Wednesday, 6 April 2016

Whether there is waiver of termination of tenancy by acceptance of rent by landlord?

 The next question is as to whether there is waiver
of termination of   tenancy   by acceptance of the rent.
The waiver can occur only when the lessor has treated
the tenancy as subsisting. Mere acceptance of arrears of
rent can not imply that the lessor treated the tenancy as
subsisting unless it can be established as conscious and
deliberate act. There has to be consensus ad idem of the
parties  to treat the lease as subsisting or reestablish the
relationship   of   the   landlord   and   tenant.   Mere
acceptance of rent, therefore, without the intention to
treat   the   lease   as   subsisting     would   not   amount   to
waiver.   The   acceptance   of   rent   may   be   without

prejudice to the rights and contentions in the notice, it
does     not   amount   to     waiver.   Waiver   has   to   be   a
deliberate and conscious act on the part of the landlord
to treat the contractual tenancy­lease as subsisting. If
the eviction suit is continuing even after acceptance of
the rent it indicates that the landlord has no intention to
waive the quit notice because landlord has elected to
continue   with   the   eviction   proceedings   in   order   to
recover possession from the lessee.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO.427 OF 2002
Narendra Vyankatesh Tambat,

// VERSUS //
Pravinkumar Khushalchand Tated,


Date of pronouncing the Judgment    :  9.7.2015.
                                   
      CORAM     :  A.P.BHANGALE,  J.
Citation;2016(1) ALLMR 25

1.  This   Second   appeal   is     preferred   against   the
Judgment   and   Order   dt.22­08­2002   passed   by   the
Additional District Judge, Khamgaon whereby the first
Appellate Court had allowed the appeal, decreeing the
suit for eviction and possession, damages and mesne
profits.
2.   The     subject   matter   of   the   dispute   is   suit
tenement on the ground floor of Plot no.99/2 situated
in   Nazul   Sheet   no.     33­B   at   Khamgaon,   District
Buldana,   which   was   let   out   to     the  defendant   at   a
monthly rent of Rs.100/­. The plaintiff had filed an
application   to   the   Rent   Controller,   Khamgaon   for
permission to issue quit notice   to the tenant on the

ground of bona fide requirement. The proceeding was
opposed   on   the   ground   that   the   landlord   was
'Benamidar'   (not   real   owner)'.     Plaintiff   had   filed
Regular Civil Suit No. 122 of 1993 for eviction of the
defendant   in   the   Court   of   Civil   Judge   (Jr.Dn.),
Khamgaon, District Buldana for relief of   possession
and recovery of damages.   The defendant had denied
title of the landlord–plaintiff. The defendant was served
with notice dt.29­04­1993 (Exh. 44)   on the ground
that tenancy was forfeited and vacant possession and
damages, mesne profits were claimed. The defendant
had replied the notice (Exh.45). The trial Court had
dismissed the suit. 
3. The   substantial     question   of   law   set   out   is   as
under  :
a) Whether as effect of the denial/disclaimer
of   the  title   of   the   landlord  by  the   Tenant,  the

tenancy is   liable to be forfeited? Whether there
was waiver of notice   of forfeiture issued by the
landlord by accepting the rent from the Tenant
after service of the notice of forfeiture?
My answer is tenancy was liable to be forfeited
and there was no waiver of notice of forfeiture
merely by acceptance of rent in the facts and
circumstances of the case for following reasons.
4. The   defendant   had   pleaded   in   the   proceedings
before   the   Rent   Controller   that   suit   premises   was
purchased by one Inderkumar Sancheti in the name of
the plaintiff. Thus, the title of the landlord was denied by
the defendant­tenant  by  way of defence before the Rent
Controller.
5. Mr.A.V.Bhide,   learned   Counsel   for   the   appellant
submitted that the trial Court had dismissed the suit on
the ground that the bona fide requirement of the land

lord was not established, but the first appellate Court
erred to decree the suit. According to Mr.Bhide merely
because there was disclaimer of title of the land lord by
the tenant, it would not enable the landlord to claim
eviction of the tenant.
6. Mr.Bhide   relied   upon   the   ruling   in  Bapubhai
Papabhai Vs. Khairunnisa Abdul Kadar   reported in
1992 Mh.L.J.   521   to argue that when the trial Court
had dismissed the suit, the appellate Court could not
have decreed the suit on totally new ground and if so, it
amounts to error of jurisdiction. I have seen the ruling.
Facts of the case appear different. In that case, the tenant
was inducted by the predecessor­in­title of the land lord.
The tenant required the new landlord  to prove her title.
It did not follow that the tenant had denied the title
prior to the filing of the suit. In fact, the defendants had
never denied the title  to the suit property. The appellate

