JUDGMENT - Tulpule R.D. J.- This revision application raises an interesting question which has often cropped up and is bound to come in future as to in what circumstances a transferee from a landlord can sue and recover possession of demised property from a tenant on the basis of rights which had accrued to his transferor while he was the landlord. 2. The few facts which have to be stated are that the house in question was owned by one Madanlal Agarwal. The petitioner Was a tenant of Madanlal in respect of a portion of the house situate in Ward No. 41, House No. 1177 in Juna Sarafa locality of Amravati. Madanlal filed a proceeding before the Rent Controller against the original petitioner Babarao, hereinafter referred to as “Babarao” for permission to terminate his tenancy. That was. an application filed under clause 13(3)(i) and (ii) of the C. P. and Berar Letting of Houses and Rent Control Order, hereinafter referred to as the “Rent Control Order”. The Rent Controller negatived the contention of Madanlal that Babarao was in arrears of rent for a period of.p1ore than three months. He, therefore, fixed the time for Babarao to pay the amount within that time, which Babarao failed. Permission, therefore, came to be granted to Madanlal on 20th August 1970, which became effective on the expiry of period of 30 days, which was granted for deposit. On 20th September 1970, it appears that Babarao filed an appeal before the Resident Deputy Collector, against the order of Rent Controller, which was dismissed the 20th August 1973. During this time Babarao seems to have been going on paying rent to Madanlal. On 1st December 1977, Madanlal sold this property to Gangadevi, present respondent landlord, hereinafter referred to as “Gangadevi”. As plaint allegations go to show, even after Gangadevi became the owner of the suit house, she received rent and was paid rent by Babarao for the period 1-12-1977 to 31-1-1978. 3. Gangadevi then for the first time, it appears, thought of taking advantage of the permission granted by the Rent Controller, which had become effective on the 20th September 1970, as confirmed i (appeal on 20th August 1973 by the Resident duty Collector, and issued a! notice of termination of tenancy to Babarao. She sought to terminate the tenancy with effect from 31-1-1978 and also sought possession on 1st April 1978. 4. notice of termination of tenancy to Babarao. She sought to terminate the tenancy with effect from 31-1-1978 and also sought possession on 1st April 1978. 4. Her suit came to be decreed by the 2nd Joint Civil Judge, Junior Division, Amravati, exercising Small Cause powers, being Small Cause Suit No. 140 of 1978. It is against that decree that the present revision is filed. 5. Mr. Chandurkar appearing for petitioner raised a contention that the grant of permis3ion in this case to Madanlal under clause 13(3)(i) of the Rent Control Order was a personal right and permission granted to Madanlal only. There was no evidence to show that Madanlal assigned these rights, assuming such c right could be assigned in favour of Gangadevi, Madanlal thereafter for all year,. accepted rent from Babarao and did not think of terminating the tenancy of Babarao. Therefore, it was Mr. Chandurkar's contention that Madanlal who was capable and had the power to waive the grant of permission and had not exercised th3lt power to evict Babarao and not having assigned that right, if it was possible to assign, to the transferee. -the transferee was not in a position to take advantage of it. It was contended that the right to a permission was a personal right which could be waived by the landlord in question. If such a landlord does not exercise that right merely because the property is transferred, it will not follow that this right, which is not a right as to property, but is a right given to the landlord. Can be taken advantage of or would enure to the benefit of a transferee. 6. Mr. Chandurkar contended that a distinction has to be made between the grant of permission to landlords under the Rent Control Order under its various clauses. Just as landlord who obtains permission too terminate the tenancy of his tenant for purposes of occupation of the house for himself his transferee cannot avail of the permission, similarly where landlord obtains permission on the ground of a single default by the tenant in payment of rent, his transferee would not be entitled to, without anything more to recover possession on the basis of such permission and issue a notice and terminate the tenancy. Mr. Chandurkar contended that if a default is committed by. Mr. Chandurkar contended that if a default is committed by. a tenant and the default was capable of being waived by the landlord, unless the default is in respect of a right as to property and which, therefore, travels with the transfer of the property, such a right does not pass by reason of section 100 of Transfer of Property Act to the purchaser-transferee. If a default is capable of waived and there is no evidence that the landl1ord has assigned it or where there is no evidence that he has plot assigned it, the mere transfer of property would not clothe the transferee with the right to take advantage of the default, particularly when the right is a personal right. Mr. Chandurkar drew a distinction between cases which relate to the property or those which have