P.M. Jagadisa Mudaliar vs N.C.C. Angappa Mudaliar

Venkatadri, J.—This revision petition arises out of proceedings before the House Rent Controller, Madras. The petitioner herein filed an

application under S. 7 of Act XXV of 1949 (S. 10 of Act XVIII of 1960) for eviction of the respondent herein, on the ground of sub-letting

without the written consent of the landlord and also on the ground of committing acts of waste and damage, so as to impair materially the value and

utility of the building. The respondent-tenant contended that he was a tenant of the premises for the past 30 years, that the term of the tenancy

between him and the prior owner was that he had the right to sub let and that therefore the present petition was not maintainable, even though he

had not got the written consent of the prior owner to sub-let. On these pleadings the parties appeared before the House Rent Controller. Evidence

was adduced and it was elicited that the respondent-tenant was letting out portions of the premises to various tenants even after 1949 and upto

1957. The learned Rent Controller found that the sub-letting to the tenants were after 1951, without the written consent of the landlord. He

therefore ordered eviction of the respondent. But on appeal, the appellate authority found that there was acquiescence, in the matter of sub-letting

by the tenant, by the previous owner and the present owner and that therefore the main tenant (respondent) was not liable to be evicted. He

dismissed the petition of the landlord for eviction. Hence the revision petition by the landlord.

The only point for consideration in this petition is whether a subsequent purchaser of a building is entitled to evict the tenant on the ground that

he has sub-let the premises without his written consent, even though the tenant has had the permission from the previous landlord to sub-let the

premises.

Before the passing of the Rent Control Act in 1946, the rights of the parties, as lessor and lessee of immoveable property, were governed by the

first paragraph of Ss. 108 and 108 (j) of the Transfer of Property Act. After the passing of the Rent Control Act, 1946, S. 7 (2) (ii) (a) provided

that the landlord could seek to evict the tenant, if the tenant had, after the commencement of the Act, without the written consent of the landlord

transferred his right under the lease or sub-let the entire building or any portion thereof. By the Amending Act XXV of 1949, this section was not

materially altered and only the date 1st October 1946 was substituted for the words ""after the commencement of this Act"". In P. Rangathaman Vs.

Sankarlal Davey and Another, , Rajamannar, C.J. and Krishnaswami Nayudu, J., observed that under the provisions of S. 7 (2) (ii) (a) of Act XV

of 1946, the landlord was entitled to obtain an order for eviction of his tenant if the tenant had after the commencement of the Act, without the

written consent of the landlord transferred his right under the lease or sub-let the entire or any portion of the leased building. Somasundata

Mudaliar v. Madras Provincial Co-operative (Marketing) Society, Ltd. (1950) 1 M.L.J. 655 = 63 L.W. 610, was a case of sub-letting in October

1947. The plea of the tenant was that he was sub-letting even prior to the Act and that what happened in 1947 was only a change of sub-tenancy.

But the Division Bench consisting of Rajamannar, C.J. and Somasundaram, J. held that even a subsequent purchaser from the landlord could take

advantage of the action of the tenant in subletting without the consent in writing of the then landlord before his purchase and evict the tenant. They

also held that even if there was sub-letting prior to the commencement of the Act, and there was a mere change in the subtenants, it could not be

said that it was not tub-letting after the commencement of the Act.

Section 7 (2) (ii) of Act XXV of 1949 was amended by Amending Act VIII of 1951 and the words, figures and letters "" after 23rd October,

1945 "" were substituted for the words figures and letters "" after 1st October, 1946 "" In P.A. Aiyannah Chetty and Others Vs. Pala

Muddukrishnayya and Co., the tenant was occupying a building from 1928. At the inception of the tenancy, there was nothing to indicate that there

was any written lease between the parties. In 1943, there was a written lease for a period of three years and this lease expired by 31st January,

1946. Subsequently, there was negotiation between the parties for the execution of a fresh lease. But before the execution of the lease, the tenant

let into possession two sub-tenants retaining a portion for themselves. This was not known to the landlord. They came to known of that, because

the municipal authorities were revising the assessment because of the sub-tenancy. The landlord seat a notice calling up the main tenant to quit and

deliver vacant possession, on the ground that the respondent-tenant had sub-let the premises without the written consent of the landlord. It was not

disputed that the sub-tenants were inducted in the month of March and August 1946. It was contended before Somasundaram, J. that the tenant

had not obtained the written consent of the landlord. The tenant pleaded that it was not necessary for him to obtain the written consent of the

landlord, for such subletting was with the knowledge and acquiescence of the landlord. Somasundaram, J. observed :

