Patna High Court
Brij Bihari Prasad And Anr. vs Smt. Deoki Devi And Anr. on 24 August, 1977
Equivalent citations: AIR1978PAT117, 1978(26)BLJR362, AIR 1978 PATNA 117
Author: Nagendra Prasad Singh
Bench: Nagendra Prasad Singh
JUDGMENT Nagendra Prasad Singh, J.
1. The defendants are the appellants in this appeal. The plaintiffs-respondents filed a suit for eviction against one Bhola Prasad, father of the appellants, from one shop-room situated in Mahalla Chowk Road, Gaya, details whereof have been given in the Schedule attached to the plaint. According to the plaintiffs, aforesaid Bhola Prasad had defaulted in payment of rent, and, as such, a notice under Section 106 of the T. P. Act (hereinafter to be referred to as the Act) was served on him asking him to vacate the premises in question. Thereafter, the present suit was filed for eviction as well as for arrears of rent.
2. It is an admitted position that the aforesaid Bhola Prasad had been inducted as a tenant in the aforesaid shop-room by the then landlord, the predecessor-in-interest of the plaintiffs The plaintiffs purchased the shop-room in question under two registered sale deeds, dated 13-1-1969, from the erstwhile owners. Bhola Prasad was occupying the room in question as a monthly tenant and at a rental of Rs. 80/- per month. It is also an admitted case that the monthly tenancy was to begin on first of each month and to end by the last day of the month. Bhola Prasad died during the pendency of the suit and in his place his two sons, the appellants, were substituted. Their defence, inter alia, was that there has been no default in payment of rent and the suit was bad for non-joinder of necessary parties.
3. The trial court recorded the finding that there has been default in the payment of rent, and, as such, the defendants were liable to be evicted. It negatived the claim of the defendants that the suit was bad for non-joinder of parties. On the aforesaid findings the suit for eviction was decreed. On appeal before the learned District Judge, apart from urging that there was no default in payment of rent, two further points were urged on behalf of the defendants. Firstly, that after the death of the original defendant Bhola Prasad, only his two sons were impleaded as parties, his widow and his grand-sons were not impleaded, and, as such, the suit had abated. It was also pointed out that the notice under Section 106 of the Act, which was dated 22-9-1969, asked the defendants to vacate the premises in question by 31-10-1969. This was in breach of the requirement of Section 106 of the Act, and, as such, the tenancy was never terminated to give cause of action for filing the suit. Learned District Judge, while affirming other findings of the learned Munsif, held that the suit had not abated and the notice under Section 106 of the Act was valid.
4. Learned counsel appearing on behalf of the appellants has submitted that in the facts and circumstances of the present case, the notice under Section 106 of the Act was itself invalid and the suit for eviction was not maintainable on that ground alone. He has also urged that omission to implead the widow of the original defendant after his death was fatal to the suit.
5. The invalidity of the notice has been pleaded on the basis that the present plaintiffs acquired title to the shops in question by virtue of two sale deeds, dated 13-1-1969, and since that date relationship of landlord and tenant came into existence between the plaintiffs and the original defendant and the original defendant became a monthly tenant, under the plaintiffs since that date. This monthly tenancy will be deemed to have commenced on 13-1-1969 and to have ended on 12th Feb., 1969 and so on and so forth. In such a situation, the notice under Section 106 of the Act, which was dated 22-9-1969, should have asked the defendant to vacate the premises in question by a date "expiring with the end of a monthly tenancy", i. e., by 12th Oct., 1969 and not by 31st Oct., 1969 as has been mentioned in the notice in question. The Court of appeal below has rejected this submission taking the view that requirement of Section 106 of the Act (is) to give clear 15 days' notice before the eviction is sought for and it will not make the notice invalid merely because a period longer than 15 days' has been given to the defendant to vacate the premises in question.
