Decided on July 03,1961



- (1.) THIS revision petition arises out of an application made under sub-section (3) of section 16 of the West Bengal Premises Tenancy Act, 1956. Opposite Party No. 1, Abdul Latif Khan is the landlord of the premises No. 3, Sambhu Chatterjee Street, Calcutta, opposite party No. 2, Harsha Nath Roy is the tenant of the first degree in respect of a portion of the said premises and since June 1954 the petitioner Sailendra Kumar Roy Chowdhury is the tenant of the second degree in respect of the said portion of the premises. Following the judgment of N. K. Sen J. in (1) Civil Rev. No, 1738 of 1957 (Sri Prafulla Chandra Mukherjee v. Akshoy Kumar Bose), an unreported case decided on the 21st March, 1958 the Tribunals below have refused to grant relief to the petitioner under sub-section (3) of section 16 on the ground that the rent note (Exhibit 'c') on the basis of which Harsha Nath Roy was inducted as a tenant contains an express prohibition against subletting. In our opinion the subsection (2) of section 16 applies to the subletting and the Tribunals below ought to have granted the relief prayed for by the petitioner.
(2.) BY Exhibit 'c, Harsh Nath Ray entered into the following covenant :in favour of Abdul Latif: "i will use the premises for my residence only and will not sublet either the whole or any portion thereof during the period of my tenancy. "
(3.) THE sub-lease in favour of the petitioner though made in breach of this covenant is valid and operative. It is to be noticed that Exhibit 'c does not provide that on breach of the covenant the landlord, Abdul Latif Khan would be entitled to re-enter the premises. Now by section 6 of the Transfer of Property Act save as provided by that Act or by any other law for the time being in force, property of any kind may be transferred and therefore save as so provided the lessee may transfer his interest in the property by way of sub-lease. Section 108 of the Transfer of Property Act shows that in the absence of a contract or local usage to the contrary the lessee has as against the lessor the right to assign or sublease his interest in the property. But the lessee may by express contract with the lessor bind himself not to sublease the property. The contract is valid and the lessor may enforce the contract by claiming damages for the breach and by injunction restraining a threatened breach of it. The express contract may also be read as a condition limiting the power of disposal by the lessee of his interest in the property. By section 10 of the Transfer of Property Act such a condition is valid where it is for the benefit of the lessor. Now the condition restraining the alienation cannot be said to be for the benefit of the lessor where the lessor cannot terminate the lease upon breach of the condition. Section 111 (g) of the Transfer of Property Act shows that a lease cannot be forfeited on breach of a condition unless the condition expressly provides that on such breach the lessor may re-enter. A stipulation in a lease restraining the alienation unaccompanied by a proviso for re-entry on its breach is not therefore an effective restraint or bridle on the lessee's interest in the property and is not really a condition for the benefit of the lessor. Such a stipulation is ineffective as a condition or restraint against alienation. The lease remains operative, notwithstanding the breach of the stipulation. Consequently the sublease made in breach of the stipulation also is valid and operative. It may be observed that even before the amendment of section 111 (g) of the Transfer of Property Act by Act XX of 1929 it was held that where there is a stipulation in a lease restraining its assignment without a proviso for reentry on its breach and the lessee assigns the lease in breach of the stipulation, the assignment is operative and the assignee obtains a valid title to the leasehold as against the landlord, see basarat Ali Khan v. Manirulla (2) I. L. R. 36 Cal. 745.;

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