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Tejender Tewariari Vs. Subhash Lata Kumar - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal Nos. 184 and 185 of 1983
Judge
Reported inAIR1986Delhi44; 28(1985)DLT441; 1985(9)DRJ277
ActsDelhi Rent Control Act, 1958 - Sections 21; Transfer of Property Act, 1882 - Sections 111F
AppellantTejender Tewariari
RespondentSubhash Lata Kumar
Advocates: R.K. Makhija,; V.K. Makhija,; S. Pappu and;
Cases Referred and Manphul Singh Sharma v. Mst. Ahmedi Begum and
Excerpt:
delhi rent control act, 1958 - section 21--scope and extent of enquiry by the controller at the stage when recovery of possession is sought by the landlord--explained. delhi rent control act - section 21--condition for--if the tenants are already in possession of tenanted premises in their own rights, the possession for limited tenancy is not warranted and if granted would be vitiated by the fraud practiced upon the court. transfer of property act - section 111-f--'implied surrender'--no implied surrender can arise on the acceptance by the tenant of a new lease which is void. - - in view of the assurance given by the respondent that the oral tenancy created in their favor in december 1975 would continue and their rights would not be prejudiced in any manner, the appellants signed the.....j.d. jain, j. (1) the facts giving rise to the above mentioned appeals which are closely inter-connected and are directed against order dated 23rd april, 1983 of the rent control tribunal, delhi, succinctly are that wayback on 23rd february, 1976, the respondent-smt. subhash lata kumar moved two separate applications purporting to be under section 21 of the delhi rent control act (hereinafter referred to as 'the act',) for permission to create two separate tenancies in favor of shri tejinder tewari and major r.c. chhiba, the present appellants. in miscellaneous application no. 98/76, it was staled that the respondent-maj. r.c. chhiba had agreed to take on rent the ground floor of the rear portion of the property bearing no. n-57, panchsheel park, new delhi, comprising drawing-cum-dining.....
Judgment:

J.D. Jain, J.

(1) The facts giving rise to the above mentioned appeals which are closely inter-connected and are directed against order dated 23rd April, 1983 of the Rent Control Tribunal, Delhi, succinctly are that wayback on 23rd February, 1976, the respondent-Smt. Subhash Lata Kumar moved two separate applications purporting to be under Section 21 of the Delhi Rent Control Act (hereinafter referred to as 'the Act',) for permission to create two separate tenancies in favor of Shri Tejinder Tewari and Major R.C. Chhiba, the present appellants. In miscellaneous application No. 98/76, it was staled that the respondent-Maj. R.C. Chhiba had agreed to take on rent the ground floor of the rear portion of the property bearing No. N-57, Panchsheel Park, New Delhi, comprising drawing-cum-dining room with one bath room and a bed room besides other amenities on a monthly rent of Rs. 850.00 with effect from 25th February, 1976 for a period of two years for use as residence only on the terms and conditions set out in the draft lease-deed annexed thereto. She further stated that she was not in need of the said premises as landlady for a period of two years. Her statement was recorded by the Additional Rent Controller on 26th February, 1976 in which she, inter alia, stated that she wanted to let out the entire ground floor (rear portion) as she did not require the same for the aforesaid period of two years. The Additional Rent Controller also recorded the statement of the appellant R.C. Chhiba to the effect that he was prepared to take the aforesaid premises for residential purposes for a period of two years and that he would vacate the same on the expiry of two years. Thereupon, the Additional Rent Controller granted permission to the respondent-landlady to let the ground floor premises as shown in the pain Ex. at of premises N-57, Panchsheel Park Colony, to the appellant-Maj. R.C. Chhiba for residential purpose for two years with effect from 1st March, 1976.

(2) Likewise, the respondent-landlady sought permission in miscellaneous application No. 97/76 to let the first floor of the rear portion of the aforesaid property N-57, Panchsheel Park, comprising four bed rooms with attached bath and other facilities at a monthly rent of Rs. 850.00 with effect from the same date viz. 25th February, 1976 for a period of two years only. She stated therein loo that presently she was not in need of the said premises and she intended to resume her residence in Delhi after two years. After recording the statements of both the appellant and the respondent on 27th February, 1976. the Additional Rent Controller granted permission to let the premises for a limited period of two years with effect from 1st March, 1976.

