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Hajee K. Assainar and Co. Vs. Chacko Joseph - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKerala High Court
Decided On
Case NumberC.R.P. No. 2270 of 1983-A
Judge
Reported inAIR1984Ker113
ActsTransfer of Property Act, 1882 - Sections 109
AppellantHajee K. Assainar and Co.
RespondentChacko Joseph
Appellant Advocate Mathai M. Parikaday, Adv.
Respondent Advocate Varghese Kalliath, Adv.
DispositionPetition dismissed
Cases ReferredRam Lall Misser v. Chunderbullee
Excerpt:
- - this seems to be the correct position, if we delve into the legislative history as well......respondent and the petitioner has not attorned to him and thus it is contended that there is no landlord-tenant relationship between the petitioner and the respondent. elaborating this contention, the learned counsel for the petitioners stated that under section 9 of the act every tenant who makes a payment on account of rent is entitled to obtain a receipt in the prescribed form and rule 4 prescribes the form of the receipt to be issued by the landlord. he, therefore, states that unless a receipt in the prescribed form is issued by the transferee for the rents receivd by him, there cannot be any tenancy between the transferee and the erstwhile tenant. the contention that is thus advanced is that there is no attornment by the tenant to the transferee, there is no landlord tenant.....
Judgment:
ORDER

V. Bhaskaran Nambiar, J.

1. The tenant laced with an order of eviction under the Kerala Buildings (Lease & Rent Control) Act, 2 of 1964, has filed this revision under Section 115 C.P.C.

2. The brief facts are these. The ground floor of a building which is the subject-matter of the eviction proceedings belonged to the petitioner's father Joseph Chacko. Admittedly it was he who inducted petitioner as a tenant. The landlord, the father, transferred his rights in favour of the son, the respondent herein, under a registered deed Ext. A-1 dated 21-6-1979. The son demanded surrender by a registered notice dated 2-7-1980 (Ext. B-8) alleging bona fide need and thereafter riled this application for eviction. The authorities under the Act have found on the evidence that the respondent is entitled to eviction on the ground of bona fide need. These orders are challenged before me in this revision petition.

3. The learned counsel for the petitioner however raised two contentions. (1) There is no subsisting tenancy between the petitioner and the respondent as the petitioner has not attorned to the respondent after the transfer in his favour. (2) That the transfer made in favour of respondent by the father was only a sham document.

4. It is stated that even after the transfer of t he landlord's rights in favour of the respondent in 1979, rent was paid only to his father for which receipts were issued Exts. B-1 and B-2, in June and July, 1980. The rent was not paid to the respondent and the petitioner has not attorned to him and thus it is contended that there is no landlord-tenant relationship between the petitioner and the respondent. Elaborating this contention, the learned counsel for the petitioners stated that under Section 9 of the Act every tenant who makes a payment on account of rent is entitled to obtain a receipt in the prescribed form and Rule 4 prescribes the form of the receipt to be issued by the landlord. He, therefore, states that unless a receipt in the prescribed form is issued by the transferee for the rents receivd by him, there cannot be any tenancy between the transferee and the erstwhile tenant. The contention that is thus advanced is that there is no attornment by the tenant to the transferee, there is no landlord tenant relationship between the two and no proceeding for eviction under the Rent Control Act would He', though a remedy to dispossess on the strength of title under the general law is available. An acceptance of this' contention will lead tothe anomalous result that the beneficial objects of this legislation can be deprived of by a simple transfer of the landlord's right with no fresh attornment between the original tenant and the new transferee. This argument is not sound in law either.

5. Section 109 of the Transfer of Property Act ensures the rights available to a lessor's transferee and reads thus :--

'109. Rights of lessor's transferee.-- 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 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 :

Provided that the transferee is not entitled to arrears of rent due before the transfer, and that, if the lessee not having reason to believe that such transfer has been made, pays rent to the lessor, the lessee shall not be liable to pay such rent over again to the transferee.

The lessor, the transferee and the lessee may determine what proportion of the premium or rent reserved by the lease is payable in respect of the part so transferred, and, in case they disagree, such determination may be made by any Court having jurisdiction to entertain a suit for the possession of the property leased.'

Thus a transferee of the landlord's rights, steps into the shoes of the landlord with all the rights and liabilities of the transferor landlord in respect of the subsisting tenancy. The section also protects payment of rent by the tenant to the transferor without notice of the transfer. The section does not insist that the transfer of the landlord's rights can take effect only if the tenant attorns. Attornment by the tenant is unnecessary to confer validity to the transfer of the landlord's rights. This seems to be the correct position, if we delve into the legislative history as well.

6. Formerly under the Common Law of England, attornment by the lessee to the assignee was necessary to complete the assignment of the landlord's interest,unless the assignment was by will. This seems to have been recognised in an old decision in 1870 in Ram Lall Misser v. Chunderbullee (1870) 13 WR 228). Sections 9 and 10 of the Statute 4, 5 Anne c. 3, (now re-enacted in Section 151 (1) of the Law of Property Act, 1925) dispensed with such attornment. Our Act also does not insist on a fresh attornment (see Mulla of the Transfer of Property Act -- Sixth Edition).

7. If the transfer of the landlord's right is valid, and even if the tenant 'has 'hot attorned in favour of the transferee, the lease continues, the lessee will be entitled to the statutory protection under the Rent Control Act. He cannot be evicted except in accordance with the provisions of that Act. This is abundantly made clear when the Act defined 'landlord' thus :--

' 'landlord' includes the person who is receiving or is entitled to receive the rent of a building, whether on his own account or on behalf of another or on behalf of himself and others or as an agent, trustee, executor, administrator, receiver or guardian or who would so receive the rent or be entitled to receive the rent, if the building were let to a tenant'.

The transferee of a landlord is thus entitled to collect rent as of right and he is a landlord under the inclusive definition.

8. In this case the respondent's counsel says that the rent paid as per Exts. B-1 and B-2 to the father will be given credit to by the respondent. Attornment being unnecessary in the circumstances, the tenant petitioner cannot dispute the right of the respondent to maintain this application for eviction or to claim rent. The first contention therefore fails and has only to be rejected.

9. Regarding the second contention, it is a question of fact. It is stated that it was only after one year of the transfer that the respondent issued notice to the tenant and that till then the rent was paid to the respondent's father. He says the father could not have got eviction on the ground of bona fide need and a paper transfer alone was intended merely to recover possession. There is no evidence to support the contention that the transfer was sham and nominal. The transfer has been acted upon. The transferee has sent Ext. B-8 notice demanding possession and filed the application for eviction. The authorities under the Act haverejected this contention on the merits. It is a question of fact which cannot be interfered with in revision.

10. The learned counsel for the petitioner did not challenge the finding regarding bona fide need in favour of the landlord. No other points raised and the C.R.P. has only to be dismissed. C.R.P. is dismissed with costs.


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