some connection with the property, and those which are rights as to property as a1so to a particular attitude or behaviour of the tenant, giving a right to the landlord to terminate his tenancy such as in the case of nuisance or habitual default. In substance, therefore, Mr. Chandurkar's contention was that a distinction has to be made in the various clauses of the Rent Control Order, which enable a landlord to obtain permission from the Rent Controller to terminate the tenancy of his tenant. His submission was that Per se, permission under every clause will not pass on to the transferee landlord with the transfer of the property, but only some which have some connection either with the attitude and behaviour of the tenant, or with the condition of the property. In other cases, his submission was, that the right would not pass unless intended to pass, or the landlord taking some further overt action pursuant to the grant of permission. He submitted that where the landlord has given a notice pursuant to the permission granted terminating the tenancy of his erstwhile tenant, and then transferred the property to another, the transferee would be entitled to maintain a suit. Similar would be the position where the landlord having obtained a permission had commenced a suit against his tenant for possession after terminating his tenancy and then transferred the property. In both these cases, the intention of the landlord to take advantage of the default and not to waive it is clear and expressed. Similar would be the position where the landlord having obtained a permission had commenced a suit against his tenant for possession after terminating his tenancy and then transferred the property. In both these cases, the intention of the landlord to take advantage of the default and not to waive it is clear and expressed. Such a right when put into action would then pass along with the property. But where such a right is not put into action and is capable of being waived, the circumstance that permission has not been availed of by the transferor landlord would indicate that he did not intend to clothe the successor landlord with it. 7. Mr. Chandurkar questioned the efficacy and correctness as well as the power to transfer such a right which is personal and conferred upon him, in his capacity as a landlord. He submitted that when that capacity ceases with reference to the tenant, without' any further action on the part of the landlord in furtherance of the grant of permission, the grant itself will fall away and would be incapable of being taken advantage of by the transferee landlord. Mr. Chandurkar drew a distinction between the case of devolution of the estate and the right of the landlord by law, like inheritance or succession and in cases where the property is transferred by a deed inter-vivos. In the first case, the right which was available to the landlord becomes vested in persons upon whom the estate devolves. It is a right which the landlord's estate carries with it and clothes the person upon whom it devolves with it. All those rights pass with the estate to the successor. Such is not the case in the case of voluntary transfers. The transferor is capable of with-holding or retaining some of the rights which he had and which he could exercise with regard to the property upon his volition. By mere transfer of the property, it cannot be implied that the transferor also intended to transfer such rights which he could exercise or give up. In the case of a person who dies and, the estate devolves by inheritance there is nothing to indicate such person had not intended to exercise that right. Upon his death it passes on to his survivors and legal heirs and is not extinguished. In the case of a person who dies and, the estate devolves by inheritance there is nothing to indicate such person had not intended to exercise that right. Upon his death it passes on to his survivors and legal heirs and is not extinguished. There is no voluntary act in with-holding or waiving upon death in respect of such rights which he could exercise in connection with the property. It is a right in connection with the property and not a right as to property. He submitted that some of the decisions upon which reliance is placed as supporting the proposition that a permission granted to a landlord on transfer or property enures to the benefit of the transferee did not, if properly examined really lay down Such a broad proposition of law. In all such cases, the cases arose not purely under clause 13(3)(i) of the Rent Control Order. These rights or permission were granted to the transferor landlord on account of some other circumstance and factors which could be said to be bestowing the right as to property. Which passed on transfer under section 109 of the Transfer of Property Act to the transferee. Where that does not happen, permission granted to the transferor being granted to him and, therefore, personal and not having any connection whatsoever either with the behaviour or attitude of the tenant or the condition of the property, will not pass with the property to the transferee. 