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Tharumal Vs. Masjid Hajam Pharosan VA Madrassa Talimul Islam [1994] INSC 212 (31 March 1994)

Hansaria B.L. (J) Hansaria B.L. (J) Mohan, S. (J)

CITATION: 1994 SCC (3) 375 JT 1994 (4) 137 1994 SCALE (2)414



The Judgment of the Court was delivered by HANSARIA, J.- A suit for eviction was filed by the respondent against the appellants in the Court of Munsif and Judicial Magistrate, Jaipur, on the averment that the tenancy of the appellants having been determined they have no right to occupy the suit premises. Prayer for vacant possession of the premises was therefore made, along with realisation of some arrears of rent, so also damages for the use and occupation of the premises by the appellants on and from 1-8-1980. The plaintiff specifically aver-red that provisions of Rajasthan Premises (Control of Rent and Eviction) Act, 1950, hereinafter the Act, had no application in view of the exemption granted by the State Government vide its notification No. F. 20(14) Rev. 1/76 dated 20-8- 1976 by which all the premises owned by Wakfs registered under the Wakfs Act were exempted from the operation of the Act.

2.The appellants took a stand that the exemption notification was void; and that the present being a case of forfeiture of tenancy, distinguished from determination of the same, they were entitled to the benefit of Section 114-A of the Transfer of Property Act, 1982.

3.The learned Munsif did not accept the case of the appellants insofar as the challenge to the exemption notification is concerned, but gave the relief visualised by Section 114-A of the Transfer of Property Act. The Munsif, therefore, ordered that in case the appellants would pay all the arrears within 15 days of the judgment they would not be evicted from the premises.

4.Feeling aggrieved, the respondent preferred an appeal in the Court of District Judge, Jaipur, who took the view that the present was really a case of determination of tenancy and so the appellants were not entitled to the aforesaid benefit. This judgment of the District Judge found the appellants before the High Court of Rajasthan (Jaipur Bench), where, for the first time a plea was taken that the wakf in question being wakf-alal-aulad, the benefit of the aforesaid exemption was not available. Another point urged was that the present was in fact a case of forfeiture of tenancy and not of determination of the same. The High Court did not accept any of the contentions and so dismissed the second appeal. Feeling aggrieved, this Court has been approached under Article 136.

5.Shri Rajinder Sachar, learned Senior Counsel appearing for the appellants, has taken pains to submit that the appellants were wrongly debarred from the salutory provisions of Act by the courts below inasmuch as to a wakf- alal-aulad exemption from the Act permitted by its Section 2(3) is not available. The focal point of this submission is that the section empowers the State Government to exempt from all or any of the sections of the Act only those premises which are owned by any "educational, religious or charitable institution, the whole of the income derived from which is 377 utilised for the purposes of that institution". Learned counsel urges that wakf-aial-aulad cannot be said to be either an educational, religious or charitable institute and, as such, benefit of the exemption given by the aforesaid notification to registered wakfs could not have been taken advantage of by the respondent.

6.Shri Sachar has put forward his submission as aforesaid on being pointed out that it was not open to the appellants to challenge the validity of the exemption notification in the absence of the State being respondent in this appeal.

Learned counsel categorically stated that he was not challenging the validity of the notification (though that was the stand taken earlier throughout the proceeding), but he is confining his contention to the nonapplicability of the exemption to the premises in question. As to the non- applicability, the contention is that the wakf at hand is apparently not an educational or religious institution. At best it could be said to be charitable, which it is not in view of what has been pointed out by this Court in Fazlul Rabbi Pradhan v. State of W.B.1 in which the meaning of the expression " charitable" has been explained. Learned counsel further submits that the view taken by the High Court that even wakf-alal-aulad would be a charitable institution is not sustainable in law.

7.We do not propose to express any opinion on the aforesaid contention of Shri Sachar, because it has been brought to our notice by Shri S.M. Jain, learned Senior Counsel appearing for the respondent, that there was not even a pleading by the appellants that the wakf at hand is wakf-alal-aulad. That this was the position cannot be doubted inasmuch as in the written statement, a copy of which was made available to us by Shri Jain, the only point taken in this connection was that the wakf at hand was not a registered wakf, as was the averment of the respondent. It is because of this that the issue framed on this part of the list was : "Whether the plaintiff-Masjid is a registered society by the Rajasthan Board of Muslim Wakf, Jaipur and the plaintiff has right to file the suit?" The question whether the wakf with which we are concerned is a wakf-alal- aulad being essentially a question of fact and there having been even no averment about this in the written statement filed by the appellants and no issue on this point having, therefore, been framed, we hold that it was not open to the appellants to take such a stand for the first time before the High Court. The mere fact that the High Court has examined this aspect and recorded its finding is not enough to require us to express our views. According to us, the High Court might not have as well addressed itself on this question.