(3) On the expiry of the stipulated period of tenancy viz. two years, in both these cases the respondent-landlady moved two separate execution applications in July 1978 for being put back into possession of the demised premises. Notice thereof was issued to both the appellants and they filed separate objections in the two execution applications. However, the same were couched in identical language and raised a common defense. Their primary defense was that the entire rear portion of the property N-57, Panchsheel Park, consisting of the ground floor, first floor and the second floor had been let out by the respondent with effect from 10th December, 1975 to both of them jointly at Rs. 1700.00 per mensem and they paid a sum of Rs. 1700.00 to her by way of security deposit. Thereafter they paid Rs.5100.00 as rent for three months in advance with effect from 10th December. 1975 by means of a cheque drawn in favor of the respondent. The said cheque was duly encashed. They averred that thus an oral agreement of tenancy came into being between the parties and the entire premises, amended to above, were let out to them for a period of two years ending 31st December, 1977. They further contended that in February 1976 the respondent-landlady told them that the oral agreement of tenancy be formalised and they should sign the written agreement of tenancy. On this pretext she obtained signatures of both of them on various papers. However, she assured them that the oral tenancy already created in their favor would continue. The respondent further told them to appear in the court as the agreement of tenancy had to be registered. In view of the assurance given by the respondent that the oral tenancy created in their favor in December 1975 would continue and their rights would not be prejudiced in any manner, the appellants signed the various documents presented to them by the respondent in good faith and they also signed the proceedings which were recorded by the staff of the Presiding Officer in absolute good faith. However, subsequently the respondent again asked them in March 1976 to execute lease-deeds pursuant to the orders of the court. This excited their suspicion and they refused to sign any such lease-deed but the respondent again assured them that their old tenancy Would continue. Thus, the basic stand of the appellants was that they were not in occupation of the premises in question pursuant to any permission granted by the Additional Rent Controller under Section 21 of the Act and they were in occupation of the premises in question as joint tenants' under the old tenancy which still subsisted.

(4) In her reply to the objections filed by the appellants, the respondent vehemently refuted the story of the appellants regarding creation of oral joint tenancy in their favor with respect to the entire ground floor, first floor and second floor of the rear portion of N-57, Panchsheel Park, with effect from 10th December, 1975 on a monthly rent of Rs. 1700.00 and asserted that the premises had been demised separately as indicated in the applications made under Section 21 of the Act to the Additional Rent Controller with effect from 1st March, 1976 pursuant to the permission granted by the Additional Rent Controller for a period of two years at Rs. 850.00 per mensem each. She denied the further allegation of the appellants that she received Rs. 1700.00 from them on 10th December, 1975 be way of security deposit. However, she admitted having received Rs. 850.00 from each of the appellants by way of security and also Rs. 2550.00 from each of them towards the cost of white washing, distempering and repairing the premises as they insisted for carrying out white washing etc. despite the fact that the demised premises were in good tenantable condition. Thus, she denied having received Rs. 5100.00 from the appellants on account of advance rent for three months for the premises let out to them jointly. She further averred that she had told the appellants in categorical terms that the premises would be let to them for a limited period with prior permission of the Rent Controller as envisaged in Section 21 of the Act.

(5) The learned Additional Rent Controller upheld the plea of the appellants regarding the oral tenancy with effect from 10th December, 1975 vide his order dated 20 the December, 1982 and found that the permission granted to-the respondent under Section 21 of the Act was vitiated by fraud practiced by her in not disclosing the court the factum of the premises having been already let to the appellants in December,1975. He further observed that no reasons had been furnished by the respondent turn creating a limited tenancy for two years in favor of the appellants either in her applications for grant of permission under Section 21 of the Act or in her execution applications and the reasons assigned by her during the course of her evidence 'were non-existent and unsustainable. So, he allowed the objections and dismissed both the execution applications.

(6) Feeling aggrieved by the said order, the respondent preferred separate appeals against both the appellants. The Rent Control Tribunal vide bids common order dated 23rd April 1983 allowed both the.appeals and set aside the order of the Additional Rent Controller. He .held that a valid permission having been granted by the Additional .Rent Controller to let the premises for a limited period, the respondent-landlady, was competent to take out execution for delivery of possession of the .demised premises to her. Hence, the appellants have comes in appeal- against the. said order.

