BALMUKUND AND CO Vs. MANGALDAS TRIBHOVANDAS

JUDGEMENT

(1.) The petitioners who are the landlords terminated the tenancy of defendant 1 by a notice dated 28-6-1947. Therefore, it is clear that after the notice became effective defendant i ceased to be a contractual tenant and became a statutory tenant. On 30-11-1919, defendant 1 executed a deed of assignment in favour of opponent 2 who wag defendant 3 in the suit, assigning to him his right, title and interest in the business which he was carrying on and also his interest in the tenancy. The plaintiffs then filed this suit in the Small Causes Court for an order of ejectment both against their tenant and against defendant 3. The trial Court hold in favour of the petitioner, but the appellate Court of the Small Causes Court has reversed the decision of the trial Court. It is from that decision that this revision application is preferred.

(2.) Now, certain positions that arise in law are beyond dispute. As the contractual tenancy had already terminated, defendant 1 had no interest in the premises which he could transfer or assign to defendant 3. He had only a personal right under the Bent Act to be protected in possession of the premises and that personal right could not- be transferred or assigned. Therefore, in law there was no valid assignment in favour of defendant 3. Section 13(e) of the Act provides that a landlord shall be entitled to recover possession of any premises if the Court is satisfied that the tenant has, since the coming into operation of this Act, sublet the whole or part of the premises or assigned or transferred in any other manner his interest therein, and the trial Court held that inasmuch as the tenant has contravened the provisions of Section 13(e) the landlord was entitled to possession and the decree against defendant 3 went as a decree against a trespasser. The learned Judges of the appellate Court have taken the view, and in my opinion rightly, that Section 13(e) has no application because Section 13(e) postulates an interest in the tenant which he could sublet or assign or transfer. There must be a contractual tenancy, and having an interest in the tenancy if he assigns or transfers or sublets, then he contravenes the provisions of Section 13(e) and he is liable to be evicted. But in this case the tenant not having any interest in the premises could not in law transfer or assign or sublet the premises, and, therefore, if the landlords sought ejectment on the ground that their case fell under Section 13(e), they wore liable to fail. But the learned Judges of the appellate Court have taken this rather startling view that although a tenant can be ejected if he assigns his premises while the contractual tenancy is subsisting, if the contractual tenancy has come to an end and he purports to assign that premises and parts with possession and has no control left over the premises and no interest left in the premises, he is protected under the Kent Act and the landlord is helpless and he cannot get possession from him. Unless one is driven to such a conclusion, it would be anomalous to hold that a tenant's rights are greater when he hands over possession to an unauthorised person than when he legally assigns the promises to a third party.

(3.) Reference has also been made in the judgment of the learned Judges below to Section 15, and that section provides that notwithstanding anything contained in any law it shall not be lawful, after the coming into operation of this Act, for any tenant to sublet the whole or any part of the premises let to him or to assign or transfer in any other manner his interest therein. This provision really is supplementary to what is contained in Section 13(e), and Section 15 also contemplates just as Section 13(e) does that there is an interest in the tenant which he can assign or transfer, and it is the transfer or assignment of such interest which is forbidden and prohibited by Section 15. There is a proviso to Section 15 which lays down 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, and it is common ground that the premises with which we are concerned are covered by the proviso. Therefore, if there had been a contractual tenancy subsisting, it would have been open to the tenant to assign these premises without coming within the mischief of Section 15. But as there was no contractual tenancy subsisting, the tenant cannot avail himself of the protection given to him by the proviso. That is also the view taken by the learned Judges below.