N. A. Karim Sait (decd. ) v. Hyath Basha — 1975 DIGILAW 347 (MAD)

Judgement JUDGMENT:- These three appeals arise out of a common judgment of the Principal Judge, City Civil Court, Madras, in the three appeals before him. The defendant in the trial court was a tenant of the residential back portion in premises No. 3 Gopathi Narayanaswami Chetti Road, T. Nagar, Madras, consisting of 6 rooms, verandah and a hall on a monthly rent of Rs. 225. Alleging that he had defaulted in payment of rent and had sublet the premises without the consent of the landlord, proceedings under the House Rent Control Act were taken against him. The defendant remained ex parte and eviction was ordered. The plaintiffs took possession on 31st October, 1968 and three suits were filed for recovery of the rent from 1-4-1967 to 31-10-1968. The total amount claimed is Rs. 2025. 2. The defence was that the defendant had vacated the portion in his occupation on 1-3-1966, that he had sent a notice to that effect on 25-3-1966 and that he was not liable to pay any rent subsequent to 1-3-1966. There are certain other allegations which are not material for our present purpose, 3. The Assistant Judge, City Civil Court, who tried all the three suits together, found that the defendant had surrendered tenancy on 1-3-1966 and that direct relationship between the plaintiffs and the sub-tenants had come into existence so as to require them to proceed against them for damages for use and occupation of the premises. He, therefore, dismissed the suits. 4. The plaintiffs appealed to the Principal Judge, City Civil Court, Madras. Before him it was contended that the trial court had not paid any attention to Ex. A-1 which is the certified copy of the notice dated 24-6-1966 issued by the defendant to his sisters, who were the sub-tenants and that Ex. A-1 would amount to an admission on the part of the defendant that he continued to be the tenant of the premises even subsequent to March 1966. The sub-tenants had sent replies denying that they were the tenants of the defendant and claiming title to the property in their own rights. There were also some criminal proceedings between the defendant and his sisters and their husbands. The sub-tenants had sent replies denying that they were the tenants of the defendant and claiming title to the property in their own rights. There were also some criminal proceedings between the defendant and his sisters and their husbands. Taking into account all these intentions and the circumstances, the learned Principal Judge held that the defendant's case that he surrendered tenancy on 1st March, 1966 was true and more probable than the case of the plaintiffs and that once he had surrendered the tenancy his liability to pay rent ceased. In his view the effect of the main tenant surrendering possession was to bring into existence direct relationship between the landlord and the sub-tenant and the landlord would have to recover amounts due to him for the period for which he was kept out of possession by the sub-tenants as damages for use and occupation. He therefore dismissed the appeals. 5. The unsuccessful plaintiffs have come on appeal to this court. The contention urged on their behalf is that there is no privity of contract or estate between plaintiffs, the landlords, and the persons who claimed to be sub-tenants from the defendant and that the mere intimation by the defendant that he had vacated the premises would not in any manner absolve him from his obligation to pay the rent so long as the actual possession of the premises had not been handed over to the plaintiffs. For the respondent-tenant the submission was that once he had surrendered possession and had done all he could do to determine the tenancy, the plaintiffs could not proceed against him and had only to look to the occupiers for the amount, if any, due to them, 6. The short question that arises here is whether the intimation of surrender of possession by the main tenant with effect from 1-3-1966, would absolve him from payment of rent from that date. It is not disputed that the plaintiffs at no time recognised the sub-tenants, as such, and that the plaintiffs were only looking to the defendant for payment of rent. In Mullah on the Transfer of Property Act, 1882, 6th Edn., at page 607 there is the following passage- "In the case of a sub-lease the sub-lessee becomes a tenant of the lessee and not stand in the lessee's place. In Mullah on the Transfer of Property Act, 1882, 6th Edn., at page 607 there is the following passage- "In the case of a sub-lease the sub-lessee becomes a tenant of the lessee and not stand in the lessee's place. Therefore, there is neither privity of contract nor privity of estate between the head lessor and the sub-lessee and a sub-lessee is not liable for rent nor on the covenants in the head lessee to the head lessor." This passage is based on the decision in South of England Dairies Ltd. v. Baker, 1906-2 Ch 631. In that case the lessee covenanted to pay one third of water rate payable in respect of the house, and the lessor covenanted to pay all rates and taxes except the water rate to the extent of one third. The levee sub-demised the premises and covenanted to pay one third of the water rate payable in respect of the house. Subsequently the freehold reversion and the superior lease became vested in the same person, a third party. He refused to pay any of the rates and taxes in respect of the said premises. The local authority distrained and the subtenants sought to recover from the owner the amount which they had been compelled to pay the municipal authorities. It was held that the action by the sub-tenants should fail, as there was no privity between the parties and that an under-lessee was not an 'assign' of his lessor so as to be entitled to the benefit of a positive covenant entered into with the lessor. At page 638 it was observed as follows- "It is really elementary that, as between the superior landlord and ............ under lessees, there urns neither privity of contract nor privity of estate." The learned Judge relied on a passage in Platt on Leases, Vol. I, 1847 Edn., page 202. The sub-tenants did not become the tenants of the plaintiffs and were not liable to pay the rent to them in this case. 7. The learned trial Judge has considered the decision in Reynolds v. Bannerman, 1922-1 KB 719, and has taken the view that the tenant had done all he could do to give vacant possession so that he was not liable to the landlord for use and occupation of the premises for the period during which the landlord was kept out of possession. In that case one Bannerman took certain premises on lease from Reynolds for a period of three year's with an obligation to quit on six months' notice. Bannerman sublet a portion of the premises to Mrs. Baldwin on a weekly tenancy. In September 1919, Bannerman gave due notice to quit on 25-3-1920, this being the six months' notice. Bennerman went out of possession on 25-3-1920; but Mrs. Baldwin refused to do so, relying on the provisions of the Increase of Rent and Mortgage Interest (Restrictions) Act then in force. She continued in occupation, paying rent neither to the landlord nor to Bannerman. She gave up possession in August 1921. The landlord brought a suit against Bannerman claiming the rent or damages for use and occupation for the period between 25-3-1921. The learned Judges adverted to the sub-tenant remaining in possession after the tenant had gone out by virtue of his statutory right which could not in any way be interfered with by the tenant. At page 724, it was observed as follows- "But in the case we are considering there was nothing more that the tenant could have done to get possession of the premises for the landlord and the thing which prevented him from doing so was the statute." It was further added in the same page as follows- "the mere fact that a person is in possession who has originally got possession as a sub-tenant, does not prevent the interest of the tenant ceasing at the expiration of his notice to quit." At page 726 Action J. has pointed out as follows:- "....having regard to the rights conferred on the sub-tenant by the statute it cannot be said that the tenant by any agency, or by any reason of any circumstances for which he is responsible, has put Mrs. Baldwin into these premises or suffered her to use and occupy them." The above passages clearly show that as on as the main tenant had surrendered possession to the extent possible by him, the tenancy was at an end and that the sub-tenant acquired the statutory rights which the tenant was powerless to put an end to. Baldwin into these premises or suffered her to use and occupy them." The above passages clearly show that as on as the main tenant had surrendered possession to the extent possible by him, the tenancy was at an end and that the sub-tenant acquired the statutory rights which the tenant was powerless to put an end to. The principle of the sub-tenant acquiring certain statutory rights is indeed an exception to the principle that- "When a lease has expired, the tenant's responsibility is not at an end; for if the premises are in possession of an under-tenant, the landlord may refuse to accept the possession and hold the original lessee liable; for the lessor is entitled to receive absolute possession at the end of the term." (In the words of Lord Kenyon in Harding v. Crethorn, 1793-1 Esp 56 (58)). 8. So long as similar statutory right has not been conferred on the sub-tenant under the Indian Law, it will not be proper to import the principle of the decision in Reynolds v. Bannerman, 1922-1 KB 719. 9. In Hill and Redman's Laws of Landlord and Tenant, 15th Edn. page 391, the main principle and the exception thereto are set out as follows- "While an underlessee wrongfully remains in occupation, the lessor can treat the lessee as still in possession, and can recover rent from him for the period of the underlessee's occupation; but if the underlessee is entitled to remain in possession by virtue of the protection afforded by the Rent Act, 1868, and the tenant has done all that lies in his power to give vacant possession, he will not be liable for rent or for the use and occupation of the premises during the continuance of the underlessee in possession." For the main principle Harding v. Crethorn, 1793-1 Esp 56 (58) is relied on and for the exception Reynolds v. Bennerman, 1922-1 KB 719 has been cited, I have excluded, in extracting this passage, the other decision; to which reference has been given in the text. 10. The fact that the sub-tenants in India have no statutory rights is clear from a Bench decision of this court in Madurai Nayagamma v. Plantain Merchants' Association, 1968-1 Mad LJ 386. An order of eviction was passed against a chief tenant. The sub-tenant had not been impleaded in the proceedings. 