1988 JTR(SC) 391
1988 AIR(SC) 1365 ; 1988 AllCJ 498 ; 1988 AllLJ 805 ; 1988 14 AllLR 438 ; 1988 2 AWC 849 ; 1988 2 CurCC(SC) 265 ; 1988 2 JT 492 ; 1988 2 RCJ 470 ; 1988 1 RCR(Rent) 654 ; 1988 RLR 402 ; 1988 1 Scale 1133 ; 1988 3 SCC 63 ; 1988 Supp1 SCR 255 ; 1988 KHC 977
SUPREME COURT OF INDIA
R.S. PATHAK, CJI., M.N. VENKATACHALIAH, J.
Mohar Singh (Dead by L.Rs), Appellant
Versus
Devi Charan and others, Respondents.
Civil Appeal No. 485 of 1982, D/- 9-5-1988.
Advocates appeared
Mr. M.S. Gupta, Advocate, for Appellant; Mr. Uma Dutta, Advocate, for Respondents.
Act
Referred
:TRANSFER OF PROPERTY ACT : S.109, S.5
UTTAR PRADESH URBAN BUILDINGS REGULATION OF LETTING, RENT AND EVICTION ACT : S.21
(A) The Transfer of Property Act, read with Section 109, governs the rights of an assignee of a portion of the reversion in a leasehold property. The Uttar Pradesh Urban Buildings Regulation of Letting, Rent and Eviction Act, Section 21, provides the statutory framework for eviction proceedings on grounds of bona fide need. The partition decree between co-owners operates as a transfer of the reversionary interest under the Transfer of Property Act, enabling the assignee to assert rights under Section 109 independently of the other lessors consent. The impugned order was challenged on the basis that the unity and integrity of the tenancy were being split without tenant consent, but the statutory provisions override such limitations when a severance and assignment of reversion has occurred.
(B) Section 109 of the Transfer of Property Act operates as an exception to the common-law rule against splitting the unity of tenancy, allowing an assignee of a part of the reversion to exercise all rights of the landlord in respect of that portion without the consent of the tenant or the co-lessor. Partition among co-owners is treated as a severance of reversion attracting the provisions of Section 109, and attornment arises by operation of law rather than by agreement. The bona fide requirement under the U.P. Rent Act, read with Section 21, once determined by the prescribed authority and affirmed by the High Court, is conclusive and not open to challenge on the same grounds in subsequent proceedings.
Facts of the case:
The first respondent was a tenant of two adjacent shops under a single lease from two co-owners. The appellant acquired one co-owners share, and through a partition decree between the co-owners, became the exclusive owner of one shop. The appellant initiated eviction proceedings under the Uttar Pradesh Urban Buildings Regulation of Letting, Rent and Eviction Act, Section 21, obtaining possession, which was set aside by the High Court on the ground that splitting the tenancy without the other lessors consent was impermissible.
Findings of Court:
The High Courts reasoning was based on the preservation of tenancy unity and lack of tenant consent to severance. This Court held that partition effects a severance of reversion attracting Section 109 of the Transfer of Property Act, and the assignee is entitled to possession without the other lessors joinder or tenant consent. The findings of the prescribed authority on bona fide need and reasonableness were conclusive.
Issues:
Whether severance of reversion through partition and assignment to one co-owner enables that co-owner to seek eviction of the tenant from the respective portion without the other lessor joining in the action, and whether such severance violates the unity of tenancy.
Ratio Decidendi:
Section 109 of the Transfer of Property Act, reinforced by partition as a severance of reversion, allows the assignee of a part of the reversion to exercise all rights of the landlord in respect of that portion independently. The unity-of-tenancy limitation inherent in the contract does not bind the assignee, and no tenant consent is required for such severance and assertion of possession rights under the statute.
Result:
The appeal is allowed, the High Courts order is set aside, and the decree of the III Additional District Judge, Muzaffarnagar, in Rent Control Appeal No. 48 of 1978 is restored.
(A) The Transfer of Property Act, read with Section 109, governs the rights of an assignee of a portion of the reversion in a leasehold property. The Uttar Pradesh Urban Buildings Regulation of Letting, Rent and Eviction Act, Section 21, provides the statutory framework for eviction proceedings on grounds of bona fide need. The partition decree between co-owners operates as a transfer of the reversionary interest under the Transfer of Property Act, enabling the assignee to assert rights under Section 109 independently of the other lessors consent. The impugned order was challenged on the basis that the unity and integrity of the tenancy were being split without tenant consent, but the statutory provisions override such limitations when a severance and assignment of reversion has occurred.
