Back
HIGH COURT OF MADHYA PRADESH
P.V. Dixit, C. J. & S. P. Bhargava, J.
N. K. Kame
Vs.
Biharilal
C. Revn. No. 667 of 1966 against order of Shri S.L. Jain, III Additional Civil Judge II Class, Jabalpur on a reference made by Bhave, J.;
Decided on : 10.1.1968
On the language of section 13 (1) of the Act, there can be no doubt that a person sued as a tenant is not required to deposit the amount representing arrears of rent due to the vendor that might have been assigned by him to the purchaser suing the tenant for eviction Section 13 comes into operation when a suit or proceeding is instituted by the landlord on any of the grounds mentioned in section 12; In such a wit, the person suing claims that he is the landlord and alleges that the defendant is his tenant. The suit is thus founded on the allegation of a subsisting relationship of landlord and tenant. Where a person purchases a property and if at the time of the purchase the property is in occupation of a tenant, then the relationship of landlord and tenant between the purchaser and the person in occupation of the property commences after the purchase and not before it. It is after the sale of the property that the person ill occupation of the property as a tenant becomes liable to pay rent to the purchaser. [Para 18]
Section 13 (1) does not require the tenant to deposit the arrears of rent due before the transfer if they are assigned by the vendor-landlord to the purchaser of the property. It makes no difference to this position whether the assignment of the arrears of rent is contemporaneous with the sale of the property or subsequent to it. [Para 19]
The arrears of rent due to the vendor when assigned by him to the purchaser assume the character of 'debt', and cannot be recovered as arrears of rent by the assignee. 1966 JLJ 75 CONFIRMED. AIR 1960 Cal. 378 relied on, AIR 1963 All. 47, 1960 All, Lll. 47 DISSENTED FROM. [Para 19]
(2) Transfer of Property Act, 1882 - 5. 109 - arrears of rent due before transfer by landlord of the tenanted premises-is mere 'debt' and not arrears of rent in respect of the tenant.
(3) Accommodation Control Act, 1961 (M. P.) - S. 2 (b)-assignee of landlord-arrears prior to assignment-is not 'rent' hut 'debt'.
Section 109 of the Transfer of Property Act, 1882, makes it very clear that the transferee is not entitled to arrears of rent due before the transfer; such a rent amount is no part of the reversion. It can be assigned by the vendor-landlord. But it is a mere debt, and a mere 'chose in action'. Even after assignment, it does not become part of the reversion so as to make the lessee liable to pay the assigned amount as rent to the transferee. The transferee becomes entitled to recover the assigned amount not by virtue of the transfer of the property, but by virtue of the contract of assignment. The origin of "such a debt" no doubt lies in the non-payment of rent by the tenant to the landlord who was then entitled to get it; the character of this origin is not altered by assignment so far .is the tenant liable to pay the debt is concerned. But that docs not mean that when the amount is paid by the tenant to the assignee, he paid it because that amount was due as rent to the assignee. [Para 18]
Bhave, J.-
1. This revision petition is by the plaintiff.
2. The plaintiff had purchased the suit house under a registered sale-deed dated 7th February 1966 for a consideration of Rs. 20,000. By this sale-deed the right of the vendors to recover the arrears of rent has also been assigned to the plaintiff. On the basis of the title acquired by the plaintiff, he filed the suit for ejectment of the defendant and in that suit also claimed all the arrears of rent dup., that is to say, the arrears assigned to him under the sale-deed and those that became due after his purchase of the property. During the pendency of the suit, the plaintiff filed an application under section 13 of the M. P. Accommodation Control Act, 1961, seeking a direction of that Court that the defendant be ordered to deposit the arrears due failing which to strike out his defence. The defendant deposited the arrears of rent due from the date of the sale-deed, that is, from 7th February 1966 and claimed that the arrears assigned to the plaintiff were not arrears of rent with respect to the plaintiff and that the defendant was not bound to deposit the same under section 13 of the Accommodation Control Act. This contention of the defendant found favour with the trial Court. Hence the plaintiff has come up in revision.
3. The reasoning which has appealed to the trial Court is that as soon as the arrears of rent are assigned, they cease to be 'arrears of rent' and they are converted into an 'actionable claim' as defined under section 3 of the Transfer of Property Act and that such arrears' are not liable to be deposited under section 13 of the Accommodation Control Act.
4. On behalf of the plaintiff, it was urged that the arrears of rent in the hands of the previous landlord were also actionable claim; still they were arrears of rent vis-a-vis the tenant. As soon as the rent is not paid on the due date, it becomes a debt and, for that reason, an actionable claim. This actionable claim is described as an 'arrear or rent' when it is with respect to the unpaid rent. When this actionable claim is transferred, it does not change its character, namely, that of an 'arrear of rent' only because the right to recover is transferred to another person. In any case, it was urged that in view of the proviso to section 109 of the Transfer of Property Act, when a property is transferred along with the right of the vendor to recover the arrears of rent, with respect to the vendee the arrears retain their character as arrears of rent. For this argument, reliance has been placed on some of the observations of our learned brother Shiv Dayal, J. in Babu Bhai Vs. Bhagwandas, 1966 JLJ 75.
5. On behalf of the defendant, it was urged that whether the claim of the arrears of rent is transferred along with the property or whether it is transferred separately to the vendee of the property or to a third party, it makes no difference. In all these cases what is transferred is an actionable claim and on such transfer in the hands of the transferee it is no longer arrears of rent but it becomes an actionable claim. The defendant relied on Daya Debi Vs. Chapala Devi, AIR 1960 Cal 378 for this proposition. The defendant further urged that the proviso to section 109 of the Transfer of Property Act makes no difference. Under that proviso, two matters are dealt with, namely, (i) that the transfer of property does not bring about the transfer of arrears of rent unless they are specifically transferred; and (ii) that the tenant, if in ignorance of the transfer of the property, that is, in the absence of notice of the transfer, pays the rent to the original landlord, then he gets a complete discharge of his liability. The function of the proviso to section 109 of the Transfer of Property Act, it is urged, is not to make the arrears of rent in the hands of the vendor the arrears of rent in the hands of the vendee.
6. The question raised is of considerable importance. But for the decision of Shi
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
