MOHAR SINGH (DEAD BY LRS.)versusDEVI CHARAN & OTHERS

                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-
                                                                            c
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.

      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]

          (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
c       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
                                                                             A
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-
                                                                             c
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.
                                                                             D
      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-
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
    258         SUPREME COURT REPORTS                [1988] Supp. 1 S.C.R.

                such a suit in respect of a portion of the accommodation."
A           '


                " ....... In other words even now as a result of transfer a
B               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
c 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
               " ..... 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
G             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
H             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."                                A
      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          B
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-
                                                                              c
            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 ......... "       D

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

A   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
B   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.
c
         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.
D   R.S.S.                                                  Appeal allowed.