SHABBIR MOHAMMAD SAYED versus MRS. NOOR JEHAN MUSHTER SHAIKH & ORS.

Citation: [2022] 13 S.C.R. 123 · Decided: 02-08-2022 · Supreme Court of India · Bench: K.M. JOSEPH · Disposal: Dismissed

Judgment (excerpt)

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SHABBIR MOHAMMAD SAYED
v.
MRS. NOOR JEHAN MUSHTER SHAIKH & ORS.
(Civil Appeal Nos.5039-40 of 2022)
AUGUST 02, 2022
[K. M. JOSEPH AND HRISHIKESH ROY, JJ.]
Maharashtra Rent Control Tenancy Act, 1999 – s.26 –
Contract Act, 1872 – Ratification – The first respondent filed a civil
suit against respondent Nos.2-4 (defendant no.1,2 and 3) claiming
that they (defendant nos.1 and 2) were tenants of a property in
question who were ready to transfer their tenancy rights – Appellate
Court decreed the suit, plaintiff was declared tenant and defendant
no.3(landlord) was directed to hand over possession of the suit
premises – The appellant’s case was that he had obtained the
leasehold rights of the property in question from the lawful tenant
by an agreement dated 24.01.2014 (Appellant claims ignorance of
the aforesaid litigation by the first respondent) – The landlord-3rd
defendant by the agreement of the same date i.e. 24.01.2014 assigned
leasehold right in favour of the appellant – Appellant had filed an
application under O. XXI r.97 of the CPC before the Execution
Court, which was rejected by the Execution Court, the Appellate
Court, and the High Court – On appeal, held: An assignment by
appellant is illegal u/s. 26 of the Maharashtra Rent Control Act,
unless a contract to the contrary is established – There is no express
contract to the contrary to rescue appellant – While ordinarily a
tenant can assign or sublease his rights as a lessee, the Maharashtra
Rent Control Act prohibits subletting, giving on license or assigning,
or transferring in any other manner – An assignment by the tenant
can be ratified by the landlord,however, there is no ratification in
the alleged agreement executed by the landlord-3rd defendant – No
case for interference made out.
Dismissing the appeals, the Court
HELD:1. While under the general law, subject to there being
no contract to the contrary, a tenant can assign, sublease or
mortgage his rights as lessee, on the other hand, in regard to a
tenancy governed by the Act, the ordinary rule is that a tenant
[2022] 13 S.C.R. 123
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SUPREME COURT REPORTS
[2022] 13 S.C.R.
cannot sublet, give on licence or assign or transfer in any other
manner. This is made subject to a contract to the contrary. The
assignment relied upon by the appellant namely by alleged lessee
on 24.01.2014 would be illegal on the face of it unless a contract
to the contrary is established. It is in this regard that the appellant
would draw support from the action of the admitted landlord
namely, the defendant no.3 who has purported to enter into the
assignment in favour of the appellant on the very same day. [Para
12][130-G-H; 131-A-B]
2. The next aspect which is canvassed by the appellant is
about the inapplicability of Section 52 of the Transfer of Property
Act as an absolute bar or rather the effect of lis pendens as
obtaining in Bombay. It is pointed out that Section 52 has a
modified application in the area in which the premises in question
is situated. It is the case of the appellant that the premises in
dispute is located within the scope of the amended law. In view of
the same, it is contended that the bar of Section 52 will not apply.
When questioned as to whether the appellant had a case that the
plaintiff had not given a notice and got it registered under Section
52, the answer is that the plaintiff does not have a case of having
given any notice. It is actually a question of fact whether the
premises is located in the area covered by the Amendment to
Section 52. It is further a question of fact as to whether a notice
was given. [Para 13, 14][131-G-H; 133-C-D]
3. As regards the lease not being registered, the contention
of the appellant is premised on Section 55 of the Tenancy Act. In
other words, it is contended that Section 55(2) of the Act clearly
places the responsibility of getting the lease registered on the
landlord. The failure of the landlord to get the lease registered
would entitle the tenant to establish the tenancy with the
document even if it is not registered. [Para 15][133-D-E]
4. As far as the alleged assignment by the so-called tenant
in favour of the appellant is concerned, it is prohibited under
section 26. There is no express contract to the contrary to rescue
the appellant. An assignment by the tenant can be ratified by the
landlord. In this case however there is no ratification in the
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alleged agreement executed by the 3rd defendant landlord. 

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