D N COOPER Vs. SHIAVAX COWASJI CAMBATA

JUDGEMENT

(1.) This is an appeal from the judgment of Mr. Justice Desai, and the question that arises for determination is whether the plaintiffs who are the landlords are entitled to eject their tenants, the defendants. The defendants were the monthly tenants of the plaintiffs and on July 23, 1947, they sublet their tenement. The plaintiffs gave a notice to the defendants terminating the tenancy.

(2.) The first contention that has been raised by Mr. Parpia on behalf of the tenants is that the notice to terminate was not a valid notice inasmuch as only a month's notice was given, whereas the agreement between the parties required that the notice should be of two months duration. The agreement between the parties provides that the lessors shall let to the lessees the tenement in question for their use and occupation on a monthly tenancy, and then states the rent which has got to be paid. Clause 9 of the lease provides that either party desiring to terminate the tenancy at or after the expiration of the aforesaid period was to give two months previous notice ending with the calendar month. Now, it is clear that this particular clause was intended to operate only if the tenancy was for a fixed period. The agreement to lease is in a printed form, and the print with regard to Clause 1 which sets out the period of the tenancy and the rent clearly shows that a tenancy for a fixed period was intended and the blank was to be filled in to show what was the period of the tenancy. As this particular tenancy was a monthly tenancy, the print in Clause 1 is struck off and a typed statement is incorporated which states that the tenancy between the parties is not a tenancy for a fixed period, but a monthly tenancy. It is, therefore, clear that Clause 9 was abrogated as soon as the parties agreed that the tenancy was to be a monthly tenany. It is impossible to contend that although the tenancy was a monthly tenancy, the notice that was to be given was a notice of two months. The very definition of a monthly tenancy is that it is a tenancy for an indeterminate period which can be determined by a month's notice.

(3.) But the more substantial point which has been urged both by Mr. Parpia and by the Advocate General is whether the tenant continues to be protected under the Bombay Rent Restriction Act, and whether Mr. Justice Desai was in error when he passed a decree for ejectment against the tenants. One of the terms of the tenancy agreement is that the lessee shall not sub-let or part with the possession of the demised premises or any part thereof to any other party or parties without the previous written consent of the lessors and subject to all the covenants and conditions contained in the agreement. Now, it is not disputed in this case that the tenants have sublet their premises without the previous written consent of the landlords ; and Mr. Justice Desai held that in doing so the tenants had failed to perform the conditions of their tenancy, and, therefore, they were not protected under Section 9 of Act VII of 1944. As against this, the Advocate General contends that under Section 10 the tenant is entitled to sublet, notwithstanding the fact that the tenancy agreement does not permit him to do so without the previous consent of the landlord, and that an additional right is given to the tenant, the exercise of which protects him from ejectment, although in doing so he may commit a breach of the tenancy agreement. Now, Section 10 permits a tenant to sublet any portion of his premises to a sub-tenant provided he satisfies two conditions : He must forthwith intimate in writing to his landlord the fact of his having so sub-let the premises and also he must inform the landlord as to the rent at which the premises have been sub-let. And this right is given to the tenant notwithstanding anything to the contrary in any law for the time being in force. The law with regard to sub-letting is contained in Section 108 of the Transfer of Property Act, and that section deals with the rights and liabilities of lessor and lessee and in Sub-clause (j) the lessee is 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, and any transferee of such interest or part may again transfer it. Now, it is to be noted that the right given to the lessee under Sub-clause (j) is an unrestricted right. It is not conditioned by either the lessee having to inform the lessor that he has sub-let the premises or the rent at which he has done so. But the whole of Section 108 is subject to this important proviso that Section 108 only applies provided there is no contract or local usage to the contrary, which means that the law as embodied in Section 108 applies to lessors and lessees unless they choose to make their own law as it were and embody it in their own personal contract. If the lessor and lessee choose to make a contract and lay down their rights and obligations, then Section 108 says that the law incorporated in Section 108 shall not apply to the lessor and lessee, but what will apply to them is their own contract and they would be governed by the conditions of that contract.