ORDER
K.S. Radhakrishnan, J.
1. Does the limitation on the right of the landlord against splitting up of the unity and integrity of the tenancy, inhering in the inhibitions of his own contract, visits the assignee of the part of the reservation is the interesting question that has come up for consideration in this case.
2. It is trite law that a landlord cannot split up the unity and integrity of the tenancy and recover possession of a part of the demised premises from the tenant. Law is well settled that where there is a single indivisible contract of tenancy it cannot be split up by a court unless there is statutory provision to that effect or by a contract between the parties. Alienatio rei praefertur juri accrescendi, means, alienation is favoured by law rather than accumulation and the assignee is clothed with all the rights and liabilities of the assignor. Section 109 of the Transfer of Property Act however, provides a statutory exception to this rule and enables an assignee of a part of the reversion to exercise all the rights of the landlord in respect of the portion respecting which the reversion is so assigned subject to the other covenant running with the land. Further while seeking eviction the assignee has to independently show that the tenancy is divisible on facts and to make out grounds available under Section 11 of the Rent Act. The inter relationship between Section 109 of the T.P. Act and Section 11 of the Rent Control Act would be explained by us in the later part of this order. For disposal of this case we may refer to the parties petitioner as landlord and respondent as tenant.
3. The petitioner-landlord is a partner of 'Ambady Jewellers' situated on the eastern side of the M.O. Road at Thrissur and his brother is the other partner. Jewellery shop is situated on the ground floor of the building. Tenanted premises is situated at its upstair portion and the entire upstair portion of the building was taken on rent by respondent-tenant from Oliyapuram family. Upstair portion bears No. XXV/2214 and XXV/2215 and a verandah. Petitioner-landlord is already the owner of the ground floor of the building. Upstair portion corresponding to XXV/2214 was purchased by the petitioner-landlord. Petitioner-landlord as we have already indicated is conducting a jewellery shop in the ground floor of the building along with his brother. There is no sufficient space in the ground floor to accommodate their goldsmiths. Landlord therefore wanted additional accommodation so as to accommodate their goldsmiths under Section 11 (8) of the Act. Plea under Section 11(3) was also raised. Rent Control Court and Appellate Authority proceeded as if the landlord's claim is under Section 11(8).
4. Tenant resisted the petition stating that the attempt is only a ruse to evict him. Further it is also stated that the tenant is conducting a kuri business having branch offices at various places and that all its branches are controlled by Head Office housed in the schedule premises. Further it is also stated that he has taken out the entire upstair portion from one Oliyapuram Tarwad and that even if his original landlord had sold away a portion of the property to the present landlord, landlord cannot successfully maintain a petition lest it would split up the unity and integrity of the tenancy. Further it was also stated that the tenant was unaware of the assignment and there was no attornment of tenancy by present landlord.
5. Landlord in order to establish his case got himself examined as PW.1 and produced Exts.A1 to A6 documents. On the side of the tenant RW.1 was examined. A commission was taken out. C1 is the commission report. Clause (a) and Clause (b) are the sketches. Commissioner was examined PW.2. Rent Control Court and Appellate Authority concurrently found the need urged by the landlord is bona fide and his requirement of additional accommodation squarely falls under Section 11(8) of the Act and ordered eviction. It was also found the hardship which may be caused to the tenant by granting the application will not outweigh the advantage to the landlord. Aggrieved by the concurrent findings rendered by the Rent Control Court and Appellate Authority this revision has been filed.
