MUHAMMADALI v. UMMAYA UMMA — 1983 DIGILAW 100 (KER)

Judgment :- 1. The 2nd defendant is the appellant. The suit is for recovery of possession of the plaint schedule property two cents in extent and a building thereon with arrears of rent. The property belongs to the 1st plaintiff, wife of the 2nd plaintiff. The 2nd plaintiff on behalf of his wife had let the building to the 1st defendant on 15-11-1969 for the purpose of running a mill on rent fixed at Rs. 25/- per month. The tenancy was terminated as per Ext. Al notice to quit dated 16-8-1977. The rent is in arrears from 1-7-74 onwards. The 2nd defendant is impleaded as a person found to be in occupation of the building. The occupation of the 2nd defendant is without the consent of the plaintiffs. The tenancy of the 1st defendant is one from month to month and recovery of possession is sought on termination of the tenancy by Ext. Al notice to quit. 2. The defendants admit the plaintiffs' title and also the lease of the premises to the 1st defendant on 15- 11-1969 on rent at the rate of Rs. 25/- per month. The tenancy rights of the 1st defendant were transferred to the 2nd defendant as per Ext. BI sale deed dated 6-7-1974 executed by the 1st defendant in favour of the 2nd defendant. According to the defendants the transfer of tenancy was with the consent of the plaintiffs. The 2nd defendant further pleads that he had paid rent to the 1st defendant. He claims value of improvements for substantial repairs effected to the building in case he is found liable to surrender the premises. It is further contended that the notice to quit is not proper and the suit is defective for want of a notice to quit to the 2nd defendant. 3. The trial court found that the 2nd defendant, by virtue of the transfer Ext. BI in his favour, should be reckoned only as a sub-tenant who would be bound by a decree for eviction of the 1st defendant, the notice to quit was proper and on termination of the tenancy the defendants are liable to be evicted from the premises. The 2nd defendant was found not entitled to any value of improvements. On these findings the suit was decreed for recovery of possession of the premises with arrears of rent for a period of three years prior to the suit. The 2nd defendant was found not entitled to any value of improvements. On these findings the suit was decreed for recovery of possession of the premises with arrears of rent for a period of three years prior to the suit. In appeal the lower appellate court has confirmed the decree for recovery of possession of the property. The lower appellate court has however modified the decree of the trial court and directed payment of the expenses for repair of the building to the 2nd defendant fixed at Rs.2464.25. The lower appellate court has also decreed future profits at the rate of Rs. 25/-per month under Order XX R.12 of the Code of Civil Procedure. Both the courts below have concurrently found that the 2nd defendant has failed to prove attornment to the plaintiffs after his purchase of the tenancy from the 1st defendant as per the sale deed Ext. Bl. 4. The second appeal is admitted on questions (A) to (C) and (F) -formulated in the memorandum of second appeal. Questions (A) to (C) relate to the maintainability of the suit against the 2nd defendant without the termination of his tenancy by a proper notice to quit under S.106 of the Transfer of Property Act issued to him and question (F) relates to the validity of the decree of the lower appellate court directing payment of future profits at the rate of rent fixed under the agreement of tenancy. 5. The first question for consideration therefore is as to whether the 2nd defendant is entitled to a notice to quit. There is no attornment by the 2nd defendant to the plaintiffs is concurrently found. He is therefore an assignee of the tenancy rights of the 1st defeadant, and on termination of the tenancy the 1st defendant is bound to put the landlord in possession of the property leased. 6. Learned counsel for the appellant relies on the decision of the Calcutta High Court in Krishna Das Nandy v. Bidhan Chandra Roy reported in AIR. 1959 Calcutta 181 whereat page 184 Para.21 it is stated as follows: "There can be no question that, under the general law, to wit, the Transfer of Property Act, tenancy of the Great Indian Motor Works Ltd. was a transferable tenancy. 1959 Calcutta 181 whereat page 184 Para.21 it is stated as follows: "There can be no question that, under the general law, to wit, the Transfer of Property Act, tenancy of the Great Indian Motor Works Ltd. was a transferable tenancy. There was no contract to the contrary and plainly, therefore, it was transferable in law (vide S.1080)) and the transferee, viz., the defendant, became, on such transfer, a tenant under the general law. For acquiring that status, the defendant had not to depend on the recognition of the landlord and the plaintiff could not treat him (the defendant) except as a tenant. The defendant, therefore, was entitled to a proper notice to quit and the suit against him for his eviction would be a suit for eviction of a tenant." This view of the Calcutta High Court does not appear to be correct, as it overlooks the fact that there is no privity of contract between the landlord and the assignee of the leasehold unless the landlord collects rent from the transferee or otherwise recognises the transfer. Under clause (m) of S.108 of the Transfer of Property Act the lessee on the termination of the lease is bound to restore the property to the lessor in the same condition as it was at the time when he was put in possession of the same. The lessee cannot in law exonerate himself from his obligation to put the lessor in possession of the property by effecting a transfer of the leasehold. In the decision of the Madras High