8. On behalf of the respondent it was contended that permission granted to a landlord to terminate the tenancy of his tenant is a right in respect of property. That right is capable of being transferred and passes to the transferee landlord under section 109 of the Transfer of Property Act. He could, therefore, take advantage of such permission and such right which have been conferred upon the transferor. It was contended that since the grant of permission was to the landlord, the word 'landlord' would include the successor of the landlord and whosoever, therefore, succeeds to the land-lordship vis-a-vis the tenant would be entitled to avail of the grant. He could, therefore, take advantage of such permission and such right which have been conferred upon the transferor. It was contended that since the grant of permission was to the landlord, the word 'landlord' would include the successor of the landlord and whosoever, therefore, succeeds to the land-lordship vis-a-vis the tenant would be entitled to avail of the grant. Once the tenant commits any of the defaults or any of the acts which permit Rent Controller to grant permission to the landlord to terminate the tenancy, then such a right and such a permission and the effect of such default can be taken advantage of by the transferee. 9. Mr. Deshpande appearing for respondent placed reliance upon some of the decisions delivered by this Court, by a Single Judge or by a Division Bench which according to him, support this contention. On the other hand, Mr. Chandurkar drew my attention to a judgment delivered by me in Special Civil Application No. 2809 of 1975 and 2811 of 1975 decided on 20th August 1980, wherein an aspect of this law has been considered and dealt with. Mr. Chandurkar also placed reliance upon a decision reported in Shantinath v. Rajmal1. 10. Before proceeding to consider these decisions, we may firstly refer to the provisions of clause 13 of the Rent Control Order. Analysing clause 13, it will be seen that clause 13 (1) prohibits a landlord except with the previous written permission of the Rent Controller either to determine the lease of a lessee, or where the lease has been determined, require the tenant to vacate either by process of law or otherwise, provided the tenant is willing to continue the lease on the same terms and conditions. Sub-clause (2) then provides for the machinery, for making the application and for procedure for obtaining such permission, and sub-clause (3) with the various clauses there-in, prescribes conditions under which the Controller, if satisfied of their existence, will grant permission. These conditions are set out in clauses (i) to (ix) of sub-clauses (3) of clause 13 of the Rent Control Order. The first of these clauses allows the Controller to grant permission where the tenant is in arrears for an aggregate to period of 3 months and fails to deposit within the time stipulated by the Controller. The second permits the Controller to grant permission where the tenant is 'habitually in arrears with rent'. The first of these clauses allows the Controller to grant permission where the tenant is in arrears for an aggregate to period of 3 months and fails to deposit within the time stipulated by the Controller. The second permits the Controller to grant permission where the tenant is 'habitually in arrears with rent'. The third clause permits grant of such permission on the tenant sub-letting the entire house or any portion where. the tenant uses the premises or any part thereof for purposes other than for which it is leased; or where the tenant has secured alternative accommodation or had left the area for a continuous period of four months and does not need the house when the landlord requires the house or portion thereof for bona fide occupation or where the landlord desires to make 'essential repairs or alterations' which cannot be made without the tenant vacating the house and where the tenant commits acts of waste or commits nuisance. 11. Analysing, therefore, the various sub-clauses under clause 13 (3), it will be seen that they fell into three broad divisions. The first division relates to the property and the occupation by the tenant thereof, by his omission to occupy and for induction of somebody else. The other relates to his conduct such as committing acts of waste, nuisance or habitual default in the payment of rent. The third division is where he landlord himself requires the premises for his occupation or desires to make essential repairs or alterations thereto which cannot be done without getting the tenant vacated. Barring these three divisions, there is only one more circumstance in which permission could be granted by the Rent Controller and that is where the tenant has remained in arrears of rent for an aggregate period of not more than 3 months and fails to deposit that rent within the time allowed by the Rent Controller. It will thus be seen that barring this last circumstance, the grounds on which permission could be granted have relevance either to the conduct of the tenant or that with regard to the actual occupation of the premises or non-occupation thereof by the tenant; or with regard to landlord's desire with regard to the property and its occupation, namely occupation by himself or its repairs and alterations. 12. 