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SUPREME COURT OF INDIA
K.M. Joseph, Hrishikesh Roy, JJ.
Shabbir Mohammad Sayed - Appellant
Versus
Mrs. Noor Jehan Mushter Shaikh & Ors. - Respondents
C.A. No. 5039-5040 of 2022 (Arising out of SLP (C) Nos.32161-32162 OF 2018)
Decided On : 02-08-2022
Civil Procedure Code, 1908 – Order XXI Rule 97 – Contract Act, 1872 – Section 198 – Maharashtra Rent Control Tenancy Act 1999 – Sections 26 and 52 – Resistance to execution application – Assignment of lease in favour of appellant by person claiming to be lessee was unlawful – It will not be lawful for a tenant to sublet or to give on license whole or any part of premises let to him or to assign or transfer in any other manner his interest therein – While under general law, subject to there being no contract to the contrary, tenant can assign, sublease or mortgage his rights as lessee, on other hand, in regard to tenancy governed by the Act, ordinary rule is that tenant cannot sublet, give on licence or assign or transfer in any other manner – This is made subject to a contract to the contrary – Alleged assignment by so-called tenant in favour of appellant is prohibited under Section 26 – There is no express contract to the contrary to rescue appellant – Assignment by tenant can be ratified by landlord – In this case there is no ratification in alleged agreement executed by defendant landlord – Agreement executed by landlord makes no reference to alleged agreement executed by tenant in favour of appellant – Sans any ratification and in absence of any contract to the contrary within meaning of Section 26, alleged transfer by lawful tenant cannot pass muster – Appeals dismissed. (Paras 12, 17, 24 and 27)
Facts of the case:
By impugned order, the High Court in a revision petition filed by the appellant has upheld the order passed by the Appellate Bench of the Court of Small Causes at Bombay which in turn affirmed the order passed in Execution Application rejecting application filed by the appellant under Order XXI Rule 97 of the Code of Civil Procedure. The application for recall has been rejected by the order which is also impugned.
Findings of Court:
Appellant lays store by a tenancy or assignment by the ‘lawful tenant’ on 24.01.2014. This involves the assumption that tenancy in favour of the lawful tenant was intact. Case of appellant defies both logic and is legally untenable.
Result : Appeals dismissed.
JUDGMENT :
K.M. JOSEPH, J.
1. Leave granted.
2. By the impugned order, the High Court in a revision petition filed by the appellant has upheld the order passed by the Appellate Bench of the Court of Small Causes at Bombay which in turn affirmed the order passed in Execution Application No.386/2016 that is Order dated 16.11.2016, rejecting the application filed by the appellant under Order XXI Rule 97 of the Code of Civil Procedure. The application for recall has been rejected by the order which is also impugned. The first respondent filed a civil suit against respondent Nos.2-4. Respondent Nos.2-4 are, in other words, defendants 1, 2 and 3 in the suit. The claim of the first respondent in the suit was that defendant Nos. 1 and 2 were tenants of the property in question who were ready to transfer their tenancy rights on the agreed consideration of Rs. 85,000/- which was paid to them by the first respondent. The parties are referred to by their status in the Trial Court. The matter was being delayed on the basis of the property being illegally sublet to two persons. The plaintiff is alleged to have contacted the landlord namely defendant No.3. The 3rd defendant transferred tenancy rights by rent receipt dated 01.12.2006. Possession was not handed over. PW2, the 3rd defendant, was examined where he admitted the letters dated 03.1.2004 and 19.05.2007. The Trial Court dismissed the suit by Judgment dated 09.04.2013. The plaintiff appealed the judgment by filing Appeal No.23 of 2013. The Appellate Court decreed the suit. Following are the terms of the decree :
2. The Judgment and decree dated 09.04.2013 is set aside and following order is substituted.
(i) The suit is party decreed with costs.
(ii) It is declared that the plaintiff is tenant in respect of the suit premises being Room No.3, Ground Floor, 98/A, Visheshwar Bhuvan @ Rajkotwala Compound, Pipe Road, Kurla (West), Mumbai 400 070.
(iii) Defendant No.3/landlord/co-owner is directed to hand over possession of the suit premises to the plaintiff within a month and directed to issue rent receipt regularly to the plaintiff after accepting the monthly rent.
(iv) The relief sought vide prayer clause (b) is rejected.
3. The plaintiff levied execution by filing Execution Application No.386 of 2016.
4. It is the case of the appellant that the tenant who was actually in possession of the property assigned his rights in favour of the appellant by an agreement dated 24th January 2014. The appellant claims ignorance of the litigation.
5. In other words, one Akhtar Habibullah Shaikh claiming to be the lawful tenant of the premises transferred his rights in favour of the appellant upon receiving of ‘total cost and consideration’ of Rs.9,40,000. What is more important is the 3rd defendant (landlord) by agreement of the same date i.e. 24th January 2014 assigned leasehold right in favour of the appellant. The appellant came by possession of the premises. When he came to know of the decree obtained by the plaintiff and it being put to execution, he filed application purporting to be under Order 21 Rule 97 of the Code of Civil Procedure. It was this application which was dismissed by the Execution Court, the Appellate Court and the High Court.
6. We heard Shri Gauraj Shah along with Mr. Udayaditya Banerjee, learned counsel on behalf of the appellant and Shri Sandeep Sudhakar Deshmukh, learned counsel on behalf of the plaintiff.
7. Learned counsel for the appellant would contend that none of the grounds arrayed against the appellant will hold good in law. It is pointed out that the appellant has been non-suited on the following grounds.
8. The assignment of lease in favour of the appellant by the person claiming to be the lessee was unlawful, the lease being contrary to Section 26 of the Maharashtra Rent Control Tenancy Act 1999 (hereinafter referred as “the Act”). Secondly, it has been found that the assignment purporting to be made by the 3rd defendant landlord in favour of the
It will not be lawful for a tenant to sublet or to give on license whole or any part of premises let to him or to assign or transfer in any other manner his interest therein.
The central legal point established in the judgment is the non-applicability of the 1993 Act and the 2012 Notification to the property transfer dispute, leading to the dismissal of the suit.
The assignment of tenancy rights under the guise of business transfer is unlawful unless it meets specific legal criteria, emphasizing genuine intent to continue the original business.
An unregistered lease deed cannot establish tenancy or enforce property rights, as it violates mandatory registration laws.
The main legal point established in the judgment is the application of Section 106 of the Transfer of Property Act, 1882, to establish the existence of the oral tenancy and the bonafide requirement o....
The court affirmed that ownership established through tenancy certificates prevails over claims of possession based on unproven agreements or wills, emphasizing the necessity of fulfilling statutory ....
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