Section 109 of the Transfer of Property Act does not apply when the lessor has no interest left in the property leased at the time of the transfer.

1. These three appeals raise a common question and can be disposed of by a common judgment. The premises in question belong to the Bombay Municipality and they were open plots of land and they were let out to one Khudabaksh Irani about 30 years ago, and in 1947 this Irani sold this land to Tyaballi. Irani erected structures on this open plot of land and let out tenements in those structures to various tenants, and the three appellant before us are tenants to whom the tenements were let out by Irani.

In August 1951 the Bombay Municipality filed a suit for ejecting Tyaballi and on 30-1-1952 a consent decree was arrived at between the Municipality and Tyaballi. Under this decree the defendant was to deliver up vacant and peaceful possession of the plot clear of all structures standing thereon, and the decree further provided that in the event of the defendant failing to remove the structures on or before 29-2-1952, the defendant was to give up possession of the said plot, together with the structures standing thereon, to the plaintiff.

Tyaballi failed to remove the structures and, therefore, the Municipality sometime in 1954 started execution proceedings, and the appellants in these appeals offered obstruction under Order 21, Rule 98, Civil P. C. The Court held against the appellants and thereupon they filed these suits under Order 21 Rule 103. The Court has dismissed the suits from which these appeals arise, and the appellants have now come before us.

2. Two points have been raised before us as they were raised in the Court below. One is that by reason of the provisions of Section 109 T. P. Act, the appellants have become tenants of the Municipality and, therefore, the decree passed in favour of the Municipality against Tyaballi cannot be executed against them. Turning to Section 109 It provides.

"If the lessor transfers the property leased, 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......"

What is contended by Mr. Jethmalani is that the lessor, as far as the appellant is concerned, was Tyaballi and he transferred these structures by the consent decree, having agreed that if he did not remove the structures by a particular date structures would belong to the Municipality. He further contends that his client elected that the transferee should be subject to all the liabilities or me lessor and on election of the appellant he became the tenant of the Municipality and he cannot be ejected by a decree passed against Tyaballi.

This contention has not been pleaded, nor has any evidence been taken as to the election by the tenant as required under Section 109. But the learned Judge, inasmuch as no oral evidence was sought to be adduced and as the arguments were advanced, permitted the appellant to argue this case without a formal amendment of the plaint, and the election relied upon by Mr. Jethmalani is that as soon as the decree was sought to be executed he filed a suit in the Small Cause Court being Suit No. 6935 of 1954, putting forward the contention that he had become the tenant of the Municipality.

We will assume in favour of the appellant that there was a proper election as required by Section 109 and we will also assume, without deciding in favour of the appellant, that the transfer contemplated by Section 109 is not merely a transfer by act of parties but also by operation of law, and we will further assume in his favour that the consent decree on which Mr. Jethmalani relies constitutes a transfer by operation of law. With all these assumptions in favour of the appellant, we have still to consider whether Section 109 has any application to the facts of this case.

3. What Section 109 requires is that the lessor must transfer the property leased, and the question is, what was the property that was