6. Learned Counsel appearing for the plaintiff-respondents admitted that if it is held that in the fact and circumstances mentioned above, the monthly tenancy after assignment in favour of the plaintiffs was to commence from 13-1-1969 and to end on 12-2-1969 and similarly so far as future months were concerned, the notice in question cannot be held to be in accordance with the requirement of Section 106 of the Act. But, according to him, because of the assignment in favour of the plaintiffs made on 13-1-1969, the tenancy which was to commence on 1st of each calendar month and to end by the last of that month will not be converted into a monthly tenancy commencing on 13th of each month and ending on the 12th of the month following, because the assignment will be deemed to have been made in favour of the plaintiffs on the same terms and conditions which were integral part of the original tenancy between the vendors of the plaintiffs and the defendant.
7. Whenever there is an assignment of the interest of a lessor or the interest of a lessee in a lease a new relationship comes into existence between the two sets of persons, one of whom was not party to the original agreement. In England at common law, an assignment was not complete without attornment by the lessee to the assignee of the original lessor, except when the assignment was by will. Later, it was realised that this necessity of an attornment by the lessee was a restriction on the right of a lessor to transfer and assign his interest in a lease, and so this necessity of attornment was done away by legislative interference. This Law of Property Act, 1925, which replaced the earlier Statute, has also made it clear that in such a situation, the attornment by the lessee was not necessary. In India, in view of Section 109 of the Act which says that if the lessor transfers the property leased, the transferee in absence of a contract to contrary shall possess all the rights, and if the lessee so elects, be subject to all liabilities of the lessor as to the property so transferred, there is no requirement of attornment by the lessee. In view of this provision, the assignee of the lessor has against the lessee all the rights that the lessor had and can enforce not only covenants but even conditions. The right to receive rent from the lessee in terms of the lease is one of such rights which passes to the assignee and a lessee cannot say that he is not bound to pay the same as he used to pay merely because there is no privity of contract between him and the assignee who is now the landlord. The matter will be different if subsequent to the assignment, any fresh contract is entered into between the new assignee and the lessee to alter the terms of the lease, including the date of the commencement of the monthly tenancy and rate of rent which will be payable. In view of Landlord and Tenant (15th Edition) by Hill and Redman the rights and liabilities of successor to reversion have been discussed at page 638 and it has been pointed out with reference to relevant rules that, (i) a conveyance of the reversion is valid without attornment by the tenant, (ii) the benefit of a covenant entered into by a lessee which directly concerns the land passes to an assignee of the reversion unless a contrary intention is expressed in the lease or the assignment, (iii) the burden of a covenant entered into by a lessor which directly concerns the land passes to an assignee of the reversion unless a contrary intention is expressed in the lease or the assignment, and (iv) the benefit and burden of such covenants pass to a lessee of the reversion, and the assignee of the reversion of part of the demised land takes the benefit and the burden of such covenants in so far as they affect that land. Under the Indian Law also rights and liabilities of successor to reversion are the same. The plaintiffs as assignees, in my opinion, in absence of any fresh agreement between them and the original defendant, became entitled to the rigthts which the original lessor, the vendor of the plaintiffs, possessed. If it is held that since the date of assignment a new tenancy commenced, it will lead to an anomalous position, because then it will have to be held that after assignment a new tenancy or lease has come into existence, the terms of which are not known because there has been no agreement between the assignee and the old lessee or the tenant. In such a situation, it is difficult to hold that since the date of the assignment a new monthly tenancy is created in eye of law without there being any agreement to that effect between the parties. The same view has been expressed in the cases Mohan Lal v. Vijai Narain (AIR 1961 Raj 136), Dr. Harumal v. Smt. Sahjadi Bibi (AIR 1970 Raj 272) and P. Ratnam Yeshwantraj v. Vimalchandra Shiv Datta (AIR 1973 Bom 111).