6. Counsel appearing for the tenant revision petitioner Sri. P.B. Krishnan submitted that the landlord is the assignee of the tenanted premises and the tenancy granted to him by the original landlord is indivisible and an assignment of a portion of the tenanted premises would not enable a splitting of the tenancy. Counsel submitted the entire upstair portion of the building was taken out on rent by him from Oliyapuram Tarwad by single entrustment. Therefore it is not open to the original landlord or the assignee landlord to split up the tenancy and seek eviction of his part. Counsel also referred to C1 commission report and submitted that on facts also it would not be possible to split up the tenancy. Counsel also referred to the description of the tenanted premises as well as oral evidence of PW.1 and also the commission report. Placing reliance on the decisions of the Apex Court in Brijit Raj Krishna v. Shaw & Bros. (AIR 1951 SC 186), Miss. S. Sanyal v. Gian Chand (AIR 1968 SC 438), Habibunnisa Begum v. G. Doraikanu Chettiar (AIR 2000 SC 152), Nilesh Nandkumar Shah v. Sikandar Aziz Patel (AIR 2002 SC 3073) counsel contended it would not be possible to split up the tenancy in the absence of any statutory provision in the Kerala Rent Act. Reference was also made to the decisions of this Court in Fathima v. Saidali Bafakhy (2001(2) KLT 857) and Tellicherry W. Co-op. Society v. Safiya Beebi Umma (2002 (3) KLT 863). Counsel also submitted Section 109 of the Transfer of Property Act would enable splitting up of tenancy if the lease is governed by the T.P. Act and not by the Rent Act. Reference was also made to the decisions of the Apex Court in Mohar Singh v. Devi Charan (AIR 1988 SC 1365) and Sk. Sattar Sk. Mohd. Choudhari v. Goundappa Amabadas Bukate (AIR 1997 SC 998). Counsel also submitted if a portion is not separately demarcated no splitting is possible even if rent is apportioned. Reference was made to the decisions of the Calcutta High Court in Amar Prosad v. Arun Kumar (AIR 1979 Cal. 367) and Sumant Chandra Mishra v. Anjali Ghatak (AIR 1993 Cal. 275). Reference was also made to the decisions of the Apex Court in AIR 2002 SC 3073 (supra) and Vannattankandy Ibrayi v. Kunhabdulla Hajee (AIR 2001 (1) SCC 564). Further counsel also submitted no right of eviction can be conferred on a landlord by recourse to Section 109 of the Transfer of Property Act. Counsel made reference to the following decisions. AIR 1951 SC 115 (supra), Puweda Venketeswaran v. C.V. Ramana (AIR 1976 SC 869), Lelitha v. Aysumma (1977 KLT 587), V. Dhanapal Chettiar v. Yesodai Ammal (AIR 1979 SC 1745), Pradesh Kumar Bajpai v. Bindo Bihari Sarkar ((1980) 3 SCC 348), K.K. Krishnan v. M.K. Vijaya Raghavan ((1980) 4 SCC 88), Joy v. Stephen Jacob (1984 KLT 72), Prithvichand Ramchand Sablok v. S.Y. Shinde (1993) 3 SCC 271 and (2001) 1 SCC 564 (supra).
7. Counsel appearing for the respondent-landlord Sri. M.S. Narayanan on the other hand, contended that though a landlord cannot split up the unity and integrity of the tenancy and recover possession of a part of the demised premises from the tenant Section 109 of the T.P. Act would enable an assignee of a part of the reversion to exercise all the rights of the landlord in respect of the portion respecting which the reversion is so assigned. Counsel also referred to the commission report and oral evidence adduced and submitted that the tenancy in the upstair portion has been specifically demarcated and therefore when a part of the leased premises is assigned, the assignee can seek eviction of that part and the tenant has no legal right to object. Counsel placed reliance on the decisions in Pyrelalsa v. Garanchandsa (AIR 1965 MP 1), AIR 1997 SC 998 (supra), AIR 1998 SC 1365 (supra), Sardarilal v. Narayanlal (AIR 1980 MP 8), Devasy George v. Lekskmi Amma (AIR 1956 TC 265), B.P. Pathak v. Riyazuddin (AIR 1976 MP 55, 1994 (1) CCC 911, 2000 (4) AIHCC 3070, Ram Chandra v. Ram Saran (AIR 1978 All. 173) etc.
