing of the decree of ejectment against the tenant he became a direct tenant of the entire property under the decree-holder under Section 20 of the Delhi & Ajmer Rent Control Act, 1952 (hereinafter called the 1952 Act'). His objections were decided by Jagjit Singh, J. on 23rd February, 1968. It was held that though the lease deeds in favor of Sardar Sardul Singh Caveeshar tenant did give power to him to have sub-tenants but such a sub-tenant was not empowered to create further tenancies. The learned Judge further held that Surinder Kumar Sharma was a lawful sub-tenant only with respect to that portion of the premises which was in his actual possession and that other occupants could not be regarded as lawful sub-tenants. It was thereforee ordered that he be not dispossessed from the portion in his actual possession only. The appeal was filed against the said order dated 23rd February, 1968 (E.F.A. (OS) No. 7 of 1968) which was dismissed by the Division Bench on 4th March, 1968.
(5) Various allegations made by the appellants in these two appeals are deined by the decree-holder. The application/objection of Manphul Singh Sharma was decided by P. N. Khanna, J. on 17th August, 1971 out of which E.F.A. (OS) No. 7 of 1971has arisen. The learned Judge held that Manpbul Singh Sharma was a sub-tenant under the sub-tenant Surinder Kumar Sharma and not under the tenant Sardar Sardul Singh Caveeshar. The tenant Sardar Sardul Singh Caveeshar was not empowere to delegate the power to sublet to Surinder Kumar Sharma. In short, P. N. Khanna, J. agreed with the view expressed by Jagit Singh, J. already referred to above. P. N. Khanna, J. further held that Manphool Singh Sharma by creation of new sub-tenancy under Surinder Kumar Sharma surrendered his sub-tenancy under the tenant Sardar Sardul Singh Caveeshar and was thereforee not a lawful sub-tenant.
(6) The application/objection of Yog Raj Goswami was decided by Dalip K. Kapur, J. on 21st December. 1972 out of which E F..A. (OS) No. 9 of 1972 has arisen. He held that attornment by Yog Raj Goswami in favor of Surinder Kumar Sharma had the effect of determining his previous sub-tenancy under the tenant S. Sardul Singh Caveeshar and converted him into a subtenant of the sub-tenant. He did not decide if Yog Raj Goswami was in fact previously a. sub-tenant of Sardar Sardul Singh Caveeshar.
THE learned counsel for the appellants in the two appeals urges the following points: 1. The appellants were inducted as sub-tenants by Sardar Sardul Singh Caveeshar, tenant in the property. 2. The tenant S. Sardul Singh Caveeshar lawfully sublet the property to Surinder Kumar Sharma and thereforee the appellants lawfully attorney as sub-tenants under Surinder Kumar Sharma. 3. The sub-tenancy under Surinder Kumar Sharma was created and consequently the sub-tenancy under S. Sardul Singh Caveeshar was impliedly surrendered and if it be held that Surinder Kumar Sharma had not power to induct sub-tenants, the appellants continue to be lawful sub-tenants under Sardar Sardul Singh Caveeshar. 4, That no notice under Section 17 of the 1958 Act was required to be served by the two appellants and they being lawful sub-tenants having been inducted by the tenant Sardar Sardul Singh Caveeshar under the written authority conferred upon him by the two lease deeds they became tenants under the decree-holder from the date of ejectment i.e. 31st August, 1959.