8.In view of the above and because of there being nothing to doubt that the wakf at hand is a registered wakf, as would appear from notification dated 23-9-1965 issued by the office of Rajasthan Board of Muslim Wakf, Jaipur, as contemplated by Section 5(2) of the Wakfs Act, 1954, copy of which was made available to us by Shri Jain for our perusal, we hold that the (1965) 3 SCR 307: AIR 1965 SC 1722 378 premises at hand were exempted from the provisions of the Act. May it be stated that in view of what has been provided in Section 6(4) of the Wakf Act, the list of Wakfs published under Section 5(2) is final and conclusive unless modified as mentioned in the section, to which effect there is nothing before us. We may refer in this connection to Board of Muslim Wakfs v. Radha Kishan' taking the aforesaid view. We, therefore, reject the first submission of Shri Sachar.

9.In so far as the plea of the present being a case of forfeiture and not of determination of tenancy, we would state that the requirement of forfeiture as mentioned in Section 111 (g) of the Transfer of Property Act being not satisfied and the notice as given by the respondent to the appellants (Annexure P-1) having stated about determination of tenancy, the present cannot be taken to be a case of forfeiture. We have said so because of the three situations visualised by clause (g), it is apparent that it is the first alone which could get attracted the same being breaking of any express condition which provides that on breach thereof the lessor may re-enter. Shri Sachar submits that from the notice (Annexure P-1) it would appear that it was the non-payment of rent as agreed upon by the appellants which was the cause of action for issuance of notice and as such this condition is satisfied. To support his submission it is urged that in the suit as filed arrears of rent has also been claimed which would show that the respondent's case was breaking of condition regulating to payment of rent in time.

10.Though a perusal of the notice, which is dated 29-5- 1980 does show that it mentioned about non-payment of rent, but it also stated about termination of tenancy and demanded vacant possession by 31-7-1980 or "the last date of the month of...... In the suit as filed rent had not been claimed on and from 1-8-1980, it was rather damages on account of illegal use and occupation. For the first of the three situations mentioned in Section 111(g) to operate the condition has to be one the breach of which had provided the lessor a right to re-enter. In the present case, there is nothing to show that such was the condition of the tenancy.

That apart, the notice itself would show that it was clause (h) of Section 111 which was pressed into service, because the requirements of notice of termination as mentioned in Section 106 of the Transfer of Property Act were duly borne in mind, as per which section in case of monthly tenancy, the notice must expire with the "end of a month of the tenancy". The perusal of the notice shows that the tenancy at hand was a monthly tenancy as per English calendar and it is because of this that vacant possession was demanded from 31-7-1980, the end of an English calendar month, stating simultaneously about "the last date of the month of......

These salient features do not leave any doubt in our mind that the present was not a case of forfeiture but of determination of tenancy. We, therefore, reject the second contention as well of Shri Sachar.

11.It would be of interest to state that under English law a distinction is made between a condition and covenant insofar as the requirement of a 1 (1979) 2 SCC 468 379 specific proviso in the lease to re-enter in case of breach of the same is concerned. It is only in case of covenant that the lease must contain proviso for re-entry. No such stipulation is deemed necessary in case of breach of a condition. [See pages 836 and 837 of Woodfall's Landlord and Tenant, (1978 Edn.) Volume 1; page 406 of Martin Partington's Landlord and Tenant (2nd Edn.) and page 200 of Evans and Smith's The Law of Landlord and Tenant (4th Edn.).] In the Indian law, however, no distinction exists between a condition and covenant in this regard, as has been stated by a Bench of Calcutta High Court speaking through M.M. Dutt, J., as he then was, in Peter Alan Basil v. East India Pharmaceutical WorkS2. Reference may be made to a decision in this Court in Merwanji Nanabhoy Merchant v. Union of India3 in which the landlord had sought for eviction on the ground of damage to the property because of neglect in maintaining the same which was said to be violation of clause 2(iii) which stated that the tenant will keep the premises in good condition, as well as for failure to pay required rent. As however, there was no stipulation in the agreement empowering the landlord to re-enter in case of breach of the aforesaid clause, it was held that the vacant possession could be demanded on the ground of determination of tenancy simpliciter, and not, because of the forfeiture of tenancy.

12.Having seen that in the case at hand there was no stipulation in the contract containing a clause of re-entry in case of breach of payment of rent, it has to be held that the present is not a case of forfeiture, but was of determination of tenancy by exercising power under clause (h) of Section 111 of the Act.

13.No other point has been urged. The appeal, therefore, stands dismissed. We, however, make no order as to costs.

The appellants would get three months' time from today to vacate the premises on their furnishing usual undertaking within a period of four weeks.


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