Court had decreed the suit on totally new ground not
pleaded   in   the   plaint.   Thus,   this   Court   held   that   the
decree   passed   by   the   appellate   Court   was   without
jurisdiction. The ruling is, therefore, not attracted in the
facts and circumstances of the present case. In this case
in hand, the tenant denied title of the landlord during
pendency   of   proceedings   before   the   Rent   Controller.
Denial was conscious out of the tenant
7. Mr.Bhide   placed   reliance   upon   the   ruling   in
Subhash Chandra   vs. Mohommad Sharif & Others
reported in  (1990) 1 SCC 252.   In this case, it is held
that where the tenant was not inducted by the landlord
and   the   title   of   the   land   lord   is   derivative   such   as
Assignee,   Donee,   Vendee,   Heir   etc.,   the   tenant   can
challenge the derivative title showing that the real owner
is somebody else. But, at the same time, the ruling makes
it clear  that  Section 116  of the Evidence Act does not

permit the tenant to deny title of the landlord at the
beginning of the tenancy. In the present case, we are not
dealing with the case of the transferee of the landlord,
but the landlord who inducted the defendant­tenant.
8. Mr.Bhide refers to Section 15 of the Maharashtra
Rent   Control   Act   which   provides   RELIEF   AGAINST
FORFEITURE of tenancy in following terms :­
15. No ejectment ordinarily to he made if tenant
pays or is ready and willing to pay standard rent
and permitted increases.
(1) A landlord shall not be entitled to the recovery 
of possession of any premises so long as the tenant
pays, or is ready and willing to pay, the amount of 
the, standard rent and permitted increases, if any, 
and observes and performs the other, conditions of
the tenancy, in so far as they are consistent with 
the provisions of this Act.
(2) No suit for recovery  of possession shall be
instituted by a landlord against the tenant on the
ground of non­payment of the standard rent or

permitted increases due, until the expiration of
ninety   days   next   after  notice   in   writing  of   the
demand   of   the   standard   rent   or   permitted
increases has been served upon the tenant in the
manner provided in section 106 of the Transfer of
Property Act, 1882.
(3) …........................
9. According to Mr. Bhide, landlord was not entitled to
possession. Mr.Bhide then refers to the ruling in  M/s
Bharat Earth Movers Ltd vs Puranlal Kedia  reported
in  AIR 2009 (NOC) 585 (CAL).  The right to evict the
tenant   must   be   exercised   by   notice   determining   the
tenancy. In the case in hand the landlord had already
approached the Rent controller to initiate the eviction
proceedings  in which the tenant challenged the title of
the landlord as 'Benamidar'   despite the fact that the
same land lord had inducted him.
10.   Section 116 of the Evidence Act reads thus :

116.   Estoppel   of   tenant   and   of   license   of
person in possession ­ No tenant of immovable
property   or     person   claiming   through   such
tenant   shall,   during   the   continuance   of   the
tenancy, be permitted to deny that the landlord
of   such   tenant   had,   at   the   beginning   of   the
tenancy, a title to such immovable property; and
not   person   who   came   upon   any   immovable
property   by   the   license   of  the   person   in
possession   thereof,   shall   be   permitted   to   deny
that such person has a title to such possession at
the time when such license was given.
Tenant is, thus prevented by law from disputing title
of the landlord as on beginning of tenancy.
11.       Shri   Khajanchi,   learned   Counsel   for   the
respondent/landlord     submitted     that   the   suit   was
wrongly   dismissed   by   the   trial   Court.   However,   the
first   appellate   Court   had   rightly   arrived   at   the
conclusions which were wholly consistent with the legal
position as to law of waiver of quit notice issued by the
landlord   claiming   decree   for   eviction   of   the   tenant.

Learned Counsel relied upon the ruling in Hashmatrai
Vs. Tarachand Laxmichand  reported in  1978 Mh.L.J.
750   to argue that the question of waiver has to be
decided  depending  upon the  facts of  each  case. The
question is of the intention of the parties once a suit for
ejectment is filed it cannot be possibly said that the
landlord   had   the   intention   to     treat   the   tenancy   as
subsisting     unless   he   withdraws   the   suit.   The   lessor
cannot be said to have waived  the notice by accepting
rent during the continuance of the suit. In the ruling in
Ramjilal   Banwarisahay   Vs   Gulabrao   Balaji
Deshmukh 1978 Mh.L.J. 850, it is observed that the the
intention on the part of the landlord to treat the tenancy
as subsisting is necessary to constitute the waiver. Mere
acceptance of the rent in the pending suit would not
amount   to   the   waiver   unless   the   landlord   thereafter
abandon  the suit.   Mr.Khajanchi argued that the tenant
was not entitled to dispute or deny   the title of the

