K.K. KRISHNAN versus M. K. VIJAYA RAGHAVAN

CHINNAPPA l-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 Relllt 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 tthe Rent Controller ordered eviction by his .order dated July 31, 1974. The order of tlb.e Rent Controller was confirmed, successively by the Subordinate Judge, the District Judge and, the High Court. The ~enant has now preferred this appeal by special leave of this CourU under Art. 136 of the Constitution.

p. 140, margin D

Shri Govindan Nair learned counsel for the appellant submitted that under s. 108(j) of the Transfer of Propevty Act, 1882, it was a term of every lease that the lessee might sub-lease tihe 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.

p. 140, margin F

In order to appreciate the submission of Shri Govindan Nair, we may s~t out the relevant statutory provisions. S. 108(j) of the Transfer of Property Act, 1882, is as follows:

p. 140, margin F

"108. In the absence of a contract or local usage to the contrary' the lessor and the Jessee of the immovable property,' as against one another, respectively, possess the rights and are

p. 140, margin H

subject to the liabilities mentioned in the rules next following, or such of them as are applicable to the properfy leased :

p. 141, margin A

(A) Rights and liabilities of the lessor w xxx xxx xxx ~ xxx xxx xxx

p. 141, margin A

w xxx xxx xxx (B) Rights and liabilities of the lessee

p. 141, margin A

xx x xx x xx x (e) xx x xx x, x xx m xxx xxx xxx 00 xxx xxx xxx x x x x x x x x x

p. 141, margin B

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;

p. 141, margin C

xxx xxx ,xxx

p. 141, margin C

S. 11 of the Kerala Buildings (Lease and Rent Control) Act, No. II of 1965, to tihe extent that it is relevant is as follows:

p. 141, margin C

"11(1) Notwith~tanding 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 x x x x x x x x x

p. 141, margin C

x x x x x x x x x

p. 141, margin F

(4) A landlord may apply to the Rent Control Court for an Qrder directing the tenant to put the landlord in possession of the building: -

p. 141, margin F

(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

p. 141, margin F

do so".

p. 141, margin F

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 Aat which enabled a lessee to sub-lease the whole or any part of his interest in the property had necessarily to be ;read into every lease as one of its terms, and so read, it followed that the lease conferred on t.he 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.

pp. 141–142, margin F

Read plainly and without gloss, s. 11(4)(i), simply and clearly, means that a tenant may be evicted on the ground of sub-l~ting 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. I.f 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 con- ¢ded 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. ll(4)(i) in the manner suggested by Shri Govindaru 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 arenot called upon to do. A lititle 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 itenant could sublet, !the question would not arise. Therefore, s. 1 l (4)(i) provides that subletting shall be a ground for eviction but not if it was by agreement of the land1ord.

p. 142, margin A

In V. Dhanapal Chettiar v. Yesodai Ammal( a Bench of seven judges of this Court had to consider the question whether notice under s. 106 of the Transfer o~ Property Act determining the lease was necessary before a landlord could move Rent Controller or o~her 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:

p. 142, margin G

(1) A.l.R. 1979 S.C. 1745 at 1747-48=[1980] 1 S.C.R. 334.

p. 142, margin H

"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 therri by. st.arting 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 pro· vided for in the State Act either expressly or by necessary

p. 143, margin A

·implication". Later, he said:

p. 143, margin B

"But when under the various State Ren~ 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 tb his case, to give a notice to his f.enant 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".

p. 143, margin B

It is clear from what has been said that not all the rights con· ferred on landlord and tenant by s. 108 and other provisions of the Transfer of Property Act have been left in tact 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 coll!ferred by the Transfer of Propert1y Act.. Section l08(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) .

p. 143, margin F

. We are sati'sfied that the appeal is without merit and is . accordingly dismissed with costs. ·P.B.R. Appeal dismissed.

p. 143, margin G