MOHAR SINGH (DEAD BY LRS.)

A

v ..

DEVI CHARAN & OTHERS

MAY 9, 1988

. I

[R.S. PATIIAK CJ AND M.N. VENKATACHALIAH, J.] B

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

l\eeded.

U.P. Urban Buildings (Regulations of Letting, Rent And Evic-

tion) Act,

1972: Section 21-Landlord-Not entitled to split unity and

integrity

of tenancy and recover possession of part of demised premises

from tenant.

c

The

first respondent was a tenant of two adjacent shops, under a D

single lease, obtained from two co-owners. The co-owners transferred

their respective shares separately. Pursuant to partition between the

transferees, the apjieUant became. the exclusive owner .of one of the

shops.

The appellant institnted proceedings and obtained an order for E

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 respon·

dent 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 impermlssible in law. The High Court

accord· F

ingly 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 G

from the tenant. But section

109 of the Transfer of Property Act pro­

vided a statntory 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 H

255

256 SUPREME COURT REPORTS [19881 Supp. 1 S.C.R.

A assignment of the part so severed. [258C-E]

(2) Thongh there was difference of opinion among the various

High Conrts on the p0int, the teamed Judge in this case should have

considered himself hound by an earlier decision of the S8ine High Court

in Ram Chandra Singh case which had taken the view that section lo9

B C)f the T .P. Act was attracted to the case ofpartitliin aiso. [259G-H]

c

(3) Without pronouncing on the correctness of the decision

in Ram Chandra Singh's case, this Court applied the sante rule;

and reversed the High Court on the point and restored the order bf

eviction. [260B l

kannyan v. Alikutty, AIR 1920 Mad 838 (FB): Badri Narain Iha

and Ors. t. Rameshwar Dayal & Ors., [19Sl] SCR 153 and Ram

Chandra Singh v. Ram Saran & Ors., AIR 1978 All. 173, referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal :No 485 of

D 1982.

From the Judgment and order dated 28.3.1980 of the Allahabad

High Court in Civil Misc. Writ No. 2280 of 1919. i-

M. S. Gupta for the Appellant.

Uma Dutta for the Respondents.

The Judgment

of the Court was delivered liy

VENKATACHALIAH,

J. This appeal, by special leave, is by

the

F .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.

G

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 3/8ih and 5/8th shares in the pro­

perty. 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 aiienation, to a certain Gyllfi

H Chand. Pursuant to a decree in a civil suit for partition betweeii Gyilii

.<

,.

MOHAR SINGHv. DEVI CHARAN [VENKATACHALIAH, J.J 251

Chand and the appellant, the co-ownership c·ame to an end and towards

his share app.ellant

was allotted, and became the exclusive owner of,

one

of the shops. That is the subject-matter of the present proceed-

· ~p. . .

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, Muzaffamagar 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 re­

quirement 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-respon­

dent, 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 join-

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c

D

ing in the action; and that in claiming possession of a part of the E

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 Jaw.

The High Court does not appear to have considere'd the effect of ·

the partition decree between erstwhile co-owners and of the appellant, F

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 G

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

fastitute a suit for ·ejectment or apply for perrnission10 file H

A

B

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258

'

SUPREME COURT REPORTS [1988] Supp. 1 S.C.R.

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 tbe 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 tbe 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 tbe 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

D land. This

is the true effect of the words 'shall possess all the rights

...... of the lessor as to the property or part transferred ..... ' occur­

ring in Section

109 of the T .P. Act. There is no need for a consensual

attomment. The attomment

is brought about by operation of law. The

limitation on the right of the landlord against splitting-up of the in­

tegrity

of the tenancy, inhering in the inhibitions of his own contract,

E 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).

F

G

H

" ..... 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. Con­

sequently, if the suit is brought by tbe original lessor the

answer to the question referred to

us must be in the nega­

tive because such a suit does not lie at all.

Other considera­

tions, however, arise, where, as in the present case, the

original lessor has parted in whole or in part with the rever­

sion in part of the demised premises. Under the general law

such an, assignment effects a severance, and entitles the

assignee

on the expiry of tbe term to

·~ject the tenant from

r

MOHAR SINGH v. DEVI CHARAN lvENKATACHALIAH, J.I 259

the land covered byihe assignment."

6. Shrl Uma Dutta, leatned 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 cont~ntion 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 con­

verse 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

nof affect their liability qua the lessor for the pay­

ment

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

A

B

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D

the integrity of the lease ......

" E

This

is an altogether different proposition.

7. The next contention of

Shri Uma Datta is that, at· a:JI events,

what flows from a 'transfer' m:idr section 5 read with Section 109 of

T

..

P. Act cannot bt predicated of a partition as partition is no 'trans-F

fer'.

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 G

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,

fr-0m 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 H

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260 SUPREME COURT REPORTS l 19881 Supp. 1 S.C.R.

learned judge in the present case sliould 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 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, Mazaf­

famagar 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.