The first plaintiff, as landlord, entered into a formal lease with the defendant with covenant for forfeiture, if the monthly rent in arrear reserved remained unpaid for 21 days. On 9th June, 1955, the first plaintiff filed a suit for recovery of possession on the ground that the rent for April, 1955, was unpaid. The summons was duly served upon the defendant.
The first plaintiff, thereafter, sold the premises leased to the second plaintiff, with transfer completed on 1st September, 1955. The transferee was not substituted as plaintiff under Order 23, rule 9, but was merely joined.
The defendant submitted that, as the first plaintiff had no longer any interest in the property, no order for possession could be made in her favour, and that, as the second plaintiff had acquired ownership after the rent fell due, the company was not entitled to sue for rent in arrear before the date of transfer and no order for possession could be made in its favour.
Held (7-9-56):
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The first plaintiff, having disposed of her whole interest in the property, was not entitled to an order for possession against the defendant.
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The transferee, by the proviso to section 109 of the (Indian) Transfer of Property Act, 1882, was neither entitled to arrears of rent due before the transfer, nor to forfeit the lease for breach of covenant for non-payment of such rent.
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The first plaintiff had a right, before transfer, to elect to forfeit the lease after breach in terms of section 111(g) of the Act, and by commencing proceedings and serving the summons on the tenant, she had both exercised her option and forfeited the lease, which had come to an end with the service of the summons.
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The first plaintiff was, before transfer, entitled to possession of the premises, and her right to possession, along with her other rights in the property, passed to the transferee, and the second plaintiff was, therefore, entitled to recover possession.
Cases referred to:
Vishveshwar Viglmeshwar Shadri v. Mahableshwar Subba Bhatta, (1919) I.L.R. 43 Born. 28; Grimwood v. Moss, (1871-2) L.R. 7 C.P. 360; Serjeant v. Nash, Field & Co., (1903) 2 K.B. 304.
Authority referred to:
Mulla, Transfer of Property Act, 1882, 2nd ed., p. 635.
Counsel:
Mann for both plaintiffs.
O’Beirne for defendant.
