Holding

A co‑owner who, after a valid partition, becomes the exclusive owner of a defined share of the leased premises is entitled to exercise the lessor’s rights under Section 109 of the Transfer of Property Act, including filing eviction proceedings against the tenant for that share.

Summary

The appellant, a co‑owner of a shop, obtained a defined share of the premises through a partition among brothers. The respondent, a tenant, continued to pay rent to the elder brother and refused to pay rent to the appellant after the partition, leading to termination of his tenancy and an eviction petition under the Hyderabad Houses (Rent Eviction and Lease) Control Act, 1954. The Rent Controller and the District Judge allowed the eviction, but the High Court reversed, holding that the lease was indivisible and a single co‑owner could not sue for eviction. The Supreme Court held that a valid partition creates separate ownership interests, making the co‑owner a transferee of the lessor’s rights under Section 109 of the Transfer of Property Act, 1882, and thus he may maintain eviction proceedings for his share. Consequently, the appeal was allowed, the High Court’s order set aside, and the eviction suit decreed.

Issues considered

The partition of joint family property whether it constitutes a "transfer" within the meaning of the Transfer of Property Act, 1882.
Whether a co‑owner can sue for eviction of a tenant for his share of a demised premises after partition.
Whether the tenancy is indivisible and eviction proceedings are maintainable by a single co‑landlord.
The applicability of Sections 5, 36, 37 and 109 of the Transfer of Property Act to the present facts.

Legislation cited

Hyderabad Houses (Rent, Eviction and Lease) Control Act, 1954s. 15
Transfer of Property Act, 1882s. 109, s. 36, s. 37, s. 5

Subjects

Transfer of Property Actpartitiontenancyevictionco‑owner rightsSection 109rent controllandlord‑tenant lawindivisible lease

Judgment

A S.K. SATTAR SK. MOHD. CHOUDHARI
v.
GUNDAPPA AMABADAR BUKATE

OCTOBER 11, 1996

B [KULDIP SINGH AND S. SAGHIR AHMED, JJ.]

Transfer of property Act, 1882-Sections 5, 36, 37 and 109-Partition
of tenanted property-Rent not paid-Tenancy Tenni11ated-Petitio11 for evic-
tion-High Court holding that tenancy is i11divisible and evictio11 proceedi11gs
C not maintainable by one of the co-landlords-Held, te11ant has 110 right to
prevent joint ow11ers from partitioning tenanted accommodation-Sui!' for
eviction maintainable.

Words & Phrases :

D "Transfer''-Meaning of in the contest of Sec.2(d) & 5 of Transfer of
Property Act, 1882.

Legal maxims-Qui in jus dominiumve alterius succedit jure eju~ uti
deb et-Explained.

E A partition took place between the appellant and his brothers. The
portion of the shop in which the respondent was a tenant fell in the share
of the appellant. Respondent did not pay rent and his tenancy was ter-
minated. A petition for eviction was filed before the Rent Controller. The
rent Controller allowed the eviction petition, which was also uphe.ld in
appeal by the District Judge. On further appeal, the High Court reV(!rsed
F the order of Rent Controller on the ground that partition amongst
brothers would not affect the lease which is indivisible and evidion
proceedings would not be maintainable at the instance of only one of the
co-landlords. Hence the present appeal.

G Allowing the appeal, tl!is Court

HELD: 1. If a partition of the joint family property takes place by act
of parties, it would not be treated as "transfer" within the meaning of Section
5 of the Transfer of Property Act, 1882. But if a suit for partition is file1i and \
the partition is brought about through a decree of the Court, it would
H amount to transfer vide Section 2(d) which specifically excludes transfer by
450
SK SATIAR SK MOHD. CHOUDHARI v. GA BUKATE 451

operations of law or under a decree or order of a court. Section 5 which A
defines Transf~r is therefore over ridden by Section 2 (d) of the Act. This
anomaly have to be cured as "transfer" has been interpreted differently by
this Court in the context of different statutory provisions. Although parti-
tion by agreement of parties may amount to transfer, the provisions under-
lying Section 5 have been applied to transfer of either the whole or a part of B
the demised premises under Section 109 of the Act. [461-D-F]

2. 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 Qr any
other obligation by unilateral act of one of the co-owners. If however, all C
the owners 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 became separate individual
owners of each served portion. The right of joint lessor contemplated by
Section 109 came to be possessed by each of them separately and inde- D
pendently. There is no right in the tenant to prevent the joint owners or
co-lessor from partitioning the tenanted accommodation among themsel-
ves. [462-E-G]

