Full Judgment Text
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PETITIONER:
SK.SATTAR SK.MOHD.CHOUDHARI
Vs.
RESPONDENT:
GUNDAPPA AMABADAS BUKATE
DATE OF JUDGMENT: 11/10/1996
BENCH:
KULDIP SINGH, S.SAGHIR AHMAD
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
S.SAGHIR AHMAD.J.
The landlord is in appeal before us against the
Judgment and Order dated 17.1.92 passed by the Bombay High
Court (Aurangabad Bench) by which the Judgment and Order
dated 29.3.84 passed by the Rent Controller and that of the
District Judge, Latur passed on 12.2.87, affirming that
Judgment, were set aside and the suit of the appellant for
eviction of the respondent from the shop in Municipal
building No.2-10(Old) and 69(New), Ward No.22, Bhusar Lane,
Latur, was dismissed.
2. Proceedings for eviction were initiated by the
appellant on the allegations that the shop measuring 23’x19’
was originally owned by his father Shaikh Mohd. Chaudhari
who died on 12th of March, 1956 leaving behind the appellant
and his elder brother, Shaikh Jaffar, as also two other
brothers, as his heirs who inherited his properties
including the aforesaid shop. Shaikh Jaffar being the eldest
was managing the property, particularly as the appellant was
minor in 1964 when the shop was let out to the respondent
who paid rent to Shaikh Jaffar and continued to pay it till
1974. In the meantime, there was a partition among the
brothers and a portion of the shop measuring 23’x12-1/2’
fell in the share of the appellant who informed the
respondent of the above and required him to pay rent to him.
A similar information in writing was also given to the
respondent by Shaikh Jaffar but the respondent did not pay
rent to the appellant and consequently, his tenancy was
terminated by notice dated 28.7.76. This was followed by a
petition under Section 15 of the Hyderabad Houses (Rent
Eviction and lease Control Act, 1954 for the eviction of the
respondent on the ground of wilful default in payment of
rent as also for the personal need of the appellant who
wanted to run his cutlery business in the said shop.
3. This petition was filed before the Rent Controller
before whom the respondent, in his reply, raised the plea
that the shop having been let out to him on behalf of
several brothers, he could not be legally evicted at the
instance of one of them as tenancy was indivisible. He
pleaded that the petition was not maintainable. He also
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pleaded that the so-called partition amongst the brothers
was mala fide and, in any case, notice for attornment was
not given to him. He also pleaded that the shop was not bona
fide required by the appellant and that, in any case, he was
not a defaulter as he was all along tendering the rent to
the landlord but the same was refused by him.
4. The petition was allowed by the Rent Controller by his
Judgment and Order dated 29.3.84 which was upheld in appeal
by the District Judge by his Judgment and Order dated
12.2.87.
5. The High Court before whom the matter was thereafter
taken, reversed the Judgment of the Rent Controller and that
of the District Judge principally on the ground that the
question of maintainability of the petition was not
considered and the Rent Controller as also the District
Judge had not adverted their mind to the question that the
tenancy of the shop in question, held by the respondent, was
indivisible. The partition, if any, amongst the brothers
would not affect the lease which would still remain
indivisible and consequently, eviction proceedings at the
instance of only one of the co-landlords would not be
maintainable.
6. During the pendency of the appeal in this Court, the
respondent purchased the remaining portion of the shop
namely, the portion measuring 23’x7-1/2’ which had fallen in
the share of the appellant’s brother, Shaikh Ahmad
Chaudhari, from Smt. Zubedabi, his wife, to whom he had
gifted the property and thus he claimed to have become the
owner of that portion of the shop.
7. We have heard the learned counsel for the parties and
have gone through the record.
8. The emphasis of the High Court was, throughout the
Judgment, on the indivisibility of contract of tenancy. The
High Court treaded on a path which led it to a blind alley
and did not take diversion which would have opened up the
road to arrive at a correct decision.
9. The basic principle of the Transfer of Property Act is
that where a premise is let out by several co-owners or
joint owners or co-lessors, any one of them cannot sue the
tenant either for his share of rent or for partial eviction
on the ground that he being the co-owner had a right not
only to collect his share of rent but also to evict the
tenant from his portion of the premises. The unity of estate
is, undoubtedly, indivisible but the indivisibility is not
perpetual. In order to remove the obsession with which the
High Court suffered, it is necessary to look to various
provisions of the Transfer of Property Act (for short the
Act).
