Mathuradas Maganlal vs Son Go palji Damji

Chhatpar, J.—This appeal arises out of a suit filed by the Respondent for eviction and arrow of rent in respect of a premises The Plaintiff Respondent alleged that rent for 40 months was due but he confined his claim to Rs. 400/-. His prayer for eviction was based upon Section 12 of the Rent Act on account of non-payment of rent. Now it is not disputed that the conditions of Section 12, are complied with inasmuch as the landlord had served upon the Defendant the required notice and filed the suit after lapse of one month.

But the Defendant''s contention was that he was adjudicated insolvent on 12-3-1949 during his tenancy and he obtained his discharge on 8-12-1952, and for this period, he disclaimed liability for payment of rent on the ground that the landlord should have taken recourse to the insolvency law, and filed his claim before the Official Receiver in'' insolvency. The present suit has been filed after he had obtained his discharge.

The trial Court gave a decree for adjustment but refused the prayer for arrears of rent against which no appeal was preferred by the landlord; but the tenant preferred an appeal to the District Court and the landlord did not file any cross-objection as regards decision as to the arrears of rent. So the question of arrears of rent becomes final and the Plaintiff cannot recover the same. The only question that survives is that of eviction. The lower appellate Court confirmed the decree for eviction, though on different grounds.

Mr. Joshi the learned advocate for the Appellant-tenant strongly urged that on the insolvency of the tenant his tenancy rights vested in toe Official Receiver and the tenant became a trespasser by the operation of law.

Therefore, the suit under the Rent Act for eviction was not maintainable, the remedy of the landlord being to file a regular suit against the trespasser and pay ad valor court-fee thereon. This is the main contention before me. He referred to some passages in Dalal''s Commentary on the Bombay Rent Act that whereas a contractual tenancy vests on insolvency in the Official Assignee or Official Receiver, a statutory tenancy does not.

Now the relations between the parties are ''to be governed by the Saurashtra Rent Act. The Appellant was a monthly tenant and he comes within the definition of the term ''tenant'' in Section 5,'' sub-Section (7) which says " ''tenant'' means any person by whom or on whose account rent is payable for any premises and includes....

Before the Appellant was adjudicated insolvent; he was a tenant within the definition of this term .and the landlord also came within the definition of the term ''landlord? given in Sub-section (1) of Section 5, as being a person entitled for the time being to receive rent. So both the landlord and the tenant come within the scope of the Rent Act. Now Section 15 of the Act says:

Notwithstanding anything contained in any law it shall not be lawful after the coming into operation of this Act for any tenant to sub-let the whole or any part of the premises let to him or to sleigh or transfer in any other manner his Interest therein....

So there is a statutory upon the tenant on assigning or transferring his interest in the premises. This prohibition is absolute, except in those eases where the proviso to the section applies. The premises in the suit do not come within the proviso. Under the circumstances, the question arises whether a tenancy right restricted in such manner could, u/s 28, Provincial Insolvency Act, vest in the Court or in the Receiver in insolvency. Clause (2) of this Section says'':

On making, of the order of adjudication the whole of the property of the in solvent shall vest in the Court or in a Receiver m hereinafter profiled and shall become divisible amongst the creditors....

The word ''property'' is defined by the Provincial Insolvency Act, Section 2, sub-section (l)(d) which says " property'' includes any property over which or the profits of which any person has a disposing power which he may secrecies for his own benefit Sub-section (2) of Section 28 has been interpreted to mean that only such property of the insolvent vests in the Court in the perceiver which is capable of being divisible amongst his crodtturn.

In this connection, I may refer to a Bench decision of the Patna High-Court in Damodar Chaube and Co. v. Madan Makund, AIR 1947 Pal 7 ( v. 34) (A), wherein it was held that the definition of the word ''property'' was not exhaustive but that the expression could not mean property over which or the profits of which the insolvent had not "got a disposing power. The property of an insolvent which by S. 28 of the Act vest''s the Official Assignee must mean only the property which is divisible amongst his creditors; and for this proposition, reliance was placed upon an earlier decision of the same Court in Bishwanath Sao and Others Vs. Official Receiver and Others, , arid a decision of the Privy Council in AIR 1925 18 (Privy Council) holding that the property of an insolvent which by S. 17, Presidency Towns Insolvency Act (which is similar to S. 28, Provincial Insolvency Act) vests in the Official Assignee must mean only (he property which by that section and by S, &2 is divisible amongst his creditOrs. The learned Judges of the Patna High Court in referring to this decision of the Privy Council, observed that it was difficult to understand how the expression ''property'' in the'' Provincial Insolvency Act could mean property over which or the profits of which the insolvent had not got a disposing power.

In the present case, we have a statutory bar, upon the disposing power of the insolvent over his tenancy rights, and following the decisions of Patna High Court and the Privy Council, I am of opinion that the tenancy rights which by virtue of the express provision of law are not assignable, could not vest in the Court or the Receiver as property divisible amongst the creditors of the insolvent. So the tenancy rights continued to remain with the tenant. In other words, he continued to, be a tenant in spite of his being adjudicated insolvent.

The rent accrued due after the insolvency was payable by him personally as a tenant; but the question of the Respondent being entitled to arrears of rent has now become barred by reason of his not having filed any appeal from the decision of the trial Court on this is entitled to eviction of the Appellant under this provisions of the Rent Act as admittedly the acuity had, remained in arrears of rent and the requisite notice u/s 12 was served upon him. So the conditions of a suit for eviction based upon nonpayment of rent were complied with, and the lower Courts were right in ordering his eviction, though on different lines of argument. Under the circumstances, I see no reason to interfere dismiss this appeal'' with costs.