3. Whether the premises in occupation of a tenant will be retained
jointly by all the lessor or they would partition it among themselves is the E
exclusive right of the lessor 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 even if he was being
dealt by only one of them on behalf of the whole body of the lessor, he
cannot object to the transfer of any portion of property or partition of the
property. However, tenant can show that partition was not bonafide and F
was a sham transaction to overcome the rigours of rent control laws.
[462-H, 463-A-B]
Raja Simhadri v. Prattiputti Ramayya, ILR (1908) 29 Madras 29;
Satyesh Chandra Sankar v. Hazi Jillar Rahman, (1918) 27 Calcutta Law
Journal 438-45 Indian Cases 721; Keshava Prasad Singh Bahadur of Dam- G
roan v. Mathura Kuar and Others, AIR (1922) Patna 608 =69 Indian Cases
704; Kale & Others v. Deputy Director of Consolidation & Ors., AIR (1976)
SC 807; Ram Charan Das v. Girja Nandini Devi & Ors., AIR (1966) SC 323
= (1965] 3 SCR 841; Tex Bahadur Bhujil v. Devi Singh Bhujil & Ors., AIR
(1966) SC 292; V.N. Sarin v.Ajit Kumar Poplai, [1966] 1 SCR 349 =AIR H
452 SUPREME COURT REPORTS [1996] SUPP. 7 S.C.R.

A (1965) SC 432; Commissioner of Income Tax, Gujarat v. Keshavilal Lallubai
Patel, (1965) 55 ITR 637 = AIR (1965) SC 866; Nani Bai v. Gita Bai Kam
Rqma Gunge, AIR (1958) SC 706; Siromani & Anr. v. Kemkwnar & Ors.,
AIR (1968) SC 1299; Roshan Singh & Ors. v. Zile Singh & 0;~., AIR (1988)
SC 881; Sardalilal v. Narayan/al, AIR (1980) MP 8, Bad1i Prasad v. Shyam
B Lal Jaiswal & Ors., AIR (1963) Patna 85; Skattar Singh v. Raw/a, AIR (1952)
J&K 18; Ram Chandra Singh & Ors. v. Ram Saran & Ors., AIR (19'78)
Allahabad 173; Puthiapurayil Kannyan Baduyan & Anr. v. Chennyatheakath
Puthiapurayil Alikutti & Ors., AIR (1920) Madras 838 and Mohar Singh v.
Devi Charan, (1988) 1 RCR SC = AIR (1988) SC 1368 = (1988) 2 RCJ
471 SC, referred to. •
c Badli Narayan !ha & Ors. v. Rameshwar Dayal Singh & Ors., (1~151)
2 SCR 153, held inapplicable.

Appovier v. Rama Subba Aiyan, (1866) 11 Moor's Indian Appeals 75
and Girja Bai v. Sadashiv Dhundirai and Ors., 43 Indian Appeals 151 =
D AIR (1916) PC 104, referred to.
De Nicols v. Saunders, (1870) 22 LT 661 = 18 WR (Eng) 1106,
referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6972 of
E 1996.
From the Judgment and Order dated 17.1.92 of the Bombay High
Court in C.R.A. No. 167 of 1987.

Uday Umesh Lalit for the Appellant.
F
S.K. Dholakia, Prashant Kumar and A.M. Khanwilkar for the
Respondent.

The Judgment of the Court was delivered by
G S. SAGHIR AHMAD, J. The landlord is in appeal before us against , i

the Judgment and Order dated 17.1.92 passed by the Bombay High Court '
\1
(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
H appellant for eviction of the respondent from the shop in Munkipal

;'
I
SK SATIARSK MOHD. CHOUDHARiv. G.A BUKA1E[S. SAGHIRAHMED,J.]453

building No. 2-lO(Old) and 69(New), Ward No. 22, Bhusar Lane, Latur, A
was dismissed.

2. Proceedings for eviction were initiated by the appellant on the
allegations that the shop measuring 23' x 19' 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 B
brothers, as his heirs who inherited his properties including the aforesaid
shop. Saikh J affar 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 C
of the shop measuring 23' x 12-1/2' 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 Saikh
J affar but the respondent did not pay rent to the appellant and consequent-
ly, his tenancy was terminated by notice dated 2J3.7.76. this was followed by D
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 E
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-calied partition
amongst the brothers was ma/a fide and, in any case, notice for attornment
was not given to him. He also pleaded that the shop was· not bona fide F
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 qy the Rent Controller by his Judgment G
and Order dated 29.3.84 which was upheld in appeal by the District Judge
1

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 H
454 SUPREME COURT REPORTS (1996] SUPP. 7 S.C.R.

