BHARGAVA, J. - (1.) THIS is a tenant's appeal in a suit for ejectment/and rent.
(2.) THE suit property consists of first and second floor of the building bearing No. AMC XI/192 (New number) situated in Nala Bazar, Ajmer. THE appellant was a tenant of the Custodian, Evacuee Properties, that subsequently the property was released and by means of a letter dated 7th October, 1959, appellant was asked to pay rent at the rate of Rs. 5/- P. M. for the portion occupied by him from 6-5 59 and onwards to Syed Fakhruddin plaintiff. On 23rd January, 1959, Syed Fakhruddin executed a lease in favour of plaintiff No. 2 Tarachand of the entire property including the first and Second floor in the building for a period of two years at a monthly rent of Rs. 37/-, for one year that is Rs. 334/- having been paid in advance. After the said lease, Fakhruddin gave a notice to the appellant dated 13. 2. 1959 to attorn to plaintiff No. 2 and to pay rent to him, but he did not do so and continued to make defaults in payment of rent. Appellant was served with a notice to quit the premises by the mid-night of 19th April, 1960, but he did not do so. It was alleged in the plaint that the appellant had committed three defaults of two months each within a period of eighteen months and was thus liable to ejectment. The suit was contested on various grounds. Default in payment of rent was denied. It was asserted that the lease by Fakhruddin in favour of Tarachand was invalid and therefore the latter had no right to institute the suit. Validity of the notice to quit was also challenged. The two courts below concurrently found that the appellant had committed three defaults of two months each within a period of 18 months and was thus a defaulter and liable to be ejected on that ground. It was further found that the lease executed by Fakhruddin in favour of Tarachand was valid and the latter was entitled to eject the appellant. Notice to quit was also found valid. In this appeal, learned counsel for the appellant has raised mainly two contentions. Firstly, that the second lease by Fakhruddin in favour of Tarachand is invalid because the appellant was already his lessee. Secondly, notice to quit was not valid because it was in regard to a part of the demised property inasmuch as the appellant was lessee of the entire building and the notice was in regard to the first and second floor only. In order to substantiate the second contention, learned counsel also submitted an application seeking permission to amend the written statement so as to incorporate the above plea. Application was also submitted to admit allotment order of the Custodian of Evacuee Property dated 7-10-1959 as additional evidence in this Court. So far as the first contention is concerned, it would be clear from the provisions of Sec 109 of the Transfer of Property Act which runs thus: "if the lessor transfers the property leased, or any part thereof, or any part of his interest therein, the transferee, in the absence of a contract to the contrary, shall possess all the rights, and, if the lessee so elects, be subject to all the liabilities of the lessor as to the property or part transferred so long as he is the owner of it; but the lessor shall not, by reason only of such transfer cause to be subject to any of the liabilities imposed upon him by the lease, unless the lessee elects to treat the transferee as the person liable to him ; Provided that the transferee is not entitled to arrears of rent due before the transfer and that if the lessee, not having reason to believe that such transfer has been made pays rent to the lessor, the lessee shall not be liable to pay such rent over again to the transferee, The lessor, the transferee and the lessee may determine what proportion of the premium or rent reserved by the lease is payable in respect of the part so transferred, and in case they disagree, such determination may be made by any court having jurisdiction to entertain a suit for the possession of the property leased. " that lease can be made even of a part of lessor's interest and on the said transfer the reversioner's right vests in the transferee. In other words, sec. 109 permits creation of concurrent leases and the subsequent lessee in the absence of a contract to the contrary becomes entitled to all rights and liabilities of the lessor as to the property or part transferred. The operation of the second lease is not postponed until the termination of the earlier lease. This principle has been given recognition to in a number of decisions. In Parbhuram vs. Tekchand (1) it was held that the words 'transferee of any interest' in sec. 109 include the term lessee. In Bishen Sarup vs. Abdul Samad (2) it was held that: "a suit by the plaintiff as lessee against defendant who is continuing in possession is maintainable without a proper ejectment suit having been brought by the lessor himself when the lessor is impleaded as another defendant. " A similar view was taken in Md. Fazihz zaman vs. Anwar Husain (3 ). In Ganpat vs. Jayasingrao (4), some pieces of land were leased out by A to B and G for a period of four years. A then granted a lease to D for a period of 12 years or the same pieces of land entitling D to recover rent and possession from B and G after the expiry of the lease. It was held that: "the right given to D to recover rent and the right to recover possession from B and G after the expiry of their period constituted a transfer of limited interest of the landlord and by virtue of sec. 5 and 109, T. P. Act, such a transfer was legal. " In Bhogilal vs. Subramania Iyer (5) it was held that: "a lease can be a transfer of part of the interest in the property as contemplated under sec. 109 of the T. P. Act, and thereon the transferee gets all the rights of the transferor as to the severable part so transferred. Such a transferor is, therefore, a landlord and he is entitled to apply under sec. 7 (3) of the Rent Control Act. " In Venkayya vs. Subbarao (6), it was held that: "the interest of a lessor is a reversion, that is to say, a future estate capable of being reduced to possession on the termination of the existing lease and such interest can be validly transferred under sec. 5. The transfer would take effect on possession or the termination of the subsisting lease. The fact that the subject-matter of the lease was an eight annas share of the lessor of which physical possession could not be delivered to the lessee does not invalidate the lease. The question as to what amounts to delivery of possession in any particular case will depend upon the nature of the property leased. In Bhagatram vs. Keshar Deo (7) a Division Bench of that Court after a review of several earlier decisions held that: "a lessor can execute a second lease of the same premises during the subsistence of first lease. A lease is a transfer of a part of the interest of the lessor in the property. Under sec. 109 even the transfer of a part of a lessor's interest is permissible and on the said transfer the reversionary right vests in the transferee. After the creation of the second lease in favour of others the reversionary right of the lessor is transferred to subsequent lessee who steps into the shoes of the lessor landlord for the purpose of ejecting the previous lessee. Apart from the specific provision in the lease itself allowing subsequent lessee to take necessary steps for the ejectment of the previous lessee the subsequent lessee is entitled to enforce the right of the transferor lessor to enter into possession of the property by ejecting the previous lessee. "
