Holding

The termination was a lawful determination of tenancy, not a forfeiture, and the premises are exempt from the Rajasthan Premises Act as they constitute a registered Wakf.

Summary

The respondent, a Masjid, sued the appellants for eviction and arrears of rent, claiming the tenancy had been determined. The appellants argued that the lease termination was a forfeiture under Section 114-A of the Transfer of Property Act and that the premises were exempt from the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 because they were a registered Wakf. The lower courts held the termination to be a determination of tenancy and rejected the exemption claim. The Supreme Court held that the premises are indeed a registered Wakf and therefore exempt from the Rajasthan Act, and that the notice complied with Section 106 and invoked clause (h) of Section 111, making it a determination of tenancy, not a forfeiture. Consequently, the appeal was dismissed.

Issues considered

Whether the premises are exempt from the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 by virtue of the Wakf notification.
Whether the termination of the lease amounts to forfeiture under Section 114-A of the Transfer of Property Act, 1882 or merely a determination of tenancy under Section 111.
Whether the notice served satisfied the requirements of Section 106 and invoked clause (h) of Section 111.
Whether the character of the Wakf (wakf‑alal‑aulad) affects the applicability of the exemption.

Legislation cited

Constitution of Indias. Article 136
Rajasthan Premises (Control of Rent and Eviction) Act, 1950s. 2(3)
Transfer of Property Act, 1882s. 106, s. 111(g), s. 111(h), s. 114-A
Wakf Act, 1954s. 5(2), s. 6(4)

Subjects

evictionlease determinationforfeitureTransfer of Property ActWakf exemptionRajasthan Premises Actnotice requirementcondition vs covenantArticle 136

Judgment

THARUMAL AND ANR. A
v.
MASJ!D HAJUM PHAROSAN VA MADRASSA TALIMUL
ISLAM, MIRZA IZSMAIL ROAD, JAIPUR

MARCH 31, 1994
B
[S. MOHAN AND B.L. HANSARISA, JJ.]

Transfer of Property Act, 1882: Sections 106, 111(g)(h) and
114A-Determination and foifeiture of Lease-Absence of clause as to re-
entry in case of breach ofpayment of rent-Requirement of notice determining C
tenancy complied with-Held it was determination of lease and not foifeiture
of lease-Distinction between English Law and Indian Law-Discussed.

Rajasthan Premises (Control of Rent and Eviction) Act, 1950: Section
2(3).
D
State Government-Wotification-Wakfs-Exemption from the
provisions of Act-Apph"cability of the provisions of Act to suit land.

Wakf Act, 1954: Sections 5(2) and 6(4).

Wa~egistration--Publication of lists-Effect of E
Constitution of India, 1950 : Article 136-Appeal-Raising of fresh
plea-High Court entertaining fresh plea in second appeaf-Supreme Court
whether should entertain the plea.

The respondent filed a suit against the appellant claiming vacant F
possession as well as arrears of rent pleading (i) that appellants tenancy
had been determined; and (ii) that the provisions of the Rajasthan
Premises (Control of Rent and Eviction) Act, 1950 were not applicable to
the suit property since by a Notification the State Government had ex-
empted all the premises owned by Wakfs registered under the Wakfs Act
from the operation of the Act. The appellants contested the suit claiming G
benefits of Section 114-A of the Transfer of Property Act, 1882 on the
ground that it was a case of forfeiture of tenancy and not determination
, of tenancy. The Trial Court granted relief to the appellants under Section
·' 114-A but on appeal the First Appellate Court held that it was really a case
of determination of tenancy and, therefore, the appellants were not entitled H
263
264 SUPREME COURT REPORTS [1994] 3 S.C.R

A to the aforesaid benefit. The appellants preferred second appeal before the "
High Court, raisig a fresh plea that the wakf in question being Wakf-alal-
aulad, the benefit of exemption was not available to the respondent. The
High Court dismissed the appeal.

In appeal to this Court it was contended on behalf of the appellants
B (1) that they were wrongly debarred from the satutory provisions of Act
by the courts below inasmuch as to a Wakf-alal-aulad, exemption from the
Act, permitted by Section 2(3), is not available; (2) that Wakf-alal-aulad
cannot be said to be either an educational, religious or charitable institute •
and, as such, benefit of the exemption given by the Notification to
C registered wakfs could not have been taken advantage of by the respondent;
and (3) that from the notice it would appear that it was the non- payment
of rent as agreed upon by the appellants was the canse of action for
issuance of notice and as such requirement of clause (g) of Section 111 of
Transfer of Property Act was satisfied.

