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TMI Blog2003 (8) TMI 590X X X X Extracts X X X X X X X X Extracts X X X X ..... rated to Pakistan in the year 1947. He came to India in the year 1957 and collected the arrears of rent. For future he directed the tenants that the rent be paid to Fatimabi. Appellants accepted the arrangement and started paying the rent to Fatimabi. Municipal taxes which were required to be paid by the tenants were not paid in respect of the said house and a warrant of attachment was issued by the Municipal Council, Bhusawal. In execution of that warrant the house in dispute was ordered to be sold by the public auction. Fatimabi purchased the house in dispute in auction. Sale in her favour was confirmed. On 15th April, 1976 she transferred her ownership rights in favour of respondent Sheikh Ghasu Sheikh Ibrahim (since deceased) represented by Lrs. (hereinafter referred to as ' the respondent'). On 16.4.1976 Fatimabi addressed a communication to the appellants informing them that she had transferred her rights in the property in favour of the respondent and directed the tenants to pay the arrears of rent due prior to the date of transfer as well as future rent to the respondent. This letter of attornment was received by the appellants. Respondent-landlord thereafter issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imabi did not become the owner of the property, the sale made by her in favour of the respondent was no sale in the eye of law. Fatimabi did not have a valid title to the property and therefore she could not convey the same to any other person. Another suspicious circumstance pointed out by the counsel for the appellants was that after obtaining the sale certificate from the Municipal Council, Bhusawal, Fatimabi sold the house in a great hurry on the same day to the respondent who is her near relation. 6. We do not find any force in this submission. Appellants are estopped from disputing the relationship of landlord and tenant between them and Fatimabi. They had attorned to her in the year 1957 according to their own admission and had been making payment of the rent to her as per directions of the original owner. The burden of proof that the sale made by the Municipal Council in favour of Fatimabi was collusive, fraudulent and without observing due formalities was on the appellants. It was for them to prove that Fatimabi did not become the owner of the suit house by virtue of sale certificate issued by the Chief Officer, Municipal Council, Bhusawal in her favour. Either with refere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an evacuee property and declared as such has not been brought on record. In the absence of any pleadings to the effects that the property had become an evacuee property or proof thereof it cannot be held that the property was an evacuee property which could not be attached and sold for the recovery of arrears of municipal trades due towards the property. 8. Lastly it was contended by the counsel for the appellants that arrears of rent prior to the sale in favour of the respondent could not be recovered as arrears of rent. That arrears prior to the transfer in favour of the respondent were in the nature of a 'debt due'. If the period prior to the sale in favour of the respondent is excluded then the rent due would be for less than six months. 9. Under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, (hereafter referred to as the Act ) the tenant becomes liable to be evicted on the ground of arrears of rent, only, if, he is in arrears of rent for more than six months on the date of filing the suit. In order to substantiate the plea that rent due from the tenant prior to the date of the transfer in favour of the transferee/landlord was not rent but a debt due ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be allowed to be disputed by the appellants who have failed to join any issue thereon by raising necessary plea in their pleadings. 12. Section 109 of the Transfer of Property Act reads: 109. 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 show 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 ceased 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assed by the High Court, but there is one point to which I must refer, and that arises out of a decision of the Calcutta High Court in Daya Debi v. Chapala Debi. That decision has taken the view that when a claim or arrears of rent is assigned by A to B,it loses the character of a claim for rent as soon as it is assigned and it becomes merely an actionable claim. This view is, of course, not shared by most of the other High Courts and even the Calcutta High Court itself in other decisions has not accepted this view. It does appear to me that this view is not correct because it is difficult to see how a claim for arrears of rent ceased to be such when it is assigned by the owner when the transfer his properties to another. So far as the tenant is concerned, the amount remains payable by him to the successor landlord as arrears of rent because that is his own liability and it does not acquire any other character. And so also when the successor landlord claims the amount assigned to him his cause of action against the tenant would be for arrears of rent because there is no other basis on which he found his cause of action against the tenant. There is, therefore, no doubt that in the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t referring to what has been held in these decisions as they are inconformity with the decisions of this Court referred to above. 19. In view of the cases referred to above, in our opinion, the correct position of law is that a transferee is not entitled to recover the arrears as rent for the property on transfer unless the right to recover the arrears is also transferred. If right to recover the arrears is assigned, then the transferee/landlord can recover those arrears as rent and if not paid maintain a petition for eviction under the rent laws for those arrears as well. Since in this case we have found that there was an assignment of right to recover the arrears in favour of the respondent transferee he was entitled to recover the same as arrears of rent. If that period is taken into consideration then the tenant/appellants were certainly in arrears of rent for more than six months and become liable to be evicted from the premises in dispute on the ground of default on their part in payment of rent for more than six months on the date of filing the suit. 20. For the reasons stated above we do not find any merit in these appeals and dismiss the same. Parties shall bear their own ..... X X X X Extracts X X X X X X X X Extracts X X X X
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