ISHA VALIMOHAMAD & ANR. versus HAJI GULAM MOHAMAD & HAJI DADA TRUST

Citation: [1975] 1 S.C.R. 720 · Decided: 14-08-1974 · Supreme Court of India · Bench: A.N. RAY, KUTTYIL KURIEN MATHEW · Disposal: Dismissed

Cited by 3 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

:7 20 
ISHA VALIMOHAMAD & ANR. 
v. 
HAJI GULAM MOHAMAD & HAJI DADA TRUST 
August 14, 19i4 
(A.N. RAY, C.J., AND K.K. MATHEW, J.] 
Saurashtra Rent Control Act 1951-Whether tennination o.f tenancy under Transfer 
·Of Property At't necessary before filing a suit for eviction on the grounds of subletting-
Repea/ and saving clause-Meaning of right, pririlege acquired, accrued or incurred. 
The respondents let out the premises to the appellants in the year 1951 in a place 
governed by the Saurashtra Rent Control Act, 1951 which prohibited a tenant fron1 
subletting the premises. The appellant sublet the pren1ises in violation of the 
Saurashtra Act at a time when Saurashtra Act was in force. In 1963, the Saurashtra 
Act was repealed and the Bombay Rent Act was made applicable to the area in 
question. 
Under the Bombay Act there is no prohibition against subletting by 
the tenant unless the contract of tenancy prohibited it. The respondent terminated 
the tenancy of the appellant after the Saurashtra Act was repealed and, thereafter, 
a suit was filed for recovery of possession on the ground of subletting. The High 
·Court held that the suit to recover possession was competent under Saurashtra 
Act after its repeal as the respondent had an accrued right within the n1eaning of 
·section 51 of the Bombay Rent Act. The High Court assun1ed that the notice 
under the Transfer of Property act was necessary to terminate the tenancy. 
HELD : (l) The High Court \Vas not right in its assumption that the notice under 
the Transfer of Property Act was necessary to terminate the tenancy on the ground 
that the appellants had sublet the premises. Under the Transfer of Property Act 
a mere subletting by a tenant unless the contract of tenancy so provides is no ground 
for terminating the tenancy. The respondent could not have issued a notice under 
the Transfer of Property Act to determine the tenancy as the contract of tenancy 
did not prohibit subletting by the tenant. The Saurashtra Act unconditionatly 
prohibited a tenant from subletting and it was under that Act that the landlord was 
entitled to recover possession of the premises on the basis that the tenant had sublet 
the premises. A right accrued to the landlord to recover possession under the 
Saurashtra Act when the tenant sublet the premises and the right survived the repeal 
·of that Act under section 51 of the Bombay Rent Act. Therefore, the suit for 
recovery of possession of the premises was maintainable after the repeal of the 
Saurashtra Act. [726-727D] 
(2) The right of a landlord to recover possession is not an accrued right before 
'the issue of a notice if under any la\v it was necessary for the landlord to issue the 
notice to determine the tenancy. Privilege and inability are correlatives. \Vhere 
there is a privilege there must be inability. Privilege is a legal freedom on the part 
of one person as against another to do a given act or a legal freedom not to do a 
·certain act. [724B,-725H; 726A-B] 
CIVtL APPELLATE JURISDICTION : Civil Appeal No. 1915 of 1970 
(Appeal by Special Leave frcm the Judgment & Order dated 
the 2nd/3rd March, 1970 of the Gujarat High Court in Revision 
Appln. No. 371 of 1966.) 
V.N. Ganpu/e and Urmi/a Sirur for the appellants. 
D. V. Patel, K.L. Hathi, A.R. Chaphekar and P.C. Kapur, for 
:J;espondent No. 1. 
A 
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F 
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G 
H 
A 
B 
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VALIMOHAMAD v. HAJJ GULAM (Mathew, !.) 
721 
The Judgment of the Court was delivered by 
MATHEW, J. In this appeal, by special leave, the question for consi-
deration is whether the High Court was right in dismissing a revision 
petition filed by the appellants and thereby upholding the judgment 
of the learned District Judge, Jamnagar, decreeing the suit filed by 
respondent No. 1 for possession of the suit premises. 
The suit premises consisted of a building known as Abdul Ralman 
Manzi! and it belonged to one Haji Mohamad, Haji Dada Wakf 
(Trust). The building was leased to Osman Jamal and Company 
under a rent note dated January 15, 1947. In or about the year 1951, 
the firm of Osman Jamal and Company was wound up and the appel-
lants took the premises on rent on a monthly rent of Rs. 320/-. The 
respondent, the landlord, purported to te1minate this trnancy by a 
notice dated February 12, 1964 on the ground that the appellants 
(tenants) had defaulted in the payment of rent and had sub-let the 
premises. At the trial of the suit, the plea that the appellants cc m-· 
milte

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