landlord in proceedings before the Rent Controller. The
tenant by the act of disclaimer of title of the landlord
invited the forfeiture of the tenancy by notice to quit
issued from the landlord. Learned Counsel emphasized
that the acceptance of the rent by the landlord must be
with   clear   intention   to   treat   the   lease   as   subsisting
despite determination of the tenancy in other words it
must be proved by the tenant that  the landlord's must
have   elected   to   treat   the   lease   as   subsisting.   In
Ramchandra   Jamnadas   Katariya   vs.   Nuruddinbhai
reported in 2004 (4) Mh.L.J. 178, it is observed that the
intention of the landlord is of paramount importance to
determine the act of waiver  of the notice to quit. Mere
acceptance   of   rent,   therefore,   would   not   amount   to
waiver.   This   Court   in  Haribhau   Sadashiv   vs.   Raju
Daulatrao reported in 2004 (4) Mh.L.J  350 held that
during   pendency   of   the   suit   appropriation   by   the
landlord towards arrears of rent would not constitute

waiver of notice to treat the tenancy as subsisting. After
service   of   notice   to   quit,     the   waiver     cannot   be
presumed, determinative by mere fact of rent tendered
and accepted.  To support the submission, reference is
made to the case of Sarup Singh Gupta vs. S.Jagdish
Singh, (2006) 4 SCC 205  and ruling in  Savitribai vs
Faruk, 2010 (5) Mh.L.J. 357.  Mere acceptance of the
rent without further evidence to prove the waiver on the
part of the landlord to treat the tenancy as subsisting
can not assist the defendant   to defeat the claim for
eviction under Section 113 of the Transfer of Property
Act.   Division   Bench   of   this   Court   in  Ratanlal
Manikchand Shah Vs Chanbasappa, AIR 1978 Bom.
216   (1)  held   that   relationship   of   the   tenant   and
landlord     must   exist   between   the   parties   to   attract
provisions of the Rent Act. Disclaimer by the tenant of
the title of the landlord would not, therefore, bar the
Civil  Court  to order eviction as in such  case, in the

absence of relationship as landlord and tenant between
the   parties   to   the   suit,   owner   of   the   property   can
recover   possession   of   the   premises     de   hors   the
provisions of the Rent Act. Denial of the land lord's title
or disclaimer, thus, exposes the tenant to the risk of
forfeiture of the lease  and the lessor is given the right
to determine the lease by notice to the lessee and to sue
defendant  on the  basis  of   title   as  owner  of  the  suit
property.
12.     It appears  in the facts of the present case that the
tenant had denied the title of the landlord in the judicial
proceeding before the Rent Controller and in the result
the   landlord   had   issued   the   notice   of   forfeiture   of
tenancy   and   terminated   his   tenancy.   The   act   of
repudiation of the title of the landlord by the tenant in
judicial proceeding was a deliberate or conscious act,
which resulted in the end of relationship as landlord­

tenant. Section 116 of the Indian Evidence Act estops
the tenant from denying the title of the landlord. It is
settled legal position that the tenant can not deny title
of the land lord. Denial or repudiation of the landlordtenant
  relationship   entails   forfeiture   of   the   lease
enabling landlord to recover possession as owner of the
suit property.  The claim  that the landlord  was mere
“Benamidar”   and  owner is  someone  else  amounts to
disclaimer of the relationship of the landlord and tenant
by setting up title in third person. The denial was clear
and   unambiguous   in   the   Rent   Control   proceedings,
tenant   trying   to   set   up   title   in   third   person   ­   one
Inderchand   Sancheti.   Tenant   had   no   such   statutory
right to disclaim the landlord's title. The tenant, thus,
incurred   forfeiture   of   the   tenancy     as   the   landlord
issued notice  to quit the tenancy under Section 111(g)
of   the   Transfer   of   Property   Act.   The   tenancy   stood
terminated by the defence of the tenant to repudiate his

relationship as tenant with the landlord  and setting up
title in another. When relation between landlord and
tenant itself stands repudiated by conduct of tenant by
disclaimer,   the   landlord   becomes   entitled   to   recover
possession by resorting to ordinary law of the land.
13.     The next question is as to whether there is waiver
of termination of   tenancy   by acceptance of the rent.
The waiver can occur only when the lessor has treated
the tenancy as subsisting. Mere acceptance of arrears of
rent can not imply that the lessor treated the tenancy as
subsisting unless it can be established as conscious and
deliberate act. There has to be consensus ad idem of the
parties  to treat the lease as subsisting or reestablish the
relationship   of   the   landlord   and   tenant.   Mere
acceptance of rent, therefore, without the intention to
treat   the   lease   as   subsisting     would   not   amount   to
waiver.   The   acceptance   of   rent   may   be   without

prejudice to the rights and contentions in the notice, it
does     not   amount   to     waiver.   Waiver   has   to   be   a
deliberate and conscious act on the part of the landlord
to treat the contractual tenancy­lease as subsisting. If
the eviction suit is continuing even after acceptance of
the rent it indicates that the landlord has no intention to
waive the quit notice because landlord has elected to
continue   with   the   eviction   proceedings   in   order   to
recover possession from the lessee.
14. The first appellate Court has recorded findings
consistent with this legal position stated and therefore,
no   acceptable   ground   is   made   out   for   to   warrant
interference with the impugned Judgment and Order.
The appeal, therefore, has no merits. It is dismissed with
costs.

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