(7) Before embarking upon .a is.discustion of the evidence on record and the-contentions raised by the respective counsel for the parties it would be appropriate to have a proper perspective of the scope and extent of the inquiry which may be held by the controller at the stage when recovery of possession is sought by the landlord under Section 21 of the Act. This question seems to be no longer rest Integra inasmuch as the Supreme Court has in quite a number of its decisions elucidated the true scope and ambit of such an inquiry. In S.B. Noronah v. Prem Kumari Khanna : [1980]1SCR281 , which is leading authority on the subject, Krishna lyer, J. explained the raison d'etre of the provisions contained in Section 21 of the Act :

'PARLIAMENT was presumably keen on maximising accommodation available for letting, Realizing the scarcity crisis. One source of such spare accommodation which is usually shy is potentially vacant building or part thereof which the landlord is able to let out for a strictly limited period provided he has some credible assurance that when he needs he will get it back...................... But no one will part with possession because the lessee will become a statutory tenant and, even if bona fide requirement is made out, the litigative tiers are so many and the law's delays so tantalising that no realist in his senses will trust the sweet promises of a tenant that he will return the building after the stipulated period. So the law has to make itself credit-worthy. The long distance between institution of recovery proceedings and actual dispossession runs often into a decade or more a factor of despair which can be obviated only by a special procedure. Section 21 is the answer. The law speaks to persuade the owner of premises available for letting for a period particular or limited period by giving him the special assurance that at the expiry of that period the appointed agency will place the landlord in vacant possession.'

(8) However, the learned Judge on a juxtaposition of the various provisions contained in the Act, especially the protection conferred on the tenants by restricting their eviction to the grounds embodied in Section 14(1) etc. of the Act observed that 'the scheme of embargo on eviction makes a pragmatic serve by the time we reach Section 21. ........... .................................... ..................... ................................................The Parliament had the wholesome fear that if the section were not controlled by many conditions it might open the flood gates for wholesale circumvention of the rent control legislation by ingenious landlords exploiting the agonising need of houseless denizens.' Hence, his lordship sounded a note of caution that :

'SECTION 21 puns counter to the general scheme and, thereforee, must be restricted severely to its narrow sphere. Secondly, we must place accent on every condition which attracts the section and if any one of them is absent the section cannot apply and, thereforee, cannot arm the landlord with a resistless eviction process. Thirdly, we must realise that the whole effect of Section 14 can be subverted by ritualistic enforcement of the conditions of sanction under Section 21 of mechanical grant of sanction therein. Section 21 overrides Section 14 precisely because it is otherwise hedged in with drastic limitation and safeguards itself against landlord's abuses.'

(9) In this view of the matter, thereforee, his Lordship observed that :

'THE fact that a landlord and a potential tenant together apply, setting out the formal ingredients of Section 21, does not relieve the Controller from being vigilant to inquire and satisfy himself about the requisites of the landlord's non-requirement 'for a particular period' and the letting itself being 'as a residence'. A fraud on the statute cannot be permitted especially because of the grave mischief that may be perpetrated in such event........................ If he makes a mindless order, the Court, when challenged at the time of execution will go into the question as to whether the twin conditions for sanction, viz. (i) that the landlord does not require the demised premises for a particular period only; and (ii) that the premises are let as a residence, have really been fulfillled.'

(10) His Lordship further said :

'IT is altogether wrong to import the idea that the tenant having taken advantage of induction into the premises pursuant to the permission, he cannot challenge the legality of the permission. As between unequals the law steps in and as against statutes there is no estoppel, especially where collusion and fraud are made out and high purpose is involved. The doctrine of estoppel cannot be invoked to render valid a proceeding which the legislature has, on grounds of public policy, subjected to mandatory conditions which are shown to be absent.'

(11) His Lordship concluded thus :

'.........WEhold that it is perfectly open to the Controller to examine whether the sanction under Section 21 is a make-believe, vitiated by fraud and collusion.'

(12) The ratio of this decision has been further amplified and elucidated in V. S. Rahi and another v. Smt. Ram Chambeli, 1984(1) Rcj 247 In the words of Venkataramiah, J. who spoke for the Court :

'IT was not perhaps fully realised at the time of the enactment of Section 21 of the Act that many unscrupulous landlords would enter into arrangements purporting to be those under that section but in reality were ordinary leases and would utilise the threat of the summary remedy available under that section to realise higher rents or for any other purpose considered to be contrary to the benign purposes sought to be achieved by the Act.'