12. The three broad divisions which J have made of clause 13 (3) (i) to (ix), therefore, relate to the property and are viewed from the angle of the tenant or the landlord, their attitude and behaviour with regard to them and their desire in that behalf. They can be said to pertain to matters which relate to the property and their actions as to the property in “question. A mere failure to pay rent for an aggregate period of three months at any time and failure to deposit has no relevance or reference either to the situation or condition of the property or to the behaviour of the tenant. If such behaviour persists that is taken care by sub-clause (ii), the attitude being of a habitual defaulter. Circumstances, however, beyond the control of tenant may arise where the tenant is unable to pay rent for a period of three months in the aggregate and also fails to deposit it within the time given by the 'Rent Controller. In such a case, though permission is granted, the permission cannot be said to be with reference to the condition or state of the property or the condition or desire and attitude either of the landlord or tenant with reference to the property. It only deals with a certain situation which has come into existence, but which cannot be classified as falling within the three categories to, which I have made a reference. Whereas, therefore, it was urged that it is possible to say that the grant of permission in cases of the existence of the other three categories or circumstances or conditions can be said to be right as to property or can be said to be following the attitude or behaviour or desire either of the tenant or of the landlord, such is not the case where the default is in payment of rent for an aggregate period of three months. Even if, therefore, a transferee is entitled to such rights as to property, which flow under section 109 of Transfer of Property Act, upon transfer, a default in payment of rent for an aggregate period of three months and consequent permission to terminate tenancy not being a right relating to property or as to property, does not pass with the property to the transferee. 13. We may now refer to the cases relied upon. 13. We may now refer to the cases relied upon. The first decision upon which Mr. Deshpande placed reliance is in Special Civil Application No. 1385 of 1972. It will be seen that the permission in that case was granted under both clauses, namely 13(3)(i) and (ii). Sub-clause (ii) as I have indicated in the above analysis has a reference and relevance to the attitude of tenant, which is styled or described as of being a habitual defaulter relating to payment of rent. The permission in that case seems to have been granted both under clause 13 (3) (i) and (ii) and not a pure case of grant of permission under clause 13 (3) (i) only. If we see the judgment, that is what is observed: “The question is as to whether a permission granted under clause 13(3) (i) and (ii) would enure for the benefit of the subsequent purchaser has been considered by this Court in Dwarkanath v. Kamalkar2. There it bas been held that a permission granted to the previous owner can be utilised by the purchaser for terminating the tenancy.” 14. If we consider the judgment in the First Appeal No. 24 of 1967, it has to be pointed out that the permission in that case was granted on 17th April 1963. The Rent Controller in that case had granted permission not under clause 13 (3) (i), but as the Court says, under clause 13 (3) (ii), (iv) and (viii). What had happened in that case further was that the Rent Controller had directed the tenant “to pay a total amount of Rs. 2625 within one month from the date of the order failing which permission is granted to the Applicant to issue quit notice to the non-applicant (defendant)”. The -Rent Controller did not use clause 13 (3) (i). The amount was not paid within one month but was paid actually on 10th December 1963. Obviously the direction which was given was a direction which could be given under clause 13 (3) (i) of the Rent Control Order but as the judgment says, permission was not granted under clause 13 (3) (i) but under clauses 13 (3) (ii), (iv) and (viii). 15. Obviously the direction which was given was a direction which could be given under clause 13 (3) (i) of the Rent Control Order but as the judgment says, permission was not granted under clause 13 (3) (i) but under clauses 13 (3) (ii), (iv) and (viii). 15. The Court further addressed itself to the question whether plaintiff who had purchased the property on 29th January 1964, i. e. within about two years from these proceedings “can avail of the order passed by the Rent Controller granting permission to the predecessors-in-title of the plaintif”. As I pointed out, if the permission '¥as under clause {3(3)(ii), (iv) and (viii), then the three clauses, in the aforesaid analysis which I have made, relate to the attitude or behaviour of the tenant with regard to the property. The tenant was habitually in arrears of rent. He had used the premises for purposes other than for which they were leased and was also guilty of committing acts of waste, which were material and impaired the value of the property. 'These were acts, therefore, relating to property and the rights accruing on this basis were rights as to property and with reference to property. The Court observed that “Here again we may observe that no specific authority has been placed before us by the learned counsel for the appellant that the plaintiff under the circumstances as are obtained in the case cannot avail of the orders passed on an application of the original owners of the property from whom the purchaser had obtained rights to the property.” 