Shankaramma and Others Vs Mohammed Abdul Hameed and Another

@JUDGMENTTAG-ORDER

G. Yethirajulu, J.@mdashThis is a reference made by a learned single Judge of this Court, through the order dated 21-12-2001. The following are the questions to be answered by this Bench:

1. Whether the concept of attornment of tenancy governed by the general provisions of Transfer of Property Act and lessor and lessee relationship be applied to the rent control proceedings under the A.P. Buildings (Lease, Rent & Eviction) Control Act, 1960?

2. Whether the denial of title can be said to be mala fide in the light of Ex.R-2 and the evidence of R.W.1 to R.W.4 in the present case?

2. The matter covered by the above revision petition relates to a dispute under Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 (for short ''the Rent Control Act''),

3. We wish to answer the first question, but we are not inclined to answer the second question, which is touching upon the facts of the case.

4. It has to be examined whether the concept of attornment of tenancy governed by the general principle of lessor and lessee relationship under the provisions of the Transfer of Property Act, can be extended to the proceedings under the provisions of the Rent Control Act.

5. ''Attornment'' as defined in Legal Glossary (1998 Edition) issued by the Ministry of Law & Justice, reads as follows.

To attorn" merely means to acknowledge the relation of a tenant to a new landlord. Therefore, "attornment by the tenant would mean acceptance of the new owner as landlord and estopping the tenant to dispute the landlord''s title thereafter. Of course, attornment had to be in good faith and not on account of any deception caused on the tenant. Payment or non-payment to a new landlord does not affect the relationship created by attornment. "Attornment" also implies continuity of tenancy, though landlord might change when title of the property passes by sale or otherwise.

6. Section 109 of the Transfer of Property Act, 1882 ensures the rights available to a lessor''s transferee. It reads as follows:

Right 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 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;

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.

7. 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 recognized 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 on the Transfer of Property Act - Sixth Edition).

8. In the light of Section 109 of the Transfer of Property Act, we wish to verify the decisions rendered by various courts on this aspect.

9. In Daulat Ram v. Haveli Sah AIR 1939 Lah 49, the Lahore High Court held that afresh attornment by the lessee to the landlord''s assignee is not necessary under the Transfer of Property Act.

10. In Pulin Behari Shaw v. Lila Dey ILR (1958) 2 Cal 427, a Division Bench of the Calcutta High Court held that under the Indian Law a letter of attornment is not necessary to complete the title of the assignee of the reversion.

11. In Uppalapati Veera Venkata Satyanarayanaraju and Another Vs. Josyula Hanumayamma and Another, the Supreme Court held that once the tenant has agreed to accept the person claiming title from the previous landlord that amounts to effective attornment in favour of the landlord and is no more dependent on the future conduct of the tenant by way of payment of rent or otherwise.

12. In Pallapothu Narshimha Rao and Another Vs. Kidanbi Radhakrishnamacharyalu, , a Full Bench of Andhra Pradesh High Court while considering the rights of the transferee from the original landlord held as follows:

Section 2(6) defines ''landlord'' meaning the owner of a building and includes a person who is receiving and who is entitled to receive rent of a building, it is clear therefore that the definition of ''landlord'' would include not only the original owner but every person who becomes the owner of the building by reason of transfer or otherwise. The transferee would therefore be also a landlord within the meaning of Section 2(6) and would be entitled to continue the proceedings initiated by the original owner.

13. In Ram Swarup v. Darshan Singh AIR 1984 All 178, the plaintiff is a purchaser of land of which the defendant is a tenant before the purchase. The defendant, however, did not either attorn or acknowledge the plaintiff as the landlord. The Allahabad High Court held that in the plaintiff''s suit for possession, the defendant cannot plead that the suit is bad for want of a notice u/s 106 terminating the tenancy.

14. In Hajee K. Assainar and Co. Vs. Chacko Joseph, , a learned single Judge of Kerala High Court while answering the following questions held as follows:

1. There is no subsisting tenancy between the tenant and the transferee, as the tenant has not attorned to the transferee after the transfer in his favour.

2. The transfer made in favour of the transferee by his father is only a sham document.

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. The attornment being unnecessary the tenant cannot dispute the right of transferee landlord to maintain application for eviction or to claim rent.

15. The question of attornment was again considered by a learned single Judge of Patna High Court in Dinesh Kumar Purbey v. Mahesh Kumar Poddar 1991 (1) PLJR 650 (Pat), wherein it was held that in a case of eviction of the tenant on the ground of personal necessity, an attornment by lessee is not necessary for creating a relationship of landlord and tenant between the transferee of the landlord and the tenant and further observed as follows:

In my considered opinion, attornment is not a necessary condition to create landlord tenant relationship between the parties. It has no bearing whatsoever in cases of eviction on the ground of personal necessity. The transfer takes place with all incidents of right, title and interest of the lessor and the transferee is entitled to sue the existing tenant on the ground of personal necessity even if the tenant has not attorned to his tenancy under him.

