PETITIONER:
THARUMAL
Vs.
RESPONDENT:
MASJID HAJAM PHAROSAN VA MADRASSA TALIMUL ISLAM
DATE OF JUDGMENT31/03/1994
BENCH:
HANSARIA B.L. (J)
BENCH:
HANSARIA B.L. (J)
MOHAN, S. (J)
CITATION:
1994 SCC (3) 375 JT 1994 (4) 137
1994 SCALE (2)414
ACT:
HEADNOTE:
JUDGMENT:
The Judgment of the Court was delivered by
HANSARIA, J.- A suit for eviction was filed by the
respondent against the appellants in the Court of Munsif and
Judicial Magistrate, Jaipur, on the averment that the
tenancy of the appellants having been determined they have
no right to occupy the suit premises. Prayer for vacant
possession of the premises was therefore made, along with
realisation of some arrears of rent, so also damages for the
use and occupation of the premises by the appellants on and
from 1-8-1980. The plaintiff specifically aver-red that
provisions of Rajasthan Premises (Control of Rent and
Eviction) Act, 1950, hereinafter the Act, had no application
in view of the exemption granted by the State Government
vide its notification No. F. 20(14) Rev. 1/76 dated 20-8-
1976 by which all the premises owned by Wakfs registered
under the Wakfs Act were exempted from the operation of the
Act.
2.The appellants took a stand that the exemption
notification was void; and that the present being a case of
forfeiture of tenancy, distinguished from determination of
the same, they were entitled to the benefit of Section 114-A
of the Transfer of Property Act, 1982.
3.The learned Munsif did not accept the case of the
appellants insofar as the challenge to the exemption
notification is concerned, but gave the relief visualised by
Section 114-A of the Transfer of Property Act. The Munsif,
therefore, ordered that in case the appellants would pay all
the arrears within 15 days of the judgment they would not be
evicted from the premises.
4.Feeling aggrieved, the respondent preferred an appeal
in the Court of District Judge, Jaipur, who took the view
that the present was really a case of determination of
tenancy and so the appellants were not entitled to the
aforesaid benefit. This judgment of the District Judge
found the appellants before the High Court of Rajasthan
(Jaipur Bench), where, for the first time a plea was taken
that the wakf in question being wakf-alal-aulad, the benefit
of the aforesaid exemption was not available. Another point
urged was that the present was in fact a case of forfeiture
of tenancy and not of determination of the same. The High
Court did not accept any of the contentions and so dismissed
the second appeal. Feeling aggrieved, this Court has been
approached under Article 136.
5.Shri Rajinder Sachar, learned Senior Counsel appearing
for the appellants, has taken pains to submit that the
appellants were wrongly debarred from the salutory
provisions of Act by the courts below inasmuch as to a wakf-
alal-aulad exemption from the Act permitted by its Section
2(3) is not available. The focal point of this submission
is that the section empowers the State Government to exempt
from all or any of the sections of the Act only those
premises which are owned by any “educational, religious or
charitable institution, the whole of the income derived from
which is
377
utilised for the purposes of that institution”. Learned
counsel urges that wakf-aial-aulad cannot be said to be
either an educational, religious or charitable institute
and, as such, benefit of the exemption given by the
aforesaid notification to registered wakfs could not have
been taken advantage of by the respondent.
6.Shri Sachar has put forward his submission as aforesaid
on being pointed out that it was not open to the appellants
to challenge the validity of the exemption notification in
the absence of the State being respondent in this appeal.
Learned counsel categorically stated that he was not
challenging the validity of the notification (though that
was the stand taken earlier throughout the proceeding), but
he is confining his contention to the nonapplicability of
the exemption to the premises in question. As to the non-
applicability, the contention is that the wakf at hand is
apparently not an educational or religious institution. At
best it could be said to be charitable, which it is not in
view of what has been pointed out by this Court in Fazlul
Rabbi Pradhan v. State of W.B.1 in which the meaning of the
expression “ charitable” has been explained. Learned
counsel further submits that the view taken by the High
Court that even wakf-alal-aulad would be a charitable
institution is not sustainable in law.
7.We do not propose to express any opinion on the
aforesaid contention of Shri Sachar, because it has been
brought to our notice by Shri S.M. Jain, learned Senior
Counsel appearing for the respondent, that there was not
even a pleading by the appellants that the wakf at hand is
wakf-alal-aulad. That this was the position cannot be
doubted inasmuch as in the written statement, a copy of
which was made available to us by Shri Jain, the only point
taken in this connection was that the wakf at hand was not a
registered wakf, as was the averment of the respondent. It
is because of this that the issue framed on this part of the
list was : “Whether the plaintiff-Masjid is a registered
society by the Rajasthan Board of Muslim Wakf, Jaipur and
the plaintiff has right to file the suit?” The question
whether the wakf with which we are concerned is a wakf-alal-
aulad being essentially a question of fact and there having
been even no averment about this in the written statement
filed by the appellants and no issue on this point having,
therefore, been framed, we hold that it was not open to the
appellants to take such a stand for the first time before
the High Court. The mere fact that the High Court has
examined this aspect and recorded its finding is not enough
to require us to express our views. According to us, the
High Court might not have as well addressed itself on this
question.
