LexS.K. SATTAR SK. MOHD. CHOUDHARI versus GUNDAPPA AMABADAR BUKATE
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A S.K. SATTAR SK. MOHD. CHOUDHARI v. GUNDAPPA AMABADAR BUKATE OCTOBER 11, 1996 B [KULDIP SINGH AND S. SAGHIR AHMED, JJ.] Transfer of property Act, 1882-Sections 5, 36, 37 and 109-Partition of tenanted property-Rent not paid-Tenancy Tenni11ated-Petitio11 for evic- tion-High Court holding that tenancy is i11divisible and evictio11 proceedi11gs C not maintainable by one of the co-landlords-Held, te11ant has 110 right to prevent joint ow11ers from partitioning tenanted accommodation-Sui!' for eviction maintainable. Words & Phrases : D "Transfer''-Meaning of in the contest of Sec.2(d) & 5 of Transfer of E F Property Act, 1882. Legal maxims-Qui in jus dominiumve alterius succedit jure eju~ uti deb et-Explained. A partition took place between the appellant and his brothers. The portion of the shop in which the respondent was a tenant fell in the share of the appellant. Respondent did not pay rent and his tenancy was ter- minated. A petition for eviction was filed before the Rent Controller. The rent Controller allowed the eviction petition, which was also uphe.ld in appeal by the District Judge. On further appeal, the High Court reV(!rsed the order of Rent Controller on the ground that partition amongst brothers would not affect the lease which is indivisible and evidion proceedings would not be maintainable at the instance of only one of the co-landlords. Hence the present appeal. G Allowing the appeal, tl!is Court HELD: 1. If a partition of the joint family property takes place by act of parties, it would not be treated as "transfer" within the meaning of Section 5 of the Transfer of Property Act, 1882. But if a suit for partition is file1i and \ the partition is brought about through a decree of the Court, it would H amount to transfer vide Section 2(d) which specifically excludes transfer by 450 SK SATIAR SK MOHD. CHOUDHARI v. GA BUKATE 451 operations of law or under a decree or order of a court. Section 5 which A defines Transf~r is therefore over ridden by Section 2 ( d) of the Act. This anomaly have to be cured as "transfer" has been interpreted differently by this Court in the context of different statutory provisions. Although parti- tion by agreement of parties may amount to transfer, the provisions under- lying Section 5 have been applied to transfer of either the whole or a part of B the demised premises under Section 109 of the Act. [ 461-D-F] 2. A co-sharer cannot initiate action for eviction 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 Qr any other obligation by unilateral act of one of the co-owners. If however, all C the owners 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 became separate individual owners of each served portion. The right of joint lessor contemplated by Section 109 came to be possessed by each of them separately and inde- D pendently. There is no right in the tenant to prevent the joint owners or co-lessor from partitioning the tenanted accommodation among themsel- ves. [ 462-E-G] 3. Whether the premises in occupation of a tenant will be retained jointly by all the lessor or they would partition it among themselves is the exclusive right of the lessor 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 persons and even if he was being dealt by only one of them on behalf of the whole body of the lessor, he cannot object to the transfer of any portion of property or partition of the property. However, tenant can show that partition was not bonafide and was a sham transaction to overcome the rigours of rent control laws. [462-H, 463-A-B] E F Raja Simhadri v. Prattiputti Ramayya, ILR (1908) 29 Madras 29; Satyesh Chandra Sankar v. Hazi Jillar Rahman, (1918) 27 Calcutta Law Journal 438-45 Indian Cases 721; Keshava Prasad Singh Bahadur of Dam- G roan v. Mathura Kuar and Others, AIR (1922) Patna 608 = 69 Indian Cases 704; Kale & Others v. Deputy Director of Consolidation & Ors., AIR (1976) SC 807; Ram Charan Das v. Girja Nandini Devi & Ors., AIR (1966) SC 323 = (1965] 3 SCR 841; Tex Bahadur Bhujil v. Devi Singh Bhujil & Ors., AIR (1966) SC 292; V.N. Sarin v.Ajit Kumar Poplai, [1966] 1 S
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