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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]

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    (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

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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

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         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

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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