Under the ordinary law, a tenant or lessee has a right to sub-lease the property. But this right was taken away under the Act. The Madras

Buildings (Lease and Rent Control) Act curtails, abridges and modifies the ordinary law relating to landlord and tenant and the Act has, therefore,

to be construed strictly....

It was also observed that merely because a landlord had knowledge of the sub-letting by the tenant, he could not be deemed to have given any

implied permission; not could it be said that he was estopped from availing himself of the provisions of the Act. In Sandaram v. Subbier (1963) 2

M. L. J. 239=76 L.W. 568 Ramachandra Iyer, C. J., had to decide a case where the landlord gave limited consent to the tenant to sub-let. But

the tenant exceeded his authority and sub-let the premises for more than the limited number of subtenants. Ramachandra Iyer, C. J. held that the

sub-letting in that case came within S. 10 (2) (a) of Act XVIII of 1960 and that the tenant would be liable for eviction. In Abdul Khadder v. G. M.

Rao (1964) 2 M.L.J. 288 = 77 L.W. 503 Ramakrishnan, J. had to deal with a case of user of a building for a non-residential purpose without the

written consent of the landlord. The plea of the tenant was that the landlord had acquiesced in the user and thereby given his implied consent. The

learned Judge held that any kind of acquiescence by the landlord or estoppel by his conduct could not be a substitute for the plain requirement of

the Statute about a written consent and that the landlord was entitled to evict the tenant for having used the building for a purpose other than that

for which it was leased out.

Learned Counsel for the respondent tenant brought to my notice the decision in Arputam Chettiar v. Narayana Rao 75 L. W. 523 where

Srinivasan, J. has observed that where the original terms of the tenancy authorised the tenant to sublet and the landlord acquiesced in such

subletting the landlord could not thereafter rely on the subletting as a ground for eviction. Srinivasan, J. seems to have relied on the decision of

Ramachandra Iyer, O. C. J., as he then was, in Sombandamurtthi Gramani v. Lakshmana Naidu 75 L.W. 545. In that decision, the learned Chief

Justice stated, that if the original terms of the tenancy authorised the tenant to sublet and if the landlord had acquiesced in such subletting, it could

be presumed that there was such authority and that the landlord could not thereafter put forward that as a ground for eviction. The tenant''s ease

was made out in that decision, whereas in the case before Srinivasan, J. there was no evidence available for making out a case. But I do not think

the two decisions cited above would support the case of the respondent, in view of the strict provisions of the Act, viz., that the written consent of

the landlord should be obtained from the landlord. The landlord means the present landlord. Therefore it is immaterial whether the previous

landlord gave permission to the tenant to sublet the premises. The tenant must obtain the written consent of the landlord for the purpose of

subletting. It is also clear from the provisions of the Act and the decided cases that where there is a change in the sub-tenancy and when new

persons are inducted into the premises by the main tenant, he should obtain the written consent of the landlord for sub-letting the premises. Even

assuming that the original agreement permitted the main tenant to sublet the premises, that agreement would not bind the subsequent purchaser of

the premises. Even though the landlord tacitly allowed the tenant to sublet the premises, still the landlord can at any time take advantage of the

provisions of the Act for evicting the tenant on the simple ground that the tenant has not obtained the written consent of the landlord for subletting

the premises.

In the instant case, it is clear that the respondent Inducted two tenants in 1949 and in 1957. But the respondent did not obtain the written

consent of the landlord. He seems to rely on some entries. But as observed by Ramakrishnan, J., any kind of acquiescence or estoppel by conduct

could not be a substitute for the plain requirement of the Statute about the written consent. In the result, the civil revision petition la allowed, the

order of the appellate authority is set aside and that of the Rent Controller restored and eviction ordered. However, in view of the fact that the

tenant has been occupying the premises for a very long time, I give him time till the end of July, 1966, to vacate and surrender vacant possession.