8. In order to appreciate the rival contentions it is necessary to understand the interrelationship between the Transfer of Property Act, 1882 and the Kerala Rent Act, 1965. Prior to the enactment of the Rent Act the relationship between the landlord and the tenant was governed by the general law, the Transfer of Property Act, Relation of landlord and tenant is constituted by means of demise. The landlord or lessor confers on the tenant or the lessee the right to exclusive possession and enjoyment of the property for a definite period or term. The interest which remains in the lessor is called reversion which generally entitles him to receive from the tenant payment for the use of the property in the shape of rent. Tenancy is therefore on the estate property by fixing term. A tenancy arises when the owner of an estate in land called, lessor, agrees expressly or by implication to allow another person called the lessee or tenant, to enjoy the exclusive possession and use of the land for a period less than the landlord's estate in it generally upon payment of rent. The landlord's estate is called the reversion, and at in law a power of distress for rent is incident to the reversion. The Rent Act merely provides a protection to a tenant as against the unrbridled power of the landlord under the general law of the land. As held by the Apex Court in Ambalal Sarabhai Enterprises Ltd. v. Amrit Lal & Co. ((2001) 8 SCC 397) the Rent Act gives protection to the tenant from being ejected except on the grounds referred to thereunder. In other words, it protects the tenant from ejectment, it protects a tenant from the drastic enhancement of the rent by the landlord which otherwise the landlord could do under the general law. Thus the right of a tenant under the Rent Act at the best could be said to be a protective right, which cannot be construed to be a vested right. In effect in view of this special enactment of the Rent Act, the right and remedies available to a landlord under the general law remain suspended or eclipsed. In other words, the landlord's vested right under the general law continues so long it is not abridged by such protective legislation, but the moment when this protection is withdrawn the landlord's normal vested right reappears which could be enforced by him.
9. The Apex Court in Pujalal v. Bhagwat Prasad (AIR 1963 SC 120) held that once contractual tenancy created by the T.P. Act comes to an end the statutory tenancy created by the Rent Act comes into operation. The end of the former is the beginning of the later. Provisions of the Rent Control Act, are in addition to the provisions of the T.P. Act. But the non-obstante provision used in Section 11 of the Kerala Act gives an overriding effect when a tenant is sought to be evicted, but rest of the provision of T.P. Act would still govern the rights and liabilities of the parties. Section 109 of the Transfer of Property Act provides a transfer of the part of the property and the transferee possess all the rights of the transferor, so also subject to all the liabilities of the transferor. Section 109 is extracted below for easy reference.
'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 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 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 scope and ambit of the above mentioned provision came up for consideration before the Apex Court in Mohar Singh v. Devi Charan (AIR 1988 SC 1365) wherein the Apex Court examined the scope of Sections 109 and 106 of the Transfer of Property Act read with Section 21 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act. In paragraph 5 of the judgment the Apex Court held as follows:
'It is trite proposition that a landlord cannot split the unity and integrity of the tenancy and recover possession of a part of the demised premises from the tenant. But Section 109, T.P. Act, provides a statutory exception to this rule and enables an assignee of a part of the reversion to exercise all the rights of the landlord in respect of the portion respecting which the reversion is so assigned subject, of course, to the other covenant running within the land. This is the true effect of the words 'shall possess all the rights ....... of the lessor as to the property or part transferred........' occurring in Section 109, T.P. Act. There is no need for a consensual attornment. The attornment is brought about by operation of law. The limitation on the right of the landlord against splitting up of the integrity of the tenancy, inhering in the inhibitions of his own contract, does not visit the assignee of the part of the reversion. There is no need for the consent of the tenant for the severance of the reversion and the assignment of the part so severed. This proposition is too well settled to require any further elucidation or reiteration.'