(3.) IT will, therefore, be clear that a lessor can validly create a second lease and after it the reversionary right of the lessor is transferred and the subsequent lessee becomes entitled to eject the previous lessee. By the terms of the lease dated 23-1-1959, plaintiff No. 2 was authorised to recover rent from the appellant of the first and second floor of the building and was further authorised to take possession of the said portion for his use and occupation and if the appellant did not hand over possession, to recover possession from him through court. Learned counsel for the appellant however relied upon a decision of the Madras High Court reported as Vadivel Pillai vs. Pikasinidas Ammal (8 ). But that decision, in my view, runs contrary to the appellant's contention. The principle underlying sec. 109 of the Transfer of Property Act as enunciated in the decisions noted above was also accepted in this case as would appear from the following observations: "of course there is nothing to prevent a lessor dealing with the reversion after creation of a lease and during its currency. Sec. 109 of the Transfer of Property Act makes this clear and thus enacts: "109. If the lessor transfers the property leased or any part thereof, or any part of his interest therein, the transferee, in the absence of a contract to the contrary, shall possess all the rights and, if the lessee so elects, be subject to all the liabilities of the lessor as to the property or part transferred so long as he is the owner of it; but the lessor shall not, by reason only of such transfer, cease to be subject to any of the liabilities imposed upon him by the lease, unless, he elects to treat the transferee as the person liable to him. " By reason of this, a concurrent lease might be executed by the landlord. If the two deeds Exs. A-l and A-3 particularly exhibit A-3 created a present demise in favour of the first respondent - a demise under which her term commenced before the application for eviction there could be no doubt that she would have all the rights of a landlord under sec. 109 of the Transfer of Property Act and would be entitled, inter alia, to evict the petitioner. " However, in that case, the subsequent lessee was not held to be a landlord entitled to eject the first lessee because on the terms of his lease he had not become entitled to receive rents until possession was delivered to her by means of delivery of keys. The learned Judge in the course of his judgment observed that - "in the present case, the obligation of the first respondent to pay rent to her lessor, would commence only from the date on which possession was delivered to her. Till that time arrived, she would not be liable for rent and consequently the original owners of the property would be entitled to the rents from the petitioner. " The above decision, therefore, does not derogate from the principle enunciated in the decisions noted above. I am, therefore, of the view that the lease in favour of plaintiff No. 2 is valid and he was entitled to recover rent and possession from the appellant. As regards the second contention, it may be observed that it is for the first time in this Court that this objection has been taken, though in the written statement, validity of the notice to quit was challenged, but on different considerations. This specific ground that in the notice to quit there has been a bifurcation of the tenancy, was not taken. Learned counsel for the appellant has urged that the entire building was rented out by the Custodian to the appellant at a monthly rent of Rs. 15/ -. But the money-order coupons Exs. A-l 1, A-12 and A 13 run counter to the contention of the appellant and from these money-order coupons which had been produced in evidence by the appellant himself, it appears that the rent of the suit premises was Rs. 5/- only and it cannot, therefore, be said that the entire building was let out to the appellant at one time and under one agreement of lease. It is too late in the day for the appellant to raise this objection which requires further investigation into facts in second appeal. The appellant was in possession of the documents which he now wants to be admitted as additional evidence in the case I am afraid, appellant cannot be allowed at this stage to amend his written statement and to raise a new plea requiring investigation of facts. There is also no sufficient ground to admit the letter of allotment as additional evidence in second appeal This contention is, therefore, also over-ruled. There is no doubt that the appellant had committed three defaults of two months each within a period of 18 months. It is obvious from Ex. A-l 1 itself that on that date rent for one year was outstanding against the appellant It was pointed out by learned counsel for the appellant that the amount of rent was tendered to Fakhruddin but he refused to accept the Money-order. However, Fakhruddin was not bound to accept the amounts sent by money-order Ex. A-l 1 because by that time the appellant had committed defaults in payment of rent for a period of one year. The said tender cannot be regarded as a valid tender. The right of plaintiff No. 1 to evict the appellant on the expiry of the term of his lease, that is two years, has not been raised before me probably because since then plaintiff No. 2 has purchased the entire property and has become its owner. The result, therefore, is that this appeal fails and is hereby dismissed with costs. The decree for ejectment and recovery of arrears shall be in favour of plaintiff No 2 only because it has no! been made clear in the decree of the courts below. Since the appellant is in occupation of the premises for a long time, he is allowed six months' time to vacate the premises on the condition that he pays or deposits all the arrears of rent and mesne profits upto date within 15 days from today and thereafter continues to pay mesne profits at the rate of Rs. 5/- P. M. to the decree holder regularly. In case arrears are not paid within 15 days or the mesne profits are not paid every month regularly, the decree-holder shall be entitled to execute for ejectment. Learned counsel for the appellant prays for leave to appeal which is refused.. ;