Holding

Section 108(j) of the Transfer of Property Act does not defeat the eviction power conferred by Section 11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act; sub‑letting is a ground for eviction unless expressly permitted by the lease or by the landlord's consent.

Summary

The landlord sought eviction of the tenant under Section 11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act, 1965, alleging the tenant had sublet the premises without consent. The Rent Controller and successive courts upheld the eviction. The tenant argued that Section 108(j) of the Transfer of Property Act, 1882, automatically permits sub‑letting unless the lease expressly forbids it, and thus should bar eviction. The Supreme Court examined the language of Section 11(4)(i), noting that sub‑letting is a ground for eviction unless the lease itself or the landlord’s subsequent consent permits it. It held that the clause "if the lease does not confer on him any right to do so" limits the tenant’s right to sub‑let to what is expressly granted, and that Section 108(j) does not override the specific eviction provision of the Kerala Act. Consequently, the appeal was dismissed with costs.

Issues considered

Whether Section 108(j) of the Transfer of Property Act, 1882 provides a defence against eviction under Section 11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act, 1965 when the lease does not expressly prohibit sub‑letting.
Whether the clause "if the lease does not confer on him any right to do so" in Section 11(4)(i) alters the effect of Section 108(j) and shields the tenant from eviction.

Legislation cited

Kerala Buildings (Lease and Rent Control) Act, 1965s. 11(4)(i)
Transfer of Property Act, 1882s. 106, s. 108(j)

Subjects

sub‑lettingevictionrent controlleaselandlord‑tenantTransfer of Property ActKerala Buildings ActSection 108(j)Section 11(4)(i)

Judgment

139

A

K K .. KRISHNAN
v.
M. K. VIJAYA RAGHAVAN
B
July 30, 1980
[R. S. PATHAK AND 0. CilINNAPPA REDDY, JJ.J
Rent Control /egislation-Kerala Buildings (Lease and Rent Co11t10[) Act,
1965-Section 11(4)(i)-Scope of- Tenant-If could sublet the premises with-
out landlord's permission-Section 108 Transfer of Property Act if could be a
defence to an action for eviction., c
On the ground that the· tenant had sublet the premises without his consent
the landlord sought the tenant's eviction from the premises under section 11(4)(i)
of the Kerala Buildings (Lease and Rent Control) Act, 1965. Tile Rent Con·
troller ordered eviction and this order was affirmed by the Subordinate Judge,
District Judge and the High Court.
D
Before this Court it was contended on behalf of tbe tenant that under
section 108(j) of the Transfer of Property Act, 1882, it was a term of every
lease that the lessee might sublease the whole or any part of his interest in
the property and, therefore, unless the lease expressly prohibited the lessee from
sub-letting the whole or part of the premises, the landlord could not have
recourse to section 11(4)(i) of tbe Act.
E
Dismissing the appeal,
HELD : What section 11(4)(i) of the Act provides is that sub-letting shall
be a ground for eviction but not if it was by agreement of the landlord.
[1420] '
l(a) What section 11(4)(i) means is that a tenant may be evicted on the
ground of sub-letting unless such sub-letting is permitted by a term all the
lease itself or by subsequent consent ~f the landlord. If the clause "if the F
lease does not confer on him ·any right to do so" was not there the positiun
would be unarguable that section 1086) of the Transfer of Property Act would
·offer no protection. But the addition of the clause only clarified that the
right to sublet could ·be conferred on tbe tenant either· at the time of the lease
or subsequently but it had to be conferred; it could not be claimed unilaterally
by the tenant. [142B-D]
,,..
'
G
(b) Quite obviously the legislature thought that the tenant, whose tenancy
was well secured and protected by the rights conferred by the Act should alone
be entitled to such security and protection and that the tenant should not be
allowed to profit by the protection given to him by subletting the premises
' and extending the protection to others beside himself unless the landlord by
his act agreed to such a course. [lf12F]
H
2. It is well settled law that not all the rights conferred C'n the landlord
and tenant by section 108 and other provisions of the Transfer of Property Act
have been left intact by the various State Rent Acts and that if a State Rent
10--646 S.C. India/80
140 SUPREME COURT REPORTS [1981] 1 S.C.R.

A Act makes provision for eviction on certain specified grounds, eviction cannot
be resisted on the basis of rights conferred by the Transfer of Property P.ct.
Section 108(j) stands displaced by section 11(4)(i) of the Act and is no defence
to an action for eviction based on this section. (143G]
V. Dhanapal Chettiar v. Yesodai 'Ammal, AIR 1979 SC 1745 (a) 1747=
{1980] 1 SCR 334 referred to.
B
CIVIL AnELLATE Ju1USDJCTION : Civil Appeal No. 140 od' 1979.

