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3. Whether the withdrawal of the suit No. 7170 of 1983 filed by Dr. Moreshwar, the appellant no.2 herein, would have operated as a bar against the filing of the present suit by the appellants as trustees of Bal Mohan Vidya Mandir Trust Regarding point no.1

7. The appellants have produced on record, at Exh.P40, the original deed of declaration dated 28th March 1955 executed by Shivram who was the founder of Bal Mohan Vidya Mandir School run at Shivaji Park, Dadar. By the said deed of declaration Shivram created the Trust, known as Bal Mohan Vidya Mandir Trust, and also unconditionally, unreservedly and without any consideration transferred upon himself , Nilkant Balkrishan Rangnekar and Vishram Purshottam Sabnis , as trustees of the Trust, all the properties mentioned in Schedule A and Schedule B of the said deed of declaration. The property at serial no.2 of Schedule A of the said deed of declaration is the property consisting of tenancy rights in the suit flat and two flats on the ground floor of the suit building. Thus, by the said deed of declaration Shivram purportedly transferred his tenancy in the suit flat in favour of the trustees of the Trust. Execution of the deed of Trust (Exh. P40) was not disputed before us by the respondent. What was however, contended that Shivram was not competent in law to create a Trust in respect of the tenancy rights in suit flat firstly because he was not the owner but only a tenant therein and secondly because any transfer or assignment of tenancy rights was prohibited by the Bombay Rent Act. Counsel for the respondent submitted that the tenancy rights in the suit flat were not a property and therefore Shivram was not entitled to transfer the tenancy rights in suit flat to the Trust. Alternatively he submitted that section 15 of the Bombay Rent Act, as it stood on the date of purported transfer, i.e., on 28th March 1955, contained an absolute prohibition on the tenant from subletting, assigning or transferring his interest in the tenanted premises in any manner. Shivram was therefore not competent to transfer the tenancy rights and the purported transfer of tenancy rights made by Shivram was invalid ab initio and was not binding on the landlord as well as on the respondent. Lastly he submitted that even after the purported transfer of the tenancy rights in favour of the Trust the land lord did not accept the Trust as the tenant; even after the purported transfer Shivram continued to possess and occupy the suit flat for the residence of himself and the family members and that would show that the purported transfer was not only invalid but was not acted upon, both by the landlord as well as the tenant Shivram. The purported transfer of tenancy rights in the suit flat not having been acted upon either by the landlord or the tenant was invalid and not binding on the respondent.

8. Section 105 of the Transfer of Property Act 1882, defines the lease of an immovable property as a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms. Lease undoubtedly is a transfer of interest in the property and so a monthly lease which means a lease for a month renewable every month, would also be a transfer in the interest in the property, that is transfer of a right to use the property for the unexpired period of the lease for a month. Clause (j) of section 108 of the Transfer of Property Act, 1882 provides that a lessee may transfer absolutely or by way of a mortgage or sub lease the whole or any part of his interest in the property, and any transferee of such interest or part may again transfer it. Section 108(j) of the Transfer of Property Act thus recognizes the right of a lessee to transfer his leasehold interest in the property. Such transfer may be absolute, that is by way of an assignment or may be limited, that is, by way of a mortgage or sub lease. Ofcourse, Section 108 of the Transfer of Property Act is subject to the contract to the contrary. The lessor and the lessee may, by an agreement, agree that the lessee shall not transfer his right either absolutely or even partially. But unless there is a contract between the lessor and the lessee prohibiting transfer a lessee is entitled to transfer his leasehold interest (including an interest as a monthly tenant) either absolutely or partially unless the contract between the parties prohibits such transfer. The legislature of Maharashtra, however, by enacting the Bombay Rent Act imposed a restriction on the right of a lessee to transfer his leasehold interest. Section 15 of the Bombay Rent Act, as it stood in the year 1955 when the transfer of the tenancy rights was effected by Shivram, provided that notwithstanding anything contained in any law, it would not be lawful after the coming into operation of this act for any tenant to sublet the whole or any part of the premises let to him or to assign or transfer in any other manner his interest therein. Thus notwithstanding anything contained in section 108 of the Transfer of Property Act , so far as the areas of the State of Maharashtra, to which Bombay Rent Act is applicable are concerned, a tenant is not entitled to assign or transfer his tenancy rights to anyone. This was the position on 28th March 1955 when the deed of declaration of trust (Exh. P40) was executed by Shivram. In Philatelie Orient v. Kodak Limited reported in 57 Bom. L.R. 175, on which strong reliance was placed by the learned Counsel for the respondent, this Court had held that Section 15 of the Bombay Rent Act prohibits sub lease, transfer or assignment of a tenancy and except in cases covered by proviso to section 15, a tenant is not entitled to sublet, transfer or assign his tenancy rights. Admittedly there was no notification issued by the Government under proviso to Section 15 of the Bombay Rent Act, prior to 28th March 1955 permitting transfer of tenancy rights by a tenant in favour of a trust for educational purposes. Some notifications were, however, issued by the State Government permitting assignment of tenancy by a tenant in certain circumstances or for certain purposes. The learned Single Judge has held that subsequent notifications issued by the Government had no retrospective effect. In view of our finding on point no.2 it is not necessary for us to consider whether the subsequent notification issued by the Government would have a retrospective effect and retrospectively validate any transfer which was not valid when made. Suffice it to say that on 28th March 1955 when the transfer of tenancy rights was effected by Shivram in favour of the Trust there was a complete prohibition on transfer of tenancy rights. Therefore the transfer of tenancy rights in the suit flat was illegal when it was made. As the transfer was illegal the landlord rightly did not accept the Trust as a tenant in place of Shivram. It is for this reason that Durgaprasad who had purchased the suit building from the receiver filed a suit against Shivram and not the Trust for possession. We accordingly answer point no.1 in the affirmative.

