Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5
PETITIONER:
MOHAR SINGH (DEAD BY LRS.)
Vs.
RESPONDENT:
DEVI CHARAN & OTHERS
DATE OF JUDGMENT09/05/1988
BENCH:
VENKATACHALLIAH, M.N. (J)
BENCH:
VENKATACHALLIAH, M.N. (J)
PATHAK, R.S. (CJ)
CITATION:
1988 AIR 1365 1988 SCR Supl. (1) 255
1988 SCC (3) 63 JT 1988 (2) 492
1988 SCALE (1)1133
ACT:
Transfer of Property Act, 1882: Section 109-Limitation
on right of landlord against splitting unity and integrity
of tenancy-Assignee of part of reversion can exercise right
of landlord-Consent of tenant not needed.
U.P. Urban Buildings (Regulations of Letting, Rent And
Eviction) Act, 1972: Section 21-Landlord-Not entitled to
split unity and integrity of tenancy and recover possession
of part of demised premises from tenant.
HEADNOTE:
The first respondent was a tenant of two adjacent
shops, under a single lease, obtained from two co-owners.
The co-owners transferred their respective shares
separately. Pursuant to partition between the transferees,
the appellant became the exclusive owner of one of the
shops.
The appellant instituted proceedings and obtained an
order for the eviction of the first respondent from his shop
on the ground of own bonafide need. The District Judge
upheld that order. The High Court, however, in a writ
petition accepted the contention of the first respondent
that in claiming possession of a part of the subject matter
of the original lease the appellant as seeking to split the
integrity and unity of the tenancy, which was impermissible
in law. The High Court accordingly set aside the concurrent
orders of the courts below.
Allowing the appeal, it was
^
HELD: (1) A landlord could not split the unity and
integrity of the tenancy and recover possession of a part of
the demised premises from the tenant. But section 109 of the
Transfer of Property Act provided a statutory exception of
this rule. By virtue of this exception, the limitation on
the right of the landlord against splitting-up of the
integrity of the tenancy, inhering in the inhibitions of his
own contract, did not visit the assignee of the part of the
reversion. There was no need for the consent of the tenant
for the severance of the reversion and the
256
assignment of the part so severed. [258C-E]
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5
(2) Though there was difference of opinion among the
various High Courts on the point, the learned Judge in
this case should have considered himself bound by an
earlier decision of the same High Court in Ram Chandra
Singh case which had taken the view that section 109 of
the T.P. Act was attracted to the case of partition
also. [259G-H]
(3) Without pronouncing on the correctness of the
decision in Ram Chandra Singh’s case, this Court
applied the same rule; and reversed the High Court on
the point and restored the order of eviction. [260B]
Kannyan v. Alikutty, AIR 1920 Mad 838 (FB): Badri
Narain Jha and Ors. v. Rameshwar Dayal & Ors., [1951]
SCR 153 and Ram Chandra Singh v. Ram Saran & Ors., AIR
1978 All. 173, referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No 485 of
1982.
From the Judgment and order dated 28.3.1980 of the
Allahabad High Court in Civil Misc. Writ No. 2280 of 1979.
M.S. Gupta for the Appellant.
Uma Dutta for the Respondents.
The Judgment of the Court was delivered by
VENKATACHALIAH, J. This appeal, by special leave, is by
the Landlord preferred against the judgment and order dated
28.3.1980 by the High Court of Judicature at Allahabad in
Civil Misc. Writ No. 2280 of 1979 setting aside, at the
instance of the First respondent-tenant, the concurrent
orders of the Courts below granting possession to the
appellant.
2. The first-respondent was a tenant of two adjacent
shops, under a single lease, obtained from two co-owners
Shri Jado Ram and Asha Ram who had, respectively 3/8th and
5/8th shares in the property. Appellant, Mohar Singh became
the transferee of the 3/8th share of Jadoram. Similarly,
Asha Ram’s 5/8th interest came to be transferred, through
and intermediary alienation, to a certain Gyan Chand.
Pursuant to a decree in a civil suit for partition between
Gyan
257
Chand and the appellant, the co-ownership came to an end and
towards his share appellant was allotted, and became the
exclusive owner of, one of the shops. That is the subject-
matter of the present proceedings.
3. Appellant instituted proceedings for eviction
against the First respondent under Section 21 of U.P. Act
XIII of 1972 before the prescribed authority on the ground
of his own bonafide need. The prescribed-authority ordered
release of the premises and made an order granting
possession. The appeal preferred by the First-respondent
before the District Judge, Muzaffarnagar was dismissed.
First-respondent then moved the High Court in Writ No. 2280
of 1979.
The findings as to the bona fides and reasonableness of
the requirement of the appellant stand concluded by the
concurrent findings of the statutory authorities. Indeed
that was not also the ground on which the order of eviction
was assailed before the High Court in the writ petition
4. Before the High Court what was urged by the First-
respondent, and accepted by the High Court, was the
contention that the severance of the reversion and
assignment of that part of the reversion in respect of the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5
suit shop in favour of the appellant did not clothe the
appellant with the right to seek eviction without the other
lessor joining in the action; and that in claiming
possession of a part of the subject matter of the original-
lease the appellant was seeking to split the integrity and
unity of the tenancy, which according to the First-
respondent, was impermissible in law.
