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Mahomad Usman Gulam MohiuddIn Vs. Dhanshanker Jagannath Bhatt - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtGujarat High Court
Decided On
Judge
Reported in(1969)10GLR374
AppellantMahomad Usman Gulam Mohiuddin
RespondentDhanshanker Jagannath Bhatt
Excerpt:
- - can be said to be satisfied because of the provision of section 108(j) of the transfer of property act. therefore, the expression 'subject to any contract to the contrary' cannot be satisfied by the provisions of section 108(j) of the t. that expression can be satisfied only if there is a specific contract between the parties to the contrary, which is not the case here......the premises and could lawfully transfer the possession. reliance is placed on section 15 of the bombay rent act and section 108(j) of the transfer of property act. clause (e) of section 13(1) of the bombay rent act allows a decree for possession to be passed in favour of the landlord if the tenant has, since the coming into operation of the act, unlawfully sublet the whole or part of the premises or assigned or transferred in any other manner his interest therein.3. a partnership deed is not sub-letting. if under the partnership deed, any interest in the possession has been transferred then the question would have to be considered whether it has been done lawfully or unlaw fully. as mere partnership deed does not amount to sub-letting, the entire discussion in the judgment of the.....
Judgment:

V.B. Raju, J.

1. This is a revision application under the Bombay Rent Act (Bombay Act No. 57 of 1947). The petitioner is original defendant No. 1, who was, according to the plaintiff, a monthly tenant of the plaintiff. On 18th July, 1960, a notice was given to defendant No. 1 terminating his tenancy on the expiry of 31-7-1960. On 28th July 1960, defendant No. 1 entered into what is alleged to be a partneship deed (Ex. 34) with defendant Nos. 2 and 3 for carrying on business. Both the Courts below held that the partnership deed is a sham and colourable document, that it was in reality no partnership deed and there was unlawful transfer of possession of the premises. In this view, both the Courts below decreed the possession to the plaintiff. Hence this revision by the original tenant.

2. It is contended by the learned Counsel for the petitioner that the finding that the partnership deed is not real and genuine is not correct. It is further contended that before 31st July 1960 the tenancy did not expire and therefore the tenant could lawfully sublet the premises and could lawfully transfer the possession. Reliance is placed on Section 15 of the Bombay Rent Act and Section 108(j) of the Transfer of Property Act. Clause (e) of Section 13(1) of the Bombay Rent Act allows a decree for possession to be passed in favour of the landlord if the tenant has, since the coming into operation of the Act, unlawfully sublet the whole or part of the premises or assigned or transferred in any other manner his interest therein.

3. A partnership deed is not sub-letting. If under the partnership deed, any interest in the possession has been transferred then the question would have to be considered whether it has been done lawfully or unlaw fully. As mere partnership deed does not amount to Sub-letting, the entire discussion in the judgment of the lower Court whether the partner ship deed was real or genuine and whether there Was Sub-letting or not would not be very material. But the Court below have decreed the suit for possession on the ground that premises can be lawfully Sub-let, then possession can be given lawfully. As observed above, this is not a case of sub-letting The learned Counsel for the petition does not say that there has been sub-letting. The entire case has been that of a partner ship deed. The learned Counsel relies on Section 108(j) of the Transfer of Property Act. with reads as follows:

108. In the absence of a contract or local usage to the contrary, the lessor and the lessee of immoveable property, as against one another, respectively, possess the rights and are subject to the liabilities mentioned in the rules next following, or such of them as are applicable to the property leased:

(A) Rights and Liabilities of the Lessor.

(j) The lessee may transfer absolutely or by way of mortgage or sub-lease the whole or any part of his interest in the property and any transferee of such interest or part may again transfer it. The lessee shall not, by reason only of such transfer, cease to be subject to any of the liabilities attaching to the lease.... ... ... ... ... ... ...

4. The question is whether the expression 'subject to any contract to the contrary' in Section 15(1) of the Bombay Rent Act, which reads as follows:

Notwithstanding anything in any law but subject to any contract to the contrary it shall not be lawful after the coming into operation of this Act for any tenant to sub-let the whole or any part of the premises let to him or to assign or transfer in any other manner his interest therein;

Can be said to be satisfied because of the provision of Section 108(j) of the Transfer of Property Act. Section 15 makes it unlawful to sub-let the whole or part of the premises or to assign or transfer in any other manner the interest in the property. It is therefore contrary to the provisions of Section 108(j) of the Transfer of Property Act. Therefore, the expression 'subject to any contract to the contrary' cannot be satisfied by the provisions of Section 108(j) of the T.P. Act, which are themselves contrary to the provisions of Section 15(1) of the Bombay Rent Act. That expression can be satisfied only if there is a specific contract between the parties to the contrary, which is not the case here.

5. The proviso to Section 15(1) of the Bombay Rent Act reads as follows:

Provided that the State Government may, by notification in the Official Gazette, permit in any area the transfer of interest in premises held under such leases or class of leases and to such extent as may be specified in the notification.

The learned Counsel for the petitioner says that there is a notification. But though he had been given more than a month's time to produce the Gazette containing the said notification, he has not been able to produce the same.

6.There is, therefore, no proper evidence of the notification. Dalal's Rent Act on the subject is not admissible in evidence.

7. There is, therefore, no need to interfere with the order of the lower Courts, The revision application is dismissed with costs.


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