Section 109 of the T.P. Act is based on the maxim, Qui in jus dominiumve alterius succeedit jure ejus uti debet, meaning, rights and liabilities attached to the property (arising out of possession and control of that property) pass with the property. Apex Court in Sk. Sattar Sk. Mohd. Choudhari v. Goundappa Ambadas Bukate (AIR 1997 SC 998) further examined the scope of Sections 109, 36, 37 and 111 of the T.P. Act read with Section 15 of the Hyderabad Houses (Rent Eviction and Lease) Control Act. After considering the scope of above provisions of the T.P. Act the Apex Court held as follows:
'A bare reading of the first part of the Section indicates that if the property is either transferred as a whole or any part thereof alone is transferred, the transferee comes to possess all the rights of the lessor.
The proviso appended to first part of the Section contemplates that before a tenant can be made liable to pay rent to the transferee, he must have knowledge of the transfer either through the lessor or by his transferee by a notice. Requirement of knowledge of transfer in this section as also in Sections 37 and 50 is based on the general principle of law set out by Willers, J. in De Nicholls v. Saunders ((1870) 22 LT 66118 WR(Eng) 1106); 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 premises, but it does not have the effect of postponing the assignment or transfer or property till the receipt of the notice. The title passes to the assignee immediately on the execution of the Deed of transfer or Assignment.'
Apex Court also quoted with approval a decision of the Full Bench of Madhya Pradesh High Court in Sardarilal v. Naravanlal (AIR 1980 Madhya Pradesh 8) and also the decision of the same High Court in Pyarelalsa v. Garanchandsa (AIR 1965 Madhya Pradesh 1) and also the decision of the Patna High Court in Badri Prasad v. Shyam Lal Jaiswal (AIR 1963 Patna 85) and also the decision of the Jammu and Kashmir High Court in Skattar Singh v. Rawela (AIR 1952 J & K 18) and held that assignment of a part of a holding effects a severance of the holding and entitles the transferee to proceed against the tenant. In Sk. Sattar Sk. Mohd. Choudhari's case (supra) the Apex Court examined the question as to whether a co-sharer can initiate action for eviction of the tenant from the portion of the tenanted accommodation and held as follows:
'The tenancy cannot be split up either in estate or in rent or any other obligation by unilateral act or 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 co-lessors from partitioning the tenanted accommodation among themselves. 0Whether 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 persons and that, even if he was being dealt with by only one of them on behalf of the whole body of the lessors, he cannot object to the transfer of any portion of the property in favour of a third person by one of the owners or to the partition of the property. It will, however, be open to the tenant to show that the partition was not bonafide and was a sham transaction to overcome the rigours of Rent Control laws which protected eviction of tenants except on specified grounds set out in the relevant statute.'
The law is therefore that if a tenanted premises is assigned the assignee becomes the landlord. There is no right to the tenant to prevent the assignee purchasing the tenanted premises. 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 and profits accruing/due from that property after the transfer. If the transferor/lessor assigns any part of the property, the transferee acquires all the rights of the lessor in respect of that part of the property under Section 109 of the T.P. Act. The transferee also entitled to sue for ejectment in accordance with the Rent Control Act. In a case where a transfer as a result of which the property is divided into several shares and each share comes to be vested separately in each owner, each 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. In such a situation, before the tenant is 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. Further it is also 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. But if the lessor transfers any part of his interest, in the property leased, the transferor becomes a co-sharer and the transferee alone cannot determine the tenancy or sue for ejectment without other co-lessors in the junction of parties or unless and until the transferee gets a partition effected which automatically splits up the tenancy and vests the transferee the rights of ejectment which is inherent in ownership.
