11 October 1996
Supreme Court


Case number: C.A. No.-006972-006972 / 1996
Diary number: 79208 / 1992






DATE OF JUDGMENT:       11/10/1996




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



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



    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



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



    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,



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."



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



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,



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.