K K. Krishnan Vs. M.K. Vijaya Raghavan
[1980] INSC 139 (30 July 1980)
REDDY, O. CHINNAPPA (J) REDDY, O. CHINNAPPA
(J) PATHAK, R.S.
CITATION: 1980 AIR 1756 1981 SCR (1) 139 1980
SCC (4) 88
ACT:
Rent Control legislation-Kerala Buildings
(Lease and Rent Control) Act, 1965-Section 11(4)(i)-Scope of-Tenant-If could
sublet the premises without landlord's permission- Section 108 Transfer of
Property Act if could be a defence to an action for eviction.
HEADNOTE:
On the ground that the tenant had sublet the
premises without his consent the landlord sought the tenant's eviction from the
premises under section 11(4)(i) of the Kerala Buildings (Lease and Rent
Control) Act, 1965. The Rent Controller ordered eviction and this order was
affirmed by the Subordinate Judge, District Judge and the High Court.
Before this Court it was contended on behalf
of the tenant that under section 108(j) of the Transfer of Property Act, 1882,
it was a term of every lease that the lessee might sublease the whole or any
part of his interest in the property and, therefore, unless the lease expressly
prohibited the lessee from sub-letting the whole or part of the premises, the
landlord could not have recourse to section 11(4)(i) of the Act.
Dismissing the appeal, ^
HELD: What section 11(4)(i) of the Act
provides is that sub-letting shall be a ground for eviction but not if it was
by agreement of the landlord. [142G] 1(a) What section 11(4)(i) means is that a
tenant may be evicted on the ground of sub-letting unless such sub- letting is
permitted by a term of the lease itself or by subsequent consent of the
landlord. If the clause "if the lease does not confer on him any right to
do so" was not there the position would be unarguable that section 108(j)
of the Transfer of Property Act would offer no protection.
But the addition of the clause only clarified
that the right to sublet could be conferred on the tenant either at the time of
the lease or subsequently but it had to be conferred; it could not be claimed
unilaterally by the tenant. [142B-D] (b) Quite obviously the legislature
thought that the tenant, whose tenancy was well secured and protected by the
rights conferred by the Act should alone be entitled to such security and
protection and that the tenant should not be allowed to profit by the
protection given to him by subletting the premises and extending the protection
to others beside himself unless the landlord by his act agreed to such a
course. [142F]
2. It is well settled law that not all the
rights conferred on the landlord and tenant by section 108 and other provisions
of the Transfer of Property Act have been left intact by the various State Rent
Acts and that if a State Rent 140 Act makes provision for eviction on certain
specified grounds, eviction cannot be resisted on the basis of rights conferred
by the Transfer of Property Act. Section 108(j) stands displaced by section
11(4)(i) of the Act and is no defence to an action for eviction based on this
section.
[143G] V. Dhanapal Chettiar v. Yesodai Ammal.
AIR 1979 SC 1745 @ 1747= [1980] 1 SCR 334 referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 140 of 1979.
Appeal by Special Leave from the Judgment and
Order dated 8-12-1978 of the Kerala High Court in C.R.P. No. 3450/78.
P. Govindan Nair, Sardar Bahadur Saharya,
Vishnu Bahadur Saharya and Mrs. Baby Krishnan for the Appellant T. S.
Krishnamurthy Iyer, A. S. Nambiyar, and P. Parmeswaran for the Respondent.
The Judgment of the Court was delivered by
CHINNAPPA REDDY, J.-The respondent-landlord filed a petition for eviction of
the appellant-tenant from the premises in dispute under s. 11(4)(i) of the
Kerala Buildings (Lease and Rent Control) Act, No. II of 1965, on the ground
that the appellant had sub-let the premises without the consent of the
landlord. The petition had a chequered career but finally the Rent Controller
ordered eviction by his order dated July 31, 1974. The order of the Rent
Controller was confirmed, successively by the Subordinate Judge, the District
Judge and, the High Court.
The tenant has now preferred this appeal by
special leave of this Court under Art, 136 of the Constitution.
Shri Govindan Nair learned counsel for the
appellant submitted that under s. 108(j) of the Transfer of Property Act, 1882,
it was a term of every lease that the lessee might sub-lease the whole or any
part of his interest in the property and, therefore, unless the lease expressly
prohibited the lessee from sub-letting the whole or part of the premises, the
landlord could not have recourse to s.
11(4)(i) of the Kerala Buildings (Lease and
Rent Control) Act.
In order to appreciate the submission of Shri
Govindan Nair, we may set out the relevant statutory provisions. S.
108(j) of the Transfer of Property Act, 1882,
is as follows:
"108. In the absence of a contract or
local usage to the contrary, the lessor and the lessee of the immovable
property, as against one another, respectively, possess the rights and are 141
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 (a)
X X X X X X X X X (b) X X X X X X X X X (c) X X X X X X X X X (B) Rights and
liabilities of the lessee (d) X X X X X X X X X (e) X X X X X X X X X (f) X X X
X X X X X X (g) X X X X X X X X X (h) X X X X X X X X X (i) X X X X X X X X X
(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;
X X X X X X X X X S. 11 of the Kerala
Buildings (Lease and Rent Control) Act, No. II of 1965, to the extent that it
is relevant is as follows:
"11(1) Notwithstanding anything to the
contrary contained in any other law or contract a tenant shall not be evicted
whether in execution of a decree or otherwise, except in accordance with the
provisions of this Act:
Provided that ... ... ... ... ...
