1. This writ petition filed under Article 227 of the Constitution of India challenges the judgment and decree passed for possession on the ground of non-payment of rent in Regular Civil Suit No. 138 of 1977 by the learned Civil Judge, Jr. Division, Islampur on 31st December, 1979 which is confirmed in Civil Appeal No. 43 of 1980 by the Extra Assistant Judge, Sangli on 5-2-1982.
2. Few facts which are relevant for the purpose of this petition are, Upadhyes were the owners of the property in dispute which was mortgaged to the present respondent-landlord and on 24-6-1974 the respondent-landlord purchased the property. Ater purchasing the property on 24-6-1974, on 8-11-1974 both Upadhye and the present respondent-landlord sent notice which was in the nature of attornment to the petitioners informing them that arrears are due from 1st May, 1971 at the rate of Rs. 30/- per month and the respondent has right to recover the same. This notice was sent as referred to above by both Upadhye and the present respondent. This notice was replied and the contention that was raised in the reply was that the agreed rent is Rs. 25/- per month and the rent is paid upto the end of June, 1974. It appears that the landlord again called upon the tenant by his letter dated 20th November, 1974 to satisfy him regarding the payment made to the previous landlord. Since he was not satisfied, on 12th December, 1974 a notice of demand as contemplated under the provisions of Bombay Rent Act was sent by the respondent-landlord and the arrears were claimed from 1st May, 1971 at the rate of Rs. 30/- per month and thereafter since the amount was not paid as per the demand, the suit for possession was filed on 28th March, 1977 by the respondent-landlord on the ground of non-payment of rent from 1st May, 1971 and secondly on the ground of bona fide requirement. Both the Courts concurrently recorded the finding that the respondent-landlord failed to establish his bona fides. However, they passed decree on the ground of non-payment of rent.
3. It is this decree for possession which is passed on the ground of non-payment of rent which is assailed by the petitioners in this writ petition under Article 227 of the Constitution of India. Learned counsel appearing for the petitioners pointed out that the decree ought not to have been passed on the ground of non-payment of rent because on 12th December, 1974 the tenant was not in arrears for more than six months and in any event, the rent from 1st May, 1971 could not have been recovered by the respondent-landlord because it was in the nature of actionable claim or debt and in any event it was not assigned. For this proposition reliance is placed on Narendra Singh's case reported in 1979 Mah LJ 851 and 1982 Mah LJ 126, Vinayak Mahadeo Nirgun v. Sadanand Shantaram Bandekar. It was also argued and pointed out that the right to recover rent was not transferred by virtue of the sale deed executed on 24th June, 1974 and notice dated 8-11-1974 cannot be construed as assignment of right to recover rent. Thus it was pointed out that the decree on the ground of non-payment of rent could not have been passed. In addition to this, reliance was also placed upon the rent receipt at exhibit 35/2 and it was pointed that once reliance is placed upon the rent receipt then the payment upto June 1974 is proved and then the arrears are not more than six months and it was argued that the Courts below committed error in not relying upon exhibit 35/2.
4. Shri Rane, learned counsel appearing for the respondent-landlord pointed out that both the Courts below have concurrently held that the tenant was in arrears for more than six months of rent and thus his case was governed by section 12(3)(a) and the decree was therefore rightly passed. Mr. Rane placed his reliance upon a Division Bench decision reported in 1981 Mah LJ 967, Radhabai Bapurao Shelar since deceased by heirs Madhav Hiralal Shelar v. Trimbak Madhavrao Shirole. He further pointed out that this case specifically overrules Shantinath's case reported in 1979 Mh. L.J 229, Shantinath S. Ghongade v. Rajmal Uttamchand Gugale and Narendra Singh's case reported in 1979 Mah LJ 851 and he further points out that brother Pratap, J. while delivering the judgment reported in 1982 Mah LJ 726 (supra), was not pointed out the judgment reported in 1981 Mah LJ 967 (supra). Therefore, the judgment is per incuriam. Mr. Rane emphasised the fact that the Division Bench judgment in Radhabai's case (supra) fully supports the case of the landlord and according to him no assignment of right to recover rent is required in favour of subsequent transferee because under section 12 it is incumbent upon the tenant to pay the arrears of rent. Mr. Rane also contended that notwithstanding the fact that right to recover rent is not assigned in favour of the transferee, still he has right to recover the possession of the leased property from the tenant on the ground of arrears of rent because to take any other view would result in giving the tenant immunity from eviction even though the rent due remains unpaid and the said default continues. He strongly relied upon some observations of the Division Bench and argued that in veiw of the decision of the Division Bench, the decree passed by the two Courts below should be maintained on the ground of non-payment of rent.