(7) The first question for determination is : Whether the two appellants were inducted as sub-tenants by the tenant Sardar Sardul Singh Caveeshar It is not disputed that Smt. Ahmedi Begum, decree-holder, and S. Sardul Singh Caveeshar, tenant, executed the two lease deeds dated 12th April, 1948 and 3rd April, 1953 under which the tenant was authorlsed to sub-let the whole or part of the said property. Learned counsel for the parties have taken us through the evidence on record. Ram Roop Aneja is the general attorney of Sard a Sardul Singh Caveeshar. He besides proving various documents says that Shri Manphool Singh Sharma was living in a portion of Dharmpur Lodge, that he used to realise rent at Rs. 25.00 per month and issue receipt for the rent recovered as general attorney of S. Sardul Singh Caveeshar, B-l and B-2 are the receipts issued in favor of Mahphool Singh Sharma bearing the signatures of general attorney. Ram Roop Aneja. He further says that Manphool Singh Sharma was given a letter to attorn to Surinder Kumar Sharma who was inducted as a sub-tenant by S, Sardul Singh Caveeshar. Similarly he further says that Yog Raj Goswami was inducted as a subtenant in the year 1956 in a portion of the said property under the direction of S. Sardul Singh Caveeshar, that Yog Raj Goswami used to live there. Ex. A-2 is the certified copy of the lease deed entered into by Surinder Kumar Sharma with S. Sardul Singh Caveeshar. Ex. A-3 is the copy of the letter written by the witness to Yog Raj Goswami directing him to pay rent in future to Surinder Kumar Sharma. This witness further says that Surinder Kumar Sharma's sister is married to Yog Raj Goswami, appellant, and that Major Kishan Singh, brother of Surinder Kumar Sharma, was adopted by S. Sardui Singh Caveeshar. He further says that Manphool Singh Sharma is the maternal uncle of Surinder Kumar Sharma. Ishwar Dass Joshi A.W. 4 and Raja Ram Bakshi AW. 5, witnesses on behalf of the appellants, say that Yog Raj Goswami took up residence in 'Dharmpur Lodge' in 1956 as Tenant at Rs. 25.00 per month. Surinder Kumar Sharma, another witness who was inducted as a sub-tenant of the tenant S. Sardul Singh Caveeshar, says that Ram Roop Aneja was the general attorney of S. Sardul Singh Caveeshar and proves the power of attorneys Ex. B.W. 2/1 and B.W. 2/2. He further says that rent receipts were issued to Manphool Singh Sharma and Yog Raj Goswami. He also says that both the appellants attorney to him after he was inducted as a lawful tenant by the tenant Sardar Sardul Singh Caveeshar, Manphool Singh Sharma, appellant as B.W. 2 says that the premises were sublet to him in April, 1948 at Rs 25.00 per month, that there were more than 100 tenants in the said property, that the tenant let out the entire property to Surinder Kumar Sharma in 1956 and according to the directions he attorney as sub-tenant under Surinder Kumar Sharma. Similarly Yog Raj Goswami as a witness states that he has been residing as a tenant since August, 1956 at Rs. 25.00 per month under S Sardul Singh Caveeshar, that he attorney to Surinder Kumar Sharma. The appellants have also produced on record a certified copy of the entry of the birth register maintained by local authorities showing the birth of a daughter of Yog Raj Goswami in Dharmpur Lodge on 5th November, 1956.
(8) As against the evidence of the appellants, the decree-holder did not produce any evidence to rebut the various facts deposed by the appellants and their witnesses. It is not disputed that there have been various sub-tenants under the tenant S. Sardul Singh Caveeshar in the property. The appellants are admittedly related to the tenant S. Sardnl Singh Caveeshar. It thereforee appears that when the tenant inducted various persons in the property he also inducted the two appellants as sub-tenants in different portions of Dharmpur Lodge, Subzi Mandi, Delhi on a monthly rent of Rs. 25.00 each. The tenant, as already stated, was authorised to sublet the whole or portion of the said property. It, thereforee, appears that the two appellants were lawfully inducted as sub-tenants under the power conferred upon the tenant by virtue of the two registered lease deeds dated 12-4-1948 and April 3, 1953.
(9) The next question is: Whether the appellants who attorney to the sub tenant Surinder Kumar Sharma, are sub-tenants Under the two registered lease deeds dales 12th April, 1948 and 3rd April, 1953 between the decree-holder and I he tenant S. Sardul Singh Caveeshar he was authorised to sublet the property in whole or part but he was not authorised to delegate this power to anybody else. The tenant S. Sardul Singh Caveeshar sublet the whole property on 1st September, 1956 to Surinder Kumar Sharma and authorised him to sublet any portion of the said property. This delegation by the tenant to Surinder Kumar Sharma to sublet further is not warranted by law and is illegal. It thereforee appears that the attornment by the two appellants under Surinder Kumar Sharma, sub-tenant was not lawful and thereforee the two appellants cannot claim that they were lawful sub-tenants under Surinder Kumar Sharma.
(10) The next question thereforee arises that if the sub-tenancy under Surinder Kumar Sharma was not lawful what is its effect As already held the two appellants were lawful sub-tenants under S Sardul Singh Caveeshar. When they attorney to Surinder Kumar Sharma their sub-tenancy under S. Sardul Singh Caveeshar was impliedly surrenderred under Section 111(f) of the Transfer of Property Act as held by the learned single Judge. It is well known that implied surrender occurs by creation of new relationships or by relinquishment of possession, it is however essential that for the new lease to operate as a surrender of the old one, the new lease must be operative. If the new lease is void or voidable or does not pass an interest according to the e intention of the parties it does not opei ate as an implied surrender of the old lease. In M. Gopolkrishna Monon v. K. P. Vellokutty, : AIR1953Mad399 it was held that where during the continuance of a lease the lessee accepts a new lease, there is an implied surrender by law. But if the new lease is void the implied condition of surrender does not operate. In Gandavalla Munaswamy v. Marugu Muniramiah : AIR1965AP167 it has been held that if a new leas, which is ab initio void although granted during the currency of an old leas cannot operate in law as an implied surrender of that lease. We are, thereforee of the view that attornment of the appellants as sub-tenants, which is not lawful, does not operate to determine by implied surrender the old sub-tenancy und S. Sardul Singh Caveeshar. In other words, the two appellants continue to be the lawful sub-tenants under S. Sardul Singh Caveeshar. We do not agree with the learned single Judge that the appellants ceased to be lawful sub-tenants under S. Sardul Singh Caveeshar by their attornment to the subtenant Surinder Kumar Sharma.
