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2011 DIGILAW 1476 (MAD)

Sasikala v. Wilson D. Doss

2011-03-15

R.SUBBIAH

body2011
JUDGMENT : R. Subbiah, J. The Defendant is the Appellant. This Second Appeal is directed against the decree and judgment dated 24.07.2009 passed by the learned Subordinate Judge, Padmanabhapuram, in A.S.No.57 of 2008, whereby the decree and judgment passed by the learned Principal District Munsif-cum-Judicial Magistrate, Eraniel in O.S.No. 190 of 2005 were set aside. 2. The Respondent herein was the Plaintiff and he filed the Suit as against the Appellant/Defendant for, recovery of suit property with past mesne profits of Rs. 7,500/ - and future mesne profits at the rate of Rs. 2,500/- per month from the date of the Suit till recovery of possession, stating that the suit property originally belonged to one Rajammal, who had three sons, by name, James Samuel, Jayachandra and Selvin Roy. Rajammal subsequently executed a Gift Deed dated 13.07.1985 and gifted the property to her three sons with buildings bearing separate door Nos.21-113, 21-114 and 21-114A and reserved life interest till her death. It is further stated that even during her life time, the entire extent including the suit property was divided as 'A' B' and C plots and each plot has an extent of 750 sq. links. 'A' plot was allotted to the share of Selvin Roy, 'B' plot was allotted to the share of Jayachandra and 'C plot was allotted to the share of James Samuel. Subsequently, one of the sons, viz., Jayachandra had purchased the share of James Samuel in and by a Sale Deed dated 14.01.2004. Further, the said Jayachandra was also demanding his another brother Selvin Roy to sell his share with building to him, but Selvin Roy was not amenable to the request of Jayachandra. In the meantime, Jayachandra removed the old structures in door Nos.21-113 and 21-114 and erected a pucca two storey concrete building in 'B' and 'C' plots. Since his another brother Selvin Roy has refused to sell his property in order to create a problem, Jayachandra obtained a new electric service connection in the month of August 2004 by fabricating a Building Tax Receipt and fixed the Electric Meter in door No.21-114-A, which belongs to Selvin Roy. 3. In the said situation, the Respondent/Plaintiff purchased 'A' plot allotted to Selvin Roy by a Sale Deed dated 08.08.2005. From the date of purchase, the Respondent has become the absolute owner of the suit property. 3. In the said situation, the Respondent/Plaintiff purchased 'A' plot allotted to Selvin Roy by a Sale Deed dated 08.08.2005. From the date of purchase, the Respondent has become the absolute owner of the suit property. After purchase, the Respondent came to know that since Selvin Roy, his vendor did not accede to the request of his brother Jayachandra, the said Jayachandra inducted the Appellant/Defendant in the suit property and she was also carrying on business dealing with tinker parts in the suit property. The Respondent requested the Appellant to vacate the premises and she has also agreed for the same. But, the Appellant filed a Suit in O.S.No. 126 of 2005 before the Principal District Munsif-cum-Judicial Magistrate Court Eraniel, for injunction restraining the Plaintiff, from disturbing her possession over the suit building. Hence, the Plaintiff had issued a suit notice on 29.09.2005 granting 30 days' time to surrender the suit property and the defendant sent a reply by making untenable allegations. Hence, the Plaintiff, filed the Suit for the reliefs stated supra. 4. The case of the Plaintiff was resisted by the Defendant stating that Rajammal, the original owner of the suit property, had tour sons, viz., John Samuel, James Samuel, Jayachandra and Selvin Roy and three daughters, viz., Lilly Samuel, Leela Samuel and Vimala Bai and the Plaintiff has wantonly omitted to implead John Samuel and three daughters as parties to the Suit. It is the further case of the Defendant that she had entered into an oral agreement of lease in respect of the suit building with original owner Rajammal on 01.03.2002 and pursuant to which she took delivery of possession of the suit building on a monthly rent of Rs. 500/- for conducting her tinker parts business. The said Rajammal died on 12.05.2011, but the Defendant came to know about the same only on 11.10.2005. After her demise, all her seven legal heirs individually approached the Defendant and claimed payment of rent for the suit building. Since she was unable to identify the real owner of the property, she had deposited the rent in her Bank account and she denied the title of the Plaintiff over the suit property. 5. After her demise, all her seven legal heirs individually approached the Defendant and claimed payment of rent for the suit building. Since she was unable to identify the real owner of the property, she had deposited the rent in her Bank account and she denied the title of the Plaintiff over the suit property. 