Case: Smt. Sefali Roy Chowdhary and Ors Vs. A.K. Dutta

Act was dismissed. The plaintiff moved the High Court in revision against this order. The revision case was disposed of on February 16, 1968, the learned Judge maintained the order rejecting the application under section 14(4) but set aside the finding on issue No. 9 and held that "for the purposes of the present suit for ejectment there is a relationship of landlord and tenant". The propriety of this order is challenged by the tenant defendants.In the course of his Judgment the learned Judge recorded the following findings:"(i) "The validity or the binding nature of the order under section 16(3) of the 1956 Act cannot be challenged nor can it be found in this suit to be inoperative".(ii) The rights arising out of a valid proceeding under section 16(3) cannot be overlooked in spite of the non-obstante clause in section 40 of the 1956 Act and the effect of the order under section 16(3) has to be considered in the suit.(iii)As the proceeding under section 16(3) was started during the pendency of the suit, the principle underlying section 52 of the Transfer of Property Act should apply to this case and "the decision made in the proceeding under section 16(3) would not control the decision in the ejectment suit".5. It thus appears that the High Court was of the view that in spite of section 40 providing that a pending proceeding would continue to be governed by the provisions of 1950 Act as if that Act had not been repealed or had not expired, the order made under section 16(3) of the 1956 Act must be given effect to. The High Court however held that the proceeding under section 16(3) having been initiated during the pendency of the suit, the principle of lis pendens should apply and accordingly the order under section 16(3) would not govern the suit Before us, counsel for the respondent did not rely on section 52 of the Transfer of Property Act, but sought to support the decree on the ground that in view of section 40 , the entire proceeding under section 16(3) was without jurisdiction. The doctrine of lis pendens can of course have no application to this case. Section 52 of the Transfer of Property Act forbids alienations pendente lite providing inter alia that the property forming the subject matter of a pending suit cannot be transferred or otherwise dealt with by any party to the suit so as to affect the rights of any other party under any decree or order which may be made therein, except under the authority of the court and on such terms as it may impose. The doctrine of lis pendens means that no party to the litigation can alienate the property in dispute so as to affect the other party, and rests "upon this foundation, that it would plainly be impossible that any action or suit could be brought to a successful termination if alienations pendente lite were permitted to prevail". [observation of Turner L. J. in Belamy v. Sabine, (1857) 1 D. &J. 566 (584) quoted with ap proval by the Privy Council in Faiyaz Husain Khan v. Munshi Prag Narail &others, 34 I.A. 102 (105).] But a sub-tenant who avails of the provisions of section 16(3) which extinguishes the tenants interest in the portion of the premises sublet and confers on the sub-tenant the right to hold the tenancy directly under the superior landlord, cannot be said to have alienated proporty pendente lite. Section 5 of the Transfer of Property Act defines transfer of property as an act by which a living person conveys property to another. When the legislature in exercise of its sovereign powers regulates the relations of landlord and tenant, altering or abridging their rights, what it does is not transfer of property attracting the doctrine of lis pendens.As stated already, counsel for the respondent put his case on the provisions of section 40 of the 1956 Act. According to him the suit must continue to be governed by the 1950 Act even after its repeal in view of section 40, unaffected by the provisions of the 1956 Act Section 40 of the 1956 Act keeps alive a proceeding pending on the date when the 1950 Act was repealed as if it is still in force and has not been repealed. This however does not mean that even if the 1956 Act created a new right in favour of the sub-tenant, he would be denied this right because a suit for ejectment was pending against him when the Act came into force. Tenant as defined in section 2(h) of the 1956 Act includes a per son continuing in possession after the termination of his tenancy until a decree or order for eviction has been made against him. A sub-tenant is also a tenant, and when the order under section 16(3) was made no decree or order for eviction had been passed against him. That being so, we do not see why he should not be entitled to the benefit conferred by section 16(3). The intention of the legislature, which is paramount, is clear-to upgrade the subtenant and make him a tenant directly under the superior landlord. This is a new right given to the sub-tenant, and though the pending proceeding may continue to be regulated by the repealed statute in view of section 40, there is nothing in that section to suggest that the sub -tenant against whom a suit was pending will be denied this additional right. The High Court has held that the effect of the order under section 16(3) must be considered in the suit. Thus the suit may continue in spite of the repeal of the 1950 Act, but the right acquired by the sub-tenant under the 1956 Act has to be given effect to and the suit decided accordingly. It must therefore be held that the relationship of landlord and tenant ceased between the parties on the date when the order under section 16(3) was made.6.