(11) The last question is whether the appellants are entitled to be protected against eviction in execution of the ejectment decree without the service of notice of creation of sub-tenancy required to be served under Section 17 of the 1958 Act. It is not disputed that S Sardul Singh Caveeshar was permitted in writing to sublet the whole or part of the premises. He sublet the portions of the suit property to the appellants at the rate of Rs. 25.00 per month. Thus the appellants were inducted as sub-tenants with the written consent of the landlady. The suit for eviction was filed on 28th August, 1957 and the decree for ejectment was passed on 31st August, 1958. The 1952 Act was in force when the suit was filed. But the 1958 Act had come into force when the decree for ejectment was passed. In both the Ads there is provision for the protection of lawful sub-tenants. Under Section 13 of the 1952 Act if a person had been inducted with the oral consent of the landlord prior to the commencement of that Act i.e. before 9th June, 1952 he was deemed to be a lawful sub-tenant. If such a person was inducted as a sub-tenant with the written consent of the landlord after 8th June 1952 he was also deemed to be a lawful sub-tenant. In other words if a person was inducted after 1th June, 1952 without the written consent of the landlord he was not a lawful sub-tenant. In the present case both the appellants, as already held, were inducted under the written consent of the landlady, Section 20 of the 1952 Act reads as under :-
20. Sub-tenant to become tenant on determination of tenancy-where the interest of a tenant of any premises is determined for any reason, any sub-tenant to whom the whole or any part of such premises has been lawfully sub-let whether before or after the commencement of this Act, shall subject to the provisions of this Act, be deemed to become the tenant of the landlord on the same terms and conditions on which he would have held from the tenant if the tenancy had continued.'
(12) This section provides that if the interest of the tenant has been determined for any reason, and the interest of a lawful sub-tenant has not been determined, the sub-tenant is deemed to become the tenant of the landlord. Learned counsel for the appellants contends that the interest of a tenant is deemed to have been determined when a notice terminating the tenancy is issued by the landlady. In the present case tenancy was terminated by notice dated 3rd June, 1957. He thereforee submits that from 3rd June, 1957 i.e. after the termination of the tenancy the appellants became tenants under the landlady. The Supreme Court in V. Dhanapal Chettiar v. Yesodai Ammal, : 1SCR334 has held that giving of the notice under the Transfer of Property Act, 1882 is a mere surplusage and does no entitle the landlord to evict the tenant. It has further been observed that in case of eviction under a Kent Act the tenancy actually terminates on the passing of the order or decree for eviction. Thus it seems that : mere termination of tenancy by giving of a notice of eviction does not determine the interest of the tenant in the premises. In Hiralal Vallabhram v. Seth Kastwbhai Lalbhai and others, : 3SCR343 which was a case under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 containing the provision similar to the provisions of Section 20 of the 1952 Act and Section 18(2) of the 1958 Act, it has been observed that the interest of a tenanl comes to an end completely after the tenancy of the contractual tenant has been determined by notice and the contractual tenant has been ordered to be ejected under the Rent Act on any of the grounds available therein. It was thus held by the Supreme Court that the interest of a tenant in the premises is determined when an order or decree for eviction is passed under the Rent Act. Thus it must be held that: before the passing of the decree for ejectment of the tenant S. Sardul Singh Caveeshar, he continued to be a tenant and his interest in the premises was determined when the decree for ejectment was passed against him. This decree was passed on 31st August, 1959. On this date the Act 1952 stood repealed by Section 57 of the 1958 Act. This section reads as under;
'57: Repeal and Savings: (1) The Delhi and Ajmer Rent Control Act, 1952 (38 of 1952) in so far as it is applicable to the Union Territory of Delhi, is hereby repealed. (2) Notwithstanding such repeal, all suits and other proceedings under the said Act pending, at the commencement of this Act, before any court or other authority shall be continued and disposed of in accordance with the provision of the said Act, as if the said Act had continued in force and this Act had not been passed : Provided that in any such suit or proceeding for the fixation of standard rent or for the eviction of a tenant from any premises to which Section 54 does not apply the court or other authority shall have regard to the provisions of this Act: Provided further that the provisions for appeal under the said Act shall continue in force in respect of suit and proceeding disposed of there under.'
