1. This is a petition under Article 226 of the Constitution for the issue of a writ of certiorari for quashing the orders of respondent Nos. 1 to 3, by virtue of which respondent No. 4 had been permitted to terminate the lease of the petitioner.
2. The relevant facts are briefly these : Survey No. 15 of mauza Umerkhed, taluq Pusad, district Yeotmal, havingan area of 28 acres and 33 gunthas belonged to one Siddi Fakira. Out of this field, he let out 15 acres and 20 gunthas of land to the petitioner under an oral agreement entered into on or about March 21, 1949, for the agricultural year 1951-52. It was contended by the petitioner that by subsequent agreement the petitioner was granted leases for the years 1952-53, 1953-54 and 1954-55. But these agreements are denied by respondent No. 4 and have been negatived by respondents Nos. 1 to 3.
3. By the operation of the Berar Regulation of Agricultural Leases Act, 1951, which came into force from November 15, 1951, the petitioner became a protected lessee within the meaning of Section 3 of the Act which entitled him to remain in possession of the land for a period of seven years from the agricultural year 1951-52 or from the date of the subsequent lease, if there be any.
4. Siddi Fakira sold to respondent No. 4, 10 acres of land out of the land leased out to the petitioner, by a sale-deed executed on May 6, 1951. Thereupon, respondent No. 4 made an application to the appropriate revenue authority under Section 9 of the Act for terminating the lease in favour of the petitioner and for being put in possession of the demised land. This application was opposed by the petitioner on various grounds but was allowed by the Sub-Divisional Officer, Pusad. The order of the Sub-Divisional Officer was upheld by the Deputy Commissioner, Yeotmal, and eventually by the Board of Revenue, Madhya Pradesh.
5. Apart from the contentions raised by the petitioner, it seems to us that there is a. good reason why the petitioner's lease cannot be allowed to be terminated. That reason is that the original lease by Siddi Fakira was in respect of 15 acres and 20 gunthas while what respondent No. 4, who is a transferee of 10 acres of land out of the demised land, wants is the termination of a part of the lease. He thus wants that the lease should be severed, which cannot be permitted to be done under the law. According to Shri Abhyankar, who appears for respondent No. 4, the provisions of Section 109 of the Transfer of Property Act result in a severance of the lease where a part of the leased premises is transferred by the lessor. Section 109 of the Transfer of Property Act reads thus:
If the lessor transfers the property leased, or any part thereof, 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; but the lessor shall not, by reason only of such transfer, cease to be subject to any of the liabilities imposed upon him by the lease, unless the lessee elects to treat the transferee as the person liable to him.
Apart from the fact that that section does not in terms apply here, we would point out that it does not permit severance of a lease in the manner contended for by respondent No. 4. The only new right which comes into being upon a transfer of a portion of the demised premises is the right to the apportionment of the land. Shri Abhyaukar, however, places reliance on the first sentence of Section 109 and wants it to read thus:
If the lessor transfers the property leased or any part thereof, or any part of his interest therein, the transferee, shall possess all the rights of the lessor as to the property or part transferred so long as he is the owner of it.
He contends that one of the rights of the transferor was to terminate the tenancy of the lessee and this right passed to the transferee consequent on the transfer. But it has to be borne in mind that while the transferor had a right to terminate the entire tenancy, he never had a right to terminate only a part thereof, What would pass to the transferee, therefore, consequent on the transfer, would be only such right as the landlord unquestionably had and not something which the landlord never had. No new right to terminate a part of a tenancy came into being by virtue of a transfer. In the circumstances, therefore, we cannot accept this contention.
6. Shri Abhyankar then refers us to the decision of a Full Bench of the Madras High Court in Kannyan Baduvan v. Alikutti ILR(1919)42 Mad. 603. In that case the question which was referred to the Full Bench was:
When several items of property are comprised in a lease, is the landlord entitled to evict the tenant from one of those items only, without paying him compensation for the improvements on other items?
Dealing with this question Wallis C.J. observed (p. 609):.A lessor cannot give a tenant notice to quit a part of the holding and then sue to eject him from such part only, as pointed out quite recently by the Privy Council in Harihar Bannerji v. Ramsashi Roy (1918) 35 M.L.J. 707 . 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. There never was any question about this, but it was held in England that, while the assignee of the reversion in part was entitled to the benefit of the covenants in the lease as regards such part, the result of the severance effected by the assignment was to destroy altogether the conditions in the lease, as for re-entry for non-payment of rent...Section 109 of the Transfer of Property Act gets over the difficulty by providing that 'the transferee shall possess all the rights of the transferor in the part transferred' words which are large enough to cover both covenants and conditions. There is no question of a condition here, as the suit was to recover possession on the expiry of the term. Under the general law the assignee of the reversion in part of the demised premises is entitled to bring such a suit, and there does not appear to be any ground for suggesting that the general law in this respect is inapplicable in Malabar.
(Italics by us).
To the same effect is the view of the majority. It will thus be clear that while the principle that a lease cannot be terminated in part is accepted, the learned Chief Justice held that after the expiry of the lease the landlord can under the general law sue for possession even of a portion of the demised premises. No doubt, the learned Chief Justice has said that certain other considerations arise, where, a part of the demised premises is transferred, but even then the learned Chief Justice did not go further than saying that the right of the assignee to eject the tenant from the land covered by the assignment arose on the expiry of the lease. He did not say that the assignee or the transferee acquired this right during the currency of the lease, that is to say, he did not go so far as to say that the transferee by the mere fact of transfer was entitled to terminate the lease in so far as it related to that portion of the demised premises which was obtained by him by transfer.
7. A number of decisions bearing on this question have been referred to by one of us (Mudholkar J.) in Abdul Hamid v. Bhuwaneshwar Prasad (1952) N.L.J. 398 where it has been held that a tenancy created by several landlords jointly could not be terminated by a notice given by only one of them. In that case reliance was placed on the decision of Westropp C.J. in Balaji Bhikaji Pinge v. Gopal bin Raghu Kuli ILR(1878) 3 Bom. 23 which was followed by the Bombay High Court in Vagha v. Manilal (1934) 37 Bom. L.R. 249 and Krishna v. Laxmibai (1937) 40 Bom. L.R. 439. No doubt there are certain observations of Jardine J. in Ebrahim Pir Mahomad v. Curseji Sorabji Be Vitre ILR(1887) 11 Bom. 644 which lend some support to Shri Abhyankar's argument. But that decision does not seem to have met with the approval of the Bombay High Court in any subsequent cases. Moreover, the decision does not make any mention of the decision of Westropp C.J., though apparently that decision was cited before the learned Judge. On the whole, therefore, we are of opinion that respondent No. 4, who was merely a transferee of a part of the demised premises, could not move the revenue authorities for permission to terminate only part of the lease which had originally been granted to the petitioner by Siddi Fakira. In this view, we allow the petition. In view of the fact that we have decided in favour of the petitioner upon a ground not raised by him, we direct that each party should bear its own costs. The outstanding amount of security deposited by the petitioner shall be refunded to him.