The High Court does not appear to have considered the
effect of the partition decree between erstwhile co-owners
and of the appellant, consequently, having become the
exclusive owner of one of the shops. The reasoning that
appears to have commended itself to the High Court in
setting-aside the order made by the Courts-below granting
possession, is somewhat on these lines:
".... But unless such a situation has been created
with the consent of all of them, the effect of
transfer of a portion of the accommodation would
be that in place of one lessor would be
substituted two lessors, even though of defined
portions of the accommodation let out to the
lessee. It cannot be denied that one of the two
joint lessors cannot institute a suit for
ejectment or apply for permission to file
258
such a suit in respect of a portion of the
accommodation."
.......
.......
"........ In other words even now as a result of
transfer a part of the building under tenancy the
splitting up of the tenancy cannot be permitted
unless the tenant has agreed to it. On this view
of the matter, the impugned orders are liable to
be quashed."
5. It is trite proposition that a land-lord cannot
split the unity and integrity of the tenancy and recover
possession of a part of the demised premises from the
tenant. But Section 109 of the Transfer of Property Act
provides a statutory exception to this rule and enables an
assignee of a part of the reversion to exercise all the
rights of the landlord in respect of the portion respecting
which the reversion is so assigned subject, of course, to
the other covenant running with the land. This is the true
effect of the words ’shall possess all the rights ...... of
the lessor as to the property or part transferred ......’
occurring in Section 109 of the T.P. Act. There is no need
for a consensual attornment. The attornment is brought about
by operation of law. The limitation on the right of the
landlord against splitting-up of the integrity of the
tenancy, inhering in the inhibitions of his own contract,
does not visit the assignee of the part of the reversion.
There is no need for the consent of the tenant for the
severance of the reversion and the assignment of the part so
severed. This proposition is too well-settled to require any
further elucidation or reiteration. Suffice it to refer to
the succinct statement of the law by Wallis, CJ in Kannyan
v. Alikutty, AIR 1920 Madras 838 (FB) (at 840).
"..... A lessor cannot give a tenant notice to
quit a part of the holding only and then sue to
eject him from such part only, as pointed out
quite recently by the Privy Council in Harihar
Banerji v. Ramasashi Roy, AIR 1918 PC 102.
Consequently, if the suit is brought by the
original lessor the answer to the question
referred to us must be in the negative because
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5
such a suit does not lie at all. Other
considerations, however, arise, where, as in the
present case, the original lessor has parted in
whole or in part with the reversion in part of the
demised premises. Under the general law such an
assignment effects a severance, and entitles the
assignee on the expiry of the term to eject the
tenant from
259
the land covered by the assignment."
6. Shri Uma Dutta, learned counsel for the respondent-
tenant, however, relied on the pronouncement of this Court
in Badri Narain Jha and Ors. v. Rameshwar Dayal Singh and
Ors., [1951] SCR 153 (159) to support his contention that
severance and assignment of a part of the reversion would
not affect the integrity of the lease. We are afraid,
reliance on this case is somewhat misplaced. This was a
converse case where this Court considered the effect of
splitting-up of the interest of the lessees, inter-se. In
that context, Mahajan, J said:
".... An inter-se partition of the mokarrari
interest amongst the mokarraridars as alleged by
the plaintiffs could not affect their liability
qua the lessor for the payment of the whole rent,
as several tenants of a tenancy in law constitute
but a single tenant, and qua the landlord they
constitute one person, each constituent part of
which possesses certain common rights in the whole
and is liable to discharge common obligations in
its entirety .........."
"There is a privity of the estate between the
tenant and the landlord in the whole of the
leasehold and he is liable for all the covenants
running with the land. In law, therefore, an
inter-se partition of the makarrari interest could
not effect the integrity of the lease ......"
This is an altogether different proposition.
7. The next contention of Shri Uma Datta is that, at
all events, what flows from a ’transfer’ undr section 5 read
with Section 109 of T.P. Act cannot be predicated of a
partition as partition is no ’transfer’. It is true that a
partition is not actually a transfer of property but would
only signify the surrender of a portion of a joint right in
exchange for a similar right from the other co-sharer or co-
sharers. However, some decisions of the High Courts tend to
the view that even a case of partition is covered by Section
109 and that, in any event, even if the section does not in
terms apply the principle of the section is applicable as
embodying a rule of justice, equity and good conscience. We
need not go into this question in this case. Suffice it to
say that the same High Court itself, from whose decision
this present appeal arises, in Ram Chandra Singh v. Ram
Saran & Ors., AIR 1978 Allahabad 173 has taken the view that
section 109 of T.P. Act is attracted to the case of
partition also. That was a decision which the
260
learned judge in the present case should have considered
himself bound by, unless there was a pronouncement of a
larger bench to the contrary or unless the learned judge
himself differed from the earlier view in which event the
matter had to go before a Division Bench.
The correctness of the decision in Ram Chandra Singh’s
case was not assailed before us and, therefore, we do not
feel called upon to pronounce on it. We should, we think
apply the same rule to this case. Several other High Courts
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5
have also taken this view, though, however, some decisions
have been content to rest the conclusion on the general
principle underlying Section 109, T.P. Act, as a rule of
justice, equity and good conscience.
8. In the result, this appeal is allowed, the order of
the High Court set-aside and that of the III Additional
District Judge, Mazaffarnagar in Rent Control Appeal No. 48
of 1978 restored. In the circumstances of this case, there
will be no order as to costs.
R.S.S. Appeal allowed.
261