10. Petitioner-landlord in the instant case purchased a portion in the upstair portion of the building and became the owner. The ground floor is already in the ownership and in possession of the petitioner-landlord. Facts would indicate that he has purchased the portion bearing No. XXV/2214. The rest of the premises, i.e., XXV/2215 is in the possession of the tenant. Landlord is conducting jewellery business in the ground floor bearing No. XXV/1477. The said room along with its proportionate rooms in the first and second floors were purchased by the landlord as per document No. 4437/98 dated 7.12.1988. Commissioner in his C1 report has stated that the upstair portion was made as one room by jointing two rooms. Commissioner has also stated in his report as follows:
On facts Rent Control Court and Appellate Authority concurrently found that upstair portion hall could be split up and the portion purchased by the petitioner-landlord, viz., XXV/2214 is identifiable. It is that portion which was purchased by the landlord as per document No. 4437/88. Landlord has therefore become the owner of the tenanted premises. On purchasing the tenanted premises the unity and integrity of the estate could be split up and the assignee landlord could seek eviction on the available grounds under Section 11 of the Act. The assignee however, has to show that the assigned portion is in a state of being identified and partial eviction is possible on facts. There is no need for the consent of the tenant for severance of the reversion and the assignment of the part so severed. Further there is no need for a consensual attornment since the attornment is brought about by operation of law.
11. Therefore the question of limitation on the right of the landlord against splitting up of the integrity of the tenant, inhering in the inhibitions of his own contract does not visit the assignee of the part of the reversion. If the assignee landlord could make out a case for eviction under Section 11 of the Act, the fact that the tenant had not consented to the attornment or that it would disrupt the unity and integrity of the tenancy which he had with the original landlord is of no avail or consequence. In other words, the assignee landlord gets all the rights and liabilities of the original landlord. If there was a fixed term of lease and the rate of rent is also fixed between the parties and the term had not been expired the assignee landlord would be governed by those terms and conditions as already been agreed to by the original landlord and the tenant. But when the lease period is over and the liabilities of the original landlord qua the original tenant was discharged the assignee landlord has got all the rights under the T.P.Act and the Rent Act and also the tenant has got all the obligations under the Rent Act. The assignee landlord is also entitled to seek eviction on all available grounds after the transfer. The tenant is also entitled to all the defences available under the Rent Control Act, but the limitation on the right of the landlord against splitting up of the integrity of the tenancy, inhering in the inhibitions of his own contract does not visit the assignee of the part of the reversion.
12. Rent Control Court and Appellate Authority have concurrently found that the tenant is not entitled to get the benefit of the first proviso to Section 11(10) of the Act. It is for the tenant to establish that the hardship which would be caused to him if he is evicted would outweigh the advantages of the landlord. Further the landlord has also to establish the advantage that would enure to him outweigh the hardship caused to the tenant. Landlord has stated the advantage that would enure to him. If the upstair portion is evicted he could conduct the jewellery shop in the ground floor of the building by accommodating his goldsmiths which is necessary for the functioning of the jewellery shop. No evidence has been adduced by the tenant to show that the landlord has got any other building in his possession in the same city, town or village where he could accommodate his goldsmiths. On the other hand, landlord has stated that the tenant has got other buildings of his own in the same town and few of the rooms in that building was sold and some of the rooms were let out three months back. It is also stated that even after evicting the portion of the upstair portion the main portion could be utilised by the tenant. Tenant is conducting kuri business. He has got various branches. Major part of the business is operating from Bangalore and Faridabad. Further, there is no difficulty for entry to both the rooms in the upstair portion since there is a common varandah. Rent Control Court and Appellate Authority as we have already indicated have found the hardship that would be caused to the tenant by granting the application will not outweigh the advantages to the landlord. We therefore find no illegality, irregularity or impropriety in the findings rendered by the Rent Control Court and Appellate Authority.
13. Under such circumstance revision lacks merits and the same is dismissed. However, in the facts and circumstances of the case we are inclined to grant time to the tenant to vacate the premises upto 30.6.2004 provided he files an undertaking before the Rent Control Court within one month that he would vacate the premises within the aforesaid time and that he would pay arrears of rent if any and also future rent.