Court in Krishna Bhatta v. Narayana Achary and another reported in AIR. 1949 Madras 618 it is stated at page 619: "Mr. Adiga on behalf of the respondents contended that once there is a transfer of the leasehold interest by the lessee, the liability of the transferee and the right of the lessor in respect of the rent of the leased property rests on a privity of estate. The liability of the original lessee will continue as it rests on a privity of contract though such liability would cease to exist when the lessor collects the rent from the transferee. That will be so. The liability of the original lessee will continue as it rests on a privity of contract though such liability would cease to exist when the lessor collects the rent from the transferee. That will be so. The generally accepted view in England and India appears to be that if after a transfer the lessor recognises the transfer and collects rent from the transferee, not only is the lessee's liability to the lessor under the original contract at an end but there is a further privity of contract established between the lessor and the transferee." Rajamannar C. J. in the aforesaid decision has relied on the decision of Baron Pollock in Mayor of Swansea v. Thomas, (1883) 10 Q. B. D. 48 and also of the Privy Council in Theethalan v. Eralpad Rajah, Calicut, reported in ILR. 40 Mad. 1111. The decision of Rajamannar C. J. and the two decisions referred to therein were followed by a Division Bench of this Court in Appattu Karunakaran Nair v. Thekkekanathil Sekharan Nair, reported in ILR. 1982 (2) Kerala 683. This Court at page 689 at Para.8 stated thus: "No doubt, on the lessee transferring his rights to another, he does not 'by reason only of such transfer, cease to be subject to any of the liabilities attaching to the lease'. (S. 1080) of the T. P. Act, 1882). The liability of the original lessee conies to an end only when the lessor releases him. Till such release by the lessor of the original lessee, as between the lessor and the transferee from the lessee there exists only privity of estate. However, 'the lessee ceases to be liable and the privity of contract is extinguished when the lessor accepts rent from the assignee or otherwise recognizes him as his tenant in circumstances implying that the lessor has released the lessee' Mulla's T. P. Act, 5th Edn. pp. 700-01. This is the settled law both in England and in this country." In the decision of the Privy Council in Ram Kinkar v. Satya Charan reported in AIR. pp. 700-01. This is the settled law both in England and in this country." In the decision of the Privy Council in Ram Kinkar v. Satya Charan reported in AIR. 1939 Privy Council 14, Lord Porter stated at page 16: "By English law and by Indian law an assignee of a lease is liable by privity of estate for all the burdens of the lease, burdens which are imposed upon him by the mere assignment whether he enters into possession or not: see 17 Mad 296 and 30 Mad 410. The ground upon which he is held liable is that the whole of the assignor's interest has passed to him by the deed of assignment and that the assignor having no longer any interest cannot be liable by privity of estate though he still remains liable by contract if he was party to the original lease." In the decision of the Supreme Court in W. H. King v. Republic of India reported in AIR. 1952 S. C. 156, it is stated at page 158: "In the case of an assignment, the assignor continues to be liable to the landlord for the performance of his obligations under the tenancy and this liability is contractual, while the assignee becomes liable by reason of privity of estate. The consent of the landlord to an assignment is not necessary, in the absence of a contract or local usage to the contrary." A Division Bench of the Bombay High Court in the decision in Treasurer of Charitable Endowments v. S.F.B. Tyabh reported in AIR. 1948 Bombay 349 stated thus at page 351: "(6) One of the statutory obligations of a lessee is to be found in S.108(q), and that is that on the determination of the lease the lessee is bound to put the lessor into possession of the property. 1948 Bombay 349 stated thus at page 351: "(6) One of the statutory obligations of a lessee is to be found in S.108(q), and that is that on the determination of the lease the lessee is bound to put the lessor into possession of the property. It is undoubtedly a liability attaching to the lease, and under Clause.0) of S.108 it is clearly provided that by reason only of a transfer of interest by the lessee to his transferee this obligation on the part of the lessee does not come to an end." In the same page it is further stated: "It is important to note that a monthly tenancy is determined by a notice given by a lessor to the lessee, and therefore by reason of the assignment this contractual term in the tenancy agreement was not and could not be affected. The right remained in the lessor to put an end to his tenancy by giving a proper and valid notice. I do not see why there was any obligation on the lessor to give a notice to the assignee. He was not his tenant, there was no contractual obligation between him and the assignee, the privity of estate did not necessitate the giving of a notice to him. His right to give a notice arose under the contract to his own tenant, and, notwithstanding the assignment, the lessee continued to be his lessee and, in my opinion, it was perfectly competent to the lessor to terminate the monthly tenancy by giving a proper and valid notice to the lessee." This principle is reiterated at page 352 Para.8 as follows: "(8) It is also to be borne in mind, as I have already pointed out that the obligation to hand over possession of the property on the determination of the tenancy was not upon the assignee but upon the lessee. If that was so, the