5. After hearing the rival contentions of the respective parties, I am inclined to accept the submissions advanced by Shri Ghaisas for the tenant and my reasons are as follows:—
6. The admitted and proved facts in this matter are, that the property was purchased by the respondent-landlord on 24th June, 1974 and in view of the provisions of section 109 of the Transfer of Property Act, all the rights in the property stand transferred to the transferee. However, the proviso to section 109 provides that the transferee is not entitled to arrears of rent due before the transfer unless such right is assigned. In this case to show that the transferee is entitled to recover rent including past arrears, reliance is placed by Mr. Rane upon the notice of attornment dated 8-11-1974 whereby the previous landlord informed the tenant that he has sold the property to the present landlord on 24-6-1974 and rent is not received from 1st May, 1971, which should be paid to him. However, in my opinion, this will not constitute an assignment of a right to recover rent. Such right was retained by the previous landlord. The assignment to be valid has to be by instrument as provided for under section 130 of the Transfer of Property Act and admittedly there is no such instrument. I am supported by the authority for the proposition reported in AIR 1923 Patna 165, Kuar Rameshwar Narain Singh v. Rani Riknath Koeri. I am not inclined to consider the notice dated 8-11-1974 as a document of assignment. Thus I will have to proceed on the basis that in view of this proved facts if there is no assignment of the right to recover earlier rents which were due and payable from 1st May, 1971 in favour of the respondent-landlord the notice of demand on which reliance is placed is dated 12th December, 1974 whereby the arrears are claimed from 1st May, 1971 cannot be claimed. However, what is due and payable upto 24th June, 1974 i.e, till the date of the sale of the property not being assigned in favour of the respondent, it is not possible for the respondent-landlord to recover the said amount whether it is an actionable claim or otherwise; he has no right to recover this and a cause of action cannot be based upon a ground or upon a right which really does not exist. It is true that Mr. Rane pointed out that the Division Bench in Radhabai's case (supra) specifically overruled Shantinath's case (supra) and Narendra Singh's case (supra). But the ratio of the decision is that whatever is the cause of action which had accrued to the previous landlord, it accrues to the subsequent transferee. This is the ratio which is laid down by the Division Bench. The Division Bench does not lay down the proposition that notwithstanding there being no assignment of right to recover rent, the subsequent purchaser can still recover the rent. Mr. Rane emphasised on the following observations of the Division Bench which were also the observations in the Full Bench decision of Champaklal Dahyabhai Natali v. Saraswatiben, reported in AIR 1977 Gujarat 48 which were approved by the Division Bench. The following are the observations:
“The question need be looked not from the point of the character of the rent due prior to the transfer but must be viewed from the angle of the right to take possession of the property which arises because the tenant then remains in arrears of rent.”
7. Since this view of the Gujarat Full Bench was approved, Mr. Rane tried to contend, notwithstanding the assignment of such a right not being there, the subsequent purchaser can still maintain the suit on the ground of non-payment of rent which is due and payable to the previous landlord. In fact, before the Full Bench it was a case where there was an assignment of right to recover the rent in favour of the transferee, and by considering this fact the ratio that was laid down was when such a right to recover the rent in favour of the previous landlord is assigned, then the subsequent purchaser or a transferee can avail of that cause of action and it will still continue to be rent qua the subsequent transferee. In fact, the question which is being argued by Shri Rane was not answered by the Full Bench of Gujarat. Thus I am not ready to accept the contention of Shri Rane that the proposition laid down by the Division Bench is that notwithstanding there being no assignment of right to recover the rent which had accrued in favour of the previous landlord still the transferee can maintain the suit for that amount. In fact the Division Bench placed reliance upon the Supreme Court decision reported in (1982) 3 SCC 364 in the matter of Satti Krishna Reddy v. Nallamilli V. Reddy. There Justice Bhagwati in so many words has held that it is difficult to hold that claim of arrears of rent ceases to be such when it is assigned by the owner when he transfers his property to another. That means when the assignment of a right to recover rent takes place, that right gets transferred to the transferee and qua transferee it continues to be the rent and since it continues to be the rent, he can maintain suit for non-payment of rent including the arrears of rent which were due and payable to the previous landlord. In fact I am relying upon the Division Bench decision of Radhabai's case in order to negative the contention raised by Shri Rane. In view of the Division Bench's decision not only Shantinath's case or Narendra Singh's case stand overruled but even the law propounded by Justice Pratap in 1982 Mah LJ 126 (supra) also would not survive and unfortunately this decision of the Division Bench was not brought to the notice of Pratap, J. and therefore that is a judgment per incuriam. So far as the latest decision reported in 1992 Mah LJ 560, Karamchand Deoji Sanghavi v. Tulshiram Kalu Kumawat is concerned, Chapalgaonkar, J. also relied upon Radhabai's case and that was also a case where there was assignment of right to recover rent in favour of the transferee. So in almost all the cases i.e, in Narendra Singh's case or even before Justice Pratap — 1982 Mah LJ 126 (supra) or even in the decision reported in 1992 Mah LJ 560 (supra), the right to recover previous arrears of rent was assigned. Thus in view of the fact that there being no assignment of right to recover the previous rent in favour of the present respondent-landlord, he cannot avail of the past arrears which were due and payable from 1st May, 1971 till the date of sale of the property in his favour, and the subsequent arrears were for less than six months and therefore the case would be governed by section 12(3)(b) and it is not in dispute that there is total compliance of the provisions of section 12(3)(b). Under these circumstances, I have no other alternative than to quash and set aside the two judgments of the authorities below and dismiss the suit of the plaintiff. Hence rule made absolute. However, in the facts and circumstances of the case there will be no order as to costs.
Order accordingly.