This Case Commentary is written by Hema gariya, a Fourth-year law student of BML Munjal University, Haryana

Appellant: Mohan Singh

Respondent: Devi Charan and Others

Date of judgment-09.05.1988

Bench – R.S Pathak, C.J and M.N vankatachaliah, J

Council for plaintiff-M.S Gupta, Adv

Council for Respondent –Uma Datta, Adv

Procedural History-

District Court, Muzaffarnagar U.P (1978)-

The appeal was dismissed.

High Court of Allahabad, (1980)- The issue that was put forward by the council of the respondent

Before the concerned court was that the severance of the reversion and the assignment of that part of the reversion in respect of the suit shop does not provide the right to seek eviction until and unless another lessor joins them and in addition, the appellant was seeking to split the integrity and unity of the tenancy, which according to the First-respondent, was impermissible in law. The court provided its judgment in favor of the respondent.

Supreme Court, (1988)-The case was filed in the year 1988, and judgment is discussed in a later phase.

FACTS-

The respondent (Devi Charan) here was the owner of two adjacent shops under a single lease from two different co-owners, Jodo Ram, and Asha Ram. They both had different shares in the property, the former had 3\8 and the latter had 5\8 shares in the joint property. Jodo Ram transferred his property to the appellant Mohar Singh and Asha Ram transferred it to Gyan Chand. After the transfer, the Appellant proceeded with the eviction of the respondent tenant for his own bona fide use under section 21 of U.P.

Act XIII of 1972 before the prescribed authority. The prescribed authority ordered the release of the premises and made an order granting possession.

ISSUES-

• Whether the tenant can be evicted by only one of the co-owners or not?

• Whether the consent of the tenant required for the splitting of tenancy?

• Whether the term “Partition” is considered a valid transfer uber section 5 of the Transfer Of Property Act,1882?

• Whether S. 109 which signifies the rights of lessor and transferee can be extended with S. 5 even if 'Partition' is not a valid transfer as listed in S. 5 of the Transfer of Property Act,1882?

RULES

• Section 5 of The Transfer of Property Act,1882

It defines 'transfer of property, by which a living person conveys property in the present or the future to one or more living persons or himself. It further states that in “partition” no transfer of property takes place as no new rights are being created rather the rights that were enjoyed jointly are divided individually.

• Section 109 of The Transfer of Property Act,1882-

It defines the ‘Rights of the lessor’s transferee.

• Section 11 of U.P Urban Building Act,1972-

It determines the procedure for the release of the building under the occupation of the tenant.

ANALYSIS-

Supreme court-

Arguments by the Council of Respondent –

Uma Datta the council that appeared for the Respondent made his contention before the court by relying upon the judgment given in the case Badri Narain Jha and Ors. v. Rameshwar Dayal Singh and Ors.,

[1951]2SCR153 which stated that severance and assignment of the part of the reversion do not affect the integrity of the lease. Further to support his contentions, he claimed that the transfer of property under section 5 of the Transfer of Property Act 1882 does not include the concept of transfer of property where there is partition in the Hindu joint family.

The concerned court provided its analysis on basis of the section 109 of the Transfer of Property Act,18 82 which provides the exception to the rule (the landlord cannot split the unity and integrity of the tenancy and recover possession of a part of the demised premises from the Tenant.

Exception – The section provides the right to the assignee of the reversion to exercise all the rights of the landlord over the portion over which the reversion is there. Furthermore, it held that to exercise these rights regarding the severance of the reversion no consent from the tenant is required.

The court here discussed the true nature of the term “partition” where it stated that the term “partition” under section 5 of the Transfer of Property Act,1882 does not signify the “transfer of property” rather it signifies the surrender of joint right in exchange for a similar right from other co-sharers. As it does not transfer any new right to the co-sharer except the separation of a joint right to the individual right, which is already vested in him. It is an adjustment in the existing right itself and does not give rise to any new right so it is not considered a 'Transfer' under the Transfer of Property Act, 1882.

Conclusion -

The court in its judgment allowed the appeal and dismissed the order of the High Court of Allahabad and further to it, the Apex Court restored the judgment given by the District Judge, Muzaffarnagar.

Learnings from the case-

The case of Mohar Singh (Dead) by Lrs. Vs. Devi Charan and Ors. AIR1988SC1365 gave the understanding of the questions of whether the transfer of property can be there in the case of partition in the family and whether section 5 of the Transfer of Property Act,1882 covers partition or not. Section 5 talks about the transfer of property by the living person to another living person it does not include the partition in the Hindu joint family as the partition within the joint family signifies the surrender of the rights(right to the title, right to enjoy the property, right to alienate the property) that were enjoyed by them jointly in exchange of some similar rights from the co-sharers so that they can enjoy them individually. The Supreme Court has given similar decisions regarding the issue of whether the transfer of property takes place in the partition of Hindu undivided families in various cases like VN Sarin.

V. Ajit Kumar Poplai AIR 1966SC 432 and Girja Bai V.Sadashiv Dhundiraj AIR 1916 PC104.

The facts of the case VN Sarin V. Ajit Kumar Poplai AIR 1966SC 432 were as –

Father divided the property among his sons in which each of them got 1\3 of the property whereas the property that came to one of them was in lease to the tenant. Son(A) filed the eviction against the tenant but the tenant refused to vacate the property claiming that A here got the property in the transfer and under the Delhi Rent Control Act,1958 if the landlord attains the property that is in the lease by transfer cannot evict the tenant until 5 years of the contract is completed. Hence issue before the court was whether there was a transfer of property due to partition.

Similarly, in Girja Bai V.Sadashiv Dhundiraj AIR 1916 PC104, the privy council held that in partition no title is being created in favor of the parcener that he gets the individual right over the property that was shared jointly.