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TMI Blog1996 (10) TMI 492X X X X Extracts X X X X X X X X Extracts X X X X ..... ar being the eldest was managing the property, particularly as the appellant was minor in 1964 when the shop was let out to the respondent who paid rent to Shaikh Jaffar and continued to pay it till 1974. In the meantime, there was a partition among the brothers and a portion of the shop measuring 23 x12-1/2 fell in the share of the appellant who informed the respondent of the above and required him to pay rent to him. A similar information in writing was also given to the respondent by Shaikh Jaffar but the respondent did not pay rent to the appellant and consequently, his tenancy was terminated by notice dated 28.7.76. This was followed by a petition under Section 15 of the Hyderabad Houses (Rent Eviction and lease Control Act, 1954 for the eviction of the respondent on the ground of wilful default in payment of rent as also for the personal need of the appellant who wanted to run his cutlery business in the said shop. 3. This petition was filed before the Rent Controller before whom the respondent, in his reply, raised the plea that the shop having been let out to him on behalf of several brothers, he could not be legally evicted at the instance of one of them as tenancy was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly, indivisible but the indivisibility is not perpetual. In order to remove the obsession with which the High Court suffered, it is necessary to look to various provisions of the Transfer of Property Act (for short the Act). 10. Section 36 of the Act dealing with Apportionment provides as under:- 36. Apportionment of periodical payments on determination of interest of person entitled.- In the absence of a contract or local usage to the contrary, all rents, annuities, pensions, dividends and other periodical payments in the nature of income shall, upon the transfer of the interest of the person entitled to raceive such payment be deemed, as between the transferor and the transferor to accrue due from day to day, and to be apportionable accordingly, but to be payable on the days appointed for the payment thereof. 11. This Section has to be read in the light of the provisions contained in Section 8, which provides, inter alia, that unless a different intention is expressed or necesserily implised, a transfer of property passes forthwith to the transferee all the interest which the transferor had in the property, including the easement annexed thereto as also the rents a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h of the several owners will be entitled to his share of the rent or benefit of any other obligation relating to the property as a whole. But before the tenant can be required to split up the rent and pay separately to each owner, he has to be informed of the transfer by a notice which, by itself, will be sufficient to convert the single obligation into several obligations and he will be liable to pay rent to each co-sharer separately. (See: Raja Simhadri vs PrattiPatti Ramayya ILR (1908) 29 Madras 29). 14. It is open to the owners to apportion the rent inter se, but if no such apportionment is made, the obligation of the tenant remains single and in that situation, the lessor will not be allowed to split the tenancy by recovering the rent of a part only; nor can a purchaser of a part of the property insist on payment of his part of the rent to him (See: Satyesh Chandra Sarkar vs. Haji Jillar Rahman (1918) 27 Calcutta Law Journal 438 = 45 Indian Cases 721; Keshava Prasad Singh Bahadur of Damraon vs. Mathura Kuar and ors. AIR 1922 Patna 608 = 69 Indian Cases 704). 15. A reference to Sections 36 and 37 has been made only to indicate that even if the estate is in possession of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that if a person fulfils his obligations without notice of the rights of a third party, his obligation is treated as discharged. Requirement of knowledge and the communication of notice regarding transfer of the part or the whole of the property in occupation of a tenant is a condition precedent for creating a liability in the tenant to pay rent to the transferee or the assignee of the demised pramises, but it does not have the effect of postponing the assingment or Transfer of property till the receipt of the notice. The title passes to the assignee immadiately on the execution of the Deed of Transfer or Assignment. 20. We may, before proceeding further, notice the arguments raised on behalf of the respondent that the appellant cannot take advantage of Section 109 of the Act and initiate proceedings for his eviction as his title to a portion of the shop in question is based upon partition and since partition is not a transfer within the meaning of the Act, Section 109 would be inapplicable. The suit, it is contended, was rightly dismissed by the High Court. 21. This argument is obviously based on Section 5 of the Act which provides as under: 5. Transfer cf Property ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 432 observed that, the true effect of partition was that each co-parcener got a specific property in lieu of his undivided right in respect of the totality of the property of the family. 24. In the above case, the Court was concerned with the interpretation of Section 14 (6) of the Delhi Rent Control Act, 1958 (Act No. 59 of 1958) which provided, inter alia, that where a landlord has acquired any premises by transfer (emphasis supplied), no application for recovery of possession shall lie unless a period of five years had elapsed from the date of acquisition. The property in that case came to be possessed by the landlord on a partition of the co-parcenery property. It was observed by this Court as under : Having regard to this basic character of joint Hindu family property, it cannot be denied that each coparcener has an antecedent title to the said property, though its extent is not determined until partition takes place. That being so, partition really means that whereas initially all the coparceners have subsisting title to the totality of the property of the family jointly, that joint title is by partition transformed into separate titles of the individual coparcener ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tes as a partition, although there may have been no actual division of the property by metes and bounds. The Judicial Committee further observed : in the estate each member has thenceforth a definite and certain share, which he may claim the right to receive and to enjoy in severalty, although the property itself has not been actually severed and divided. In such a case the interest of each member stands divided though the property remains physically undivided. 29. The effect of the above judgment is that though the property remains physically undivided, which would, therefore, descend and may be dealt with as separating property by the separating member or his own heirs. 30. We have our own doubts on this question. If a partition of the joint family property takes place by act of parties, it would not, as seen above, be treated as Transfer within the meaning of Section 5 of the act. But if a suit for partition is filed and the partition is brought about through a decree of the Court, it would amount to a Transfer vide Section 2(d), which specifically excludes transfers by operation of law or under a decree or order of a Court. Section 5, which, in a way, defin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the tenant from the portion of the tenanted accommodation nor can he sue for his part of the rent. The tenancy cannot be split up either in estate or in rent or any other obligation by unilateral act of one of the co-owners. If, however, all the co-owners or the co-lessors agree among themselves and split by partition the demised property by metes and bounds and come to have definite, positive and identifiable shares in that property, they become separate individual owners of each severed portion and can deal with that portion as also the tenant thereof as individual owner/lessor. The right of joint lessors contemplated by Section 109 comes to be possessed by each of them separately and independently. There is no right in the tenant to prevent the joint owners or colessors from partitioning the tenanted accommodation among themselves. Whether the Premises, which is in occupation of a tenant, shall be retained jointly by all the lessors or they would partition it among themselves, is the exclusive right of the lessors to which no objection can be taken by the tenant, particularly where the tenant knew from the very beginning that the property was jointly owned by several per ..... X X X X Extracts X X X X X X X X Extracts X X X X
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