5. On the basis of the above said pleadings, Trial Court framed eight issues and seven additional issues and the plaintiff, in support of his case, examined himself as PW-1 and marked 17 documents as Exs.A-1 to A-17. The defendant, in support of her defence, examined herself as DW-1 besides examining another witness as DW-2 and marked Exs.B-1 to B-33. The Trial Court, on a consideration of the entire evidence on record both oral and documentary, dismissed the suit and aggrieved over the same, the Plaintiff filed an Appeal in A.S.No.57 of 2008 before the sub-Court, Padmanabhapuram, wherein the Appeal was allowed and the decree and judgment of the Trial Court were set aside. Aggrieved over the same, the Defendant has filed the present Second Appeal. 6. At the time of admission, this Court has framed the following substantial questions of law for consideration: (1) Whether the Lower Appellate Court is right in holding that notice under Section 106 of Transfer of Property Act is not necessary when the case of the Appellant is that the is a Tenant under the Vendor of the Plaintiff and proved the same through Exs.B-1 to B-31? (2) Whether the Lower Appellate Court is right in decreeing the Suit when no proper notice terminating the lease was given by the Plaintiff? 7. Heard the learned Counsel appearing on either side and perused the materials available on record. 8. It is the submission of the learned Counsel for the Appellant/ Defendant that the Respondent/Plaintiff has filed the Suit treating the Appellant as a trespasser in the suit property. Actually, the Appellant has entered into the oral Lease Agreement with the original owner of the property, viz., Rajammal, on 01.03.2002 and pursuant to which, she has been enjoying the property as the Tenant. After the demise of Rajammal, there is an automatic attornment of tenancy, in favour of the subsequent owner. Actually, the Appellant has entered into the oral Lease Agreement with the original owner of the property, viz., Rajammal, on 01.03.2002 and pursuant to which, she has been enjoying the property as the Tenant. After the demise of Rajammal, there is an automatic attornment of tenancy, in favour of the subsequent owner. When such being the position, the Respondent/Plaintiff ought to have issued a valid notice under Section 106 of the Transfer of Property Act, terminating the tenancy before filing the Suit, whereas the Respondent had filed the Suit treating the Appellant as the trespasser, which is totally contrary to the truth. Under such circumstances, the Lower Appellate Court ought to have confirmed the judgment and decree of the Trial Court for want of notice under Section 106 of the Transfer of Property Act. 9. On the contrary, it is the submission of the Respondent/Plaintiff that the Appellant was inducted into the suit property by one of the sons of Rajammal, viz., Jayachandra in order to give trouble to his another brother Selvin Roy since his request to sell the property in favour of him was not heeded to by Selvin Roy. Thus, it is the contention of the Respondent that the Appellant is only the trespasser and as such, notice under Section 106 of the said Act is not necessary. Even assuming that the Appellant is the Tenant, after purchase of the property by the Respondent/Plaintiff from Selvin Roy one of the sons of Rajammal, the Appellant ought to have approached the Respondent for attornment of tenancy. But, in the instant case, the Appellant has not approached the Respondent at any point of time for attornment of tenancy. 10. The another fold of submission made by the Respondent is that Rajammal, the original owner of, the property reserved only her life interest in the property while settling the property in favour of three sons and even assuming that there was an oral Lease Agreement by Rajammal in favour of the Appellant. on her death, the said Agreement came to an end since Rajammal had only the life interest in the property. 11. In view of the submissions made on either side, the questions that arise for consideration are: (1) Whether the Suit is had for non-issuance of notice under Section 106 of the Transfer of Property Act. on her death, the said Agreement came to an end since Rajammal had only the life interest in the property. 11. In view of the submissions made on either side, the questions that arise for consideration are: (1) Whether the Suit is had for non-issuance of notice under Section 106 of the Transfer of Property Act. (2) Whether the tenancy came to an end on the death of Rajammal when she had only the life interest in the suit property? 