10. Section 36 of the Act dealing with Apportionment
provides as under:-
" 36. Apportionment of periodical
payments on determination of
interest of person entitled.- In
the absence of a contract or local
usage to the contrary, all rents,
annuities, pensions, dividends and
other periodical payments in the
nature of income shall, upon the
transfer of the interest of the
person entitled to raceive such
payment be deemed, as between the
transferor and the transferor to
accrue due from day to day, and to
be apportionable accordingly, but
to be payable on the days appointed
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for the payment thereof."
11. This Section has to be read in the light of the
provisions contained in Section 8, which provides, inter
alia, that unless a different intention is expressed or
necesserily implised, a transfer of property passes
forthwith to the transferee all the interest which the
transferor had in the property, including the easement
annexed thereto as also the rents and profits accruing/due
from that property after the transfer. The income or the
rent in such a case has to be divided between the transferor
and the transferee. If the income accrues from day to day,
there would be no difficulty as it is obvious that with
effect from the date of transfer, the transferee would get
the right to collect income or rent and with effect from
that date, the right of the transferor would come to an end.
Where, however, the income did not accrue De Die in Diem, it
has been provided that all periodical payments, like, yearly
or monthly, in the nature of rent etc shall be deemed to
accrue from day to day and shall be apportioned between the
transferor and the transferee on that basis. This Section,
therefore, enacts the rule relating to Apportionment By
Time, while Section 37, as we shall presently see, refers to
Apportionment By Estate.
12. Section 37 of the Transfer of Property Act, (without
the illustrations appended thereto) provides as under:-
"37. Apportionment of benefit of
obligation on severance.- When, in
consequence of a transfer, property
is divided and held in several
shares, and thereupon the benefit
of any obligation relating to the
property as a whole passes from one
to several owners of the property,
the corresponding duty shall, in
the absence of a contract to the
contrary amongst the owners, be
performed in favour of each of such
owners in proportion to the value
of his share in the property,
provided that the duty can be
severed and that the severance does
not substantially increase the
burden of the obligation; but if
the duty cannot be severed, or if
the severance would substantially
increase the burden of the
obligation, the duty shall be
performed for the benefit of such
one of the several owners as they
shall jointly designate for that
purpose:
Provided that no person on whom the
burden of the obligation lies shall
be answerable for failure to
discharge it in manner provided by
this section, unless and until he
has had reasonable notice of the
severance.
Nothing in this section applies to
leases for agricultural purposes
unless and until the [State
Government] by notification in the
Official Gazette so directs.
13. This Section contemplates a transfer as a result of
which the property is divided into several shares and each
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share comes to be vested separately in each owner. In such a
situation, each of the several owners will be entitled to
his share of the rent or benefit of any other obligation
relating to the property as a whole. But before the tenant
can be required to split up the rent and pay separately to
each owner, he has to be informed of the transfer by a
notice which, by itself, will be sufficient to convert the
single obligation into several obligations and he will be
liable to pay rent to each co-sharer separately.
(See: Raja Simhadri vs PrattiPatti Ramayya ILR (1908) 29
Madras 29).
14. It is open to the owners to apportion the rent inter
se, but if no such apportionment is made, the obligation of
the tenant remains single and in that situation, the lessor
will not be allowed to split the tenancy by recovering the
rent of a part only; nor can a purchaser of a part of the
property insist on payment of his part of the rent to him
(See: Satyesh Chandra Sarkar vs. Haji Jillar Rahman (1918)
27 Calcutta Law Journal 438 = 45 Indian Cases 721; Keshava
Prasad Singh Bahadur of Damraon vs. Mathura Kuar and ors.
AIR 1922 Patna 608 = 69 Indian Cases 704).
15. A reference to Sections 36 and 37 has been made only to
indicate that even if the estate is in possession of a
tenant, who is under an obligation to pay rent, there can
still be a severance of such estate.
16. The properties which are covered by leases are,
however, dealt with separately by the Act in which the
relevant provision is contained in Section 109 which is
reproduced below :
"109. Rights of lessor’s transferee.
If the lessor transfers the
property leased, or any part
thereof, or any part of his
interest therein, the transferee,
in the absence of a contract to the
contrary, shall possess all the
rights, and, if the lessee so
elects, be subject to all the
liabilities of the lessor as to the
property or part transferred so
long as he is the owner of it; but
the lessor shall not, by reason
only of such transfer, cease to be
subject to any of the liabilities
imposed upon him by the lease,
unless the lessee elects to treat
the transferee as the person liable
to him;
Provided that the transferee is not
entitled to arrears of rent due
before the transfer and that if the
lessee, not having reason to
believe that such transfer has been
made, pays rent to the lessor, the
lessee shall not be liable to pay
such rent over again to the
transferee.