(13) Dealing with the argument that the tenants who had colluded with the landlord when permission was granted under Section 21 of the Act and that they should not be allowed to resile from the stand they had taken then, his Lordship said :

'IT is true that the appellants who were the weaker of the two parties did not question the truth of the statements made by the respondent when the permission was granted. But such collusion, if any, between the two unequal parties does not confer any sanctity on the transaction in question. In cases of this nature it is always open to the weaker of the two parties to establish that the transaction was only a camouflage used to cover its true nature ....... When one party can dominate over the will of the other; it would not be a case of collusion but one of compulsion The above view is fully in consonance with the spirit behind the rule of oppression which is recognised as an exception to the doctrine that a party cannot recover what he has given to the other party under an illegal contract. It can never be predicated as pari delicto where one holds the rod and the other bows to it'. (Per Lord Ellenborough in Smith v. Cuff, 1817. 6 M.& S 160'

(14) His Lordship further noticed that cases which call for appropriate relief be given to an innocent party 'where one has the power to dictate, the other has no alternative but to submit'' are not uncommon-

(15) As shall be presently seen, these observations seem to be quite apposite and indeed they apply on all fours to the facts of the instant case. In order to establish that an oral agreement of tenancy had been created Jointly in favor of both the appellants-Chhiba and Tewari in December 1975 they have placed on record a number of documents. Ex. Ow 1/1 is receipt dated 10th December 1975 purportedly signed by the respondent-landlady which shows that a sum of Rs. 1700.00 was paid in cash by the appellants by way of security deposit for letting out the rear portion of house No. N-57, Panchsheel Park on a monthly rent of Rs. 1700.00 exclusive of electricity and water charges. Ex. Ow 1/2 is receipt dated 29th December 1975 in respect of Rs. 5100.00 received by the respondent-landlady towards rent for the period 10th December 1975 to 10th March 1976 in respect of the rear portion of house No. N-57, Panchsheel Park, on a monthly rent of Rs. 1700.00 . These receipts purport to have been signed by the respondent-landlady although she has denied execution of these receipts; obviously in view of her stand that the payments had been made by both the appellants separately to the extent of their respective portions of the demised premises and for carrying out repairs and white-washing etc. even though not actually needed. Both the courts below have, however, accepted these receipts as genuine keeping in view other documentary evidence which has come on record. Ex. Dhw l/ Rx 7 is the cheque dated 29th December 1975 which was admittedly encased by the respondent-landlady. Ex. Dhw 1/RX is letter dated 7th February 1978 written by Shri S. Kumar, who is admittedly the owner of the property in question, to the appellant-Chhiba in reply to his letter dated 2nd February 1978. Its concluding portion is as follows :

'MEANWHILE the draft No. 1 332379 dated 2-2-1978 rs being returned. We cannot accept the rent as your lease has expired as on 31st December 1977.'

(16) EX. Dhw I/RX I is yet another letter dated 1st March 1978 written by Shri S. Kumar to the appellant-Chbiba. Vide this latter this author conveyed to the appellant that he was accepting a draft for Rs. 3,400.00 sent under his letter dated 22nd February 1978 on the strict understanding that it did constitute arrears of rent. He clarified that the subject of arrears of rent would be settled at the time he i.e. tenant, handed over possession of the premises The following sentence appearing in the said letter is very pertinent to notice:

'YOU appreciate you are not entitled to possession of the premises from 1 January 1978, and as such I cannot accept rent till the matter is settled.'

