Judgement

BEG, J. :- The appellant was a tenant who obtained a lease of non-residential premises situated in the City of Madras at Rs. 450/- per month from the landlord on 21-8-1944. On 9-3-1957 a portion of the premises was sublet to Shawaran Lachmandas. on 12-7-1957 another portion was sub-let to Umasar Corporation. At that time there was nothing to prohibit sub-letting either in the lease deed or in the Madras Buildings (Lease & Rent Control) Act. 1949 which was applicable then. On 3-4-1963 the landlord executed another registered lease deed of the same property in favour of the appellant for a period of five years 1-10-1961 at Rs. 600/- per month (incidentally, this period has also expired). This lease contained a provision against sub-letting. Furthermore the Madras Buildings (Lease and Rent Control) Act, 1960 (hereinafter referred to as the Act ) repealing the Act of 1949 had come into force. The Act conferred a right under Section 10 (2) (ii) (a) to evict the tenant on the ground :

"(ii) that the tenant has after the 23rd October 1945 without the written consent of the landlord -

(a) transferred his right under the lease or sub-let the entire building or any portion thereof if the lease does not confer on him any right to do so."

On 26-4-1963 the appellant is said to have sublet another portion of the premises to the Umasar Corporation. On 27-5-1964, K. Venkatesan, the respondent before us became the landlord under a sale deed. In December 1964 the respondent landlord filed an application under Section 10 (2) (ii) (a) of the Act to evict the appellant tenant and his subtenants from the whole property. On 20-9-1965 the City Rent Controller passed an order of eviction.

2. On 26-3-1966 the court of Small Causes at Madras allowed the tenant s appeal because it held that the tenant had the right under the original lease of 21-8-1944 to sublet and also because even violation of a clause of the subsequence lease of 3-4-1963 prohibiting sub-letting did not entail a forfeiture of tenancy rights under the provisions of the Transfer of Property Act. Its view was that in a case of what it described as "a contractual tenancy". the provisions of the Transfer of Property Act applied to the exclusion of the remedies provided by the Act so that unless the lease deed itself provided for a termination of tenancy for sub-letting the tenancy right itself could not be forfeited or determined by such a breach of the contract of tenancy.

3. Upon a revision application under Section 25 of the Act the High Court of Madras reversed the judgment and order of the Small Cause court. It hold that the relief against forfeiture was not obtainable in cases governed by Section 114-A in the Transfer of Property Act where as in the case before us there was an express condition against assigning letting or parting of possession. the lease of 3-4-1963 by which the rights of the landlord and tenants were held by the High Court to be governed on the date of application under Section 10 (2) (ii) (a) of the Act, contained a prohibition against sub-letting which involved parting with possession. It also referred to Exhibit determination of tenancy on the ground of sub-letting. It hold that in any case there was a proved sub-letting on 9-3-1957 to Shewaran Lachmandas and that although there was no prohibition of sub-letting at that time the provisions of Section 10 (2) (ii) (a) of the Act became applicable on a parity of reasoning adopted by this court in Gappulal v. Dwarkadheeshii (1969) 3 SCR 989 with regard to a similar situation under the Rajasthan Promises (Control of Rent & Eviction) Act. Hence, it allowed the respondent landlord s application and restored the order of eviction passed by the City Rent Controller. This Court granted special leave to appeal against the judgment and order of the Madras High Court passed on 3-9-1970.

4. It is clear from the majority view of this Court in M/s. Raval & Co. v. K.G. Ramachandran, AIR 1974 SC 818 at p. 823 dismissing an ap