In Civil Appeal No.6827 of 2022-SC- Attornment by lessee is not necessary for transfer of property leased out to him u/s 109 of Transfer of Property Act, clarifies Apex Court
Justices Indira Banerjee & C.T. Ravikumar [22-09-2022]

Read Judgment: GOPI @ GOVERDHANNATH (D) BY LRS. & ORS V. SRI BALLABH VYAS 

Monika Rahar

Chandigarh, September 23, 2022: The Supreme Court has opined that the inevitable consequence of transfer of a leased-out property by the landlord in accordance with law to a third party, in the absence of a contract to the contrary, is that the third party concerned would not only become its owner having title but also would step into the shoes of the vendor as the landlord in relation to the lease holder at the relevant point of time. 

“In such circumstances, the findings of the courts below that there exists jural relationship of landlord and tenant between the respondent and the appellants can only be held as the correct and lawful conclusion in the light of the evidence on record based on the legal position”, the  Division bench of Justice Indira Banerjee and Justice C.T. Ravikumar held.

The petition schedule property was a Mulgi (small shop), abutting main road of Mangalhat, Hyderabad. They were sought to be evicted on three-fold grounds viz., non-payment/default in payment of rent,  tenants denial of the title of the landlord not being bonafide  and landlords right to be put in the possession of property for his own business use. 

The matter revolved around the suit of the respondent filed under Section 10(2)(i), 10(2)(vi) and 10(3)(a) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960  for the eviction of appellants and the other respondents, who are all the successors-in-interest of the original tenant Shri Balraj, being his wife and children, from the petition schedule property. 

The respondents therein were directed to vacate the petition schedule property and to handover its vacant physical possession to the petitioner therein (the respondent herein) within 3 months. The unsuccessful respondents therein took up the matter before the Appellate Authority- Court of Chief Judge, City Small Causes Court at Hyderabad, as Rent Appeal. The Appellate Authority considered the grounds of attack and found them meritless and consequently, dismissed the appeal. The Revision Petition filed against this order before the High Court, ultimately culminated in the impugned judgment. 

After considering the submissions of the parties, the Court noted that there can be no doubt with respect to the scope of an appeal under Section 136 of the Constitution of India by special leave against the concurrent findings. In such matters, re-appreciation of evidence is not the normal rule and the power thereunder would be sparingly exercised where the findings are absolutely perverse. 

“A finding can be said to be perverse if it is founded on no evidence to support the same or totally against the weight of evidence. So also, it can be said to be perverse if material evidence was missed out for consideration or a totally irrelevant and immaterial aspect formed the foundation for such a finding”, the Bench said.

Further reliance was placed on the case of Mallayyaand Anr. v. Thondepu Ramaswami And Co. & Anr.  Coming to the facts of the present case, the Court stated that it had  carefully scanned the order of the Rent Controller and the judgments of the Appellate Authority as also the High Court. The question was as to what was  the perversity that invited the  interference with the concurrent findings.

The Court noted that Section 9 of the TP Act states that a transfer of property can be made without writing in every case in which a writing is not expressly required by law. However, as per Section 54 of the TP Act, sale of immovable property of a value of Rupees one hundred and upwards can be made only under a registered instrument. Section 17 of the Indian Registration Act, 1908 speaks of documents of which registration is compulsory. 

As per Clause (b) of sub-Section (1) thereof non- testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property, shall be compulsorily registered, the Bench noticed.

The Court further stated, “ In terms of Section 109 of the Transfer of Property Act it is clear that attornment by the lessee is not necessary for the transfer of the property leased out to him.”

On the question as to whether the direction for eviction of the appellants from the petition schedule property called for interference on the ground of perversity in finding, the Court noted that the Rent Controller, the Appellate Authority and the High Court considered the question whether the requirement of the respondent to get vacant possession of the petition schedule property is bonafide and acceptable as a ground for eviction. 

The pleadings and the evidence of the respondent was to the effect that he was  unemployed and required  the petition schedule property for establishing his own business to eke out his livelihood. Though, the respondent herein was cross-examined nothing could be elicited to establish that his requirement for personal occupation for the aforesaid purpose is not genuine and that it is only a ruse for evicting the appellants, the Court further noted. 

So also, nothing could be elicited to establish that the respondent possesses other vacant premises of his own to establish his business. The original first petitioner in the SLP from which this appeal arose,stated that he did not file any document to show that the petitioner therein viz., the respondent herein got other non-residential building(s) or mulgies in Feelkhana, the Court noted. 

Nothing was brought to the attention of this Court  that would establish non-consideration of any material or consideration of irrelevant material, to arrive at the finding that the requirement to get vacant possession of the petition schedule property of the respondent is malafide, the Court stated.  On a careful scanning of the concurrent findings on all issues, the Court stated that it found no reason to hold that such findings were infected with perversity or manifest injustice. Thus, the Bench dismissed the appeal.