So far as the issue of attornment raised by learned counsel
for the petitioner is concerned, Section 109 of the Transfer of
Property Act, 1882 ('the T.P. Act') dealing with attornment reads
as under:-
“109. Rights 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 lease 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,
prays 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 above provision provides that on account of transfer of
ownership of the premises to the respondent by the previous
lessor, the respondent becomes the lessor and becomes entitled
to receive the rent in terms of the lease by operation of Section
109 of the T.P. Act. No attornment of tenancy is necessary in
law as the above Section creates a statutory attornment and the
Section does not insist that the transfer of the lessor's right can
take effect only if the tenant attorns as attornment by tenant is
unnecessary to confer validity to the transfer of lessor's right.
However, the Section protects payment of rent by the tenant to
the transferor without notice of the transfer. The transfer of
ownership of the premises to the respondent by the previous
lessor results in statutory attornment by the tenant in favour of
the lessor's transferee and consequently jural relationship of
landlord and tenant, the said right of transferee under Section
109 is not curtailed or modified by the T.P. Act.
This Court in the case of Ram Saran Sharma v. Smt.
Kamla Acharya : 2001 (2) RLR 136 held and observed as under:-
“17. As regards the law of attornment, envisaged under
Section 109 of the Act of 1882, it is held that Section 109 of
the said Act does not require service of notice on the tenant,
on alienation of property, to create relationship of landlord
and tenant between the transferee landlord and the existing
tenant. The transferee of the lessor steps into the shoes
and possess all the rights, which the transferor has and the
attornment is not a condition precedent, to give validity to
the transfer made in favour of the transferee. Section 8 of
the Act of 1882 specifically provides that a transfer of
property passes forthwith, to the transferee, all the
interests, which the transferor is capable of passing in the
property, including the legal incidents thereof and such
incidents include the rents and profits thereof. Once the title
of the assignee is complete, the attornment is automatic not
dependent on the tenant's attorning or agreeing to the
attornment.
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
: O R D E R :
S.B. CIVIL WRIT PETITION NO.2721/2014
Laxmi Narayan vs. Ram Kishan & Ors.
Date of Order :: 10th December, 2014
PRESENT
MR. JUSTICE ARUN BHANSALI
Citation;AIR 2015 Raj 46
This writ petition under Article 226 and 227 of the
Constitution of India is directed against judgment dated
24.04.2010 passed by Rent Tribunal, Bikaner and judgment
dated 13.12.2013 passed by Appellate Rent Tribunal, Bikaner,
whereby, the petition filed by respondent No. 1 seeking eviction
of the petitioner has been allowed and the appeal filed by the
petitioner herein has been rejected respectively.
The respondent-landlord filed petition before the Rent
Tribunal, Bikaner, inter alia, on the grounds of material
alteration, default in payment of rent, bona fide and reasonable
necessity and denial of title.
The Rent Tribunal after hearing the parties came to the
conclusion that the relationship of landlord and tenant exists
between the parties, the tenant has committed default in
payment of rent, the suit premises was reasonably and bona
fidely required by the landlord, the tenant has denied character
of landlord, the suit was not barred by provisions of Order XXIII,
Rule 1(3) CPC and, consequently, passed the judgment for
2
eviction and the recovery certificate was issued.
Feeling aggrieved, the petitioner filed an appeal.
The Appellate Rent Tribunal after considering the
submissions reiterated the conclusions arrived at by the Rent
Tribunal on all the issues and, consequently, dismissed the
appeal filed by the petitioner.
It was emphasized by learned counsel for the petitioner
that both the Tribunals below fell in error in coming to the
conclusion that the landlord tenant relationship existed between
the parties; the respondent landlord failed to prove attornment
by petitioner in his favour and there was no material on record
to prove the landlord tenant relationship between the parties
and, consequently, the petition before the Rent Tribunal itself
was not maintainable; it was submitted that the transfer of the
suit property, in favour of the respondent, could not have taken
place looking to the nature of property and, as such, no right
accrued to the respondent to seek eviction of the petitioner from
the suit premises; various submissions were made questioning
the title of the respondent.
