Attornment By Lessee Not Necessary For Transfer Of Property Leased Out To Him: Karnataka High Court
26 May 2023 4:30 AM GMT
The Karnataka High Court has said that attornment by lessee is not necessary for transfer of property leased out to him.
A single judge bench of Justice Ashok S Kinagi allowed the appeal filed by G Jagadish Kumar and directed the tenant K G Murali to vacate and handover the possession of suit property to the plaintiff. It rejected the contention of the defendant that the plaintiff is not the owner of suit schedule property and defendant is not the tenant under the plaintiff, as such, there is no relationship between the plaintiff and the defendant as the landlord/lessor and the tenant/lessee.
“When the landlord/original owner – Sriram Shetty under whom the defendant’s father was a tenant, transferred the property in favour of the plaintiff, the plaintiff became the owner on the strength of the registered sale deed. As such, the defendant became the tenant of the scheduled property and no attornment is required to create such landlord and tenant relationship.”
Kumar had filed a suit for ejectment and for arrears of rent. It was said that the defendant's father K.N.Gopal entered into a lease agreement with the plaintiff, who is the owner of the schedule premises, on the condition that the lease is a monthly lease. Gopal died in the month of June, 1995. The defendant being his son, continued in possession of the premises. Ever since then, the defendant has failed to pay the rent and he is in arrears of rent from June, 1995, it was averred.
The trial court held that the plaintiff had failed to prove that the defendant’s father was a tenant under him, rather defendant has proved that plaintiff is not owner of the suit schedule property. The appellate court confirmed the said order, following which Kumar approached the High Court.
It was contended by Kumar that as per Sections 8 and 109 of the Transfer of Property Act, by operation of law, all the interest which the transferor is then capable of passing in the property and in the legal incidents, shall transfer to the transferee including the rent thereof accruing after the transfer.
The respondent supported the judgments passed by the trial court and appellate court and sought for dismissal of appeal.
The bench on going through the records noted that Sriram Shetty was the owner of the suit property and K.N.Gopal, i.e., father of the defendant, was the tenant under Sriram Shetty in respect of the suit property. It held,
“As per Section 8 of the Transfer of Property Act (‘the TP Act’ for short), there is a presumption that when a property is transferred, all things attached to the earth, such as, trees and shrubs are also transferred along with the land. The plaintiff becomes the owner by operation of law on the strength of the registered sale deed. Such transfer will not affect the tenancy as the tenant will continue till the eviction of the tenant by the procedure of law.”
It added, “Defendant (tenant) does not acquire any interest in the property and as such the tenant cannot challenge the right/title of his landlord. The tenant remains as a tenant under the transferee/landlord.”
Noting that the defendant had the knowledge about the registered sale deed executed by Sriram Shetty in favour of the plaintiff, but has denied him to be his landlord and has not paid the rent to him, the bench said,
“The defendant cannot challenge the status of the plaintiff as owner of the suit property. As such, the defendant became a tenant under the plaintiff by operation of law under Section 109 of the TP Act. The attornment by lessee/defendant is not necessary for transfer of property leased out to his father under Section 109 of the TP Act.”
Court also referred to Section 109 of the TP Act and said that when right, title and interest in immovable property stand transferred by operation of law, the spirit behind Section 109 would apply and the successor in interest would be entitled to the rights of the predecessor.
“The defendant is challenging the derivative of the title of the plaintiff and not the title of the original landlord, i.e., Sriram Shetty. The same holds no good as the subsequent owner will derive the title of the original owner and will step into the shoes of the owner. In the instant case, the right and title of Sriram Shetty is not under challenge and hence, the challenge as regards the derivative title, is of no consequence in the given background.”
High Court held that trial Court failed to consider that the defendant has admitted the ownership of plaintiff’s vendor and also defendant’s father was a tenant. The Appellate Court also, without properly re-appreciating the evidence, simply confirmed the judgment and decree, it observed.
The decisions were found to be contrary to Supreme Court's ruling in Palani Ammal v. Vishwanath Chettiar (1998) which held that the umbrella given to a tenant under the TP Act or under any other law cannot come to his aid by denying title (of the landlord).
In view of the aforesaid, the High Court allowed the appeal.
Case Title: G Jagadish Kumar And K G Murali
Case No: REGULAR SECOND APPEAL NO. 650 OF 2011
Citation: 2023 LiveLaw (Kar) 184
Date of Order: 23-05-2023
Appearance: Advocate P C Sunitha for appellant.
Advocate P Mahesh for Respondent.