TREASURER OF CHARITABLE ENDOWMENTS Vs. SFBTYABJI

JUDGEMENT

(1.) This is an appeal from the judgment of Mr. Justice Coyajee by which he dismissed the plaintiff's suit. The facts leading up to this litigation may be briefly stated. On May 1, 1983, the plaintiff let to Fifi Frenais flat No. 4 in Candy House situated at Mandlik Road, Fort. On March 1, 1939, he let to her flat No. 2 in the same building. With regard to fiat No. 2 the terms of the tenancy were reduced to writing and the terms were that she was to be a monthly tenant at Rs. 155 per month with one month's notice ending with the calendar month given "by either party to terminate the tenancy and the rent was to be paid in advance every month on or before the 10 of each month. The tenant also agreed not to sub-let or re-let the premises without written consent. Parties were agreed that the same terms of tenancy also applied to the letting of flat No. 4. On June 11, 1946, Fifi died. On November 6, 1946, Messrs. Section F. B. Tyabji & Co. wrote to the plaintiff stating that they were going to sell the business of the deceased which was carried on by her in the name of Madame Cecile as a milliner with the goodwill and also the premises and they asked the plaintiff to state that they had no objection to the purchaser of the business continuing on the premises as his tenant. On November 8, 1946, plaintiff replied stating that he could not accept anybody who came forward as the purchaser of the shop as the tenant. He pointed out that the purchaser must have his previous consent and he would have to deposit three months rent in advance. On November 16, 1946, letters of administration to the estate of Fifi were issued to the defendant in this suit. The rents of these two flats were paid up to December 31, 1946. On December 18, 1946, the defendant assigned to one Mrs. Safiabai Cassum. Ahmed flat No. 4. The deed of assignment shows that Rs. 255 was charged for the assignment of the tenancy relating to Hat No. 4. On December 19, 1946, the defendant informed the Secretary of the plaintiff that he had assigned the flat. On December 21, 1946, the defendant assigned flat No. 2 to the same Mrs. Safiabai Cassum Ahmed. It seems that there was an auction sale at the office of the defendant at which the stock, furniture, goodwill and the benefit of the tenancy in this flat were all sold first to one M. Rashid who ultimately sold it to Mrs. Safiabai Cassum Ahmed and Mr. Rashid executed the deed of assignment as a confirming party. The deed of assignment shows that the benefit of the tenancy was sold at Rs. 500. On December 27, 1946, Messrs. Wadia Ghandy & CO., solicitors for the plaintiff, gave notice to the defendant terminating the tenancy of flats Nos. 2 and 4 and calling upon him to deliver over peaceful and vacant possession of those flats on January 31, 1947. On February 10, 1947, on behalf of Mrs. Safiabai Cassum Ahmed, the assignee, the solicitors Section F. B. Tyabji & Co. tendered rent to the plaintiff in respect of both the flats for the month of January, 1947, and on February 11, the plaintiff's attorneys replied to that letter pointing out that Mrs. Safiabai Cassum Ahmed was not the tenant of the plaintiff and refusing to accept the rent. On March 12, 1947, Safiabai tendered rent for the mon February, 1947 in respect of both the flats and on March 17 the plaintiff's solicitors wrote to her pointing out that she was not the tenant of these flats and that their client did not recognize her as such, and the cheque which was sent by Safiabai in respect of the rent was returned by Messrs. Wadia Ghandy & Co. On March 17, 1947, the plaintiff filed the suit from which this appeal arises against the defendant for ejectment and for rent for January 1947 and compensation for use and occupation from February 1, 1947, till possession was handed over.

(2.) The main contention of the defendant, which has been argued before us in appeal and which found favour with the learned Judge, is that the plaintiff's suit against the defendant as the lessee was not maintainable inasmuch as there was an assignment of the lessee's interest in favour of the assignee. It has been urged upon us by Mr. Taraporewalla that the notice to quit served by the plaintiff upon the defendant was not a valid notice which terminated the tenancy. According to Mr. Taraporewalla, on the assignment being executed, the notice should have been served upon the assignee. It was further contended by Mr. Taraporewalla that a decree for ejectment could not; go against the lessee inasmuch as on the assignment taking place, it was the assignee who was entitled to be in possession of the premises and all interest in those premises vested in the assignee and no interest was left outstanding in the lessee.

(3.) The lessee has been given the right to transfer absolutely or by way of mortgage or sub- lease the whole or any part of his interest in the property demised by Section 108 (j) of the Transfer of Property Act. It was the contention of the appellant that as a matter of fact on the true construction of the letter of the tenancy, to which I have referred, it was not open to the tenant to assign without the written consent of the lessor. We have not gone into that matter and the appeal has been argued on the assumption that the lessee had the right to assign without the consent of the lessor. But I may point out that the law is clear that even where the consent of the lessor is required and the lessee assigns without such consent, the assignment is valid and operative, and the only right that the lessor has is to sue the lessee for damages for breach of covenant: see my judgment in Nadjarain V/s. Trist (1944) 47 Bom L.R. 209.