The lessor, the transferee and the
lessee may determine what
proportion of the premium or rent
reserved by the lease is payable in
respect of the part so transferred,
and, in case they disagree, such
determination may be made by any
Court having jurisdiction to
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entertain a suit for the possession
of the property leased."
17. This Section is based on the maxim, Qui in jus
dominiumve alterius succedit jure ejus uti debet, that is to
say, rights and liabilities attached to the property
(arising out of possession and control of that property)
pass with the property.
18. A bare reading of the first part of the Section
indicates that if the property is either transferred as a
whole or any part thereof alone is transferred, the
transferee comes to possess all the rights of the lessor.
19. The Proviso appended tc first part of the Section
contemplates that before a tenant can be made liable to pay
rent to the transferee, he must have knowledge of the
transfer either through the lessor or by his transferee by a
notice. Requirement of knowledge of transfer in this Section
as also in Section 37 and 50 is based on the general
principle of law set out by Willes, J. in De Nicols v.
Saunders (1870) 22 LT 661 = 18 WR (Eng) 1106, that if a
person fulfils his obligations without notice of the rights
of a third party, his obligation is treated as discharged.
Requirement of knowledge and the communication of notice
regarding transfer of the part or the whole of the property
in occupation of a tenant is a condition precedent for
creating a liability in the tenant to pay rent to the
transferee or the assignee of the demised pramises, but it
does not have the effect of postponing the assingment or
Transfer of property till the receipt of the notice. The
title passes to the assignee immadiately on the execution of
the Deed of Transfer or Assignment.
20. We may, before proceeding further, notice the arguments
raised on behalf of the respondent that the appellant cannot
take advantage of Section 109 of the Act and initiate
proceedings for his eviction as his title to a portion of
the shop in question is based upon "partition" and since
"partition’ is not a transfer within the meaning of the Act,
Section 109 would be inapplicable. The suit, it is
contended, was rightly dismissed by the High Court.
21. This argument is obviously based on Section 5 of the
Act which provides as under:
"5. "Transfer cf Property"
Defined. - In the following
sections "transfer of property"
means an Act by which a living
person conveys property, in present
or in future, to one or more other
living persons, or to himself [or
to himself] and one or more other
living persons; and "to transfar
property" is to perform such act.
[In this section "living person"
includes a company or association
or body of individuals, whether
incorporated or not, but nothing
herein contained shall affect any
law for the time being in force
relating to transfer of property to
or by companies, associations or
bodies of individuals.]
22. This Section contemplates transfer of property by a
person who has a title in the said property to another
person who has no title. A family arrangement, on the
contrary, is a transaction between members of the same
family for the benefit of the family so as to preserve the
family property, the peace and security of the family,
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avoidance of family dispute and litigation and also for
saving the honour of the family. Such an arrangement is
based on the assumption that there was an antecedent title
in the parties and the agreement acknowledges and defines
what that title is. It is for this reason that a family
arrangement by which each party takes a share in the
property has been held as not amounting to a "conveyance of
property" from a person who has title to it to a person who
has no title.
23. This Court in Kale & Ors. vs. Deputy Director of
Consolidation & Ors. AIR 1976 SC 807 and Ram Charan Das vs.
Giria Nandini Devi & Ors. AIR 1966 SC 323 = (1965) 3 SCR
841, also took the same view and held that a "Family
Arrangement" proceeds on the assumption that the parties, in
whose favour the arrangement was made and who, under that
arrangement, come to have definite and positive share in the
property, is not a transfer but is only a recognition of the
title already existing in them. It was also pointed out by
this Court in Tek Bahadur Bhujil vs. Debi Singh Bhujil &
Ors. AIR 1966 SC 292, as also in an earlier decision in Ram
Charan Das vs. Giria Nandini Devi & Ors. (supra), that it
was not necessary to show that every person taking a benefit
under a Family Arrangement had a share in the property; it
was enough if they had a possible claim or even if they are
related, a semblance of a claim. Gajendragadkar, CJ, in V.N.
Sarin vs. Ajit Kumar Poplai (1966) 1 SCR 349 = AIR 1966 SC
432 observed that, "the true effect of partition was that
each co-parcener got a specific property in lieu of his
undivided right in respect of the totality of the property
of the family."
