Case Note & Summary
The Supreme Court heard an appeal by a landlord against the Bombay High Court's decision dismissing his eviction suit against a tenant. The dispute concerned a shop in Latur, originally owned by the landlord's father, who died in 1956 leaving several heirs. The shop was let out in 1964 to the respondent by the appellant's elder brother, who collected rent until 1974. After a partition among the brothers, a portion of the shop fell to the appellant, who informed the tenant and demanded rent; the tenant did not pay, leading to termination notice and eviction petition under Section 15 of Hyderabad Houses (Rent Eviction and Lease) Control Act, 1954 on grounds of wilful default and personal need for cutlery business. The Rent Controller allowed eviction on 29.3.1984, the District Judge affirmed on 12.2.1987, but the High Court reversed on 17.1.1992, holding the tenancy indivisible and petition by one co-owner not maintainable. During pendency of the appeal in the Supreme Court, the respondent purchased the remaining portion of the shop from the appellant's brother's wife. The Supreme Court examined the High Court's emphasis on indivisibility of tenancy and observed that unity of estate is indivisible but not perpetual. It discussed Sections 36, 37 and 109 of the Transfer of Property Act, 1882 relating to apportionment by time, apportionment by estate on severance, and rights of lessor's transferee. The Court noted that on transfer of part of leased property, the transferee gets all lessor's rights subject to notice to tenant; tenant's obligation to pay rent can be severed upon notice; if no apportionment, obligation remains single and tenant cannot be forced to split rent. The Court also considered the argument that partition is not a transfer under Section 5 of the Act and hence Section 109 would be inapplicable. The available judgment text ends before the final operative order, so the final decision of the Supreme Court is not extracted from the provided portion.
Headnote
A) Transfer of Property - Apportionment by Time - Section 36 of Transfer of Property Act, 1882, read with Section 8 - Upon transfer of lessor's interest, rents and periodical payments are deemed to accrue from day to day and are apportionable between transferor and transferee; Section 8 passes all lessor's interest including rents and profits after transfer. Held that income or rent must be divided accordingly, with transferee entitled from date of transfer (Paras 10-11). B) Transfer of Property - Apportionment by Estate - Section 37 of Transfer of Property Act, 1882 - When property is divided and held in several shares, each owner entitled to proportionate benefit of obligation; tenant's single obligation can be converted into several obligations upon reasonable notice of severance; if no apportionment, obligation remains single and tenant cannot be forced to split rent. Court relied on Raja Simhadri and other precedents. Held that notice is condition for severance and liability to pay separately (Paras 12-14). C) Transfer of Property - Rights of Lessor's Transferee - Section 109 of Transfer of Property Act, 1882 - Transferee of leased property or part obtains all rights of lessor; title passes immediately on execution of transfer deed; tenant liable to pay rent to transferee only after notice; proviso protects tenant paying rent to lessor without knowledge of transfer. Held that Section 109 based on maxim Qui in jus dominiumve alterius succedit jure ejus uti debet, and requirement of notice is condition precedent for tenant liability (Paras 16-19). D) Transfer of Property - Partition as Transfer - Section 5 of Transfer of Property Act, 1882 - Respondent argued partition is not transfer within meaning of Act, so Section 109 inapplicable; Court considered definition under Section 5 but text ends before final resolution. Held that issue remained for determination along with maintainability of eviction petition (Paras 20-22).
Issue of Consideration
Whether an eviction petition filed by one co-owner landlord after partition is maintainable when the tenancy was originally created in favour of several co-owners; whether the tenancy is indivisible and cannot be split without consent of the tenant; whether partition amounts to transfer under Section 5 of the Transfer of Property Act, 1882 for invoking Section 109 rights of lessor's transferee.
Law Points
- Apportionment of periodical payments by time under Section 36 TP Act
- Apportionment of benefit of obligation on severance under Section 37 TP Act
- Rights of lessor's transferee under Section 109 TP Act
- Indivisibility of tenancy is not perpetual
- Notice of severance is condition precedent for tenant's liability to pay rent separately
- Partition may not amount to transfer under Section 5 TP Act