16. In Santi Lal Saha v. Sudhir Kumar Roy 1992 C.W.N. 215a Division Bench of Calcutta High Court while dealing with Section 109 of the Transfer of Property Act held as follows:

Under Section 109 of the Transfer of Property Act the transferee, in the absence of a contract to the contrary, shall possess all the rights of the lessor on transfer by the lessor. Under the said provision, fresh attornment by the lessee to the lessor''s assignee may not be required, but in practice attornment is generally insisted upon as it is useful as an acknowledgement of the tenancy. In view of the said section, the assignee of the lessor has as against the lessee all the rights the lessor had including the right to receive the rent in terms of the lease and the lessee cannot say that he is not bound to pay the same to the assignee merely because there is no privity of contract. Section 109 of the Transfer of Property Act further entitled a lessor to evict the lessee on termination of the lease, even if there is no attornment.

17. In Smt. Kalawati Tripathi and Others Vs. Smt. Damayanti Devi and Another a Division Bench of Patna High Court in a case under Bihar Buildings (Lease, Rent and Eviction) Control Act (4 of 1982) also considered Section 109 of the Transfer of Property Act and held as follows:

Attainment is a creature of contract. It 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 of T.P. Act 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 submissions 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.

18. In Mohd. Ilyas and Another Vs. Mohd. Adil and Others, a Division Bench of Delhi High Court dealt with Section 109 of the Transfer of Property Act and explained the word ''attornment''. The attornment by the tenant would mean acceptance of the new owner as landlord and estopping the tenant to dispute the landlord''s title thereafter. Payment or non-payment to a new landlord does not affect the relationship created by attornment. ''Attornment'' also implies continuity of tenancy, though landlord might change when title of the property passes by sale or otherwise.

19. In Mohar Singh v. Devi Charan (1988) 3 CC 63, the Supreme Court held as follows:

It is a trite proposition that a landlord cannot split the unity and integrity of the tenancy and recover possession of a part of the demised premises from the tenant. But Section 109 of the Transfer of Property 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 of the 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. This proposition is too well settled to require any further elucidation or reiteration.

20. In Tej Bhan Madan Vs. II Additional District Judge and Others, , a three Judge Bench of the Supreme Court held that when the tenant attorned the tenancy in favour of the purchaser of the premises and paid rents throughout the period during which the purchaser''s interest subsisted, he cannot assail the purchaser''s title by asserting that the sale in favour of the purchaser was void and conveyed nothing. In the case covered by the above decision, the premises in question originally belonged one Shambhoolal Jain. He died in 1943 leaving behind him, his wife, his two sons, Dayachand and Dhoomchand and a daughter Mainavati. Dayachand went in adoption to the family of his junior paternal uncle. Mainavati obtained money decree against Dhoomchand and after bringing the premises for sale purchased the same in a court auction. Mainvati thereafter conveyed the property by sale in favour of the purchaser, Gopinath Agarwal. The tenant who was in occupation of the premises since prior to the sale attorned the tenancy in favour of the purchaser and came to pay the rents to the purchaser accordingly. The purchaser, Gopinath Agarwal in turn sold the property in favour of Chhaya Gupta. When notices were issued by Gopinath Agarwal and Chhaya Gupta to attorn the tenancy in favour of the purchaser, Chhya Gupta, the tenant declined to do so and assailed not only the derivative title of Chhaya Gupta to the property but also the validity of the sale in favour of Gopinath Agarwal himself and also sought to raise the defect in Mainavati''s title. In the above set of circumstances, the Supreme Court gave the above judgment by holding that the appellant cannot assail Gupta''s title after the attornment of the tenancy by paying rents.

21. If the transfer of the landlord''s right is valid, and even if the tenant has not 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 from the definition of ''landlord'' u/s 2 (vi) of the Rent Control Act, which reads as follows:

''Landlord'' means the owner of a building and includes a person who is receiving or is entitled to receive the rent of a building, whether on his own account or on behalf of another person 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.

22. The transferee of a landlord is thus entitled to collect rent as of right and he is a landlord under the inclusive definition. Since the attornment is not necessary u/s 109 of the Transfer of Property Act, the tenant cannot dispute the right of transferee to maintain a suit for eviction or to claim rent.

23. A transferee of the landlord''s rights steps into the shoes of the transferor-landlord with all the rights and liabilities in respect of the subsisting tenancy. 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 being unnecessary to confer validity on the transfer of the landlord''s rights, the tenant cannot dispute the right of the transferee-landlord to maintain an application for eviction or to claim rent.

24. Section 109 of the Transfer of Property Act makes it clear that the landlord can transfer his property in favour of a third party during the subsistence of the lease. The consent of tenant is not necessary to transfer the property in favour of a third party.

25. In the light of the provisions of Transfer of Property Act and the above case law, we hold that the attornment automatically follows on transfer of property on the same terms and conditions on which the transferor entered into lease agreement with the tenant unless there is a contract to the contrary. There is no specific provision under the Rent Control Act providing for a situation contrary to Section 109 of the Transfer of Property Act.

26. in the light of the views expressed by various courts and after analyzing the above data, we hold that the concept of attornment of tenancy governed by the provisions of the Transfer of Property Act and the lessor and lessee relationship are applicable to the proceedings under the A.P. Buildings (Lease, Rent & Eviction) Control Act, 1960.

27. The reference is accordingly answered in respect of point The file may be placed before the Bench, which has the provision for disposal according to law.