16. What is more significant and material to note is that in the sale deed in question, there was a specific recital and the transferor had made it clear that all “the estate, rights, title, interest, claim and demand whatsoever of the vendors in or to the property hereby conveyed and every part thereof to hold the same to the purchaser” were conveyed absolutely. This recital was considered by the Court as indicating that there was “positive contract between the parties that the transferee of the property shall get and acquire all the rights as to the property transferred.” 17. This recital was considered by the Court as indicating that there was “positive contract between the parties that the transferee of the property shall get and acquire all the rights as to the property transferred.” 17. In that particular case, therefore, the decision turned principally upon the particular recitals in the sale deed by which the transferor had clothed the transferee with all his right, title, interest, claim and demand of whatever nature “in or to the property” which were conveyed by him absolutely without leaving anything to himself to the transferee. If, therefore, all the rights were assigned, as also claims and demands, then there was a clear intent to clothe the transferee with everything that transferor possessed at the date of sale. It was not as if, and it is difficult to think, in the circumstance that in First Appeal No. 24 of 1967 it was held that the fact of a mere transfer in the absence of such words in the sale deed, is enough to assign the permission which was granted to the transferor under clause I 3( 3)(i). The decision does not say that upon transfer all rights and claims against a transferor's tenant pass to the transferee with the property. The broad proposition, there-fore, that every permission granted to the transferor enures to the benefit of the transferee does not emerge from the decision in First Appeal No. 24 of 1967, which is a Division Bench judgment. In adopting, therefore, that view as laying down the proposition that a permission granted would enure to the benefit of the subsequent purchaser, as envisaged in that clause is, I am afraid, stating the law little more widely than flowing from that decision. 18. Mr. Deshpande then relied upon another decision, in Special Civil Application No. 1029 of 1974, as supporting his contention that the transferee is placed in the shoes of transferor with reference to ?he permission and can avail of that permission. The decision, however, clearly is not applicable and is distinguishable on facts. In that case, the transferee was joined as a party during the pendency of the appeal before fJ1eResident Deputy Collector. The transferee was respondent No.2 before the appellate authority, and the permission which was granted by the Rent Controller and which merged in the appellate order enured to the benefit of the transferee. That decision does not, therefore, assist Mr. Deshpande. The transferee was respondent No.2 before the appellate authority, and the permission which was granted by the Rent Controller and which merged in the appellate order enured to the benefit of the transferee. That decision does not, therefore, assist Mr. Deshpande. 19. On the other hand m the decision reported in Shantinath; v. Rajmal, a case which is similar and more or less akin to the facts before us, the tenant was inducted on the premises in March 1966 and had advanced certain sums of money to the landlady. The landlady sold the property on 20th January 1971. In the meantime it appears that the tenant started using the premises as a shop and had also made certain alterations, such as closing a door and windows unauthorisedly and made some other alterations which were of a permanent nature. The transferee wanted to take advantage of the change in user by the tenant, as well as he having effected unauthorised permanent constructions and closing or the windows and doors, which acts were committed during the time of the transferor landlady. The question which was posed by the Court for consideration was whether “a cause of action which has accrued in favour of the predecessor-in-title of a landlord for the time being can be availed of by the purchaser of the suit property.” It may be mentioned that that was a case arising under Bombay Rent Act. The Court held that the definition of the word 'landlord' did not include the successor-in-interest of the landlord. It was pointed out that under the Bombay Rent Act, it was the landlord “who would be entitled to sue for possession would be only that landlord whose tenant had committed a breach during the time when he was the tenant of that landlord.” 