Raghubir Saran Verma vs The Ist Additional District Judge and Others

S.D. Agarwala, J.—This is a petition Under Article 226 of the Constitution of India arising out of the proceedings in Suit No. 94 of 1976 filed by Smt. Khillo, Respondent No. 3, against the Petitioner for ejectment, arrears of rent and damages in respect of tbe building in dispute.

The Petitioner is a tenant Smt. Khillo transferred the property in dispute by a sale deed in favour of Ashok Kumar. Ashok Kumar, thereafter, transferred by another sale deed dated 18th November, 1987, to Sushil Kumar Saxena. Both Ashok Kumar and Sushil Kumar Saxena, who are subsequent transferees, have been impleaded as Respondent Nos. 4 and 5 respectively to this petition.

The suit was filed on the basis of default u/s 70(2)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act), which is a ground for eviction where tbe tenant is in arrears of rent for not less than four months and has failed to pay tbe same, to the landlord within one month from tne date of service upon him through the notice of demand.

In the instant case, on 26th May, 1986, Smt. Khillo issued a notice u/s 106 of the Transfer of Property Act, to the Petitioner claiming rent from 23rd August, 1973 to 22nd August, 1976. Inspite of receipt of this notice, it is not disputed, the Petitioner did not pay any rent to Smt Khillo. Tbe defence set up by the Petitioner was that, in fact, he had paid rent to Om Prakash, who, according to him, was the adopted son of Smt. Gyaso, who was the landlord of the said premises. It is also not disputed that after tbe receipt of tbe notice, the Petitioner did not deposit any rent u/s 30 of the Act. In the suit, a further plea was taken that the relationship of landlord and tenant did not exist between Smt. Gyaso and tbe Petitioner and, consequently, the Petitioner was not a defaulter in the eye of the law.

The Judge, Small Causes Court, by judgment dated 9th May, 1980, held that the relationship of landlord and tenant existed between Smt. Khillo and the Petitioner and since the Petitioner did not pay rent inspite of the notice of demand, the Petitioner was a defaulter and, consequently; a decree for ejectment was passed against tbe Petitioner along with arrears of rent and damages. Aggrieved by the said decision dated 9th May, 1980. The Petitioner filed a revision u/s 25 of the Provincial Small Causes Court Act. This revision was also dismissed by the 1st Additional- District Judge, Mathura, by his judgment dated 6th March, 1981. The Petitioner has now challenged the judgments dated 9th May, 1980, and 6th March, 1981, by means of the present petition.

I have heard the learned Counsel for the parties.

Learned Counsel for the Petitioner has raised two contentions before me. His first contention is that no relationship of landlord end tenant existed between Smt. Khillo and himself and the Courts below have erred in holding that such a relationship exists The second contention of the learned Counsel is that the Petitioner could not be held to be a defaulter, as the Petitioner was entitled to the benefit of Section 50 of the Transfer of Property Act and the rent paid to Om Prakash should have been adjusted as having been paid to Smt. Khillo.

As regard to the first contention, the argument of tbe learned Counsel for the Petitioner is that though both the Courts below have recorded a finding that after the death of Smt. Gyaso, Smt. Khillo became the owner of the property, but tbat is not enough to create a relationship of landlord and tenant, as there is a difference between a person being an owner and being a landlord. Tbe argument further is that there should be a specific consideration of the question as to whether though Smt. Khillo was the owner, she would became the landlady of the said premises.

In tbe instant case, it is not disputed that, originally, the property was let out to the Petitioner by Smt. Gyaso. The word ''landlord'' has been defined in Section 3(j) of the Act, which reads as under:

3(j)."Landlord", in relation to a building, means a person to whom its rent is or if the building were let, would be, payable and includes, except in Clause (g), the agent or attorney, or such person.