Court's decision (1 = petition accepted / positive for appellant, 0 = rejected / negative): 1

Reasoning from the judgment:
1[ds]It thus appears that the High Court was of the view that in spite of section 40 providing that a pending proceeding would continue to be governed by the provisions of 1950 Act as if that Act had not been repealed or had not expired, the order made under section 16(3) of the 1956 Act must be given effect to. The High Court however held that the proceeding under section 16(3) having been initiated during the pendency of the suit, the principle of lis pendens should apply and accordingly the order under section 16(3) would not govern the suit Before us, counsel for the respondent did not rely on section 52 of the Transfer of Property Act, but sought to support the decree on the ground that in view of section 40 , the entire proceeding under section 16(3) was without jurisdiction. The doctrine of lis pendens can of course have no application to this case. Section 52 of the Transfer of Property Act forbids alienations pendente lite providing inter alia that the property forming the subject matter of a pending suit cannot be transferred or otherwise dealt with by any party to the suit so as to affect the rights of any other party under any decree or order which may be made therein, except under the authority of the court and on such terms as it may impose. The doctrine of lis pendens means that no party to the litigation can alienate the property in dispute so as to affect the other party, and rests "upon this foundation, that it would plainly be impossible that any action or suit could be brought to a successful termination if alienations pendente lite were permitted to prevail". [observation of Turner L. J. inBelamy v. Sabine, (1857) 1 D. &J. 566 (584)quoted with ap proval by the Privy Council in Faiyaz Husain Khan v. Munshi Prag Narail &others, 34 I.A. 102 (105).] But a sub-tenant who avails of the provisions of section 16(3) which extinguishes the tenants interest in the portion of the premises sublet and confers on the sub-tenant the right to hold the tenancy directly under the superior landlord, cannot be said to have alienated proporty pendente lite. Section 5 of the Transfer of Property Act defines transfer of property as an act by which a living person conveys property to another. When the legislature in exercise of its sovereign powers regulates the relations of landlord and tenant, altering or abridging their rights, what it does is not transfer of property attracting the doctrine of lis pendens.As stated already, counsel for the respondent put his case on the provisions of section 40 of the 1956 Act. According to him the suit must continue to be governed by the 1950 Act even after its repeal in view of section 40, unaffected by the provisions of the 1956 Act Section 40 of the 1956 Act keeps alive a proceeding pending on the date when the 1950 Act was repealed as if it is still in force and has not been repealed. This however does not mean that even if the 1956 Act created a new right in favour of the sub-tenant, he would be denied this right because a suit for ejectment was pending against him when the Act came into force. Tenant as defined in section 2(h) of the 1956 Act includes a per son continuing in possession after the termination of his tenancy until a decree or order for eviction has been made against him. A sub-tenant is also a tenant, and when the order under section 16(3) was made no decree or order for eviction had been passed against him. That being so, we do not see why he should not be entitled to the benefit conferred by section 16(3). The intention of the legislature, which is paramount, is clear-to upgrade the subtenant and make him a tenant directly under the superior landlord. This is a new right given to the sub-tenant, and though the pending proceeding may continue to be regulated by the repealed statute in view of section 40, there is nothing in that section to suggest that the sub -tenant against whom a suit was pending will be denied this additional right. The High Court has held that the effect of the order under section 16(3) must be considered in the suit. Thus the suit may continue in spite of the repeal of the 1950 Act, but the right acquired by the sub-tenant under the 1956 Act has to be given effect to and the suit decided accordingly. It must therefore be held that the relationship of landlord and tenant ceased between the parties on the date when the order under section 16(3) was made.