12. With regard to the first question, it is the submission of the Respondent/Plaintiff that the Defendant is the trespasser, whereas it is the submission of the Appellant/Defendant that she was inducted as the tenant by the original owner Rajammal. In order to prove the tenancy, on the side of the Appellant, one Vimala Christopher, one of the daughters of Rajammal, was examined as DW-2, who had categorically stated in her evidence that the property was leased out by her mother in favour of the Appellant/Defendant. She had also stated in her evidence that since Rajammal was residing along with her in Chennai, the Appellant used to send rent by way of Money Order to her address every month. Moreover, the Money Order Receipts sent by the Appellant/Defendant in favour of Vimala Christopher from 02.06.2002 to 23.07.2005 were marked as Exs.B-1 to B-31. These documents would collectively show that the Appellant/Defendant was residing in the suit property only as the Tenant. When that being the position, the Respondent/Plaintiff ought to have issued notice under Section 106 of the Transfer of Property Act, following the principles laid down under the said Section, whereas, the Respondent had filed the Suit treating the Appellant only as a trespasser and absolutely, no tangible evidence was produced by the Respondent/Plaintiff to prove that the Appellant was the trespasser. 13. With regard to the another submission made by the learned Counsel for the Respondent that the Appellant has not approached the subsequent purchaser, namely, the Respondent herein, for attornment of tenancy, under law, there is no need for such requirement. Under Section 109 of the said Act, the Transferee automatically steps into the shoes of transferor and possesses all rights which the transferor had. Under Section 109 of the said Act, the Transferee automatically steps into the shoes of transferor and possesses all rights which the transferor had. Therefore, when there is automatic attornment of tenancy in favour of the subsequent purchaser of the property, there is no need for the tenant to approach the subsequent purchaser for the said effect. In this regard, it would be useful to refer the judgments relied on by the learned Counsel for the Appellant. 14. This Court, in the case of Munavar Basha & Anr. v. Narayanan & Anr. AIR 1961 Madras 200 has observed as follows: "13. Whatever shows that assent of the Tenant to the alienation of the reversion and his recognition of the alienee as Landlord is a valid attornment. A promise to pay rent to the alienee and a Tenant's continued occupancy under the tenancy with notice of alienation amounts to a recognition of the purchaser as his Landlord. There is no difficulty in this case to hold that there has been a valid attornment by the Tenant to the purchasers. But having regard to the legal concept of attornment as elucidated by the references cited above, it does not create by itself a new tenancy between the parties to the attornment but continues the existing lease with the substitution of a new Landlord in the place of the old Landlord." 15. In Kalawati Tripalhi v. Damayanti Devi AIR 1993 Pat-1, it has been held by the Patna High Court, as follows: Attornment is creature of contract. Attornment is not a mere agreement in favour of a third party to pay rents but has been defined as an act of the Tenant putting one person in the place of another as his Landlord. It is clear from Section 109 that after the transfer of lessor's right in favour of the transferee he gets all the rights and liabilities of the lessor in respect of the subsisting tenancy. This Section does not insist that the transfer will take effect only when the Tenant attorns. The provisions of this Section give a validity to the transfer made by the lessor with regard to his right in favour of the transferee regarding the subsisting tenancy. An attornment by lessee to the assignee of lessor is not necessary for creating a subsisting tenancy. The provisions of this Section give a validity to the transfer made by the lessor with regard to his right in favour of the transferee regarding the subsisting tenancy. An attornment by lessee to the assignee of lessor is not necessary for creating a subsisting tenancy. The transferee of the lessee steps into the shoes and possess all the rights which the transferor has. The attornment by Tenant is not essential to give validity to the transfer made in favour of the transferee. The submission made on behalf of the Tenant that the Suit for eviction was not maintainable, as there was no attornment by the Tenant, therefore, is without any substance." 16. In Natarajan v. Manimegalai & Anr. 2008(1) CTC 385 this Court has observed as follows: "7. To answer this point, the learned Counsel for the 1st Respondent herein relying on Section 109 of the Transfer of Property Act,1882 would contend that attornment of tenancy is not a pre-condition for the landlady to initiate proceedings against the Tenant. Section 109 of the Transfer of Property Act, 1882 runs as follows: "If the lesssor 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 of 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 lessee, 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". 