24. In the above case, the Court was concerned with the
interpretation of Section 14 (6) of the Delhi Rent Control
Act, 1958 (Act No. 59 of 1958) which provided, inter alia,
that where a landlord has acquired any premises by transfer
(emphasis supplied), no application for recovery of
possession shall lie unless a period of five years had
elapsed from the date of acquisition. The property in that
case came to be possessed by the landlord on a partition of
the co-parcenery property. It was observed by this Court as
under :
"Having regard to this basic
character of joint Hindu family
property, it cannot be denied that
each coparcener has an antecedent
title to the said property, though
its extent is not determined until
partition takes place. That being
so, partition really means that
whereas initially all the
coparceners have subsisting title
to the totality of the property of
the family jointly, that joint
title is by partition transformed
into separate titles of the
individual coparceners in respect
of several items of properties
allotted to them respectively. If
that be the true nature of
partition, it would not be easy to
uphold the broad contention raisad
by Mr. Purshottam that partition of
an undivided Hindu family property
Must necessarily meantransfer cf
the property to the individual
coparceners."
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25. In coming to the above conclusion, this Court relied
upon the Privy Council decision in Giria Bai vs. Sadashiv
Dhundiral and ors. 43 Indian Appeals 151 = AIR 1916 PC 104,
in which it was observed as under :
"Partition does not give him (a
coparcener) a title or create a
title in him; it only enables him
to obtain what is his own in a
definite and specific form for
purposes of disposition independent
of the wishes of his former co-
sharers."
26. In another case, namely, Commissioner of Income Tax,
Gujarat vs. Keshavilal Lallubhai Patel (1965) 55 ITR 637 =
AIR 1965 SC 866, it was held that an oral partition between
members of a joint Hindu family cannot be treated to be
partition within the meaning of Section 16(3)(a) (iii) &
(iv) of the Income Tax Act, 1922.
27. Partition, specially among the coparceners, would be a
"Transfer" for purposes of Registration Act or not has been
considered in Nani Bai vs. Gita Bai Kom Rama Gunge AIR 1958
So 706 and it has been held that though a partition may be
effected orally, if the parties reduce the transaction to a
formal document which was intended to be evidence of
partition, it would have the effect of declaring the
exclusive title of the coparcener to whom a particular
property was allotted (by partition) and thus the document
would fall within the mischief of Section 17 (1) (b) of the
Registration Act under which the document is compulsorily
registerable. If, however, that document did not evidence
any partition by metes and bounds, it would be outside the
purview of that Section. This decision has since been
followed in Siromani & Anr. vs. Hemkumar & Ors. AIR 1968 SC
1299 and Roshan Singh & Ors. vs. Zile Singh & Ors. AIR 1988
SC 881.
28. The Privy Council in Appovier vs. Rama Subba Aiyan
(1866) 11 Moor’s Indian Appeals 75, propounded the theory of
intention as the true test of partition of property and
observed that intention being the real test, it follows that
an agreement between the members of a joint family to hold
and enjoy the property in defined shares as separate owners
operates as a partition, although there may have been no
actual division of the property by metes and bounds. The
Judicial Committee further observed :
"in the estate each member has
thenceforth a definite and certain
share, which he may claim the right
to receive and to enjoy in
severalty, although the property
itself has not been actually
severed and divided."
In such a case the interest of each member stands
divided though the property remains physically undivided.
29. The effect of the above judgment is that though the
property remains physically undivided, which would,
therefore, descend and may be dealt with as separating
property by the separating member or his own heirs.
30. We have our own doubts on this question. If a partition
of the joint family property takes place by act of parties,
it would not, as seen above, be treated as "Transfer" within
the meaning of Section 5 of the act. But if a suit for
partition is filed and the partition is brought about
through a decree of the Court, it would amount to a
"Transfer" vide Section 2(d), which specifically excludes
transfers by operation of law or under a decree or order of
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a Court. Section 5, which, in a way, defines transfer, is,
therefore, over-ridden by Section 2(d) of the Act. This is
rather anomalous and the anomaly will have to be cured one
day, particularly as "transfer" has been interpreted
different by this Court in the context of different
statutory provisions.
31. Leaving this question here, as it is, we may observe
that although partition by agreement of parties may not
amount to transfer, the principles underlying Section 5 have
been applied to transfers of either the whole or a part of
the demised premises under Section 109 of the Act.
32. The Calcutta High Court in Sm. Durgarani Devi vs.
Mohiuddin & Ors. (1950) 86 Calcutta Law Journal 198. held
that although partition was not a transfers the owners, on
severance of different portions, get "all the rights
contemplated by Section 109 of the Act, including the right
of the owners of the severed portion to recover possession
from the tenant by terminating his tenancy.
33. A Full Bench of the Madhya Pradesh High Court in
Sardarilal vs. Narayanlal AIR 1980 MP 8, held that
assignment of a part of holding effects a severance of the
holding and entitles the transferee to proceed against the
tenant. Similar view was expressed by the same High Court in
an earlier decision in Pyarelalsa vs. Garanchandsa & Ors.