A petition was not considered and the Rent Controller as also the Distric:t
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, :1f
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.
B
6. During the pendency of the appeal in this Court, the respondent
purchased the remaining portion of the shop namely, the portion measur-
ing 23' x 7-1/2' which had fallen in the share of the appellant's brother,
Shaikh Ahmad Chaudhari, from Smt. Zubedabi, his wife, to whom he had
C gifted the property and thus he claimee 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.

D 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.

E 9. The basic principle of the Transfer of Property Act is that whe-re
a premise is let out by several co-owners or joint owners or co-lessors, any
one of theni cannot sue the tenant either for his share of rent or for
partition eviction of 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
F indivisibility is not perpetual. In order to remove the obsession with whi,.:h
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
G 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
H the transfer of the interest of the person entitled to receive such

/
SK SATIARSK MOHD. aIOUDHARiv. G.A BUKATE [S. SAGHIRAHMED,J.]455

payments be deemed, as between the transferor and the transferee, A
, 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 provision contained
in Section 8, which provides, inter alia, that unless a different intention is
expressed or necessarily implied, a transfer of property_ passes forthwith to B
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 C
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 Deim, it has been provided that all periodical
payments, like yearly or monthly, in the nature of rent etc. shall be deemed D
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 illustra- E
tions 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 F
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 obliga- G
tion; but if the duty cannot be severed, or if the severance would
substantially increase the burden of the obligation, that 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 H
456 SUPREME COURT REPORTS [1996] SUPP. 7 S.C.R.

A lies shall be answerable for failure to discharge it in manne:r
·provided by this section, unless and until he has had reasonable
notice of the severance.

Nothing in this section applies to leases for agricultural pur·
poses unless and until the (State Government) by notification in
B 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 come to be vested
separately in each owner. In such a situation, each of the several owners
C 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 renl
to each co-sharer separately. (See : Raja Simhadri v. Prattipatti Ramayya,
D 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
E property insist on payment of his part of the rent to him (See: Satyesh
Chandra Sarkar v. Haji Jil/ar Rahman, (1918) 27 Calcutta Law Journal 438
= 45 Indian Cases 721; · Keshava Prasad Singh Bahadur of Damraon v.,
Mathura Kaur and Ors., AIR 1922 Patna 608 = 69 Indian Cases 704,
referred to.
F
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
G 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,
H or any part of his interest therein, the transferee, in the absence
SK SATIARSK MOHD. CHOUDHARii•. G.A BUKATE [S. SAGHIRAHMED, J.]457

of a contract to the contrary, shall possess all the rights, and, if the A
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 ~lects to treat the transferee as the person liable
B
to him;

Provided that the transferee is not entitled to arrears ofrent ·
due before the tn\nsfer and that if the lessee, not having reason to
believe that such transfer has been made, pays rent to the lessor,
the les~ee shall not be liable to pay such rent over again to the C
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, D
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 E
property) pass with the property.

18. A bare reading of the first part of the Section indicates that if the
property is either transfrrred as a whole or any part thereof alone is
transferred, the transferee comes to possess all the rights of the lessor. F

19. The Proviso appended to 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 b y his
transferee by a notice. Requirement of knowledge of transfer in this
Section as also in Sections 37 and 50 is based on the general principle of G
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 H
458 SUPREME COURT REPORTS [1996] SUPP. 7 S.C.R.
A precedent for creating a liability in the tenant to pay rent to the transferee
or the assignee of the demised premises, but it does not have the effect of
postponing the assignment or transfer of property till the receipt of the
notice. The title passes to the assignee immediately on the execution of the
Deed of Transfer or Assignment.
B 20. We may, before proceedings 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 ~ince
"partition' is not a transfer within the meaning of the Act, Section 109
C 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 :
·o
"5. "Transfer of Property" Defined. - In the following section "trans-
fer 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 transfer property" is to perform such act.
E
"(In this section "living person" includes a company or associa-
tion 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,associa-
tions or bodies of individuals.]
F
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
G 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
H a share in the property has been held as not amounting to a "conveyance
SK. SATIARSK. MOHD. CHOUDHARI v. G.A BUKA1E [S. SAGHIRAHMED,J.]459

of property" from a person who has title to it to a person who has no title.
....
~, ;
A
23 . This Court in Kale & Ors. v. Deputy Director of Consolidation &
Ors., AIR (1976) SC 807 and Ram Charan Das v. Girja 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
B
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 v. Debi Singh
Bhujil & Ors., AIR (1966) SC 292, as also in an earlier decision in Ram
Charan Das v. Giria Nandini Devi & Ors., (supra), that it was not necessary C
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.I. Sarin v. Ajit Kumar Poplai, (1966] 1 SCR 349 = AIR (1966) SC 432
observed that, "the true effect of partition was that each co- parcener got D
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 interpreta-
tion of Section 14 (6) of the Delhi Rent Control Act, 1958 (Act No. 59 of E
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: F