Appeal by Special Leave ·from the Judgment and Order dated
8,-12-1978 of the Kerala High Court in C.R.P. No. 3450/78.
J
P. Govindan Nair, Sardar Bahadur Saharya, Vishnu Bahadur
c Saharya and Mrs. Baby Krishnan for the Appellant )

T. S. Krishnamurthy Iyer, A. S. Nambiyar, and P. Parmeswaran
for the Respondent.

/ The Judgment of the Court was delivered by
D
CHINNAPPA REDDY, l-The respondent-landlord filed a petition
for eviction of the appellant-tenant from the premises in dispute under
s. 11(4)(i) of the Kerala Buildings (Lease and Relllt Control) Act,
No. II of 1965, on the ground that the appellant had sub-let the
premises without the consent of the landlord. The petition had a
E chequered career but finally tthe Rent Controller ordered eviction by
his .order dated July 31, 1974. The order of tlb.e Rent Controller
was confirmed, successively by the Subordinate Judge, the District
Judge and, the High Court. The ~enant has now preferred this appeal
by special leave of this CourU under Art. 136 of the Constitution.

F Shri Govindan Nair learned counsel for the appellant submitted
that under s. 108(j) of the Transfer of Propevty Act, 1882, it was a
term of every lease that the lessee might sub-lease tihe whole or any
part of his interest in the property and, therefore, unless the lease
expressly prohibited the lessee from sub-letting the whole or part of
the premises, the landlord could not have recourse to s. 11(4)(i) of
.the Kerala Buildings (Lease and Rent Control) Act.

In order to appreciate the submission of Shri Govindan Nair,
we may s~t out the relevant statutory provisions. S. 108(j) of the
Transfer of Property Act, 1882, is as follows:

H "108. In the absence of a contract or local usage to the
contrary' the lessor and the Jessee of the immovable property,' as
against one another, respectively, possess the rights and are
K. K. KRISHNAN ·v. M. K. VIJAYA (Chinn,appa Reddy, J.) 141

subject to the liabilities mentioned in the rules next following, A
or such of them as are applicable to the properfy leased :
(A) Rights and liabilities of the lessor
w xxx xxx xxx
~ xxx xxx xxx
w xxx xxx xxx
(B) Rights and liabilities of the lessee B
(d) xx x xx x xx x
(e) xx x xx x, x xx
m xxx xxx xxx
00 xxx xxx xxx
(h) x x x x x x x x x
(i) x x x x x x x xx c
(j) the lessee may transfer absolutely or by way of
mortgage or sub-lease the whole or any part of his
interest in the property, and any transferee of such
interest or part may again transfer it. The lessee
shall not,. by reason only of such transfer, cease to
be subject to any of the liabilities attaching to the · n
lease;
xxx xxx ,xxx
S. 11 of the Kerala Buildings (Lease and Rent Control) Act,
No. II of 1965, to tihe extent that it is relevant is as follows:
"11(1) Notwith~tanding anything to the contrary contained

r
E
in any other law or contract a tenant shall not be evicted whether
in execution of a decree or otherwise, except in accordance with
the provisions of this Act :
~ .. Provided that
Provided further that
F
(2) xx x xx x x x x
(3) x xx x x x x x x
(4) A landlord may apply to the Rent Control Court for an
Qrder directing the tenant to put the landlord in possession of
the building: -
(i) if the tenant after the commencement of this Act, .G
without the consent of the landlord, transfers his right. under
the lease or sub-lets the entire building or any portion
thereof if the lease does not confer on him any right to
do so".
The submission of Shri Govindan Nair was that if the lease did
not expressly prohibit sub-letting, the provision in .s. 108(j) of the H
Transfer of Property Aat which enabled a lessee to sub-lease the
whole or any part of his interest in the property had necessarily to

..
142 SUPREME COURT REPORTS [1981] 1 S.C.R.