Learned counsel for the respondent submitted that both
the Tribunals have concurrently found against the petitioner; in
the present proceedings, the petitioner has no right to question
the title of the landlord and both the Tribunals were justified in
coming to the conclusion that the petition at the instance of
respondent was maintainable and whereafter have concurrently
held all the issues in favour of the respondent and, therefore, the
petition deserves to be dismissed.
I have considered the rival submissions made by learned
counsel for the parties.
3
The main plank of the petitioner has been that the
petitioner-tenant did not attorn to the respondent as landlord
and, therefore, the proceedings at his instance were not
maintainable; the petitioner has not disputed that he was tenant
in the premises; he also did not dispute that Narayan Nand was
his landlord. The very fact that the suit premises has been
transferred by said Narayan Nand to the respondent, the
relationship of landlord and tenant between the petitioner and
Narayan Nand having been admitted, it is not open for the
petitioner to question the right of Narayan Nand to transfer the
suit proeprty to the respondent landlord.
So far as the issue of attornment raised by learned counsel
for the petitioner is concerned, Section 109 of the Transfer of
Property Act, 1882 ('the T.P. Act') dealing with attornment reads
as under:-
“109. Rights 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 lease 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,
prays 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 above provision provides that on account of transfer of
ownership of the premises to the respondent by the previous
lessor, the respondent becomes the lessor and becomes entitled
4
to receive the rent in terms of the lease by operation of Section
109 of the T.P. Act. No attornment of tenancy is necessary in
law as the above Section creates a statutory attornment and the
Section does not insist that the transfer of the lessor's right can
take effect only if the tenant attorns as attornment by tenant is
unnecessary to confer validity to the transfer of lessor's right.
However, the Section protects payment of rent by the tenant to
the transferor without notice of the transfer. The transfer of
ownership of the premises to the respondent by the previous
lessor results in statutory attornment by the tenant in favour of
the lessor's transferee and consequently jural relationship of
landlord and tenant, the said right of transferee under Section
109 is not curtailed or modified by the T.P. Act.
This Court in the case of Ram Saran Sharma v. Smt.
Kamla Acharya : 2001 (2) RLR 136 held and observed as under:-
“17. As regards the law of attornment, envisaged under
Section 109 of the Act of 1882, it is held that Section 109 of
the said Act does not require service of notice on the tenant,
on alienation of property, to create relationship of landlord
and tenant between the transferee landlord and the existing
tenant. The transferee of the lessor steps into the shoes
and possess all the rights, which the transferor has and the
attornment is not a condition precedent, to give validity to
the transfer made in favour of the transferee. Section 8 of
the Act of 1882 specifically provides that a transfer of
property passes forthwith, to the transferee, all the
interests, which the transferor is capable of passing in the
property, including the legal incidents thereof and such
incidents include the rents and profits thereof. Once the title
of the assignee is complete, the attornment is automatic not
dependent on the teant's attorning or agreeing to the
attornment. An identical question came up for consideration
in case of Mahendra Raghunath Das (supra), wherein, it is
ruled by the Supreme Court, which reads thus:
“It is well settled that a transferee of a 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 does
not require that the transfer of the right of the
landlord could take effect only if the tenant attorns
to him. Attornment by tenant is not necessary to
confer the validity of the transfer of the landlord.”
18. The aforesaid question also came up for
consideration, before me, in case of (6) Mohd. Hussain V.
5
Uakoob, reported in 1997 (2) RCR 443, wherein, it is ruled
that tenant has not legal justification to question oral gift.
Giving notice to tenant by landlords regarding change in
ownership is a mere technicality. It was held in the
aforesaid case that question of title is foreign, in a suit for
eviction by landlord against tenant, but in abundant caution,
where such issues are found to be necessary, it can be
raised incidentally. It was held that because the transferee
is clothed with right to recover rent and eject lessee, no
payment of rent or attornment to lessor is necessary. The
decision cited by the learned counsel for the landlord
plaintiff respondent, mentioned hereinabove, indicates
towards the aforesaid conclusion. Thus, the question of
attornment by landlord, is no more res integra.”.