20. As I pointed out, the facts, though their character is different, are similar to the facts which have arisen in this case. There is no evidence in the present case to indicate that Madanlal wanted to take advantage of that permission. On the other hand, he seems to have received all the rent right from the time permission was granted to him namely September 1970 till November 1977. Indeed even after the sale in favour of Gangadevi, Babarao paid rent to Gangadevi for a period of three months. On the other hand, he seems to have received all the rent right from the time permission was granted to him namely September 1970 till November 1977. Indeed even after the sale in favour of Gangadevi, Babarao paid rent to Gangadevi for a period of three months. It was only thereafter that Gangadevi decided to take advantage of a permission which had been obtained by Madanlal, and to resurrect that permission which for all practical purposes had lapsed. The question which is pertinent is whether such a permission could be availed of by successor-landlord on the basis of a default which is capable of being waived. In Shantinath's case, a number of illustrat ions and instances were pointed out, where the landlord might not take advantage of any of the defaults or breaches committed by a tenant, and thereafter sell the property, the intention being either that the landlord had ignored it or had waived his rights. He may also not proceed upon these defaults for a considerable period of time, as in this case, which would lead to a ready inference of the default having been waived. The definition of the word 'landlord' as appearing in the Rent Control Order is not in any way '.materially different so far as our purpose is concerned, from the one which is to be found in section 5C3)of the Bombay Rent Act. It was observed in that case that it is difficult to hold that clause (b) of section 13(1) of the Rent Act should so construed as to hold that by virtue by this purchase, he should be allowed to file a suit for possession on the ground that the tenant has erected a permanent structure, thereby implying that even the right to suit which was a statutory right of the vendor but which he had not exercised was also being transferred.” 21. Borrowing the phraseology, it is difficult to find, in the absence of any words or express statements in the sale deed, and Mr. Borrowing the phraseology, it is difficult to find, in the absence of any words or express statements in the sale deed, and Mr. Deshpande agrees that there are no such statements in the sale-deed like the one to which I have made a reference in First Appeal No. 24 of 1967, that the right which had accrued to Madanlal as a landlord in the year 1970 without any intention expressed on his part of transferring that right or claim to Gangadevi, merely on the purchase of the property by Gangadevi passed on to her. It does not, therefore, appear to be a well laid down proposition of law that upon every transfer of property, all the rights and claims including those which are capable of being waived and which are not exercised, automatically pass to the transferee, whether they relate to property or as to property. Even if they are rights conferred upon the landlord, the definition does not include a successor-in-interest. If a right to give notice is granted to a landlord on account of a certain act on the part of the tenant, which is not indicative of a pattern or behaviour or attitude of the tenant, and amounts to a mere lapse on his part, a right which could be said to be a personal right conferred upon the landlord then answering the definition of the word 'landlord' gets automatically passed on to the transferee by mere passing of the property without any question as to the number of years which may have intervened. If this were to be possible, it would be permissible for the successor landlords to rake up defaults lying buried and condoned, waived and abandoned by the erstwhile landlords to eject tenants if they did not want them. A lapse on the part of a tenant, therefore, which is capable of being waived, condoned and pardoned by a landlord, thereby giving rise to a right of action in him, it could with great difficulty be said to be passing on to the transferee without any intention or express words in the document of transfer, clothing the transferee with such power. In such cases, the default must be deemed to have been waived and not intended to be passed by the transferor to the transferee. 22. In such cases, the default must be deemed to have been waived and not intended to be passed by the transferor to the transferee. 22. In Special Civil Application No. 2809 and 2811 of 1975, decided on 20-8-1980 at Bombay a similar question had arisen before me and I have taken the view that where the arrears of rent are assigned along with the transfer of the property and the circumstance that arrears of rent due from the tenant would give rise to a cause of action for possession, the transferee landlord would be deemed to have acquired that right to sue for possession on the' ground of defaults or non-payment of rent, committed by the tenant. during the time of former landlord. That decision was reached on a review of a number of cases of the Supreme Court, Gujarat High Court and a number of decisions of this Court also. It is not necessary to refer to the elaborate and detailed reasoning given by me therein. Following these reasonings and the logic there-in, I hold that in the present case, there is nothing to indisate that the transferor Madanlal has intended to transfer and pass on those rights which was not a right as to property, so that the transferee after seven years can lay a suit against the tenant for the default, on the basis of a permission granted to the former landlord which had become stale. 23. The result, therefore, is the revision application must be allowed and rule made absolute. There will, however, be no order as to costs. Rule made absolute. ----