So far as the issue of attornment raised by learned counsel
for the petitioner is concerned, Section 109 of the Transfer of
Property Act, 1882 ('the T.P. Act') dealing with attornment reads
as under:-
“109. Rights of lessor's transferee. - 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 the lease 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,
prays 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.”
The above provision provides that on account of transfer of
ownership of the premises to the respondent by the previous
lessor, the respondent becomes the lessor and becomes entitled
to receive the rent in terms of the lease by operation of Section
109 of the T.P. Act. No attornment of tenancy is necessary in
law as the above Section creates a statutory attornment and the
Section does not insist that the transfer of the lessor's right can
take effect only if the tenant attorns as attornment by tenant is
unnecessary to confer validity to the transfer of lessor's right.
However, the Section protects payment of rent by the tenant to
the transferor without notice of the transfer. The transfer of
ownership of the premises to the respondent by the previous
lessor results in statutory attornment by the tenant in favour of
the lessor's transferee and consequently jural relationship of
landlord and tenant, the said right of transferee under Section
109 is not curtailed or modified by the T.P. Act.
This Court in the case of Ram Saran Sharma v. Smt.
Kamla Acharya : 2001 (2) RLR 136 held and observed as under:-
“17. As regards the law of attornment, envisaged under
Section 109 of the Act of 1882, it is held that Section 109 of
the said Act does not require service of notice on the tenant,
on alienation of property, to create relationship of landlord
and tenant between the transferee landlord and the existing
tenant. The transferee of the lessor steps into the shoes
and possess all the rights, which the transferor has and the
attornment is not a condition precedent, to give validity to
the transfer made in favour of the transferee. Section 8 of
the Act of 1882 specifically provides that a transfer of
property passes forthwith, to the transferee, all the
interests, which the transferor is capable of passing in the
property, including the legal incidents thereof and such
incidents include the rents and profits thereof. Once the title
of the assignee is complete, the attornment is automatic not
dependent on the tenant's attorning or agreeing to the
attornment.
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
: O R D E R :
S.B. CIVIL WRIT PETITION NO.2721/2014
Laxmi Narayan vs. Ram Kishan & Ors.
Date of Order :: 10th December, 2014
PRESENT
MR. JUSTICE ARUN BHANSALI
Citation;AIR 2015 Raj 46
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