10. The fact that the sub-tenants in India have no statutory rights is clear from a Bench decision of this court in Madurai Nayagamma v. Plantain Merchants' Association, 1968-1 Mad LJ 386. An order of eviction was passed against a chief tenant. The sub-tenant had not been impleaded in the proceedings. The question was whether the order could be executed by evicting the sub-tenants. It was held that the order of eviction obtained against the chief tenant could be executed by evicting the sub-tenants, who were not parties to the eviction proceedings. Therefore, in my opinion, there is no scope for applying the principle of Reynolds v. Bennerman, 1922-1 KB 719 to the Indian sub-tenant. 11. My attention was drawn to a decision in S.M. Abdul Jameel v. M/s. Simson and Machonochy Ltd., 1967-1 Mad LJ 337. In a suit on the Original Side of this court the plaintiff was the owner of a building called 'Badshaw Buildings'. He had let it out to the first defendant for a period of ten years from 1-1-1954 on a monthly rent of Rs. 1750 for the entire premises. The lessee had power to sub-lease and he (the first defendant) sub-leased a part of the property to defendants 2 and 3 in the suit. Though the lease had come to an end by 31-12-1963, the tenant obtained permission to continue in the premises upto 30-4-1964. As the sub-tenants had not vacated even after that date, the landlord filed a suit seeking to recover possession of the portions in the occupation of the sub-tenants and also claiming damages for use and occupation. Ramamurti J gave a decree for possession of the property in the occupation of the sub-tenant and a decree for mesne its recoverable from him. In the course of his judgment at page 343, the Judge observed as follows- "It has been held that if the main tenancy is determined and if the landlord gives the sub-tenant notice of this termination as well as the notice terminating the sub-tenancy the fact that the sub-tenant remains in possession claiming to be a statutory tenant will not render the tenant liable for rent or damages for use and occupation as the main tenant must held to have done everything legally possible to give the landlord vacant possession." He relied in this connection on Woodfall on Jandlord and Tenant, 28th Edn. page 1042 and also referred to the decision in Reynolds v. Bennerman, 1922-1 KB 719. 12. The above passage, in my opinion, does not take note of the difference in the legal position between the sub-tenant and the owner. Further the question in the form in which it is before me did not come up for decision. In fact, learned Judge has adverted to a concession (at page 344) made by the tenant in that case to the right of landlord to recover possession, provided the landlord gave up the claim for mesne profits as against the tenant. If the liability of the tenant to pay rent or mesne profits had been in issue there would have been scope for application of the principles deduced by me. As this question did not arise there. I am unable to regard that decision as deciding the point in issue here. 13. The notice issued by the defendant on 25-3-1966 cannot also be taken as a surrender of possession. In the absence of a statutory right to the sub-tenants to continue in the premises as in the English law, it was necessary for the defendant to have taken such steps as were possible or appropriate to see that the sub-tenants vacated the premises. As he has failed to do so and as there is no privity of contract or estate between the landlord and the sub-tenants, the landlord could very well recover the money from the tenant defendant. By merely alleging that he, had delivered the key with reference to the portion in his occupation, the tenant cannot be said to have taken steps to see that the sub-tenants were kept out of the premises so as to enable the landlord to take possession. Even on the question as to whether there has been a surrender of possession by the tenant on 1-3-1966, there is some scope for doubt. If really he had delivered possession on 1st March, 1966, it is not clear as to why it became necessary for him to issue the notice on 25-3-1966. By a reply dated 28-3-1966, the landlord has denied the delivery of possession by the tenant. This goes to show that there was no actual surrender of possession. If really he had delivered possession on 1st March, 1966, it is not clear as to why it became necessary for him to issue the notice on 25-3-1966. By a reply dated 28-3-1966, the landlord has denied the delivery of possession by the tenant. This goes to show that there was no actual surrender of possession. I am not satisfied that there has been surrender of possession on the facts herein, which would in any way absolve the tenant from his liability to pay the rent. It is not necessary to pursue this point further, and I have reached a conclusion against the defendant even on the view that he had vacated on 1st March, 1966. 14. For all these reasons the courts below went wrong in holding that the defendant was not liable for the rent from 1st March, 1966 upto 30th October, 1968. There will be a decree as prayed for with costs throughout. Leave granted.