GOBINDA LAL SHAW Vs. TARAK NATH PAUL

JUDGEMENT

(1.) This appeal is at the instance of the defendants Nos. 9 and 10 arising out of a suit for eviction of the lessee and sub-lessee in respect of a portion of the suit premises being No. 122, Surendra Nath Banerjee Road, Calcutta, P. S. Taltolla, Calcutta, which was leased out for a term of 21 years commencing from 1st day of February, 1957 to last day of January, 1978 at a monthly rental of Rs. 80/- payable by the 15th day of the following month for which the rent became due. The plaintiff became the owner of the premises by purchase on 7th March, 1962 and the lessee tenant Probodh Chandra Dey on receiving letter of attornment paid rent to the plaintiff as per terms of lease of 21 years commencing from 1st day of February, 1957 to last day of January, 1978. Probodh Chandra Dey died intestate in or about the month of June 1969 leaving the defendants Nos. 1 to 8 as his heirs and legal representatives and they became the tenants under the plaintiff on the terms of the lease and paid rent to the plaintiff at the rate of Rs. 80/- per month till the month of February, 1970. The said defendants failed and neglected to pay rent to the plaintiff in respect of the said premises from the month of March 1970 and thereafter the plaintiff determined the lease by way of forfeiture in view of the clause in the Deed of Lease that if the rent hereby reserved or any part thereof shall remain unpaid for three consecutive months it will be lawful for the lessor to enter in the premises on determination of the lease. The plaintiff filed the suit for eviction therefrom. In the suit they made defendants Nos. 9 and 10 who are under-lessees of the other defendants whose lease has been forfeited, parties and the defendants Nos. 9 and 10 are in the occupation of a part of the premises and rent payable by them are mentioned in Schedules "B" and "C".

(2.) The defendants Nos. 1 to 8 did not contest the suit. Defendants Nos. 9 and 10 however filed the written statements, inter alia, stating that they are under-lessees of the other defendants and they ere not bound to vacate the portion of tine premises occupied by them. Defendants Nos. 9 and 10 stated that they were inducted as tenants in respect of a room only on the 3rd floor at premises No. 122, S. N. Banerjee Road, Calcutta, at a monthly rental of Rs. 55/- payable according to English Calendar month. It is further stated that on 28th February, 1970 at the time of the commencing of the tenancy, he paid a sum of Rs. 500/- in advance to the defendant No. 1 against a receipt with a term that a sum of Rupees 27-50 out of the said sum of Rs. 500/-shall be adjusted towards the rents from the month of February, 1970 and onwards. Similarly, the defendant No. 10 also paid a similar amount on the same date with a similar stipulation that a sum of Rs. 20/-shall be adjusted towards his monthly rents from the month of February, 1970 and onwards. According to the said arrangement and mode of payment of the monthly rent of the respective tenancy of the defendants Nos. 9 and 10, they went on paying and there is no arrear and if any arrear is found these defendants are ready to pay the same (Vide -- Paragraph 14 of the written statements). The tenancy of these defendants is well protected under the provisions of law and even in case a decree for eviction is passed against defendants Nos. 1 to 8 the said decree is not binding and enforceable against these defendants and as such they prayed for a dismissal of the suit. On these pleadings, number of issues were framed and for the purpose of consideration of the argument at the Bar, Issue No. 4 is relevant. Issue No. 4 is as follows :-- "Are the defendants Nos. 9 and 10 under-lessees under defendants Nos. 1 to 8 ? If so, has the lease been forfeited" ? The learned Judge, City Civil Court having held against the defendants Nos. 9 and 10, appellants herein, they preferred the present appeal.

(3.) Mr. Das Gupta on behalf of the appellants contended, inter alia, that under Section 114 of the Transfer of Property Act, the defendants are entitled to protection and the appellants are agreeable to pay any amount which may be found due by the plaintiff to the defendant No. 1. It is argued by Mr. Das Gupta that under the registered indenture of lease dated 29th January, 1957 the lessee has the right to sub-let any portion of the demised premises and on the basis thereof the lessees defendants Nos. 1 to 8 had sublet the portion of the demised premises to defendants Nos. 9 and 10. It may be stated herein that the right to sub-let is to be found in the proviso to the clause which gave the right of reentry to the lessor of the premises in case the lessee fails to pay, during the continuance of the lease, the rent reserved by the indenture for three consecutive months. It is contended by Mr. Das Gupta that the lessee has let out to the appellant a portion of the premises under the lessee's right to sub-let any portion and it is open to the defendants Nos. 9 and 10 to pay the same or tender the same in terms of Section 114 of the Transfer of Property Act and thereby avoid the forfeiture in so far as the portions of the premises let out by the lessee are concerned,