A surrender of a lease does not prejudice an under-lease of the property (Transfer of Property Act, Section 115).

( 1 ) THIS is an appeal by the defendants from a judgment of P. B. Mukharjee, J. , which was passed on 10th July, 1950, decreeing the landlords' suit for possession.

( 2 ) THE point involved in the appeal is a short one, namely, whether the defendants come within the mischief of Section 11 (1) (b) of the Rent Control Act of 1948 (hereinafter for the sake of convenience referred to as 'unlawful subletting ). It. is admitted on behalf of the parties by their counsel that the Act of 1948 governs the rights of the parties in this case.

( 3 ) THAT section (inter alia) provides that a tenant is deprived of the protection of the Act where he"has sublet, or otherwise transferred his interests in the premises for more than six consecutive months and to the extent either of the whole or a major portion of the premises, in the absence of any contract or other authority in writing expressly permitting such subletting or transfer. "

( 4 ) THE facts of the case are as follows: The plaintiffs (landlords) are owners (being the trustees) of premises No. 3, Bolai Dutt Street in he town of Calcutta, which is a partly three storied and partly four storied house. The premises were let to Mohammad Siddique and Sons by a lease which expired on 11th June, 1934. During the subsistence of this lease, there were sub-tenants in the premises. Their interest, of course, fell on the expiry of the lease.

( 5 ) THE landlords by a lease dated 12th June, 1934, let the premises to three. persons Nawabuddin, Mehrajuddin and Mahammad Ibrahim, who carried on a partnership business under the name and style of Messrs. Mahammad Ibrahim Mehrajuddin.

( 6 ) MOHAMMAD Siddique and Sons on the expiry of the lease refused to vacate the premises. The new tenants filed a suit for ejectment against Siddique and Sons and obtained a decree in this Court. This decree, no doubt, could be executed not only against Siddique and Sons but also against the sub-tenants. But it appears that the decree was not put into execution and the tenants under the lease of 1934 came into occupation of the two rooms which were in possession of Siddique and Sons and allowed the sub-tenants to continue. Siddique and Sons left the premises.

( 7 ) THE lease of 1934 was for a period of three years but gave to the lessees option to renew it for another two years. The lessees exercised the option and the term of the lease was extended. After expiry of the term, the lessees held on.

( 8 ) SOMETIME towards the end of 1942, Nawabuddin retired from the partnership and on 6th January, 1943, defendants Ibrahim and Mehrajuddin wrote to the landlords informing' them that Nawabuddin had retired from the partnership and asked the landlords to issue rent bills in the name of the two persons, Mehrajuddin and Ibrahim, which previous thereto were issued in the names of the three lessees. The landlords agreed to the proposal and the rent was thereafter accepted from, and rent bills issued in the names of, the two tenants. The effect of this was the surrender of the tenancy existing previous thereto and the creation of a new tenancy. For before the landlords had agreed to accept Mehrajuddin and Ibrahim as tenants, Nawabuddin was also liable to perform the obligations of the contract of tenancy. By consent of all the parties concerned he was released from the obligations and the two remaining partners took upon themselves the burden, of performing the obligations of the contract of tenancy. This operated as implied surrender.

( 9 ) SUB-TENANTS, of course, continued in the premises and it is not disputed that except as to five, the sub-tenants were sub-tenants of the premises from the time of Siddique and Sons and that a major portion of the premises has been in their occupation. There are thirty five rooms in the premises and except two rooms (namely, the godowns which are in possession of the defendants), the rest have been and are in occupation of sub-tenants.

( 10 ) THE lease dated 12th June, 1934,