In accordance with the definition, therefore, a person would become a landlord in relation to a building if rent is payable to him in respect of the building let out. After the death of the original landlord, the Court has to determine as to whom the rent was payable. This question is interlinked with the question of ownership in the case of death of the original landlord. The Court has, accordingly, determined as to who becomes the owner of tbe property after the death of the landlord. Once a person becomes the owner of the property in such a case, he is the person to whom rent is payable In the circumstances, once a finding is arrived at that a person is tbe owner of the property after the death of the original landlord then automatically by virtue of the definition of the expression ''landlord'' given in Section 3(j). Rent would be payable to the said person. If rent is payable to the said person, the law contemplates that he would become the landlord. In the instant case, both tbe Courts below came to the conclusion that after the death of Smt. Gyaso, Smt Khillo was the sole owner of tbe property and, consequently, she became the owner of the property. If she became the owner of tbe property, tbe consequence was that she became tbe landlady of the said premises and, therefore, it cannot be said that the finding recorded by both the Courts below to this effect is illegal in any manner or that the Courts below have acted illegally or with material irregularity in exercise of their jurisdiction in recording such a finding. The first submission, therefore, made by the learned Counsel for the Petitioner, in my opinion, is not substantiated.

In regard to the second submission made by the landlord Counel, it is necessary to quote Section 50 of the Transfer of Property Act. It reads as under:

No person shall be chargeable with any rent or profit of any immovable property which he has In good faith paid or delivered to any person of whom he in good faith held such property, notwithstanding it may afterwards appear that the person to whom such payment or delivery was made had no right to receive such rent or profits.

Section 50 of the Transfer of Property Act, quoted above protects rent paid to holder under a defective title. Illustration to Section 50 is relevant and is quoted below:

A lets a field to B at a rent of Rs. 50, and then transfers the field to C, B, having no notice of the transfer, in good faith pays the rent to A,B is not chargeable with the rent so paid.

The effect of the illustration has been aptly stated in the Transfer of Property Act by Mutla, 7th Edition, at page 219. The extract of this book is quoted below:

The illustration refers to the case of a transfer by a lessor, as to which Section 109 enacts that "if the lessee not having reason to believe tbat 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."

There is no statutory obligation on the assignee to give notice of the assignment to tbe lessee, but if he omits to do so and the lessee pays rent to the assignor, the assignee will not be entitled to recover it from the lessee. On the other hand, if the assignee of tbe lessor gives notice to the lessee, he will be entitled to the rent after the assignment.

I respectfully agree with the above enunciation of the law. Section 50 would only be applicable to a case where tbe tenant continues to pay rent to the lessor having no notice of the transfer.

In Binani Properties Private Ltd. Vs. M. Gulamali Abdul Hossain and Co. and Others, , Section 50 of the Transfer of Property Act came up for interpretation. It was observed as under:

Payment to the transferor landlord taking him in good faith to be still tbe landlord, will not make the first Defendant liable to pay the rent over again to the transferee landlord, be it u/s 50, tbe proviso to Section 109, or both. By operation of law, tbe first Defendant is discharged which means that it is not a defaulter. By operation of law again, it is payment to the transferee landlord too, to whom the payment would have been made, had he given the notice of assignment.

I respectfully agree with the above interpretation put by the Calcutta High Court.

In the instant case, Om Prakash to whom it is alleged that rent had been paid was not the original lessor. Payment to him cannot save the tenant from having committed default. In fact, Om Prakash himself had filed a suit No. 4243 of 1983 for a declaration that he was the adopted son of Smt. Gyaso. This suit remained pending and, ultimately, the suit was dismissed on a compromise arrived at between the parties in which it was accepted that Om Prakash was not the legal heir of Smt Gyaso. In tbe circumstances, any payment made to Om Prakash cannot enure to the benefit of the tenant Petitioner. The submission made by the learned Counel for the Petitioner, in my opinion, in this regard is not correct.

In the result, the petition fails. It is, accordingly, dismissed. The interim order dated 13th March, 1981, is hereby vacated. In the circumstances, the parties are directed to but their own costs.