Bachawat, J.@mdashPrayer (a) of the petition has not been pressed. The rest of the prayers have been pressed The only question arising on this
application is whether the monthly tenancy of the shop room at No. 33, J Dalhousie Square, East, pertaining to the business of Binode & Co., has
been transferred by the Official Receiver at a sale held by him on the 25th January, 1957. The business of Binode & Co.. appears to be joint
family business. The members of the joint family to whom the business belongs are parties to this suit. On the 22nd December, 1954 an order was
made by this Court that the Official Receiver do sell inter alia the business of Binode & Co., and the stocks and other asset''s of the said business.
On the date when this order was made the West Bengal Premises Rent Control (Temporary Provisions) Act'' 1950 was in force. On the 31st
March, 1956 the West Bengal Premises Tenancy Act 1956 come into force. By an order dated the 28th May, 1956 it was inter alia ordered that
any party purchasing the property at the sale to be held by the Official Receiver would be entitled to set off the purchase price against his share of
the proceeds of the sale of joint family properties and the purchase price would form a charge on that party''s share in those properties.
2. All the parties appearing before me formally admitted that the monthly tenancy in respect of the room was terminated by the owners of the
premises by a notice to quit expiring at the end of October, 1956. This fact does not appear on the affidavits, but was formally admitted by the
learned lawyers appearing on behalf of all the parties.
3. On the 25th January, 1957 the Official Receiver held the sale directed by the previous order and sold the stocks and assets of the business of
Binode & Co., to the petitioners Nirmal Kumar Neogi and Sukumar Neogi at and for the price of Rs. 46,500]-. It is common case that at that sale
of'' stocks and assets of the business of Binode & Co., were sold and this also appears to be borne out by the Sale Notification and by the
particulars and conditions of sale
4. The dispute now is as to what was sold and what passed at the sale held by the Official Receiver on the 25th January, 1957. The petitioners
contend that the monthly tenancy of Binode & Co., and or their right of occupation in respect of the shop room in premises No. 13 Dalhousie
Square, East passed at the sale and on that footing the petitioners ask for an order directing the Official Receiver to deliver possession of the shop
room to the petitioners and for further directions with regard to payment of the arrears of rent. The respondents oppose this application and they
contend that the rights of Binode & Co,. in respect of the shop room at premises No. 13, Dalhousie Square, East did not pass at the sale. I am
called upon to resolve this dispute.
5. Had the business and assets of Binode & Co., been sold under the order, dated the 22nd December, 1954 while the West Bengal Premises
Rent Control (Temporary Provisions) Act, 1950 was in force and before the monthly tenancy of Binode & Co.. had been terminated by a notice
to quit. I have no doubt that the sale would have passed the rights of Binode & Co., in respect of the monthly tenancy held by it in respect of the
shop room at premises No. 13, Dalhousie Square, East.
6. A monthly tenant is a lessee and as such by section 105 of the Transfer of Property Act is a transferee of the right to enjoy a property for a
certain time and by section 108 (j) of the Transfer of Property Act has the right to transfer his interest in the property in the absence of any contract
or local usage to the contrary.
7. Before the West Bengal Premises Tenancy Act, 1956 came into operation there was no restriction upon the rights of a tenant to assign his
interest in the property. The Official Receiver therefore could lawfully sell the monthly tenancy if the order of this Court authorised him to do so. It
is common case that the monthly tenancy appertained to the business of Binode & Co.. The monthly tenancy therefore was, part of the business of
Binode & Co. and of its assets. The order dated 22nd December, 1954 was therefore a sufficient authority- to the Official Receiver to sell the
entire assets of the business of Binode & Co.. including its monthly tenancy in respect of the shop room in question. I repeat, therefore, that had he
Sold the business and the assets of Binode & Co., before the monthly tenancy was terminated by notice to quit and before the West Bengal
Premises Tenancy Act, 1956 came into force, much a sale would have passed to the purchaser the monthly tenancy in question. Circumstances
however have materially changed under the order dated the 22nd December. 1954: The monthly tenancy has been terminated by notice to quit and
the West Bengal Premises Tenancy Act 1956 has come into force; Binode & Co. continues in premises of the shop room after the termination of
its tenancy and in view of section 2 (n) of the West Bengal Premises Tenancy Act 1956, is a tenant within the meaning of that Act. By section 14
of that Act a tenant id enjoined not to transfer or assign his rights in the tenancy without the previous consent in writing of the landlord and
contravention of the section is punishable with fine on the complaint of the landlord. Previous consent of the landlord to the sale of rights of Binode
& Co., in the tenancy was not obtained. The transfer and assignment of the tenancy rights by the Official Receiver is a transfer and assignment by
and on behalf of Binode & Co. Such transfer and assignment being without the previous consent in writing of the landlord is expressly prohibited
by the Act and is void and totally inoperative.
8. On behalf of the respondents I have been referred to several decisions under the English Rent Restrictions Act and in particular to the decisions;
in Keeves v. Dean (1) (1924) 1 K. B. 685; John Logibond & Sons Ltd. v. Vincent (2) (1929) 1 K.B. 687. Sutton v. Dorf (3) (1932) 2 K.B.
304. Brown v. Brash. & Amrose, (4) (1948) 3 K. B. 247; and R. E. Megarry''s Rent Act, 7th Edition, page 195. The scheme of the English Rent
Restrictions Act is in material respect different from the scheme of the West Bengal Premises Tenancy Act, 1956 and I do not propose to base my
decision upon the English Cases.
9. Having regard to section 14 of the West Bengal Premises Tenancy Act 1956 it must be held that the sale by the Official Receiver could not and
did not pass the rights of Binode & Co., in the tenancy or its right to retain possession of the premises.
10. It was suggested in argument that the sale was irregularly held and that the bidders were under a misapprehension as to whether or not the right
of Binode &e Co., to occupy the shops room was being put up for sale. There is however no prayer for setting aside the sale. The order which I
propose to make on this application is. without prejudice to the right of the parties, if any, to apply to this court for setting aside the sale. The
petition must therefore fail and is dismissed. The petitioners must pay to the Official Receiver the costs of this application assessed at Rs, 85|- The
petitioners must also pay to the plaintiff and also to the defendant Malina Neogy, who are appearing separately, one set of costs of this application.