A.S. SULOCHANA
_·v._
C. DHARMALINGAM
NOVEMBER 28, 1986
[M.P. THAKKAR AND-B.C. RAY, JJ.]
_Tamilnadu Buildings (Lease and Rent Control) Act 1960, s.10(2XiiXa)-_
_Eviction on the ground of unlawful subletting-Such sub-felling must be by the_
_tenant sought to be evicted and not by his predecessor._
A
B
The appellant-landlord instituted an eviction suit in 1970 against the C
respondent-tenant on the ground of unlawful subletting. The respondent had
inherited the tenancy upon the death of his father in 1968. The subletting was
created, in 1952 during the life iime of appellant's father. Neither tlie appellant,
nor the respondent had any personal knowledge about the terms and
conditions of the lease originally granted by the father of the appellant in favour
of the father of the respondent. D
The High Court, while dismissing the appeal of the appellant-landlord,
held that a tenant sought to be evicted on the ground of unlawful subletting
under s.10(2)(ii)(a) of the Tamil Nadu Buildings (Lease and Rent control) Act,
1%0 must himself have been guilty of the contravention and that the alleged
contravention by his father when he was a tenant can be of no avail for evicting · E
>· the tenant.
Dismissing the Appeal of the appellant-landlord, this Court;,
HELD: l(i) Section 10(2) of the Act opens with the words, "a landlord
who seeks to evict his tenant" and provides that if the tenant has created a sub- F
tenancy without the written consent of the landlord, he will be liable to be
evicted. When the statute says' the tenant who is sought to be evicted must be
guilty .Jf the contravention, the Court cannot say, "guilt of his predecessor in
interest" will suffice. [382C-D]
(ii) The flouting of the law, the sin under the Rent Act, must be the sin of G
the tenant sought to be evicted and not thai of his father or predecessor in
interest. It being a penal provision in the sense that it visits the violator with the
punishment of eviction, it must be strictly construed, for it causes less misery to
be sheltered in a jail, than to be shelterless without. [382E]
In the instant case, there is nothing on record to show that the subletting H
379
380 SUPREME COURT REPORTS, [1987] 1. S.C.R.
A which was made in 1952, 18 years before the institution of the eviction suit in
1970, was in violation of the relevant provisions oflaw. There is no evidence,
direct or circumstantial, on the basis of wMch it can be said that the lease did not
confer on the father of the respondent the lightto create a sub-tenancy, or that it
w.S done without the written consent of the then landlord, the father .of the
appellant. Under these circumstances, th" appellant cannot successfully evict
B the respondent on the ground of having created an unlawful sub-tenancy within
the !"eaning of S.10(2)(ii)(a) of the Act:. [381G, 382A-B)
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1124 of'1973
From the Judgment and Order da:ed 29.11.1972 of the Madras High
C Court in CR.P. No. 1066 of 1972.
K. Ramkumar for the Appellant.
The Judgment of the Court was delivered by
D
E
F
THAKKAR, J. The view taken by the High Court that a tenant sought
to be evicted on the ground of unlawful subletting under Section 10(2)(ii)(a) [1 ] of
the Tamil Nadu Buildings (Lease and Rer.t Control) Act, 1960 must himself
have been guilty of the contravention and that the alleged contravention by his
father when he was a tenant can be of no av1il for evicting him is assailed in this
appeal by special leave. The High Court ha< so pronounced in the backdrop of
the admitted fact that respondent had himself not created any sub-tenancy after
he became the tenant in 1968 upon the death of his father. The plea raised by the
appellant that the tenancy created in 1952 by the father of respondent rendered
him liable to be evicted in the suit instituted by the appellant in 1970 was
repelled. The unsuccessful landlord has now invoked this Court's jurisdiction
under Article 136 of the Constitution of India.
Facts not in dispute are:
I. The father of the appellant 1ad granted a lease in favourof the
G 1. "10(2) [A landlord who seeks to evict his tenant sha'l apply to ][theControilerfor ][a direction in ]
that behalf. If the Controller, after giving the tenant a reasonable opportunity of
showing cause·against the application, is s.:tisfied
H
(i) xxx xxxx
(ii) that the tenant has after the 23rd October, 1945 without the-written consent
of the !andlord(a) transferred his right under the lea;e or sub-let the entire building or any
portion thereof, if the lease does not confer on him any right to do so, or
xx xx xxxxx"
-------.-
SULOCHANA _v._ _C:_ DHARMAUNGAM [THAKKAR, **J.]** 381
father of respondent prior to .1952 (the exact date or year is not A ·
on record).