A be ;read into every lease as one of its terms, and so read, it followed
that the lease conferred on t.he tenant the right to sub-let "the entire
building or any portion Thereof" so as to disentitle the landlord from
seeking eviction of the tenant under s. 11(4)(i) of the Kerala Act.
We are unable to agree with this submission.
Read plainly and without gloss, s. 11(4)(i), simply and clearly,
B means that a tenant may be evicted on the ground of sub-l~ting
unless such sub-letting is permitted by a term of the lease itself or by
subsequent consent of the landlord. What is necessary is an applica-
tion of the mind and the resulting consensus between the landlord and __ j
the tenant. I.f the clause "if the lease does not confer on him any right
c to do so" was not there in s. 11(4)(i) the position would be unarguable·
that s. 108(j) would offer no protection. That much was also con-
¢ded by Shri Govindan Nair. In our opinion, the addition of the
clause did not improve matters for the tenant. It only clarified
matters to this extent that the right to sublet could be conferred on
the tenant either at the time of the lease or subsequently, but it had
D '<to be conferred: it could not be claimed unilaterally by ,the tenant.
To interpret s. ll(4)(i) in the manner suggested by Shri Govindaru
Nair would be to ;rewrite the provision as follows: "if the tenant ...
.. .. . .. .. .. .. .. .. .. .. .. . , without the consent of the landlord, transfers his
right under the lease or sublets the entire building or any portion
thereof, though prohibited by lease from doing so". That, we are-
E not called upon to do. A lititle thought over the reason for s. 11

J
(4)(i) will also throw some light. Quite obviously, the legislature
!thought that the tenant whose tenancy was well secured and pro-
tected by the rights conferred by the . Buildings (Lease and Rent·
Control) Act should alone be entitled to such security and protection
and that the tenant should not be allowed to profit by the protection
F given to him by subletting the premises and extending the protection
to others besides himself, unless the landlord by his act agreed to_
such a course. Where the landlord had himself agreed that the
itenant could sublet, !the question would not arise. Therefore, s. 1l
(4)(i) provides that subletting shall be a ground for eviction but not
G if it was by agreement of the land1ord.
In V. Dhanapal Chettiar v. Yesodai Ammal(1) a Bench of seven
judges of this Court had to consider the question whether notice
under s. 106 of the Transfer o~ Property Act determining the lease
was necessary before a landlord could move Rent Controller or o~her
appropriate authority for the eviction of the tenant under the various
H State Rent Acts. The Court held that it was not necessary and
Untwalia, J., speaking for the Court, said:
(1) A.l.R. 1979 S.C. 1745 at 1747-48=[1980] 1 S.C.R. 334.
K. K, KRISHNAN v. M. K. VIJAYA (Chirlnappa Reddy, J.) 14 3

"Section 108 deals with the rights and liabilities of lessors A
and lessees. Many State' Rent Acts have brought about consi-
derable changes in .the rights and liabilities of a lessor and a
lessee, largely in favour of the latter, although 'not wholly. The
topic of Transfer of Property other than agricultural land is
covered by. Entry 6 of List III in the Seventh Schedule to the
Constitution. The subject being in the concurrent list, many B
State Rent Acts have by necessary implication and many of therri
by. st.arting certain provisions with a non-obstante clause have
done away with the law engrafted in s. 108 of the Transfer of
L Property Act 'except in regard to any matter which is not pro·
vided for in the State Act either expressly or by necessary
C"
·implication".

Later, he said:
"But when under the various State Ren~ Acts, either in one
language or the other, it has been provided that a tenant can
be evicted on the grounds mentioned in certain sections of the D
said Acts, then how does the question of determination of a
tenancy by notice arise? - If the State Rent Act requires the
giving of a· particular type of notice in order to get a particular
kind of relief, such a notice will have to be given. Or, it may be
that a landlord will be well advised by way of abundant precau-
tion and in order to lend additional support tb his case, to give E
a notice to his f.enant intimating that he intended to file a suit
against him for his eviction on ·the ground mentioned in the
notice. But that is not to say that such a notice is compulsory
or obligatory or that it must fulfill all the technical requirements
of section 106 of the Transfer of Property Act". ,/
F
It is clear from what has been said that not all the rights con·
ferred on landlord and tenant by s. 108 and other provisions of the
Transfer of Property Act have been left in tact by the various State
· Rent Acts and that if a State Rent Act makes provision for eviction
on certain specified grounds, eviction cannot be resisted on the basis
of rights coll!ferred by the Transfer of Propert1y Act.. Section l08(j) G '
. of the Transfer of Property Act stands displaced by s. 11(4)(i) of the
Kerala Buildings (Lease and Rent Control) Act and is no defence
to an action for eviction based on s. 11(4)(i).

.We are sati'sfied that the appeal is without merit and is
. accordingly dismissed with costs. .H

·P.B.R. Appeal dismissed.