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1961 DIGILAW 123 (CAL)

Sailendra Kumar Roy Chaudhury v. Abdul Latif Khan

1961-07-03

BACHAWAT, CHATTERJEE

body1961
JUDGMENT 1. This revision petition arises out of an application made under sub-section (3) of section 16 of the West Bengal Premises Tenancy Act, 1956. Opposite Party No. 1, Abdul Latif Khan is the landlord of the premises No. 3, Sambhu Chatterjee Street, Calcutta, opposite party No. 2, Harsha Nath Roy is the tenant of the first degree in respect of a portion of the said premises and since June 1954 the petitioner Sailendra Kumar Roy Chowdhury is the tenant of the second degree in respect of the said portion of the premises. Following the judgment of N. K. Sen J. in (1) Civil Rev. No, 1738 of 1957 (Sri Prafulla Chandra Mukherjee v. Akshoy Kumar Bose), an unreported case decided on the 21st March, 1958 the Tribunals below have refused to grant relief to the petitioner under sub-section (3) of section 16 on the ground that the rent note (Exhibit 'c') on the basis of which Harsha Nath Roy was inducted as a tenant contains an express prohibition against subletting. In our opinion the subsection (2) of section 16 applies to the subletting and the Tribunals below ought to have granted the relief prayed for by the petitioner. 2. By Exhibit 'c, Harsh Nath Ray entered into the following covenant :in favour of Abdul Latif: "I will use the premises for my residence only and will not sublet either the whole or any portion thereof during the period of my tenancy. " The sub-lease in favour of the petitioner though made in breach of this covenant is valid and operative. It is to be noticed that Exhibit 'c does not provide that on breach of the covenant the landlord, Abdul Latif Khan would be entitled to re-enter the premises. Now by section 6 of the Transfer of Property Act save as provided by that Act or by any other law for the time being in force, property of any kind may be transferred and therefore save as so provided the lessee may transfer his interest in the property by way of sub-lease. Section 108 of the Transfer of Property Act shows that in the absence of a contract or local usage to the contrary the lessee has as against the lessor the right to assign or sublease his interest in the property. But the lessee may by express contract with the lessor bind himself not to sublease the property. Section 108 of the Transfer of Property Act shows that in the absence of a contract or local usage to the contrary the lessee has as against the lessor the right to assign or sublease his interest in the property. But the lessee may by express contract with the lessor bind himself not to sublease the property. The contract is valid and the lessor may enforce the contract by claiming damages for the breach and by injunction restraining a threatened breach of it. The express contract may also be read as a condition limiting the power of disposal by the lessee of his interest in the property. By section 10 of the Transfer of Property Act such a condition is valid where it is for the benefit of the lessor. Now the condition restraining the alienation cannot be said to be for the benefit of the lessor where the lessor cannot terminate the lease upon breach of the condition. Section 111 (g) of the Transfer of Property Act shows that a lease cannot be forfeited on breach of a condition unless the condition expressly provides that on such breach the lessor may re-enter. A stipulation in a lease restraining the alienation unaccompanied by a proviso for re-entry on its breach is not therefore an effective restraint or bridle on the lessee's interest in the property and is not really a condition for the benefit of the lessor. Such a stipulation is ineffective as a condition or restraint against alienation. The lease remains operative, notwithstanding the breach of the stipulation. Consequently the sublease made in breach of the stipulation also is valid and operative. It may be observed that even before the amendment of section 111 (g) of the Transfer of Property Act by Act XX of 1929 it was held that where there is a stipulation in a lease restraining its assignment without a proviso for reentry on its breach and the lessee assigns the lease in breach of the stipulation, the assignment is operative and the assignee obtains a valid title to the leasehold as against the landlord, see basarat Ali Khan v. Manirulla (2) I. L. R. 36 Cal. 745. 3. The sub-tenancy of the petitioner came into existence while the West Bengal Rent Control (Temporary Provisions) Act, 1950 was in force. 745. 3. The sub-tenancy of the petitioner came into existence while the West Bengal Rent Control (Temporary Provisions) Act, 1950 was in force. Since the sub-letting was by the tenant of the first degree, nothing in subsection (1) of section 13 of that Act invalidates this sub-lease. 4. We find nothing in the general law or in the special Acts which invalidates the sub-lease. It may therefore be well said that the tenant of the first degree had sublet the premises let to him by the landlord and, that the petitioner is the sub-tenant to whom the premises have been so sublet. Mr. Sen, however, contends that a subletting in breach of an express condition which prohibiting it is not a subletting "with or without the consent of the landlord" within the purview of sub-section (2) of section 16 of the West Bengal Premises Tenancy Act, 1956. We are unable to accept this contention. Sub-section (2) of section 16 applies to all sub-lettings whether made before the commencement of the Act "with or without the consent of the landlord". A subletting made in breach of an express condition prohibiting it is a subletting without the consent of the landlord. Sub-section (1) of section 16 of the West Bengal Premises Tenancy Act, 1956 deals with Sub-lettings made "with the previous consent in writing of the landlord" after the commencement of the Act. Sub-section (2) of section 16 deals with and applies to Sub-lettings made before the commencement of that Act. In view of the fact that sub-section (1) of section 16 is limited in its application to post-Act Sub-lettings made with the previous consent in writing of the landlord, the Legislature used the expression "with and without the consent of the landlord" in sub-section (2) of section 16 to indicate that the sub-section (2) applies to all pre-Act Sub-lettings. Every subletting by the lessee is either with the consent of the landlord or without his consent. In Civil Rule 1738 of 1957 our learned brother, N. K. Sen, J. appears to have held that the sub-tenant cannot get the benefit of section 16 where the subletting is in breach of an express contract prohibiting it. His Lordship made a distinction between bilateral and unilateral acts and thought that prohibition is a bilateral act whereas consent and absence of consent are unilateral acts. 5. His Lordship made a distinction between bilateral and unilateral acts and thought that prohibition is a bilateral act whereas consent and absence of consent are unilateral acts. 5. With respect we are unable to agree with that judgment or with its reasonings. A prohibition is an express negation of consent. A subletting made in breach of an express condition prohibiting it is an a fortiori case of sub-letting made without the consent of the landlord. The point in issue is whether the subletting is without the consent of the landlord and not whether the absence of a consent is a bilateral act. If a prohibition is a bilateral act, the negation of consent by the prohibition is also such an act. We pass the following order. 6. We decide and adjudge that the petitioner is entitled to the declaration prayed for in his application under sub-section (3) of section 16 of the West Bengal Premises Tenancy Act, 1956. The application under subsection (3) of section 16 is remitted to the Controller in order that he may decide and dispose of the application in accordance with law and in accordance with the observations made above. We direct that each party will pay and bear his own costs upto-to-date both in this Court and in the Tribunals below. (Civil Revision No. 762 of 1959.) After hearing the learned Advocates for both sides we are satisfied that this is a case where the inherent powers of the court under section 151 of the Code of Civil Procedure should have been exercised and the stay asked for should have been granted. We, therefore, make the Rule absolute and we direct that the hearing of the suit be stayed until the disposal of the application under section 16 (3) of the West Bengal Premises Tenancy Act, 1956 made by the petitioner. Each party will pay and bear his own costs both in this Court and in the courts below.