Punjab-Haryana High Court
Hari Krishan vs Smt. Krishna Mohini on 27 July, 1990
Equivalent citations: (1990)98PLR589
JUDGMENT J.V. Gupta, C.J. and R.S. Mongia, J.
1. The demised premises were purchased by the land lady Smt. Krishna Mohini vide registered sale deed dated 9-11-1972. She sought the ejectment of her tenant on the ground of non-payment of arrears of rent at the rate of Rs. 10/- per mensem since 1-1-1965 including the house tax. The ejectment petition was tiled on 7-3-1977. The rent was tendered from 1-11-1972 i.e. from the date of sale deed. The authorities below found that the tenant had failed to prove that the rent prior to 1-11-1972 was paid to the vendor. It was, therefore, held that the tender was short. Consequently, the eviction order was passed.
2. When the revision petition came up for hearing before the Learned Single Judge, he referred the case to the larger Bench on the question whether the rent due for a period prior to the sale can be claimed by the vendee as arrears of rent and whether the tenant can be ejected for its non-payment on the first date of hearing when these is no assignment of the arrears of rent to the vendee. This is how this petition has came up before this Bench.
3. Learned counsel for the petitioner-tenant submitted that there was no assignment of the arrears of rent in favour of the vendee and therefore the question of recovery as arrears of rent prior to the sale deed did not arise. He also submitted that even if there be an assignment of rent, even the arrears of rent does not include the assigned arrears as to evict the tenant. In support of his contention he referred to Abid Hussain v. Roshan Dass, (1960) 62 P. L. R. 836, Mohan Lal v. Diwan Chand, 1981 (2) R.L.R. 209 and Civil Revision No. 398 of 1972 titled as Sham Lal v. Mst. Nasib Kaur, C. R. 398 of 1972 decided on March 28, 1973, On the other hand, learned counsel for the land-lady/respondent submitted that by virtue of the sale deed Ex. AW 1/1, dated 9-11-1972 all the rights in the property were sold and therefore the arrears of rent will also be deemed to have been assigned to the vendee land lady. In support of his contention he referred to Champaklal Dahyabhai Natali v. Saraswatiben, A.I.R. 1977 Guj. 48, Radhabai Bapurao Shelar end Ors. v. Trimbak Madhavrao Shirole, A.I.R. 1983 Bom. 303 Chanderasen v. Murarilal, 1976 R.C.R. 554, Naraindas v. Rajendra Singh, 1972 R.C.R. 465.
4. After hearing learned counsel for the parties, and going through the case law cited at the bar we are of the considered view that in the present case there was no assignment of arrears of rent in favour of the vendee. The above said sale deed is silent in this regard. Section 55 of the Transfer of Property Act, 1882, which deals with the rights and liabilities of buyer and seller provides inter-alia that the seller is entitled "to the rents and profits of the property till the ownership thereof passes to the buyer". This is in the absence of a contract to the contrary. Thus it is evident that there being no contract to the contrary the seller is entitled to the rents and profits of the property till the ownership thereof passes to the buyer. As observed earlier, in the sale deed there is nothing cited as regards the arrears of rent or there is no specific assignment of the said arrears, if any, in favour of the vendee Reference may also be made to Section 109 of the Transfer of Property Act, 1882 which provides rights of lessor's transferee. It has been clearly provided therein that "provided that the transferee is not entitled to arrears of rent due before the transfer, and that, if the lessee, not having reasons 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."
5. Similar matter came up for hearing before the Supreme Court in the case of Girdharilal v. Hukam Singh, A.I.R. 1977 S.C. 129, wherein it was observed in para 9 thereof that "the next objection is that under the priviso to Section 109 of the Transfer of Property Act the transferee is not entitled to arrears of rent due before the transfer. In our opinion he is ordinarily not so entitled unless there is a contract to the contrary. There was an express contract to the contrary contained in the compromise petition which was incorporated in the compromise decree passed by the Court". In these circumstances, since there was no assignment of arrears of rent in favour of the vendee, the tenant could not be ejected for non-payment of such arrears. Since in the present case there was no assignment of arrears of rent in favour of the vendee, the second question as to whether the rent due for a period prior to the sale could be claimed by the vendee as arrears of rent need not be gone into in this petition Consequently, this petition succeeds. The eviction order is set aside and the ejectment application is dismissed with no order as to costs.