As such, from the above, it is apparent that neither any
attornment was necessary on part of the tenant for conferring
the right to receive the rent, nor any notice in this regard was
necessary for the purpose of alleged attornment.
Besides the above, the definition of landlord under Section
2(c) of the Rajasthan Rent Contrl Act, 2001 ('the Act') reads as
under:-
“(c) “landlord” means any person who for the time
being is receiving or is entitled to receive the rent of any
premises, whether on his own account or as an agent,
trustee, guardian or receiver for any other person, or who
would so receive or be entitled to receive the rent, if the
premises were let to a tenant.”
It would be seen from the above definition that it is not
only the person, who for the time being is receiving the rent, but
even a person 'who is entitled to receive the rent of any
premises whether on his own account or as an agent, trustee,
guardian or receiver,' is included in the definition of landlord.
The expression entitled to receive the rent in the aforesaid
definition signify that the transfer of interest of the landlord in
favour of any other person is not prohibited, as a transferee of
the lessor is entitled to collect rent in terms of the lease as of
right and becomes a landlord under Section 2(c) of the Act.
Tenant cannot dispute the right of the transferee landlord to
6
maintain an eviction petition under the Act or to claim rent.
Hence, in the case of a valid transfer of premises by the lessor
by way of sale, as the trnsferee would be entitled to receive the
rent of the premises, he would fall within the definition of
landlord.
From the above discussion, it is apparent that the
submissions made by learned counsel for the petitioner
pertaining to attornment and the right of transferee landlord to
file the suit has no basis.
So far as the findings of the two Tribunals below on the
grounds of eviction are concerned, both the Tribunals have
recorded concurrent findings on all the three grounds of eviction
raised by the landlord. Learned counsel for the petitioner has
failed to point out any perversity in the said findings so as to
require interference by this Court.
Consequently, there is no substance in the writ petition
and the same is, therefore, dismissed. The stay petition is also
dismissed. No order as to costs.
(ARUN BHANSALI), J.
A.K. Chouhan/
61
for the petitioner is concerned, Section 109 of the Transfer of
Property Act, 1882 ('the T.P. Act') dealing with attornment reads
as under:-
“109. Rights 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 lease 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,
prays 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 above provision provides that on account of transfer of
ownership of the premises to the respondent by the previous
lessor, the respondent becomes the lessor and becomes entitled
to receive the rent in terms of the lease by operation of Section
109 of the T.P. Act. No attornment of tenancy is necessary in
law as the above Section creates a statutory attornment and the
Section does not insist that the transfer of the lessor's right can
take effect only if the tenant attorns as attornment by tenant is
unnecessary to confer validity to the transfer of lessor's right.
However, the Section protects payment of rent by the tenant to
the transferor without notice of the transfer. The transfer of
ownership of the premises to the respondent by the previous
lessor results in statutory attornment by the tenant in favour of
the lessor's transferee and consequently jural relationship of
landlord and tenant, the said right of transferee under Section
109 is not curtailed or modified by the T.P. Act.
This Court in the case of Ram Saran Sharma v. Smt.
Kamla Acharya : 2001 (2) RLR 136 held and observed as under:-
“17. As regards the law of attornment, envisaged under
Section 109 of the Act of 1882, it is held that Section 109 of
the said Act does not require service of notice on the tenant,
on alienation of property, to create relationship of landlord
and tenant between the transferee landlord and the existing
tenant. The transferee of the lessor steps into the shoes
and possess all the rights, which the transferor has and the
attornment is not a condition precedent, to give validity to
the transfer made in favour of the transferee. Section 8 of
the Act of 1882 specifically provides that a transfer of
property passes forthwith, to the transferee, all the
interests, which the transferor is capable of passing in the
property, including the legal incidents thereof and such
incidents include the rents and profits thereof. Once the title
of the assignee is complete, the attornment is automatic not
dependent on the tenant's attorning or agreeing to the
attornment.
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
: O R D E R :
S.B. CIVIL WRIT PETITION NO.2721/2014
Laxmi Narayan vs. Ram Kishan & Ors.