(17) Adverting to these two letters, counsel for the appellants has canvassed vigorously that the contention of the appellants that the premises had been let to them in December 1975 under an oral agreement of tenancy at Rs. 1700.00 per mensem and that the so-called permission obtained under Section 21 of the Act was just a make-believe or a legal formality to arm the respondent-landlady with coercive process to recover the possession is amply borne out by the fact that even the landlady had been asserting that the term of their tenancy ended on 31st December 1977 in contra-distinction to the term of limited tenancy under Section 21 which would have expired on 31st March 1978. Letter Ex. Dhw 1/RX 1 further signifies that the amount of Rs. 3400.00 represented rent for two months which was being paid by both the appellants jointly. The learned counsel for the respondent has, however, invited my attention to the fact that both the receipts Ex Ow 1/1 and Ow 1/2 are typed on the same sheet of piper and presumably they were got typed at one and the same time although the two receipts bear different dates. Be that as it may, I do not think it would hardly make any difference because the genuineness of the transaction of the oral tenancy in favor of both the appellants is amply borne out by other evidence on record. On consideration of these documents as also other oral as well as documentary evidence on record, the learned Additional Rent Controller arrived at the conclusion that the respondent had let out the premises in question to the appellants with effect from 10th December 1975 and the appellants were in possession of the same. Since then this is obviously a finding of fact and unfortunately for the respondent-landlady even the Tribunal has concurred therein. He has held that the appellants have successfully shown that they were in possession of the property since December 1975 and that the demised premises had been let to the appellants before the limited tenancy under Section 21 of the Act was created. This being purely a finding of fact, I do not think it will be open to this Court sitting in second appeal to re-appraise the evidence and come to an independent finding of its own especially when nothing has come on record to suggest that there has been any mis-reading or mis-construction of evidence on record or mis-application of any provision of law of evidence, which would vitiate the same.

(18) On a bare reading of Section 21, it is manifest that the very first condition for grant of permission to let the premises for a limited period is that the landlord does not require the demised premises for a particular period only. In other words, he must indicate to the authority while seeking sanction for limited tenancy the particular period for which he can spare accommodation and the Controller must be satisfied that the landlord means what he says and it is not a case of his not requiring the property indefinitely as distinguished from a specific or a particular limited period. If the contention of the appellants that they were already in occupation of the demised premises as joint tenants under an oral agreement of tenancy is upheld, the question of the respondent-landlady not requiring the demised premises for any particular period would not arise. To put it otherwise. Section 21 pre-supposes that the premises sought to be let, although available to the landlord, are not, in fact, required by him as residence for himself or members of his family for any particular period and, thereforee, permission for creation of tenancy for a specified period alone only is sought. This would certainly not be the situation if the appellants were already in possession of the demised premises in their own right as joint tenants. The only course open to the respondent-landlady under the circumstances was to seek eviction of the appellants on any of the grounds envisaged in Section 14 of the Act. Thus, the resort to the provisions of Section 21 of the Act was nothing but a subterfuge and a camouflage to circumvent the provisions of Section 14 of the Act. It may be of some interest to notice here that the whole of rear portion of the property No. N-57, Panchsheel Park, constitutes virtually a single unit built vertically. A glance at the site-plan filed Along with the proposed agreements of lease which was submitted at the time of obtaining the requisite permission under Section 21 of the Act would show that the ground floor accommodation comprises dining-cum-drawing room and one bed room only while the first floor accommodation consists of four bed rooms. This fact further countenances the plea of the appellants that the whole of the rear portion had been taken by them jointly on rent of Rs. 1700.00 per mensem and the same could not be split into two separate and independent tenancies as was alleged by the respondent in her application under Section 21 of the Act.

(19) From the foregoing resume of the facts it becomes crystal clear that the applications made by the respondent-landlady for seeking permission under Section 21 of the Act did not depict the picture correctly; rather there was clear suppression and concealment of the correct position. Had the correct position been laid before the Controller he would have in all probability declined the permission. It may be pertinent in this cortex to advert to the decision in D.N. Vohra v. Agya Wanti : 18(1980)DLT268 , in which Sultan Singh, J. had to deal with a similar situation. Said he :

'IF the premises were already under tenancy, it cannot be said that the same were available with the landlord for letting. If the landlord is not in possession of the premises he must disclose in his application as to how he would be entitled to let out the same after the permission of the Controller. In such circumstances Controller may determine whether the landlord would be entitled to possession of the premises in his own right before creation of tenancy after permission. If landlord is not entitled to possession from the occupant, no permission to let the premises already in occupation of a person other than the landlord can be granted.'