proper person to whom the notice should have been addressed was the person on whom was the ultimate obligation to hand over possession of the property. I see no difference in principle between a lease for a fixed period which would expire by efflux of time and a monthly tenancy. In the case of the former what is transferred to the assignee is the interest for the term. I see no difference in principle between a lease for a fixed period which would expire by efflux of time and a monthly tenancy. In the case of the former what is transferred to the assignee is the interest for the term. On the expiry of the period the lease comes to an end and the interest of the assignee also comes to an end. In the case of a monthly tenancy there is no term fixed. But it is liable to be determined by a month's notice given by the lessor to the lessee, and that is the interest which the assignee takes, and, as soon as that notice is given and the notice expires, the tenancy comes to an end, and with that the interest of the assignee also ceases." 7. The Calcutta High Court in the decision in Krishna Das Nandy v. Bidhan Chandra Roy, AIR. 1959 Calcutta 181 does not refer to any of the earlier decisions, nor is the dictum laid down supported by authority. In the light of the other decisions referred to above I am clearly of the view that the decision of the Calcutta High Court strongly relied on by the learned counsel for the appellant cannot be accepted as laying down the correct law in regard to the right of a transferee from a lessee to a notice to quit. I therefore hold that the 2nd defendant is not entitled to a notice to quit before the institution of a suit for his eviction from the suit property. 8. The 2nd defendant-appellant has an alternative case that Ext. Al notice issued to the 1st defendant is defective. The trial court has found that the notice to the 1st defendant is in conformity with the requirements of S.106 of the T. P. Act. The 1st defendant himself has not chosen to appeal against the decision of the trial court and it is not open to the 2nd defendant sub-tenant who is not entitled to a notice to quit to challenge the validity to the notice issued to the 1st defendant tenant. 9. Learned counsel for the appellant challenges the decree of the lower appellate court awarding future profits to the plaintiffs invoking the provisions of R.12 of Order XX CPC. The court has jurisdiction to grant a decree for future profits in cases to which R.12 of Order XX applies. 9. Learned counsel for the appellant challenges the decree of the lower appellate court awarding future profits to the plaintiffs invoking the provisions of R.12 of Order XX CPC. The court has jurisdiction to grant a decree for future profits in cases to which R.12 of Order XX applies. The present suit is one for eviction of a tenant on termination of the tenancy. The court in its discretion is empowered to grant a decree for future profits even if there is no specific prayer in the plaint for such relief. The Supreme Court in the decision in Gopalakrishna Pillai v. Meenakshi Ayal reported in AIR. 1967 SC. 155 stated thus at page 157: "(7) 0.20, R.12 enables the Court to pass a decree for both past and future mesne profits but there are important distinctions in the procedure for the enforcement of the two claims. With regard to past mesne profits, a plaintiff has an existing cause of action on the date of institution of the suit. In view of 0.7 Rr. ] and 2 0..7, R.7 of the Code of Civil Procedure and S.7(1) of the Court Fees Act, the plaintiff must plead this cause of action, specifically claim a decree for the past mesne profits, value the claim approximately and pay court-fees thereon. With regard to future mesne profits the plaintiff has no cause of action on the date of institution of the suit, and it is not possible for him to plead this cause of action or to value it or to pay court-fees thereon at the time of the institution of the suit. Moreover, he can obtain relief in respect of this future cause of action only in a suit to which the provisions of 0.20 R.12 apply. But in a suit to which the provisions of 0.20 R.12 apply, the Court has a discretionary power to pass a decree directing an enquiry into the future mesne profits, and the Court may grant this general relief, though it is not specifically asked for in the plaint, see Rasavayya v. Guruvayya, ILR. (1952) Mad. 173 at p. 177: (AIR. 1951 Mad. 938 at p. 940) (F. B.)." 10. The plaintiffs have filed a memorandum of cross-objections against the decree of the lower appellate court for payment of the repair charges to the 2nd defendant. (1952) Mad. 173 at p. 177: (AIR. 1951 Mad. 938 at p. 940) (F. B.)." 10. The plaintiffs have filed a memorandum of cross-objections against the decree of the lower appellate court for payment of the repair charges to the 2nd defendant. The lower appellate court has found that the 2nd defendant had effected substantial repairs to the building and those repairs were essential for the upkeep and maintenance of the same. The 2nd plaintiff examined as pw.1 had admitted that there was a crack on the wall and a portion of the wall had fallen down. The court below has found that the repairs were effected by the 2nd defendant and has accepted the commissioner's estimate in his report Ext. C3, as the cost of repairs incurred by the 2nd defendant. Under clause (f) of S.108 of the T. P. Act it is the duty of the lessor to carry out the repairs of the building. On the facts found by the lower appellate court that the repairs were essential and were carried out by the 2nd defendant, I do not see any merit in the memorandum of cross-objections. The result is, the Second Appeal and the memorandum of cross-objections fail and are dismissed, in the circumstances without any order as to costs. Dismissed.