Manharlal Mohanlal Zaveri and Others vs Indulal Vadilal Mehta

J.N. Bhatt, J.—Could the landlord file a suit for possession on the ground of reasonable and bonafide requirement of self-occupation u/s 13(1)(g) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (Bombay Rent Act) against the tenant who is leased the premises till his life time, is the sole question requiring adjudication in this revision u/s 29(2) of the Bombay Rent Act.

The petitioners are the original plaintiffs-landlords and the respondent is the original defendant-tenant. They are hereinafter addressed to as the plaintiffs and tenant for the sake of convenience and brevity. The landlords filed Regular Civil Suit No. 646 of 1975 against the tenant for possession contending that they require the demise premises reasonably and bonafide for self-occupation u/s 13(1)(g). The suit was contested by the tenant by filing written statement, inter alia, contending that the landlords do not require demise premises reasonably and bona fide for personal occupation. The tenant also contended that the suit is barred by res judicata as the landlords had filed earlier two suits on the same ground and the same were dismissed. The tenant also pleaded that he is a tenant for life in view of the registered lease deed and therefore, the suit is not maintainable.

The trial Court on the basis of the pleadings of the parties raised issues at Ex. 26 and on examination of the facts and circumstances and upon appraisal of the evidence, dismissed the suit holding that the plaintiff is not entitled to file suit for ejectment in view of Clause 7 in the lease deed at Ex. 48. The contention of the tenant that there is lease for life came to be upheld by the trial Court. The landlords carried the matter before the Appellate Court in District Court at Jamnagar by filing Regular Civil Appeal No. 13 of 1982 which also came to be dismissed on 22nd July 1983. Hence this revision u/s 29(2) of the Bombay Rent Act.

Both the Courts below have concurrently and consistently recorded a finding of fact that the landlords are not entitled to file suit for possession in view of the life tenancy as per the lease deed. This finding of fact cannot be re-examined and re-appreciated in a revision u/s 29(2) of the Bombay Rent Act. Otherwise also, the view taken by the Courts below cannot be said to be unjust, unreasonable, illegal or perverse requiring interference of this Court in a revision u/s 29(2) of the Bombay Rent Act. Clause 7 in the registered lease deed at Ex. 48 creates a right in favour of the tenant for life. The lease for life of the lessee would be a valid lease u/s 105 of the Transfer of Properties Act, 1982. The lease for life of the tenant is a matter of contract under which the termination of tenancy is not allowed during the life time of the tenant.

A contention is raised that the clause contained in lease deed Ex. 48 is violative of the provisions of Section 28 of the Contract Act, 1872. Section 28 of the Contract Act reads as under:

Agreement in restrain of legal proceedings, void.: Every agreement, by which any party thereto is restricted absolutely from enforcing his rights under or in respect of any contract, by the usual legal proceedings in the ordinary Tribunals, or which limits the time within which he may thus enforce his rights, is void to that extent.

On plain perusal of the aforesaid provision and the disputed clause in the lease deed Ex. 48 creating lease for life, it can safely be concluded that there is no infraction of the provisions of Section 28 of the Contract Act. The lease for life at Ex. 48 created in favour of the lessee or tenant is not inconsistent with the provisions of the Bombay Rent Act. When the contract of lease for life is permissible and legal, it cannot be objected to by the landlord contending that it is hit by the provisions of Section 13 of the Bombay Rent Act. Section 13 of the Bombay Rent Act provides various grounds for ejectment against the tenant. The tenant who is protected under the Bombay Rent Act cannot be evicted from the demise premises without there being a ground available for eviction as provided u/s 13 of the Bombay Rent Act. Section 13 provides when the landlord may recover the possession of the demise premises from the tenant. A protected tenant could never by ejected without there being a ground available u/s 13. Section 13(1) of the Bombay Rent Act provides that notwithstanding anything contained in the Bombay Rent Act, but subject to the provisions of Section 15, a landlord shall be entitled to recover possession of any premises if the Court is satisfied that anyone of the grounds exists then and then the landlord would be entitled to recover possession of the demise premises. Therefore, lease for life or a condition of the life tenancy in the lease deed or a tenancy cannot be said to be contrary to the provisions of law or against the spirit of the Bombay Rent Act or contrary to the provisions of Section 28 of the Contract Act. No other provision of law is pointed out under which Clause 7 of the registered lease deed Ex. 48 could be said to be illegal.

Notwithstanding anything contained in Section 13 of the Bombay Rent Act cannot be read as "notwithstanding anything contained in any other law for the time being in force". What is provided in Section 13(1) is notwithstanding anything contained in the Rent Act, but subject to the provisions of Section 15. It would mean notwithstanding anything contained in Section 13 and other provisions of the Act, but subject to the provisions of Section 15, the landlord is entitled to ejectment decree for possession on one or more grounds specified in Section 13. When a landlord has entered into a permanent lease or a life time tenancy by contract with the tenant, then it is not hit by the provisions of Section 13(1). The disability injected on the rights of the landlords under certain provisions of the Bombay Rent Act is lifted in Section 13(1) by the Legislature by introducing the words "notwithstanding anything contained in this Act, but subject to the provisions of Section 15 of the Bombay Rent Act." It could not be contended that the aforesaid expression employed in Section 13(1) by the Legislature would mean that a landlord who has entered into a life lease or a permanent tenancy by free volition in contract is also hit by the provisions of Section 13(1) of the Bombay Rent Act.

Having regard to the facts and circumstances, the aforesaid contention raised on behalf of the petitioners-landlords is unsustainable and the present revision is meritless requiring straightway dismissal. Accordingly, it is dismissed with no order as to costs. Rule discharged.