"Having regard tQ this basic character of joint Hindu family proper-
ty, 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 G
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 copar·
ceners in respect of several items of properties allotted to them
respectively. If that be the true nature of partition, it would not be H
460 SUPREME COURT REPORTS (1996) SUPP. 7 S.C.R.

A easy to uphold the broad contention raised by Mr. Purshottam that
partition of an undivided Hindu family property must necessarily
mean transfer of the property to the individual coparceners."

25. In coming to the above conclusion, this Court relied upon t.he
B Privy Council decision in GiTja Bai v. Sadashiv Dhundirdj 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
C 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 v.
Keshavilal Lallubhai Patel, (1965) 55 ITR 637 = AIR 1965 SC 866, it was
D 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
E v. Gita Bai Kom Rama Gunge, AIR (1958) SC 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
F 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 Siromoni & Anr. v. Hemkumar & Ors., AIR (1968)
G SC 1299 and Roshan Singh & Ors. v. Zile Singh & Ors., AIR (1988) SC 881.

28. The Privy Council in Appovier v. 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
H and enjoy the property in defined shares as separate owners operates as a
\
I
SK SATIARSK MOHD. CHOUDHARI v. GA BUKATE [S. SAGHIRAHMED, J.]461

partition, although there may have been no actual division of the property A
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."
B

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 C
remains physically undivided, the interest of each member stands divided,
which would, therefore, descend and may be dealt with as separate proper-
ty by the separating member or his own heirs.

30. We have our own doubts on this question. If a partition of the D
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, E
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 differently by .this Court is the context of different
statutory provisions.
F
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 v. Mohinuddin & G
Ors., (1950) 86 Calcutta Law Journal 198, held that although partition was
not a trmsfer, 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. H
462 SUPREME COURT REPORTS (1996] SUPP. 7 S.C.R.
A 33. A Full Bench of the Madhya Pradesh High Court in Sardarilal v.
Narayan/al, 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 v. Garanchandsa & Ors., AIR (1965) MP
B 1 and by the Patna High Court in Badri Prasad v. Shyam Lal Jaiswal and
Ors., AIR (1963) Patna 85. The High Court of Jammu & Kashmir in Skattar
Singh v. Rawe/a, AIR (1952) 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. v. Ram
C Saran & Ors., AIR (1978) 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. v. Chennyanteakath Puthiapurayil Alikutti & Ors., AIR
D (1920) Madras 838 is also of the same view.
36. The Madras and Allahabad decisions (cited above) were ap-
proved by this Court in Mohar Singh v. Devi Charan, (1988) RCR 654 SC
= AIR (1988) SC 1365 = (1988) 2 RCJ 471 (SC).

E 37. In view of the above discussion, it is obvious that the law with
regard to the splitting 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 accom-
modatiqn nor can he sue for his part of the rent. The tenancy cannot be
F 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
G as individual owner/lessor. The right of joint lessors contemplated by
Section 109 comes to be possessed by each of them separately and inde-
pendently. There is no right in the tenant to prevent the joint owners or
co-lessors from partitioning the tenanted accommodation among themsel·
ves. Whether the premises, which is in occupation of a tenant, shall be
H retained jointly_by all the lessors or they would partition it among themsel·
i
'
SK SATIARSK MOHD. CHOUDHARI v. G.A BUKAIB (S. SAGHIRAHMED, J.]463

ves, is the exclusive right of the lessors to which no objection can be taken A
by the tenant, particularly where the tenant knew from the very beginning
that the property was jointly owned by several persons and that, even if he
was being dealt with by only one of them 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 B
property. It wil~ 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 exr,ept on specified
grounds set out in the relevant statute. '

38. Learned counsel for the respondent relied upon a decision of this C
Court in Badri Narayan !ha & Ors. v. 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 D
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. E.

39. The decision in Badri Narayan Jha's case was considered by this
Court in Mohar Singh v. 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. F

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 the said portion had fallen on G
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 H
'
464 SUPREME COURT REPORTS [1996) SUPP. 7 S.C.R.
A 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 sui1
B of the appellant for the eviction of the respondent is decreed with costi.
throughout.

S.V.K.I. Appeal allowed.