D Dismissing the appeal, this Court

HELD: 1. The question whether the Wakfis 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
E point having, therefore, been framed, 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 this Court to express its views. The High Court
might not have as well addressed itself on this question. (268-C-DJ

F 2. The wakf at band is a registered wakf, as contemplated by Section
5(2) of the wakfs Act, 1954. Therefore, the premises at hand were exempted
from the provisions of the Act. Further, in view of the provisions contained
in Section 6(4) of the Wakf Act, the list ofWakfs published under Section
5(2) is final and conclusive unless modified as mentioned in the section,
G to which effect there is nothing before this Court. (268-E-F)

Board of Muslim Wakfs v. Radha Krishan, (1979) 2 S.C.C. 468 and
Fazlul Rabbi Pradhan v. State of West Bengal, (1965) 3 S.C.R. 307, referred
to.
'·
H 3.1. The requirements of forfeiture as mentioned in section lll(g) of
THARUMAL v. MADRASSA TALIMULISLAM [HANSARlA.J.) 265

the Transrer or Property Act being not satisfied and the notice as given by A
the respondent to the appellants having stated about determination or
tenanacy, the present cannot be taken to be a case or forreiture. (268-G-H)

3.2. For the first or the three situations mentioned in Section 111 (g)
to operate the condition has to be one the breach or which had provided
the lessor a right to re-enter. In the present case, there is nothing to B
show that such was the condition or the tenancy. That apart, the notice
itselr shows that it was clause (h) of Section 111 which was pressed into
serVice, because the requirement.Iii of notice of termination as mentioned
in Section 106 of the Transrer or Property Act were duly borne in mind,
as per which section in case of monthly tenancy, the notice must expire C
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 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 D
that the present was not a case of forfeiture but of determination of
tenancy. (269-D-F)

4. Under English Law a distinction is made between a condition and
convenant insofar as the requirement of a specific proviso in the lease to E
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 stipula-
tion is deemed necessary in case of breach of a condition. In the Indian Law,
however, no distinction exists between a condition and covenant in this
regard. There was no stipulation in the contract at hand containing a clause
of re-entry in case of breach of payment of rent. Therefore, the presentis not F
a case of forfeiture, but of determination of tenancy by exercising power
under clause (h) of Section 111 of the Act. (269-G-H; 270-B-E)

Peter Alan Basil v. East Indian Phannaceutical Works, A.l.R. (1976)
Calcutta 182 and Merwanji Nanabhoy Merchant v. Union of India, (1979] 4 G
S.C.C. 734, referred to.

Woodfall's 'Landlord and Tenant', 1978 Edn. Vol. I p. 836 & 837;
Martin Partington's 'Landlord and Tenants', 2nd Edn. p. 406 and Evans
and Smith's "The Law of Landlord and Tenant", 4th Edn. p. 200, referred
to. H
266 SUPREME COURT REPORTS [1994] 3 S.C.R.

A CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1651 of
1990.

From the Judgment and Order dated 11.1.90 of the Rajasthan High
Court in R.S.A. No. 104/84.

B R. Saccher, Mrs. Rani Chhabra and Ms. B. Sharma for the Appel-
lants.

S.M. Jain, A. Gupta, M.K. Das, Cap. K.S. Bhati and N. Arula for the
Respondent.

C 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
D there have no right to occupy the suit premises. Prayer for vacant posses-
Sion of the premises as therefore made, alongwith realisation of some
arrears of rent, so also damages for the use and occupation of the premises
by the appellants on and from 1.8.80. The plaintiff specifically averred that
provisions of Rajasthan Premises (Control of Rent and Eviction) Act, 1950,
hereinafter the Act, had no application in view of the exemption granted
E 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 forfeiture of tenancy, distinguished
F from determination of the same, they were entitled to the benfit of section
114-A of the Transfer of Property Act, 1882.

