Headnote:(1) Landlord and tenant-tenancy-splitting up of-when permissible.
       It is settled law that in the absence of a specific provision in the statute, the tenancy cannot be split up by one of the parties without the consent of the other. The Court or the Rent Controlling Authority also cannot split up the tenancy. The lessee can be ejected from the whole of the demised property or not at all. [Paras 11 & 28(1)]
       If there is a specific provision which gives the Court or the Rent Controlling Authority power to split up the tenancy, the statute will override. 1957 JLJ 1157 (FB) relied on.
       [Para 28 (2)]
       (2) Transfer of Property Act, 1882 - Ss. 109 and 111 - part of the property leased transferred -the transferee is entitled to get the lessee evicted from the part transferred to him after terminating the lease-partition is also a transfer for purposes of section 109.
       If the lessor transfers any part of the property leased, the transferee, by virtue of section 109 of the Transfer of Property Act. acquires all the rights of the lessor in respect of that "part of the property". This means that the transferee possesses all the rights in that part of the property as if it had alone originally been comprised in the lease. If not already determined, the transferee is entitled to determine the lease and sue for ejectment.
       [Para 28 (3)]
       For the purposes of section 109, a partition is a transfer of the part of the property allotted to each co-owner. It automatically splits up the tenancy. [Para 28 (5)]
       Section 109 creates statutory attornment and has the same effect as if the lessee by contract attorns to the lessor's transferee in respect of the property transferred (whole or part.) as the case may be. [Para 28 (6)]
       A transferee of a part of the property leased can determine the lease in respect of the part transferred, in any of the circumstances enumerated in section 111 of the Act, and sue for ejectment. There is nothing to restrict this right of ejectment to cases where the lease had been determined before the transfer, or to cases where the lease is determined by afflux of time. [Para 28 (9)]

Judgement Key Points

Key Points: - A transferee who acquires part of the leased property is entitled to terminate the lease and sue for ejectment in respect of the part transferred, either when the lease has already been determined or when it is determined after the transfer [p_28(3), p_21]. - Section 109 of the Transfer of Property Act creates statutory attornment, giving the transferee all the rights of the lessor in the part transferred, including the right to terminate the lease upon determination [p_28(6), p_19]. - Partition between co-owners is treated as a transfer under Section 109 and automatically splits the tenancy, allowing the co-owner in respect of the allotted part to eject the tenant [p_28(5)].

What is the right of a transferee who acquires part of the leased property to terminate the lease in respect of that part?

SHIV DAYAL, J.

( 1 )

"whether a transferee of part of the property leased can terminate the lease with respect to the part transferred to him by giving quit notice to the tenant. "

( 2 ) THE plaintiff, Dr. Riyazuddin, averred in the plaint that he purchased a portion of Nazul Plot No. 40/2, measuring 89' x 108', from its previous owner E. Ashok Rao and others, by a registered deed of sale, The vendors simultaneously delivered possession of the plot. The suit plot had been taken on lease by B. P. Pathak (defendant No. 1) from the plaintiffs predecessor-in-title for storing coal, etc. on a monthly rent of Rs. 5/-, when he worked as a coal contractor. Later on, B. P. Pathak unauthorisedly erected temporary structures and sublet the same to defendants Nos. 2 and 3 for being used for residential purposes, keeping a portion for himself. The remaining portion of the land is being used for growing vegetables by defendant No. 4, at the instance of defendant No. 1. The occupation of defendants Nos. 2 and 3 is unauthorised and unlawful. Defendant No. 1 is in arrears of rent from October 17, 1966 to june 30, 1968, which he has not deposited in spite of notice. The plaintiff, who is a Doctor of Medicine requires the aforesaid accommodation to build his clinic and dispensary and such building could not be constructed without the accommodation (plot) being vacated. The plaintiff has terminated the tenancy of defendant No. 1 by notice.

( 3 ) ONE of the pleas in defence was that the notice terminating the tenancy was not valid. It was alleged that the defendant Pathak was a tenant of plot, measuring 50' x 350' and the plaintiff, being an assignee only of a part of the demised premises, cannot terminate the tenancy with respect to the part assigned to him.

( 4 ) THE trial Court framed the following issues:-

" (1) Whether the defendants had taken the Nazul Plot No. 40/2 from its owner on a permanent lease? (2) Whether the defendant No, 1 is in arrears of rent from 17-101966 to 30-6 68? (3) Whether the plaintiff determined the tenancy by valid notice? (4) Whether the defendants are liable to be evicted under Section 106 of the Transfer of Property Act read with Section 12 of the accommodation Control Act? (5) Whether the previous owner of the suit plot has created a licence in favour of defendant No. 1 to occupy the suit plot with a grant to construct permanent structure thereon? (6) Whether the licence has been irrevocable?"

( 5 ) THE trial Court passed a decree for ejectment of all the defendants from the suit plot and for arrears of rent. Vacant possession was directed to be delivered after demolishing the structure thereon.

( 6 ) DEFENDANT No. 1 Pathak appealed. The learned Additional District Judge affirmed the judgment and decree of the trial Court with the modification that the claim for rent and mesne profits was disallowed,

( 7 ) DEFENDANT No. 1 Pathak preferred this second appeal. By his order dated July 28, 1971, Pandey, J. , remitted the case to the trial Court for determining the following issues:-

" (a) What was the land let out to defendant No. 1 (B. P. Pathak)? (b) Whether a part of the land let out was subsequently sold to the plaintiff Dr. Riyazuddin?"

The trial Court reported its finding in favour of the plaintiff, concluding that the suit land itself was leased out to defendant No. 1 and was subsequently sold to the plaintiff.

( 8 ) THE learned referring Judge has, on a fresh appreciation of evidence, held that the lease created by Nageshwar Rao in favour of Pathak was at least of area 49' x 108', so that the plaintiff is purchaser of only a part of the demised premises. While dealing with this reference, we are not concerned with the correctness of the finding reached by the learned referring Judge. We have to answer the question of law stated at the outset.

( 9 ) SINGH, J,, has referred the point for decision by a larger Bench because he has found that in his own unreported earlier decision in Second Appeal No. 464 of 1971 (MP) (D

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1975 Supreme(MP) 125

High Court Of Madhya PradeshP. K. Tare, C. J. and Shiv Dayal, J.B.P.PATHAK - AppellantVersusRIYAZUDDIN - RespondentsSecond Appeal 623 Of 1970Decided On : 10/09/1975

What is the right of a transferee who acquires part of the leased property to terminate the lease in respect of that part?

Cases Referred (10)

High Court Of Madhya Pradesh
P. K. Tare, C. J. and Shiv Dayal, J.
B.P.PATHAK - Appellant
Versus
RIYAZUDDIN - Respondents
Second Appeal 623 Of 1970
Decided On : 10/09/1975