Singh Vs. Devi Charan & Ors  INSC 157 (9 May 1988)
M.N. (J) Venkatachalliah, M.N. (J) Pathak, R.S. (Cj)
1988 AIR 1365 1988 SCR Supl. (1) 255 1988 SCC (3) 63 JT 1988 (2) 492 1988 SCALE
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.
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.
first respondent was a tenant of two adjacent shops, under a single lease,
obtained from two co-owners.
co-owners transferred their respective shares separately. Pursuant to partition
between the transferees, the appellant became the exclusive owner of one of 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.
the appeal, it was ^
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]
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]
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., 
SCR 153 and Ram Chandra Singh v. Ram Saran & Ors., AIR 1978 All. 173,
APPELLATE JURISDICTION: Civil Appeal No 485 of 1982.
the Judgment and order dated 28.3.1980 of the Allahabad High Court in Civil
Misc. Writ No. 2280 of 1979.
for the Appellant.
for the Respondents.
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.
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.
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.
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.
then moved the High Court in Writ No. 2280 of 1979.
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
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 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.
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
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.
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.
if the suit is brought by the original lessor the answer to the question
referred to us must be in the negative because 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."
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.,  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.
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
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 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.
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.