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". In support of the said proposition of law, the learned Counsel for the 1st Respondent would rely on a ratio decidendi in Kalawati Tripathi v. Damayanti Devi. The relevant observation in the said dictum relevant for the purpose of deciding this Revision runs as follows: "Attomment is creature of contract. Attornment is not a mere agreement in favour of a mere agreement in favour of a third party to pay rents but has been defined as an act of the Tenant putting one person in the place of another as his Landlord. It is clear from Section 109 that after the transfer of lessor's right in favour of the transferee he gets all the rights and liabilities of the lessor in respect of the subsisting tenancy. This Section does not insist that the transfer will take effect only when the Tenant attorns. The provisions of this Section give a validity to the transfer made by the lessor with regard to his right in favour of the transferee regarding the subsisting tenancy. An attornment by lessee to the assignee of lessor is not necessary for creating a subsisting tenancy. The transferee of the lessee steps into the shoes and possess all the rights which the transferor has. The attornment by Tenant is not essential to give validity to the transfer made in favour of the transferee. The submission made on behalf of the Tenant that the Suit for eviction was not maintainable, as there was no attornment by the tenant, therefore is without any substance." The same principle of law has been reiterated in the ratio in Mohar Singh (dead by LRs.) v. Devi Charan & Ors. AIR 1988 SC 1365 wherein the Honourable Apex Court have held as follows: "A Landlord cannot split the unity and integrity of the tenancy and recover possession of apart of the demised premises from the Tenant. AIR 1988 SC 1365 wherein the Honourable Apex Court have held as follows: "A Landlord cannot split the unity and integrity of the tenancy and recover possession of apart of the demised premises from the Tenant. But Section 109, T.P. 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, 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. AIR 1920 Madras 838 (FF) Approved AIR 1951 SC 1865. Distinguished:" The same principles has been followed in Yelamati Veera Venkata Jaganadha Gupta & Anr. v. Vejju Venkateswara Rao & Ors., AIR 2002 Andhra Pradesh 369, wherein it has been observed that title to property transferred from Landlord in the absence of agreement of tenancy between tenant and transferee is not material." 17. On going through the principles laid down in the above said judgments, it is clear that the attornment by lessee to the assignee of lessor is not necessary for creating a subsisting tenancy and the attornment by Tenant is not essential to give validity to the transfer made in favour of the transferee. Therefore, I am of the opinion that the submission made by the learned Counsel Respondent/Plaintiff that the Appellant has not approached him for attornment of tenancy, has no force in the eye of law. Looking at from any angle, I am of the considered view that the Suit is bad for non-issuance of notice, as required under Section 106 of the Transfer of Property Act. 18. Looking at from any angle, I am of the considered view that the Suit is bad for non-issuance of notice, as required under Section 106 of the Transfer of Property Act. 18. Coming to the next question, it is the submission made by the learned Counsel for the Respondent that the original owner Rajammal had only life interest and therefore, even assuming that there was an oral Lease Agreement between the original owner and the Appellant, the said Agreement came to an end on her death; but I am not inclined to accept the said submission because it is a well settled position that the life interest- holder is precluded only from alienating the property and it does not mean that the tenancy created by the life interest-holder comes to an end on his/her death. 19. Though the learned Counsel for the Respondent/Plaintiff relied on the decision reported in J.V. Bhoopalan v. Lakshmi Vilas Bank Limited, Coimbatore 2006(1) MLJ 551, in support of his contention that as soon as the property is purchased, fresh tenancy is not created and the person in possession has to be considered as a wrongful occupant, in my considered view, the said decision cannot he made applicable to the facts of the case because in this case, it has been proved by the Appellant that she is in possession of the property pursuant to the valid oral Lease Agreement. Therefore, when the possession of the Appellant is in accordance with law, the question of considering her as a wrongful occupant does not arise. 20. Therefore, in my considered opinion, as rightly held by the Trial Court, the Suit is bad for non-issuance of notice under Section 106 of the Transfer of Property Act and hence, the finding of the Lower Appellate Court that the Appellant has not approached the Respondent/Plaintiff for attornment of tenancy and as such, she has to be construed as a trespasser, is perverse. Therefore, the finding of the Lower Appellate Court is liable to be set aside and accordingly, the substantial questions of law are answered in favour of the Appellant/Defendant. In fine, the Second Appeal is allowed and the decree and judgment of the Lower Appellate Court are set aside and the decree and judgment of the Trial Court are confirmed. No costs.