Date of Order :: 10th December, 2014
PRESENT
MR. JUSTICE ARUN BHANSALI
Citation;AIR 2015 Raj 46
This writ petition under Article 226 and 227 of the
Constitution of India is directed against judgment dated
24.04.2010 passed by Rent Tribunal, Bikaner and judgment
dated 13.12.2013 passed by Appellate Rent Tribunal, Bikaner,
whereby, the petition filed by respondent No. 1 seeking eviction
of the petitioner has been allowed and the appeal filed by the
petitioner herein has been rejected respectively.
The respondent-landlord filed petition before the Rent
Tribunal, Bikaner, inter alia, on the grounds of material
alteration, default in payment of rent, bona fide and reasonable
necessity and denial of title.
The Rent Tribunal after hearing the parties came to the
conclusion that the relationship of landlord and tenant exists
between the parties, the tenant has committed default in
payment of rent, the suit premises was reasonably and bona
fidely required by the landlord, the tenant has denied character
of landlord, the suit was not barred by provisions of Order XXIII,
Rule 1(3) CPC and, consequently, passed the judgment for
2
eviction and the recovery certificate was issued.
Feeling aggrieved, the petitioner filed an appeal.
The Appellate Rent Tribunal after considering the
submissions reiterated the conclusions arrived at by the Rent
Tribunal on all the issues and, consequently, dismissed the
appeal filed by the petitioner.
It was emphasized by learned counsel for the petitioner
that both the Tribunals below fell in error in coming to the
conclusion that the landlord tenant relationship existed between
the parties; the respondent landlord failed to prove attornment
by petitioner in his favour and there was no material on record
to prove the landlord tenant relationship between the parties
and, consequently, the petition before the Rent Tribunal itself
was not maintainable; it was submitted that the transfer of the
suit property, in favour of the respondent, could not have taken
place looking to the nature of property and, as such, no right
accrued to the respondent to seek eviction of the petitioner from
the suit premises; various submissions were made questioning
the title of the respondent.
Learned counsel for the respondent submitted that both
the Tribunals have concurrently found against the petitioner; in
the present proceedings, the petitioner has no right to question
the title of the landlord and both the Tribunals were justified in
coming to the conclusion that the petition at the instance of
respondent was maintainable and whereafter have concurrently
held all the issues in favour of the respondent and, therefore, the
petition deserves to be dismissed.
I have considered the rival submissions made by learned
counsel for the parties.
3
The main plank of the petitioner has been that the
petitioner-tenant did not attorn to the respondent as landlord
and, therefore, the proceedings at his instance were not
maintainable; the petitioner has not disputed that he was tenant
in the premises; he also did not dispute that Narayan Nand was
his landlord. The very fact that the suit premises has been
transferred by said Narayan Nand to the respondent, the
relationship of landlord and tenant between the petitioner and
Narayan Nand having been admitted, it is not open for the
petitioner to question the right of Narayan Nand to transfer the
suit proeprty to the respondent landlord.
So far as the issue of attornment raised by learned counsel
for the petitioner is concerned, Section 109 of the Transfer of
Property Act, 1882 ('the T.P. Act') dealing with attornment reads
as under:-
“109. Rights 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 lease 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,
prays 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 above provision provides that on account of transfer of
ownership of the premises to the respondent by the previous
lessor, the respondent becomes the lessor and becomes entitled
4
to receive the rent in terms of the lease by operation of Section
109 of the T.P. Act. No attornment of tenancy is necessary in
law as the above Section creates a statutory attornment and the
Section does not insist that the transfer of the lessor's right can
take effect only if the tenant attorns as attornment by tenant is
unnecessary to confer validity to the transfer of lessor's right.
However, the Section protects payment of rent by the tenant to
the transferor without notice of the transfer. The transfer of
ownership of the premises to the respondent by the previous
lessor results in statutory attornment by the tenant in favour of
the lessor's transferee and consequently jural relationship of
landlord and tenant, the said right of transferee under Section
109 is not curtailed or modified by the T.P. Act.