(13) Under this section the appeal and pending proceedings only were to be governed by the 1932 Act, Section 16 of the 1958 Act places restrictions of sub-letting, it provides that Tub-tenant inducted in the premises without the consent of the landlord before 9th June, 1952 shall be deemed to be lawful sub tenant. As regards sub-tenant inducted after 9th June, 1952, it provides that the sub-tenant inducted with the written consent of the landlord shall be the lawful sub-tenant. It further provides that after the commencement of 1958 Act, i.e. 9th February, 1959 the tenant was prohibited to sublet the premises without the previous consent in writing of the landlord. In short sub-tenants inducted prior to 9th June, 1952 and the sub-tenants inducted after 9th June, 1952 with the written consent of the landlord are lawful sub-tenants. A further provision has been made in Section 17 of the 1958 Act requiring the tenant or the sub-tenant to serve notice regarding creation of the sub-tenancy. If the sub tenancy has been created after coming into force of the 1958 Act i.e. 9th, February, 1959, the notice of creation of sub tenancy is required to be served within one month from the date of sub-letting. Admittedly the sub-tenancy in favor of the appellants was created before 9th February, 1959 and thereforee Section 17(1) is not applicable. Section 17(2) of 1958 Act provides giving of the notice of creation of sub-tenancy within six months from the date of commencement of the Act where the lawful subletting had taken place before the commencement of the Act i.e. 9th February, 1959, Section 17(3) of the 1958 Act further provides that in case of a contest whether the premises were lawfully sublet or not, the landlord or sub-tenant is required to file an application before the Controller for the decision of the dispute. As the appellants were inducted as sub-tenants prior to the coming into force of the 1958 Act, they were required to serve the notice under Section 17(2) regarding the sub-tenancy in their favor within six months of the commencement of the Act i.e. up to 9th August, 1959. There is nothing on the record to show that any such notice was ever served upon or sent to the landlady:
(14) Section 18 of the 1958 Act further provides the circumstances in which a sub-tenant on the determination of the interest of the tenant becomes a tenant directly under the landlord. Section 18(1) of the 1958 Act applies to the cases where the order of eviction is passed after coming into force of the 1958 Act i.e. 9th February, 1959 while sub-section 2 of Section 18 of the 1958 Act apples to those cases where the interest of the tenant had been determined before the commencement of the 1958 Act i.e. 9th February, 1959. As the decree for eviction was not passed before 9th February, 1959 Section 18(2) of the 1958 Act is not applicable and the appellants cannot rely upon it to claim their tenancy under the landlady. Section 18(1) of the 1958 Act reads as under :-
'18: Sub-tenant to be tenant in certain cases : (1) where an order for eviction in respect of any premises is made under Section 14 against a tenant but not against a sub-tenant referred to in Section 17 and a notice of the sub tenancy has been given to the landlord, the sub-tenant shall with effect from the date of the order, be deemed to become a tenant holding directly under the landlord in respect of the premises in his occupation on the same terms and conditions on which the tenant would have held from the landlord, if the tenancy has continued.'
(15) Under this sub-section a lawful sub-tenant becomes a tenant under the landlady after the passing of the order of eviction against the tenant and not against sub-tenant only when a notice of sub-tenancy as required under Section 17 of the 1958 Act had been served. Learned counsel for the appellants submits that as the appellant-sub-tenants were inducted with the written consent of the landlady no notice under Section 17 of the 1958 Act was required to be served. In Shri Roshan Lal v. Bhagwati Devi and others, 1969 Rcr 165 this court held that a sub-tenant in lawful occupation of the premises, on eviction of the tenant, does not become tenant automatically under Section 18 of the 1958 Act. It was further observed that notice under Section 17 of the Act is necessary as a condition precedent for claiming the status of a tenant. The matter was considered by the Division Bench in Murari Lal v. Adhul Ghaffar & others. (1974) 1 Del 45 where it has been held that in order to get benefit of Section 18 of the 1958 Act a sub-tenant covered by the provisions of sub-section (1) or sub-section (2) of Section 17 must give notice in the prescribed manner and within the premitted period. It has further been observed that even though the premises in occupation of a sub-tenant have been sub-let to him with the previous consent in writting of the landlord, unless the required notice under Section 17 is given, he cannot claim under Section 18 of the Act that from the date of the order for eviction he should be deemed to be a tenant holding directly under the landlady. Thus it is held that though the appellants were inducted with the previous consent in writing of the landladydecree-holder they cannot claim themselves to be direct tenants under the landlady as they did not comply with the provisions of Section 17 of the 1958 Act. We, thereforee, hold that the appellants do not acquire the status of a tenant directly under the landlady-decree-holder/and dismiss E.F.A, (OS) No, 7 of 1971 and E.F.A. (OS) No. 9 of 1972 with no order as to costs.