13. The definition of tenant appearing in section 5(11) of the Bombay Rent Act was also amended by the Maharashtra Act no.17 of 1973. Clause (aa) of section 5(11) of the Bombay Rent Act, as amended provides that the tenant includes any person to whom interest in the premises has been assigned or transferred as permitted or deemed to be permitted under section 15. We have already mentioned that section 15 of the Bombay Rent Act , as amended by Maharashtra Act No. 17 of 1973 permitted and legalized subletting or assignment of tenancies made by a tenant prior to 1st February 1973. By virtue of Clause (aa) of section 5(11) such assignee is deemed to be a tenant of the landlord. Thus looked at from any angle, the Trust became the tenant of the suit flat with effect from 1st February 1973 by virtue of amendment to the Bombay Rent Act by Maharashtra Act No. 17 of 1973. It is worthwhile to note that though Durgaprasad, the landlord, had filed a suit against Shivram for possession he subsequently withdrew the suit. May be that initial assignment of tenancy in favour of Shivram was not valid and therefore Durgaprasad was justified in filing the suit against Shivram as a tenant ignoring the transfer or assignment of tenancy made by him in favour of the Trust on 28th March 1955. However, in view of the amendment of the Bombay Rent Act by the Maharashtra Act No. 17 of 1973 whereby not a transfer and assignment of tenancy rights made by a tenant prior to 1st February 1973 was legalized but the transferee and assignee was made a tenant by amendment of section 5(11) thereof, Durgaprasad could not have continued the suit against Shivram for possession as he ceased to be the tenant. As the Trust became the tenant from 1st February 1973, perhaps realizing the futility of his contention that Shivram was the tenant, Durgaprasad withdrew the suit filed by him against Shivram. The withdrawal of the suit was in accordance with the true legal position brought about by the amendment of the Bombay Rent Act.

21. In the conclusion we hold that Shivram did effect transfer of his tenancy rights in the suit premises in favour of the Trust by executing a deed of declaration dated 28th March 1955 (Exh. P40).

The prohibition against the transfer of tenancy rights contained in section 15 of the Bombay Rent Act as it stood in the year 1955 was retrospectively removed by amendments made to the Bombay Rent Act by Bombay Act No.49 of 1959. Further more all assignments of tenancy made prior to 1st February 1973 were retrospectively legalized and validated by Maharashtra Act no.17 of 1973 and the assignees are regarded as tenants. In the circumstances the finding by the learned Single Judge that the assignment of the tenancy rights in respect of the suit flat made by Shivram in favour of the appellant by the deed of declaration dated 28th March 1955 was illegal has to be set aside. Since the Trust was and Shivram was not the tenant at the time of his death in respect of the suit flat the respondent did not and could not inherit the tenancy under section 5(11) of the Bombay Rent Act. He has no right to occupy the suit premises as a tenant or as an heir of Shivram, as Shivram himself had no right in the suit premises after the execution of the deed of declaration dated 28th March 1955. His possession after 28th March 1955 was not in his individual capacity but on behalf of the Trust as a managing trustee thereof. Respondent therefore has no right to continue in possession of the suit premises and must yield the possession to the appellants. For these reasons the appeal is allowed and the impugned judgment is set aside. The respondent is directed to quit, vacate and deliver vacant possession of the suit flat to the appellants within 4 months.