3. The learned Munsif did not accept the case of the appellants in
so far as the challenge to the exemption notification is concerned, but gave
G 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
H of District Judge, Jaipur, who took the view that the present was really .a
TIIARUMAL v. MADRASSA TALIMULISLAM [HANSARIA, J.] 267

case of determination of tenancy and so the appellants were not entitiled A
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
B
of the contentions and so dismissed the second appeal. Feeling aggrieved,
this Court has been approached under Article 136.

5. Shri Rajinder Sachhar, learned senior counsel appearing for the
appellants, has taken pains to submit that the appellants were wrongly C
debarred from the salutary 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, D
religious or charitable institution, the whole of the income derived from
which is utilised for the purposes of that institution". Learned counsel urges
that wakf-alal-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 taken advantage
E
of by the respondent.

6. Shri Sachhar 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 exmeption notification in the absence of the State being respondent
in this appeal. Learned counsel categorically stated that he was not chal- F
lenging the validity of the notification (though that was the stand taken
earlier through out of proceeding), but he is confining his contention to

- the non-applicability 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 G
charitable, which it is not in view of what has been pointed out by this Court
in Fazlul Rabbi Pradhan v. State of West Bengal,[1965] 3 SCR 307, in which
the ·meaning of the expression 11ch<iritable 11 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. H
268 SUPREME COURT REPORTS (1994] 3 S.C.R.

A 7. We do not propose to express any opinion on the aforesaid
contention of Shri Sachhar, 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
B 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
C 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.
D The mere fact that the High Court has examined this aspect and recorded
its fmding 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 notifica- ....
E tion dated September 23, 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 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
F 6(4) of the Wakf Act, the list ofWakfs published under Section 5(2) is final
and conclusive unless modified as mentioned in the section, to which effect
there is nothing before ns. We may refer in this connection to Board of
Muslim Wakfs v. Radha Krishan, (1979] 2 SCC 468 taking the aforesaid
view. We, therefore, reject the first submission of Shri Sachhar.

G 9. In so far as the plea of the present being a case of forfeiture and
not of determination of tenancy, we would state that the requirements of
forfeiture as mentioned in section lll(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,
H the present cannot be taken to be a case of forfeiture. We have said so
THARUMAL v. MADRASSA TALIMUL ISLAM [HANSARIA, J.] 269

because of the three situations visualised by clause (g), it is apparent that A
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 Sachhar submit that from the notice (Annexure P-1) it would
i appear that it was the non-payment of rent as agreed upon by the appel-
;
lants which was the cause of action for issuance of notice and as such this
B
condition is satisfied. To support his submission it is urged that in the suit
as fiied arrears of rent had 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 29.5.80 does show C
that it mentioned about non-payment of rent, but it also stated about
termination of tenancy and demanded vacant possession by 31.7.80 or "the
last date of the month of....... ". In the suit as filed rent had not been claimed
/ on and from 1.8.80, it was rather damages on account of illegal use and
occupation. For the firstof the three situations mentioned in section lll(g) D
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 E
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 31.7.80, the
end of an English calender month, stating simultaneously about "the last F
date of the month of... ..... ". These salient feature 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
Sachhar.

11. It would be of interest to state that under English law a distinction G
is made between a condition and convenant insofar as the requirement of
a specific proviso in the lease to re-enter in case of breach of the same is
concerned. It is only in case of convenant 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 ofWoodfall's 'Landlord and H
270 ·suPREMECOURTREPORTS [1994] 3 S.C.R.

A Tenant', (1978 Edition) Volume-I; Page 406 of Martin Partington's
'Landlord and Tenant' (2nd Edition); and page 200 of Evans and Smiths
'The Law of Landlord and Tenant' (4th Edition). 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 (
B through MM Dutt, J., as he then was, in Peter Alan Basil v. East Indian
Pharmaceutical Works, AIR (1976) Calcutta 182. Reference may be made
to a decision in this Court in Merwanji Nanabvhoy Merchant v. Union of
India, [1979] (4) SCC 734, in which the landlord had sought for eviction on
the ground of damage to the property because of neglect in maintaining
I
the same which was said to be violation of clause 2 (iii) which stated that
C 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 '
D
clause, it was held that the vacant possession could be demanded on the
ground of determination of tenacy 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
E 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.
F
TN.A. Apeeal dismisi>ed.