8. Learned counsel appearing for the appellants placed reliance on a single Judge decision of Calcutta High Court in Bimalendu Bhusan v. Firm Mitra and Ghosh (AIR 1973 Cal 515). It appears that the plaintiff of that suit had purchased the property in 1965. The defendant used to pay Rs. 45/- per month to the erstwhile owners. After purchase, the plaintiff took possession of the old bath-room and the structures in the courtyard and a new both room was constructed and given to the tenant. This was by mutual agreement arrived at on 20-9-1965. Sometime thereafter, the trouble started and a notice was served by the plaintiff for eviction of the defendant of that suit. The notice under Section 106 of the Act was given in July, 1966 asking the defendant to vacate the premises by last day of August, 1966. On behalf of the defendant it was urged that the notice was invalid because the last day of the monthly tenancy would expire on 19th Aug. and not on 31st Aug, because the monthly tenancy had commenced on 20th Sept. 1965. That contention was accepted and it was held that the notice was invalid and the tenancy was not terminated. The facts of that case were entirely different. As it is mentioned in the judgment itself, a mutual arrangement had been arrived at on 20-9-1965 between the assignee of the original lessor and the tenant and in those circumstances it was held that a new monthly tenancy would be deemed to have commenced since that date. In the instant case, there is no allegation much less any evidence that at any time subsequent to purchase by the plaintiffs any such arrangement or agreement was arrived at to alter the date of commencement of a monthly tenancy from the 1st of each month to 13th of each month. Learned Counsel has also placed reliance on the Judgment of the Supreme Court in Dattonpant Gopalvarao v. Vithalrao Marutirao (AIR 1975 SC 1111). From a bare reference to this Judgment it will appear that their Lordships held that the date which was mentioned in the notice was a day earlier than the last day of the month and in those circumstances it was held that the notice was not in accordance with Section 106 of the Act. In the present case, I am of the view that in spite of the assignment the monthly tenancy commenced on 1st of each month and expired with the last day of the month; as such, when the plaintiffs asked the defendant to vacate the premises in question by 31st Oct., 1969, which was the last day of the month, the notice was in accordance with Section 106 of the Act.
9. It was then submitted that the suit itself having abated because the widow of the original defendant was not impleaded as a party to the suit after his death, no decree could have been passed in favour of the plaintiffs. Learned counsel appearing for the appellants admitted that the petition for substitution had been filed on behalf of the plaintiffs within the period prescribed and the two sons of the original defendant were brought on the record of the case. The question is whether in such a situation it can be held that the suit had abated as the widow of the original defendant was not made party to the suit. This aspect of the matter has been examined in several cases by the Supreme Court as well as this Court and reference may be made to the cases of Daya Ram v. Shyam Sundari (AIR 1965 SC 1049), Harihar Prasad Singh v. Balmiki Prasad Singh (AIR 1975 SC 733), Parhlad v. Sonelal (AIR 1974 Pat 338) and Choudhary Pyare Singh v. Dulhin Rai Kumari Devi (1971 BLJR 491), where it has been pointed out that whenever a defendant or respondent dies and steps for substitution are taken within time, and while doing so if by bona fide mistake one of the heirs is left out, the suit or appeal will not abate only because of that. The question will be different if some of the heirs have been intentionally left out with some ulterior motive. There is no such allegation in the instant case. This is the position under the general law. The question of abatement in suits between landlord and tenant has to be examined on still different footing. A person remaining in occupation of the premises let out to him after determination of the tenancy is commonly known as "statutory tenant". Such a person is not a tenant at all; he has no interest in the premises occupied by him; his right to remain in possession after the determination of the contractual tenancy is personal; it is not capable of being transferred or assigned and devolves on his death only in the manner provided by the Statute. This aspect of the matter has been considered by the Supreme Court in the case of J. C. Chat-terjee v. Shri Sri Kishan Tandon (AIR 1972 SC 2526) where it was pointed out that on the death of a statutory tenant in pending eviction suit or appeal his heirs and legal representatives brought on record cannot claim the status of tenant within the meaning of the relevant Act as no rent is payable by them. If rent was paid by them during the course of the proceeding, it was not because they were recognised as tenants by the landlord, but because the amount was received by him without prejudice to his rights, under the orders of the Court. In such a situation, the heirs can only put forward such contentions which were appropriate to their representative character and not one which was personal to the deceased. The same view was expressed in the case of Ananc Niwas (Pvt.) Ltd. v. Anandji Kalyanji's Pedhi (AIR 1965 SC 41'4). In such a situation, it is difficult to accept the contention raised on behalf of the appellants that the suit of the plaintiffs had abated. No other point was urged on behalf of the appellants.
10. In the result, this appeal fails and is dismissed, but, in the circumstances of the case, there will be no order as to costs.
P.S. Sajhay, J.
11. I agree.