(20) I am in respectful agreement with this view. Indeed, in the instant case there could be no questioner converting and stultifying an indefinite tenancy with all the benefits and protection available to the tenants against their eviction otherwise than by resorting to the grounds available under the Act into a tenancy for a limited period only with the resultant coercive process hanging over their heads like a damocle's sword. In V. S. Rahi's case (supra) the Supreme Court noticed that there Were three wrong statements made by the landlady when she approached the Additional Rent Controller to seek permission under Section 21 of the Act. The first wrong statement was that she had never let out the portion to anybody prior to the limited tenancy sought to be created. This averment was found to be factually incorrect as the previous tenant had vacated the said premises only four or five months before the date on which the order was made under Section 21. Secondly, the landlady had said that her son and her mother were living in the premises sought to be let but for some reasons they would not require the same for about three years. This averment too was found to be false. Indeed, it transpired that the so-called mother of the landlady was in fact the sister of her father. Thirdly, it was found that the son of the landlady was a student of seventh class and not ninth class as stated by her Under these circumstences, the Supreme Court observed ;

'THESE statements which were in the nature of half truths Were apparently made in order to make good the plea that there was only a temporary necessity to lease out the building for a short period and that the respondent bonafide anticipated that there would be a pressing necessity to re-occupy the premises at the end of the period which are the true crucial factors governing any order under Section 21 of the Act.'

(21) Hence, their Lordships felt persuaded to hold that the Tribunal and the High Court had approached the said case in a mechanical way and had failed to apply correctly the ratio of the decision in S.B. Noronah case (supra) to the facts before them. The landlady was, thereforee, held not entitled to invoke the remedy under Section 21 of the Act to recover possession of the premises. Reference in this context be also made to M/s. Delux Pictures (Delhi) v.Brig Pritam Pal Singh (Retd), 1984(2) RC.J. 185 The instant case in my view stands on a much stronger footing for the appellants inasmuch as there was a total suppression of the vital fact that the premises had been already let to both the appellants jointly under an oral agreement of tenancy which was still subsisting when the order for creation of limited tenancy was sought. The fact that both the appellants meekly affirmed the statement made by the respondent-landlady separately in the two petitions made by her under Section 21 of the Act simply demonstrates that they had no alternative but to submit to the dictates of the respondent-landlady. There cannot be a clearer case of oppression than the present one which points out Unmistakably to the fact that. the permission under Section 21 of the Act was obtained to serve as a cloak to cover up the real states of affairs. Hence, there is no escape from the conclusion that the permission granted by the Additional Rent Controller under Section 21 for creation of a limited tenancy in favor of the appellants separately in respect of two separate premises is vitiated by fraud practiced on the court. Various authorities were cited by counsel for the respondent but I need not advert to the same as the decision in each of them turns on their own facts. The instant being a manifestly clear case of suppressio veri and suggestio falsi, the sanction granted by the Additional Rent Controller for creation of limited tenancy must be quashed as being void and non-est and the original oral tenancy must be deemed to be still subsisting. Surely it could not be wiped out by resort to dubious and questionable method of obtaining permission For creation of limited tenancy under Section 21.

(22) My attention was also invited by the learned counsel for the appellants to the fact that the respondent-landlady did not assign any reason as to why she did not require the premises in question for any particular period either when she made application under Section 21 of the Act for grant of permission or even when she took out execution of the order passed under Section 21 of the Act and it was only during the course of evidence that she came forth with an altogether false plea. Further, her plea regarding raising of a loan from the Life Insurance Corporation was not only vague but remained absolutely unsubstantiated. Even then the learned Tribunal believed her word of mouth as a gospel truth on the facile plea that the inquiry was of a summary nature. Faced with this situation, the respondent has sought permission to place on record a letter dated 17th January 1977 from the Life Insurance Corporation allegedly received by the owner of the property S. Kumar showing that an amount of Rs. 74,050.00 was still due from the respondent /S. Kumar as housing loan. However, I need not go into this aspect of the matter because of my finding that the suppression/concealment of material fact regarding the previous tenancy vitiates the permission granted by the Additional Rent Controller under Section 21 of the Act.

(23) Lastly, the learned counsel for the appellants have urged with considerable force that the learned Rent Control Tribunal slipped into a grave error by invoking the theory of implied surrender of the previous tenancy and applying the same to the facts of the instant case although such a plea was never raised by the respondent-landlady herself. A perusal of the impugned judgment of the Tribunal no doubt shows that he has applied the doctrine of implied surrender as embodied in Clause (f) of Section 111 of the Transfer of Property Act to the instance case. It would appear that he was very much influenced in holding so by the fact that the appellants themselves had appeared and made statements before the Additional Rent Controller for creation of limited tenancy under Section 21 of the Act which had the effect of determining the previous tenancy as its necessary concomitant.