8.In view of the above and because of there being nothing
to doubt that the wakf at hand is a registered wakf, as
would appear from notification dated 23-9-1965 issued by the
office of Rajasthan Board of Muslim Wakf, Jaipur, as
contemplated by Section 5(2) of the Wakfs Act, 1954, copy of
which was made available to us by Shri Jain for our perusal,
we hold that the
(1965) 3 SCR 307: AIR 1965 SC 1722
378
premises at hand were exempted from the provisions of the
Act. May it be stated that in view of what has been
provided in Section 6(4) of the Wakf Act, the list of Wakfs
published under Section 5(2) is final and conclusive unless
modified as mentioned in the section, to which effect there
is nothing before us. We may refer in this connection to
Board of Muslim Wakfs v. Radha Kishan’ taking the aforesaid
view. We, therefore, reject the first submission of Shri
Sachar.
9.Insofar as the plea of the present being a case of
forfeiture and not of determination of tenancy, we would
state that the requirement of forfeiture as mentioned in
Section 111 (g) of the Transfer of Property Act being not
satisfied and the notice as given by the respondent to the
appellants (Annexure P-1) having stated about determination
of tenancy, the present cannot be taken to be a case of
forfeiture. We have said so because of the three situations
visualised by clause (g), it is apparent that it is the
first alone which could get attracted the same being
breaking of any express condition which provides that on
breach thereof the lessor may re-enter. Shri Sachar submits
that from the notice (Annexure P-1) it would appear that it
was the non-payment of rent as agreed upon by the appellants
which was the cause of action for issuance of notice and as
such this condition is satisfied. To support his submission
it is urged that in the suit as filed arrears of rent has
also been claimed which would show that the respondent’s
case was breaking of condition regulating to payment of rent
in time.
10.Though a perusal of the notice, which is dated 29-5-
1980 does show that it mentioned about non-payment of rent,
but it also stated about termination of tenancy and demanded
vacant possession by 31-7-1980 or “the last date of the
month of…… In the suit as filed rent had not been
claimed on and from 1-8-1980, it was rather damages on
account of illegal use and occupation. For the first of the
three situations mentioned in Section 111(g) to operate the
condition has to be one the breach of which had provided the
lessor a right to re-enter. In the present case, there is
nothing to show that such was the condition of the tenancy.
That apart, the notice itself would show that it was clause
(h) of Section 111 which was pressed into service, because
the requirements of notice of termination as mentioned in
Section 106 of the Transfer of Property Act were duly borne
in mind, as per which section in case of monthly tenancy,
the notice must expire with the “end of a month of the
tenancy”. The perusal of the notice shows that the tenancy
at hand was a monthly tenancy as per English calendar and it
is because of this that vacant possession was demanded from
31-7-1980, the end of an English calendar month, stating
simultaneously about “the last date of the month of……
These salient features do not leave any doubt in our mind
that the present was not a case of forfeiture but of
determination of tenancy. We, therefore, reject the second
contention as well of Shri Sachar.
11.It would be of interest to state that under English law
a distinction is made between a condition and covenant
insofar as the requirement of a
1 (1979) 2 SCC 468
379
specific proviso in the lease to re-enter in case of breach
of the same is concerned. It is only in case of covenant
that the lease must contain proviso for re-entry. No such
stipulation is deemed necessary in case of breach of a
condition. [See pages 836 and 837 of Woodfall's Landlord and
Tenant, (1978 Edn.) Volume 1; page 406 of Martin
Partington's Landlord and Tenant (2nd Edn.) and page 200 of
Evans and Smith's The Law of Landlord and Tenant (4th
Edn.).] In the Indian law, however, no distinction exists
between a condition and covenant in this regard, as has been
stated by a Bench of Calcutta High Court speaking through
M.M. Dutt, J., as he then was, in Peter Alan Basil v. East
India Pharmaceutical WorkS2. Reference may be made to a
decision in this Court in Merwanji Nanabhoy Merchant v.
Union of India3 in which the landlord had sought for
eviction on the ground of damage to the property because of
neglect in maintaining the same which was said to be
violation of clause 2(iii) which stated that the tenant will
keep the premises in good condition, as well as for failure
to pay required rent. As however, there was no stipulation
in the agreement empowering the landlord to re-enter in case
of breach of the aforesaid clause, it was held that the
vacant possession could be demanded on the ground of
determination of tenancy simpliciter, and not, because of
the forfeiture of tenancy.
12.Having seen that in the case at hand there was no
stipulation in the contract containing a clause of re-entry
in case of breach of payment of rent, it has to be held that
the present is not a case of forfeiture, but was of
determination of tenancy by exercising power under clause
(h) of Section 111 of the Act.
13.No other point has been urged. The appeal, therefore,
stands dismissed. We, however, make no order as to costs.
The appellants would get three months’ time from today to
vacate the premises on their furnishing usual undertaking
within a period of four weeks.
380