(B) Section 109 of the Transfer of Property Act operates as an exception to the common-law rule against splitting the unity of tenancy, allowing an assignee of a part of the reversion to exercise all rights of the landlord in respect of that portion without the consent of the tenant or the co-lessor. Partition among co-owners is treated as a severance of reversion attracting the provisions of Section 109, and attornment arises by operation of law rather than by agreement. The bona fide requirement under the U.P. Rent Act, read with Section 21, once determined by the prescribed authority and affirmed by the High Court, is conclusive and not open to challenge on the same grounds in subsequent proceedings.
Facts of the case:
The first respondent was a tenant of two adjacent shops under a single lease from two co-owners. The appellant acquired one co-owners share, and through a partition decree between the co-owners, became the exclusive owner of one shop. The appellant initiated eviction proceedings under the Uttar Pradesh Urban Buildings Regulation of Letting, Rent and Eviction Act, Section 21, obtaining possession, which was set aside by the High Court on the ground that splitting the tenancy without the other lessors consent was impermissible.
Findings of Court:
The High Courts reasoning was based on the preservation of tenancy unity and lack of tenant consent to severance. This Court held that partition effects a severance of reversion attracting Section 109 of the Transfer of Property Act, and the assignee is entitled to possession without the other lessors joinder or tenant consent. The findings of the prescribed authority on bona fide need and reasonableness were conclusive.
Issues:
Whether severance of reversion through partition and assignment to one co-owner enables that co-owner to seek eviction of the tenant from the respective portion without the other lessor joining in the action, and whether such severance violates the unity of tenancy.
Ratio Decidendi:
Section 109 of the Transfer of Property Act, reinforced by partition as a severance of reversion, allows the assignee of a part of the reversion to exercise all rights of the landlord in respect of that portion independently. The unity-of-tenancy limitation inherent in the contract does not bind the assignee, and no tenant consent is required for such severance and assertion of possession rights under the statute.
Result:
The appeal is allowed, the High Courts order is set aside, and the decree of the III Additional District Judge, Muzaffarnagar, in Rent Control Appeal No. 48 of 1978 is restored.
M.S.Gupta, Uma Datta
Judgment
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.
* Reported in 1980 All Rent Cas 381 : 1980 UPLT NOC 143.
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 5/8th interest came to be transferred through an. intermediary alienation to a certain Gyan Chand. Pursuant to a decree in a civil suit for partition between Gyan 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 respondent 1 under S. 21, U.P. Act, XIII of 1972, before the prescribed authority on the ground of his own bona fide need. The prescribed authority ordered release of the premises and made an order granting possession. The appeal preferred by respondent 1 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 respondent 1 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 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 respondent 1 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 Court 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 the ejectment or apply for permission to file such a suit in respect of a portion of the accommodation."
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".............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 landlord cannot split the unity and integrity of the tenancy and recover possession of a part of the demised premises from the tenant. But S. 109, T.P. 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 S. 109, 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, C.J. in Kannyan v. Alikutty,. AIR 1920 Mad 838 at p. 840 (FB) :
"............ 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 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 damised 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 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 v. Rameshwar Dayal Singh, 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 ............."
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"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 mokarrari interest could not affect the integrity of the lease ............"
This is an altogether different proposition.
7. The next contention Of Shri Uma Dutta is that, at all events, what flows from a transfer under S. 5 read with S. 109, 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 S. 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, enquity 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, AIR 1978 All 173 has taken the view that S. 109, T.P. Act, is attracted to the case of partition also. That was a decision which the 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 had to go before a Division Bench.
The correctness of the decision in Ram Chandra Singhs 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 have also taken this view though, however, some decisions have been content to rest the conclusion on the general principle underlying S. 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, Muzaffarnagar, in Rent Control Appeal No. 48 of 1978 restored. In the circumstances of this case, there will be no order as to costs.
Appeal allowed.
For Citation : AIR 1988 SC 1365 = 1988(2) JT 492 = 1988(2) RCJ 470 = 1988(3) SCC 63 = 1988(2) CCC 265 = 1988(1) Scale 1133 = 1988(1) RCR 654