(24) One of the ways in which a lease of immovable property determines is by 'implied surrender' as envisaged in Clause (f)of Section 111, Transfer of Property Act. It is well-known that implied surrender occurs by creation of new relationship or by relinquishment of possession. The rule of 'implied surrender' is founded on equity. Justice and good conscience and such surrender takes place by implication of law rather than the intention of the parties. Illustration to Clause (f) given below Section 111 itself demonstrates that where during the continuance of a lease the lessee accepts a new lease, there is an implied surrender by law. The essence of implied surrender is not change of possession but it is the doing of an act which is inconsistent with the continuance of the former lease or tenancy. Even though the tenant does not express his intention to surrender and determine the old lease but by his taking a new lease, the law infers termination of the existing lease. The reason is that the landlord has no power to grant a new lease except upon the fitting that the old lease is surrendered and the tenant being a party to the grant of new lease is estopped from denying the surrender. However, it is essential to such surrender that the new lease should be valid and take effect at once as a lease. No implied surrender can, thereforee, arise on the acceptance by the tenant of a new lease which is void In other words, the implied surrender will be taken to be subject to an implied condition that the surrender is to be void, if the new lease happens to be void The law on the subject has been neatly summed up by Coleridge, J. in Doe,d Earl of Egremon v Courtenay, (1843) All E.R. Rep. 685 as under :

'WHEN a new lease does hot pass an interest according to the contract, the acceptance of it will not operate as a surrender of the former lease ) that, in the case of a surrender implied by law from the acceptance of a new lease, the condition ought also to be understood as implied by law, making void the surrender in case the new lease should be made void; and that in case the express surrender is so expressed as to show the intention of the parties to make the surrender only in consideration of the grant, the sound construction of such aninstrument, in order to effect' tauter the intention of the parties, would make the surrender also conditional to be void in case the grant should be void.'

(25) This passage has been quoted with approval in Gandavalla Munuswamy v. Marugu Muniramiah : AIR1965AP167 and M. Gopalakrishna Menon v. K.P. Vellakutty : AIR1953Mad399 . Reference in this context be also made to Abdul Ghafoor and another v. Lala Kunj Behari Lai and and Ors. : AIR1957All346 , Noratmal v.. Mohanlal, Air 1966 Raj 89 and Manphul Singh Sharma v. Mst. Ahmedi Begum and others, AIR 1987 Delhi 87 which is a Bench decision of this Court. In the last mentioned decision it was observed that :

'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 intention of the parties it does not operate as an implied surrender of the old lease.'

(26) Such being the legal position it is to be seen whether the circumstances of this case warrant an inference of surrender by operation of law or implied surrender, an expression used to describe all those cases where the law implies a surrender from unequivocal conduct of both the parties which is inconsistent with the continuance of' the existing tenancy. As already observed by me,. the essential postulates of Section 21 not having been complied with the so-called grant of permission by the Additional Rent Controller is totally void and non-est. It could not operate to create a valid tenancy for a limited term in favor of the respondent-landlady. The inevitable consequence of this legal situation would be that the old tenancy created in favor of both the appellants jointly under an oral agreement in December 1975 in respect of the entire premises comprised in the rear portion of the property N-57, Panchshila Park. would still subsist. Unfortunately this important and vital aspect of the matter has escaped notice of the learned 'Tribunal apparently because he was of the view that the permission granted for creation of a limited tenancy was valid.

(27) The appellants have also made two separate applications (being CM. No. 1275/84 & C.M. 1276/84) saying that the respondent-landlady has got some vacant accommodation on account of some other tenant surrendering the premises in his occupation. This is denied by the respondent-landlady. However, I need not go into this aspect of the matter either as it if totally irrelevant and not germane to the decision of an execution application under Section 21 of the Act.

(28) The upshot oF the whole discussion, thereforee, is that permission for creation of tenancy limited to two years granted by the Additional Rent Controller vide order dated 26th February 1976 and 27th February 1976 being invalid and void ab initio it could not operate to create any fresh tenancy for a limited period. As a necessary corollary, there did not come into existence any order which could be executed on the expiry of the period of such a limited tenancy. Hence, the impugned order dated 23rd April 1983 of the Tribunal is set aside and that of the Additional Rent Controller dated 24th December 1982 is restored. Both the execution applications are accordingly dismissed. Keeping in view all the circumstances of the case, however, the parties are left to bear their own costs throughout.


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