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Vinayak Mahadeo Nirgum v/s Sadanand Shantaram Bandekar

    Special Civil Application No. 139 of 1978

    Decided On, 10 September 1981

    At, High Court of Judicature at Bombay


    For the Petitioner: N.K. Sawant, Advocate. For the Respondent: G.S. Kalsekar, Advocate.

Judgment Text


This petition under Article 227 of the Constitution arises out of proceedings for possession of the suit premises under the provisions of the Bombay Rent Act.

2. Property of which the suit premises form part, originally belonged to one Mainuddin Ibrahim Harekar. By registered conveyance dated 21st April, 1972 he sold the same to the plaintiff. Subsequently, by assignments dated 5th July, 1972 and 29th July, 1972 respectively, he also assigned to the plaintiff pre-sale or pre-transfer arrears of rent i.e. rent due to him, the original owner, till the date 21st April, 1972 when he sold the property to the plaintiff (hereinafter the pre-transfer arrears of rent). On 18th October, 1972 the plaintiff issued notice to the defendant terminating his tenancy and claiming Rs. 708/- being pre-transfer arrears of rent

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due to the original owner but later assigned to the plaintiff plus Rs. 60/- being post transfer arrears or rent actually due to the plaintiff himself for the period after his purchase. This notice was duly replied to by the defendant on 11th November, 1972. On December 16, 1972, plaintiff filed the instant suit for recovery of arrears and possession on the ground of the said arrears. Defendant denied and contested the said claim.

3. The trial Court held that the plaintiff was not entitled to possession, that the case was governed by section 12(3)(b) of the Rent Act and that the defendant was entitled to relief against eviction as per the decree. In appeal by the plaintiff, it was held that the defendant was in arrears of rent for more than six months, that the case was governed by section 12(3)(a) of the Rent Act and that the plaintiff was entitled to a decree for possession. In the result, the appeal was allowed, the trial Court's decree was set aside and the plaintiff's suit for possession was decreed. Hence this petition.

4. Hearing the rival submissions of the respective Counsels, two questions arise for determination :---

a) What is the legal character of pre-transfer arrears of rent assigned to the plaintiff by his predecessor-in-title?

b) When rent was payable (i) by the month and (ii) according to the British Calendar, can the defendant, as on the date of the suit notice, be said to be in arrears of rent for six months or more so as to warrant a decree for possession in terms of section 12(3)(a) of the Bombay Rent Act?

5. Taking up the first question, it does not admit of any debate that both rent as also arrears of rent is property. Pre-transfer rent, therefore, is property. Now, under section 6 of the Transfer of Property Act, property of any kind may be transferred unless---and this here is of some importance---otherwise provided by the Act or by any other law for the time being in force. In terms of the said exception, the proviso to section 109 of the Transfer of Property Act expressly provides that the transferee of the property leased, is not entitled to rent due before the transfer. The plaintiff, therefore was in law not entitled to pre-transfer. Consequently, when the plaintiff himself had no right to such pre-transfer rent, he cannot seek to recover the same as rent from the defendant.

6. It was, however, open to the plaintiff to obtain from his predecessor-in-title assignment of the said pre-transfer arrears of rent. But on such assignment, the same would in the hands of the assignee-plaintiff get transformed into a debt. The pre-transfer arrears of rent would consequently cease to be "rent" so called. By virtue of its assignment, that once upon its character or erstwhile nature would stand extinguished and get transformed into a debt. Under section 3 of the Transfer of Property Act, claim to any debt was an actionable claim. Therefore, the plaintiff as assignee of the pre-transfer arrears of rent transformed in his hands into a debt could certainly sue to recover the same but only in its character of and as a debt as constra-distinghished from rent. The legal character of the pre-transfer arrears of rent on its assignment to the plaintiff by his predecessor-in-title would be a debt. And the actionable claim within the meaning of section 3 of the Transfer of Property Act would be a claim to that debt.

7. Section 12 of the Rent Act has no application to such a debt and to such an actionable claim. Qua the said debt, there never has been between the parties hereto any relationship of landlord and tenant. The plaintiff purchased the property on 21st April, 1972. He thus became owner and landlord only as from that date. Consequently, he had, in law, no right to any rent for any period prior thereto. In these circumstances reliance placed on pre-transfer arrears of rent as cause of action for eviction of the tenant was untenable and misconceived. Claim for possession on the said basis thus fails.

8. The position would be different if the original owner/landlord had first filed suit for recovery of possession and arrears of rent and pending such suit, sold the property. Purchase pending an eviction suit would give rise to a different situation, different rights and different considerations. Consideration and adjudiciation thereof is, however, not called for in this case.

9. Coming next to the second question which arises out of a claim for possession based on a cause of action viz., post-transfer arrears of rent from 21st April, 1972 read with section 12(3)(a) of the Rent Act, on which claim the Appellate Court has decreed the suit, I find the said claim also devoid of merit. As noted, the property was purchased by the plaintiff on 21st April, 1972. Only as from this date, therefore, the plaintiff became the owner and the landlord and the defendant became his tenant. It is not disputed that rent was payable by the month and according to the British Calendar. Now, a lease even according to the British Calendar need not necessarily start from the first date of the calendar month. It can commence even from any intermediate date of the calender month. The lease here would thus commence from 21st April, 1972 when the plaintiff purchased the suit property and when the defendant consequently became the tenant of the plaintiff. The said lease being according to British Calendar and rent being payable by the month, true legal position is that the monthly lease which commenced on 21st April 1972 would be from the 21st of that month to the 20th of the next month (and so on) according to the British Calendar. Rent would, therefore, be payable and recoverable with respect to this period of a month i.e. 21st of a month to 20th of the next succeeding month and so forth onwards.

10. The suit notice was given on 18th October, 1972. As on that date, the arrears of rent due were for only five months, viz.,:

a) 21-4-1972 to 20-5-1972

b) 21-5-1972 to 20-6-1972

c) 21-6-1972 to 20-7-1972

d) 21-7-1972 to 20-8-1972

e) 21-8-1972 to 20-9-1972

The sixth month 21-9-1972 to 20-10-1972 was actually running when the suit notice was given. It was yet to get completed. The suit notice was given in between the said month. One of the prime conditions for the application of section 12(3)(a) of the Rent Act is that the rent must be in arrears.

"......for a period of six months or more."

Here the arrears due were for a period less than six months. Indeed, the suit notice itself demands for this period Rs. 60/- which represents rent of only five months at the undisputed rate of Rs. 12/- per month. This very demand, therefore, fell short of one of the basic requirements of this section. The suit notice qua claim for possession under section 12(3)(a) of the Rent Act was thus clearly premature and invalid. Claim for possession on this ground also was thus liable to fail. The Appellate Court, therefore, erred in decreeing the same. The said decree is liable to be set aside.

11. In the result, this petition succeeds and is allowed. The judgment and decree dated 29th October, 1977 passed by the Appellate Court in Civil Appeal No. 26 of 1975 is set aside and quashed and the plaintiff's suit, being Regular Civil Suit No. 106 of 1972, is so far as the same relates to possession of the suit premises, is dismissed.

12. Rule earlier issued on this petition is made absolute. In the circumstances of the case, however, there will be no order as to costs throughout.

Petition allowed