2. The father of the appellant as also the father of
respondent both have died.
3 .. Respondent was accepted as a tenant upon the death of **B**
I his father in 1968. -
4. The suit for eviction giving rise to the present appeal
## r was instituted for eviction on the ground of unlawful subietting
in-1970 by.the appellant who had inherited the property from
#### her father. · c
5. Admittedly, neither the appellant nor the respondent
have any personal knowledge about the terms and conditions of
# r the lease· originally granted by the father of the appellant in
## r I
4. The suit for eviction giving rise to the present appeal
was instituted for eviction on the ground of unlawful subietting
in-1970 by.the appellant who had inherited the property from
her father.
#### c
5. Admittedly, neither the appellant nor the respondent
have any personal knowledge about the terms and conditions of
the lease· originally granted by the father of the appellant **in**
- favour of the father of respondent no. I. '
6. So also neither the appellant nor the respondent !.ave
any personal knowledge in what circumstance the father of the
respondent had created a -sub-tenancy **in** favour of
Kuppuswami Sah way back in 1952, eighteen years before the
**institution of the suit.** _/._ #### . .
7. Neither the appellant 11or respondent has any personal
knowledge as to whether or not the sub-tenancy was created
with the written consent of the landlord eighteen years back in
1952. .
**D**
E
**F**
. And on these facts the prayer for eviction must be denied regardl;ss of the
question of interpretation which will be presently tackled. The mere fact that for
as many as 18 years no objection was raised, and no action for possession was
instituted against the father of the appellant in his lifetime notwithstanding the
'· fact that a sub-tenant was openly in occupation· ofa part of the rented premises,
would give rise to an inference that it was never treated as unlawful sub-letting
by the appellant or her father. There is nothlng on record.to show that the sub- G.
letting in question, which was made in 1952, IS years before the institution of·
**the suit in 1970, was in violation of the** re-!-,r~nt **pro·y·Sions of law. The appellant**
cannot succeed unless the appellant establishes that Section 10(2)(iiXa) has been
violated and the tenant has incurred the liability to be evicted on the ground gf
unla"ful sub-letting notwithstanding the fact that the lease· did uut confer on
him any such right, and that such unlawful sub-tenancy was created without the **H**
' .
382 SUPREME COURT REPORTS [1987] l S.C.R.
A written consent of the then landlord. There is no evidence, direct or
circumstantial, on the basis of which it cm be said that the lease did not confer
on the father of the respondent the right to create a sub-tenancy. Or that it was
done without the written consent of the then landlord, that is to say, the father
of the appellant. under the circumstances, in any view of the matter the
B appellant cannot successfully evict the respondent on the ground of having
created an unlawful sub-tenancy within the meaning of Section I0(2)(ii)(a) of
the Act.
Examining the profile of the view taken by the High Court that the
offending sub-letting must.be by the tenant sought to be evicte.d himself, and
not by his predecessor, it appears to be blcmishless. Section 10(2) opens with the
C words "A landlord who seeks to evict his tenant" and provides that ifthe tenant
has created a sub-tenancy without the written consent of the landlord, he will be
liable to be evicted. Pray who is the 'tenant' whom the landlord wants to evict?
That tenant is the respondent. Did he vio [1 ] ate Section 10(2)(ii)(a) and sub-let the
rented premises? The answer is 'no'. It is of little use to give the answer, not he,
D but his predeeessor, his late father, had sub-let the premises. When the statute
says the tenant who is sought to be evicted must be guilty of the contravention,
the Court cannot say, 'guilt of his predecessor in interest' will suffice. The
flouting of the law, the sin under the Rent Act must be the sin of the tenant
sought to be evicted, and not that of 1is father or predecessor in interest.
Respondent inherited the tenancy, not the sin, if any, of his father. The law in its
wisdom seeks to punish the guilty who commits the sin, and not his son who is
E
innocent of the rent law offence. It being a penal provision in the sense that it
visits the violator with the punishment of eviction, it must be strictly construed,
for it causes less misery to be sheltered in a jail, than to be shelterless without. Be
that as it may the conclusion recorded by the High Court is fault-free.
F We, therefore, see no reason to interfere with the orderofthe High Court
in exercise of our jurisdiction under Article 136 of the Constitution of India.
The appeal accordingly fails and is dismi>Sed. There will be no order as to costs.
M.L.A. Appeal dismissed.
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