This Court in the case of Ram Saran Sharma v. Smt.
Kamla Acharya : 2001 (2) RLR 136 held and observed as under:-
“17. As regards the law of attornment, envisaged under
Section 109 of the Act of 1882, it is held that Section 109 of
the said Act does not require service of notice on the tenant,
on alienation of property, to create relationship of landlord
and tenant between the transferee landlord and the existing
tenant. The transferee of the lessor steps into the shoes
and possess all the rights, which the transferor has and the
attornment is not a condition precedent, to give validity to
the transfer made in favour of the transferee. Section 8 of
the Act of 1882 specifically provides that a transfer of
property passes forthwith, to the transferee, all the
interests, which the transferor is capable of passing in the
property, including the legal incidents thereof and such
incidents include the rents and profits thereof. Once the title
of the assignee is complete, the attornment is automatic not
dependent on the teant's attorning or agreeing to the
attornment. An identical question came up for consideration
in case of Mahendra Raghunath Das (supra), wherein, it is
ruled by the Supreme Court, which reads thus:
“It is well settled that a transferee of a 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 does
not require that the transfer of the right of the
landlord could take effect only if the tenant attorns
to him. Attornment by tenant is not necessary to
confer the validity of the transfer of the landlord.”
18. The aforesaid question also came up for
consideration, before me, in case of (6) Mohd. Hussain V.
5
Uakoob, reported in 1997 (2) RCR 443, wherein, it is ruled
that tenant has not legal justification to question oral gift.
Giving notice to tenant by landlords regarding change in
ownership is a mere technicality. It was held in the
aforesaid case that question of title is foreign, in a suit for
eviction by landlord against tenant, but in abundant caution,
where such issues are found to be necessary, it can be
raised incidentally. It was held that because the transferee
is clothed with right to recover rent and eject lessee, no
payment of rent or attornment to lessor is necessary. The
decision cited by the learned counsel for the landlord
plaintiff respondent, mentioned hereinabove, indicates
towards the aforesaid conclusion. Thus, the question of
attornment by landlord, is no more res integra.”.
As such, from the above, it is apparent that neither any
attornment was necessary on part of the tenant for conferring
the right to receive the rent, nor any notice in this regard was
necessary for the purpose of alleged attornment.
Besides the above, the definition of landlord under Section
2(c) of the Rajasthan Rent Contrl Act, 2001 ('the Act') reads as
under:-
“(c) “landlord” means any person who for the time
being is receiving or is entitled to receive the rent of any
premises, whether on his own account or as an agent,
trustee, guardian or receiver for any other person, or who
would so receive or be entitled to receive the rent, if the
premises were let to a tenant.”
It would be seen from the above definition that it is not
only the person, who for the time being is receiving the rent, but
even a person 'who is entitled to receive the rent of any
premises whether on his own account or as an agent, trustee,
guardian or receiver,' is included in the definition of landlord.
The expression entitled to receive the rent in the aforesaid
definition signify that the transfer of interest of the landlord in
favour of any other person is not prohibited, as a transferee of
the lessor is entitled to collect rent in terms of the lease as of
right and becomes a landlord under Section 2(c) of the Act.
Tenant cannot dispute the right of the transferee landlord to
6
maintain an eviction petition under the Act or to claim rent.
Hence, in the case of a valid transfer of premises by the lessor
by way of sale, as the trnsferee would be entitled to receive the
rent of the premises, he would fall within the definition of
landlord.
From the above discussion, it is apparent that the
submissions made by learned counsel for the petitioner
pertaining to attornment and the right of transferee landlord to
file the suit has no basis.
So far as the findings of the two Tribunals below on the
grounds of eviction are concerned, both the Tribunals have
recorded concurrent findings on all the three grounds of eviction
raised by the landlord. Learned counsel for the petitioner has
failed to point out any perversity in the said findings so as to
require interference by this Court.
Consequently, there is no substance in the writ petition
and the same is, therefore, dismissed. The stay petition is also
dismissed. No order as to costs.
(ARUN BHANSALI), J.
A.K. Chouhan/
61
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