Document Fragment View

Matching Fragments

1. This is an appeal from the judgment of Mr. Justice Coyajee by which he dismissed the plaintiff's suit. The facts leading up to this litigation may be briefly stated. On May 1, 1983, the plaintiff let to Fifi Frenais flat No. 4 in Candy House situated at Mandlik Road, Fort. On March 1, 1939, he let to her flat No. 2 in the same building. With regard to fiat No. 2 the terms of the tenancy were reduced to writing and the terms were that she was to be a monthly tenant at Rs. 155 per month with one month's notice ending with the calendar month given "by either party to terminate the tenancy and the rent was to be paid in advance every month on or before the 10th of each month. The tenant also agreed not to sub-let or re-let the premises without written consent. Parties were agreed that the same terms of tenancy also applied to the letting of flat No. 4. On June 11, 1946, Fifi died. On November 6, 1946, Messrs. Section F. B. Tyabji & Co. wrote to the plaintiff stating that they were going to sell the business of the deceased which was carried on by her in the name of Madame Cecile as a milliner with the goodwill and also the premises and they asked the plaintiff to state that they had no objection to the purchaser of the business continuing on the premises as his tenant. On November 8, 1946, plaintiff replied stating that he could not accept anybody who came forward as the purchaser of the shop as the tenant. He pointed out that the purchaser must have his previous consent and he would have to deposit three months' rent in advance. On November 16, 1946, letters of administration to the estate of Fifi were issued to the defendant in this suit. The rents of these two flats were paid up to December 31, 1946. On December 18, 1946, the defendant assigned to one Mrs. Safiabai Cassum. Ahmed flat No. 4. The deed of assignment shows that Rs. 255 was charged for the assignment of the tenancy relating to Hat No. 4. On December 19, 1946, the defendant informed the Secretary of the plaintiff that he had assigned the flat. On December 21, 1946, the defendant assigned flat No. 2 to the same Mrs. Safiabai Cassum Ahmed. It seems that there was an auction sale at the office of the defendant at which the stock, furniture, goodwill and the benefit of the tenancy in this flat were all sold first to one M. Rashid who ultimately sold it to Mrs. Safiabai Cassum Ahmed and Mr. Rashid executed the deed of assignment as a confirming party. The deed of assignment shows that the benefit of the tenancy was sold at Rs. 500. On December 27, 1946, Messrs. Wadia Ghandy & CO., solicitors for the plaintiff, gave notice to the defendant terminating the tenancy of flats Nos. 2 and 4 and calling upon him to deliver over peaceful and vacant possession of those flats on January 31, 1947. On February 10, 1947, on behalf of Mrs. Safiabai Cassum Ahmed, the assignee, the solicitors Section F. B. Tyabji & Co. tendered rent to the plaintiff in respect of both the flats for the month of January, 1947, and on February 11, the plaintiff's attorneys replied to that letter pointing out that Mrs. Safiabai Cassum Ahmed was not the tenant of the plaintiff and refusing to accept the rent. On March 12, 1947, Safiabai tendered rent for the month of February 1947 in respect of both the flats and on March 17 the plaintiff's solicitors wrote to her pointing out that she was not the tenant of these flats and that their client did not recognize her as such, and the cheque which was sent by Safiabai in respect of the rent was returned by Messrs. Wadia Ghandy & Co. On March 17, 1947, the plaintiff filed the suit from which this appeal arises against the defendant for ejectment and for rent for January 1947 and compensation for use and occupation from February 1, 1947, till possession was handed over.

6. One of the statutory obligations of a lessee is to be found in Section 108 (q), and that is that on the determination of the lease the lessee is bound to put the lessor into possession of the property. It is undoubtedly a liability attaching to the lease, and under clause (j) of Section 10S it is clearly provided that by reason only of a transfer of interest by the lessee to his transferee this obligation on the part of the lessee does not come to an end. Therefore, notwithstanding the two assignments in this suit, the lessee continued under an obligation on the determination of the lease to put the lessor into possession of the property, Mr, Taraporewalla has argued that once there was an assignment of the tenancy, it was not open to the lessor to terminate that tenancy without giving notice to the assignee. The fallacy to my mind underlying that argument is this. What was assigned to the assignee by the lessee was the interest in a monthly tenancy. A monthly tenancy is a tenancy which is liable to be determined by a notice of one month given by the lessor to the lessee. Therefore, the term that was assigned to the lessee was a term which was liable to be determined and put an end to in that manner. It is important to note that a monthly tenancy is determined by a notice given by a lessor to the lessee, and therefore by reason of the assignment this contractual term in the tenancy agreement was not and could not be affected. The right remained in the lessor to put an end to his tenancy by giving a proper and valid notice. I do not see why there was any obligation on the lessor to give a notice to the assignee. He was not his tenant, there was no contractual obligation between him and the assignee, the privity of estate did not necessitate the giving of a notice to him. His right to give a notice arose under the contract to his own tenant, and, notwithstanding the assignment, the lessee continued to be his lessee and, in my opinion, it was perfectly competent to the lessor to terminate the monthly tenancy by giving a proper and valid notice to the lessee. In this case it is not disputed that the notice was a valid and proper notice. The only objection taken to it is that it should not have been addressed to the lessee but should have been addressed to the assignee.

15. No. 1 took nothing by his purchase in the execution proceedings. With very great respect, I entirely agree with what is stated in this judgment. So long as the assignment continues, it is perfectly true that all the right, title and interest of the lessee vests in the assignee. But that question has nothing whatever to do with the obligations of the lessee after the assignment has taken place. In this case also so long as the monthly tenancy lasted, the defendant had no interest in that tenancy, but his obligation to hand over possession of the premises on the termination of the tenancy continued notwithstanding the assignment.

20. The other ease of this Court on which Mr. Taraporewalla has relied is a decision reported in Gopal v. Shriniwas That is a decision of Mr. Justice Beaman and Mr. Justice Heaton. There, there was a permanent tenancy and the tenant assigned the tenancy. The landlord filed a suit for ejectment against the assignee on the ground that there was a forfeiture of the lease because the tenant had denied the title of his landlord and Mr. Justice Beaman and Mr. Justice Heaton held that the mere repudiation by the tenant of the plaintiff's title did not work as a forfeiture against the assignee. Strong reliance is placed on certain observations of Mr. Justice Beaman at p. 832. This is what the learned Judge says: