M.N. VENKATACHALIAH, J. -This appeal, by special leave, is by the landlord preferred
against the judgment and order dated March 28, 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.
2. The 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 Jado Ram. Similarly,
Asha Ram’s 5/8th interest came to be transferred, through an intermediary alienation, to a certain
Gyan Chand. Pursuant to a decree in a civil suit for partition between Gyan 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.
3. Appellant instituted proceedings for eviction against the first respondent under Section 21 of U.
P. Act 13 of 1972 before the prescribed authority on the ground of his own bona fide 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. First
respondent then moved the High Court in Writ No. 2280 of 1979.
4. The 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.
5. 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.
6. The 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 such a suit in respect of a portion of the
accommodation…. In other words even now as a result of transfer of 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 be quashed.”
7. It is a trite proposition that a landlord 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
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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. There 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, C.J. in Kannyan v. Alikutti [AIR 1920 Mad 838 (FB)]:
“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. Ramshashi Roy [AIR 1918 PC 102 ]. Consequently, 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 the land covered by the
assignment.”
9. The next contention of Shri Uma Dutta is that, at all events, what flows from a ‘transfer’ under
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 cosharers. 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 [AIR 1978 All 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 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 had to go before a Division Bench.
10. The correctness of the decision in Ram Chandra Singh 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.
11. In the result, this appeal is allowed, the order of the High Court set aside and that of the Third
Additional District Judge, Muzaffarnagar in Rent Control Appeal No. 48 of 1978 restored. In the
circumstances of this case, there will be no order as to costs.