Provided further that ... ... ... ...
(2) X X X X X X X X X (3) X X X X X X X X X
(4) A landlord may apply to the Rent Control Court for an order directing the
tenant to put the landlord in possession of the building:- (i) if the tenant
after the commencement of this Act, without the consent of the landlord,
transfers his right under the lease or sub-lets the entire building or any
portion thereof if the lease does not confer on him any right to do so".
The submission of Shri Govindan Nair was that
if the lease did not expressly prohibit sub-letting, the provision in s. 108(j)
of the Transfer of Property Act which enabled a lessee to sub-lease the whole
or any part of his interest in the property had necessarily to 142 be read into
every lease as one of its terms, and so read, it followed that the lease
conferred on the tenant the right to sub-let "the entire building or any portion
thereof" so as to disentitle the landlord from seeking eviction of the
tenant under s. 11(4)(i) of the Kerala Act. We are unable to agree with this
submission.
Read plainly and without gloss, s. 11(4)(i),
simply and clearly, means that a tenant may be evicted on the ground of
sub-letting unless such sub-letting is permitted by a term of the lease itself
or by subsequent consent of the landlord. What is necessary is an application
of the mind and the resulting consensus between the landlord and the tenant. If
the clause "if the lease does not confer on him any right to do so"
was not there in s. 11(4)(i) the position would be unarguable that s. 108(j)
would offer no protection. That much was also conceded by Shri Govindan Nair.
In our opinion, the addition of the clause did not improve matters for the
tenant. It only clarified matters to this extent that the right to sublet could
be conferred on the tenant either at the time of the lease or subsequently, but
it had to be conferred: it could not be claimed unilaterally by the tenant. To
interpret s. 11(4)(i) in the manner suggested by Shri Govindan Nair would be to
rewrite the provision as follows: "if the
tenant..........................., without the consent of the landlord,
transfers his right under the lease or sublets the entire building or any
portion thereof, though prohibited by lease from doing so". That, we are
not called upon to do. A little thought over the reason for s. 11 (4)(i) will
also throw some light. Quite obviously, the legislature thought that the tenant
whose tenancy was well secured and protected by the rights conferred by the
Buildings (Lease and Rent Control) Act should alone be entitled to such
security and protection and that the tenant should not be allowed to profit by
the protection given to him by subletting the premises and extending the
protection to others besides himself, unless the landlord by his act agreed to
such a course. Where the landlord had himself agreed that the tenant could
sublet, the question would not arise. Therefore, s. 11 (4)(i) provides that
subletting shall be a ground for eviction but not if it was by agreement of the
landlord.
In V. Dhanapal Chettiar v. Yesodai Ammal(1) a
Bench of seven judges of this Court had to consider the question whether notice
under s. 106 of the Transfer of Property Act determining the lease was
necessary before a landlord could move Rent Controller or other appropriate
authority for the eviction of the tenant under the various State Rent Acts.
The Court held that it was not necessary and
Untwalia, J., speaking for the Court, said:
143 "Section 108 deals with the rights
and liabilities of lessors and lessees. Many State Rent Acts have brought about
considerable changes in the rights and liabilities of a lessor and a lessee,
largely in favour of the latter, although not wholly. The topic of Transfer of
Property other than agricultural land is covered by Entry 6 of List III in the
Seventh Schedule to the Constitution. The subject being in the concurrent list,
many State Rent Acts have by necessary implication and many of them by starting
certain provisions with a non-obstante clause have done away with the law
engrafted in s. 108 of the Transfer of Property Act except in regard to any
matter which is not provided for in the State Act either expressly or by
necessary implication".
Later, he said:
"But when under the various State Rent
Acts, either in one language or the other, it has been provided that a tenant
can be evicted on the grounds mentioned in certain sections of the said Acts,
then how does the question of determination of a tenancy by notice arise? If
the State Rent Act requires the giving of a particular type of notice in order
to get a particular kind of relief, such a notice will have to be given. Or, it
may be that a landlord will be well advised by way of abundant precaution and
in order to lend additional support to his case, to give a notice to his tenant
intimating that he intended to file a suit against him for his eviction on the
ground mentioned in the notice. But that is not to say that such a notice is compulsory
or obligatory or that it must fulfill all the technical requirements of section
106 of the Transfer of Property Act".
It is clear from what has been said that not
all the rights conferred on landlord and tenant by s. 108 and other provisions
of the Transfer of Property Act have been left intact by the various State Rent
Acts and that if a State Rent Act makes provision for eviction on certain
specified grounds, eviction cannot be resisted on the basis of rights conferred
by the Transfer of Property Act. Section 108(j) of the Transfer of Property Act
stands displaced by s. 11(4)(i) of the Kerala Buildings (Lease and Rent
Control) Act and is no defence to an action for eviction based on s. 11(4)(i).
We are satisfied that the appeal is without
merit and is accordingly dismissed with costs.
P.B.R. Appeal dismissed.
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