AIR 1965 MP 1 and by the Patna High Court in Badri Prasad
vs. Shyam Lal Jaiswal and Ors. A1R 1963 Patna 85. The High
Court of Jammu & Kashmir in Skattar Singh vs. Rawela AIR
1954 J&K 18 took the view that "partition was a transfer to
which Section 109 would be applicable.
34. The Allahabad High Court in Ram Chandra Singh & Ors.
vs. Ram Saran & Ors. AIR 1973 Allahabad 173 laid down that
it was open to one of the co-owners, after partition, to sue
for ejectment of the tenant from his share of the leased
property.
35. A Full Bench of the Madras High Court in Puthiapurayil
Kannyan Baduvan & Anr vs. Chennyanteakath Puthiapurayil
Alikutti & Ors. AIR 1920 Madras 838 is also of the same
view.
36. The Madras and Allahabad decisions (cited above) were
approved by this Court in Mohar Singh vs. Devi Charan
1988(1) RCR 654 (SC) = AIR 1988 SC 1365 = 1988(2) RCJ 471
(SC).
37. In view of the above discussion, it is obvious that the
law with regard to the spliting of tenancy is not what the
High Court has set out in the impugned judgment. As pointed
out earlier, a co-sharer cannot initiate action for eviction
of the tenant from the portion of the tenanted accommodation
nor can he sue for his part of the rent. The tenancy cannot
be split up either in estate or in rent or any other
obligation by unilateral act of one of the co-owners. If,
however, all the co-owners or the co-lessors agree among
themselves and split by partition the demised property by
metes and bounds and come to have definite, positive and
identifiable shares in that property, they become separate
individual owners of each severed portion and can deal with
that portion as also the tenant thereof as individual
owner/lessor. The right of joint lessors contemplated by
Section 109 comes to be possessed by each of them separately
and independently. There is no right in the tenant to
prevent the joint owners or colessors from partitioning the
tenanted accommodation among themselves. Whether the
Premises, which is in occupation of a tenant, shall be
retained jointly by all the lessors or they would partition
it among themselves, is the exclusive right of the lessors
to which no objection can be taken by the tenant,
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particularly where the tenant knew from the very beginning
that the property was jointly owned by several persons and
that, even it he was being dealt with by only one of them on
behalf of the whole body of the lessors, he cannot object to
the transfer of any portion of the property in favour of a
third person by one of the owners or to the partition of the
property. It will, however, be open to the tenant to show
that the partition was not bona fide and was a sham
transaction to overcome the rigours of Rent Control laws
which protected eviction of tenants except on specified
grounds set out in the relevant statute.
38. Learned counsel for the respondent relied upon a
decision of this Court in Badri Narayan Jha & Ors. vs.
Rameshwar Dayal Singh & Ors. 1951(2) SCR 153 and contended
that the severance or assignment of a part of the reversion
would not affect the integrity of the lessee. This case is
wholly inapplicable to the facts of the present case. In
that case, there were several lessees who had divided the
tenancy rights among themselves and had thus split up the
lease. It was in this connection that it was laid down that
an inter-se partition of the lessee rights amongst the co-
lessees would not affect their liability qua the lessor for
the payment of the whole rent as they continue, in status,
as a single tenant. It was further observed that in law an
inter-se partition of the lease hold interest would not
affect the integrity of the lease.
39. The decision n Badri Narayan Jha’s case was considered
by this Court in Mohar Singh vs. Devi Charan & Ors. (supra)
and was not followed on the ground that it related to
partition of the lease-hold rights among the co-lessees.
40. We have already indicated above that during the
pendency of the appeal in this Court the respondent has
purchased the remaining portion of the shop, which had
fallen in the share of the appellant’s brother. This portion
measures 23’ x 7-1/2’. It has been purchased from Smt.
Zubedabi, wife of appellant’s brother, in whose share tho
said portion had fallen on partition, and who had gifted
that portion to his wife. The copy of the sale-deed has been
filed in this Court, to which no objection has been taken by
the counsel for the respondent. The respondent does not deny
the transaction. He having purchased the remaining portion
of the shop, became the owner thereof and his interest as a
tenant merged in his right as an owner of that portion. He,
therefore, remained a tenant only in respect of the disputed
portion and consequently the suit filed by the appellant in
respect of that portion was clearly maintainable.
41. In view of the above, the appeal is allowed. The
judgment and order dated 17.1.1992 passed by the High Court
is set aside and the suit of the appellant for the eviction
of the respondent is decreed with costs throughout.