Civil Appeal No 485 of 1982
From the Judgment and order dated 2831980 of the Allahabad High Court in Civil Misc
Writ No 2280 of 1979
MS Gupta for the Appellant
Uma Dutta for the Respondents
The Judgment of the Court was delivered by VENKATACHALIAH J
This appeal by special leave is by the Landlord preferred against the judgment and order dated 2831980 by the High Court of Judicature at Allahabad in Civil Misc
Writ No 2280 of 1979 setting aside at the instance of the First respondent tenant the concurrent orders of the Courts below granting possession to the appellant
The first respondent was a tenant of two adjacent shops under a single lease obtained from two co owners Shri Jado Ram and Asha Ram who had respectively 38th and 58th shares in the property
Appellant Mohar Singh became the transferee of the 38th share of Jadoram
Similarly Asha Ram s 58th interest came to be transferred through and intermediary alienation to a certain Gyan Chand
Pursuant to a decree in a civil suit for partition between Gyan 257 Chand and the appellant the co ownership came to an end and towards his share appellant was allotted and became the exclusive owner of one of the shops
That is the subject matter of the present proceedings
Appellant instituted proceedings for eviction against the First respondent under Section 21 of UP Act XIII of 1972 before the prescribed authority on the ground of his own bonafide need
The prescribed authority ordered release of the premises and made an order granting possession
The appeal preferred by the First respondent before the District Judge Muzaffarnagar was dismissed
First respondent then moved the High Court in Writ No 2280 of 1979
The findings as to the bona fides and reasonableness of the requirement of the appellant stand concluded by the concurrent findings of the statutory authorities
Indeed that was not also the ground on which the order of eviction was assailed before the High Court in the writ petition 4
Before the High Court what was urged by the First respondent and accepted by the High Court was the contention that the severance of the reversion and assignment of that part of the reversion in respect of the suit shop in favour of the appellant did not clothe the appellant with the right to seek eviction without the other lessor joining in the action and that in claiming possession of a part of the subject matter of the original lease the appellant was seeking to split the integrity and unity of the tenancy which according to the First respondent was impermissible in law
The High Court does not appear to have considered the effect of the partition decree between erstwhile co owners and of the appellant consequently having become the exclusive owner of one of the shops
The reasoning that appears to have commended itself to the High Court in setting aside the order made by the Courts below granting possession is somewhat on these lines 
But unless such a situation has been created with the consent of all of them the effect of transfer of a portion of the accommodation would be that in place of one lessor would be substituted two lessors even though of defined portions of the accommodation let out to the lessee
It cannot be denied that one of the two joint lessors cannot institute a suit for ejectment or apply for permission to file 258 such a suit in respect of a portion of the accommodation     
In other words even now as a result of transfer a part of the building under tenancy the splitting up of the tenancy cannot be permitted unless the tenant has agreed to it
On this view of the matter the impugned orders are liable to be quashed
It is trite proposition that a land lord cannot split the unity and integrity of the tenancy and recover possession of a part of the demised premises from the tenant
But Section 109 of the provides a statutory exception to this rule and enables an assignee of a part of the reversion to exercise all the rights of the landlord in respect of the portion respecting which the reversion is so assigned subject of course to the other covenant running with the land
This is the true effect of the words shall possess all the rights  of the lessor as to the property or part transferred   occurring in Section 109 of the TP Act
There is no need for a consensual attornment
The attornment is brought about by operation of law
The limitation on the right of the landlord against splitting up of the integrity of the tenancy inhering in the inhibitions of his own contract does not visit the assignee of the part of the reversion
There is no need for the consent of the tenant for the severance of the reversion and the assignment of the part so severed
This proposition is too well settled to require any further elucidation or reiteration
Suffice it to refer to the succinct statement of the law by Wallis CJ in Kannyan vs Alikutty AIR 1920 Madras 838 FB at 840  
A lessor cannot give a tenant notice to quit a part of the holding only and then sue to eject him from such part only as pointed out quite recently by the Privy Council in Harihar Banerji vs Ramasashi Roy AIR 1918 PC 102
Consequently if the suit is brought by the original lessor the answer to the question referred to us must be in the negative because such a suit does not lie at all
Other considerations however arise where as in the present case the original lessor has parted in whole or in part with the reversion in part of the demised premises
Under the general law such an assignment effects a severance and entitles the assignee on the expiry of the term to eject the tenant from 259 the land covered by the assignment
Shri Uma Dutta learned counsel for the respondent tenant however relied on the pronouncement of this Court in Badri Narain Jha and Ors
vs Rameshwar Dayal Singh and Ors  159 to support his contention that severance and assignment of a part of the reversion would not affect the integrity of the lease
We are afraid reliance on this case is somewhat misplaced
This was a converse case where this Court considered the effect of splitting up of the interest of the lessees inter se
In that context Mahajan J said 
An inter se partition of the mokarrari interest amongst the mokarraridars as alleged by the plaintiffs could not affect their liability qua the lessor for the payment of the whole rent as several tenants of a tenancy in law constitute but a single tenant and qua the landlord they constitute one person each constituent part of which possesses certain common rights in the whole and is liable to discharge common obligations in its entirety    There is a privity of the estate between the tenant and the landlord in the whole of the leasehold and he is liable for all the covenants running with the land
In law therefore an inter se partition of the makarrari interest could not effect the integrity of the lease   This is an altogether different proposition
The next contention of Shri Uma Datta is that at all events what flows from a transfer  undr section 5 read with Section 109 of TP Act cannot be predicated of a partition as partition is no transfer 
It is true that a partition is not actually a transfer of property but would only signify the surrender of a portion of a joint right in exchange for a similar right from the other co sharer or co sharers
However some decisions of the High Courts tend to the view that even a case of partition is covered by Section 109 and that in any event even if the section does not in terms apply the principle of the section is applicable as embodying a rule of justice equity and good conscience
We need not go into this question in this case
Suffice it to say that the same High Court itself from whose decision this present appeal arises in Ram Chandra Singh vs Ram Saran  Ors AIR 1978 Allahabad 173 has taken the view that section 109 of TP Act is attracted to the case of partition also
That was a decision which the 260 learned judge in the present case should have considered himself bound by unless there was a pronouncement of a larger bench to the contrary or unless the learned judge himself differed from the earlier view in which event the matter had to go before a Division Bench
The correctness of the decision in Ram Chandra Singh s case was not assailed before us and therefore we do not feel called upon to pronounce on it
We should we think apply the same rule to this case
Several other High Courts have also taken this view though however some decisions have been content to rest the conclusion on the general principle underlying Section 109 TP Act as a rule of justice equity and good conscience
In the result this appeal is allowed the order of the High Court set aside and that of the III Additional District Judge Mazaffarnagar in Rent Control Appeal No 48 of 1978 restored
In the circumstances of this case there will be no order as to costs
RSS Appeal allowed


Summary:
A person during his lifetime executed trust deeds dated 21953 and 4101959 respectively
Under the Deed dated 2191953 that person as settlor transferred upon trust to himself as trustees four items of immovable property
The objects and purposes of the trust broadly stated were the conduct of the daily worship of the deity carrying out of certain charitable acts and making of provisions for the maintenance of the settlor and some other persons
The trustee was required after defraying taxes etc
to accumulate 14th of the net income to be set apart for purposes of effecting certain additions and alterations to the properties to make over another 14th of the net income to the shebait for the conduct of the daily pooja another 14th for the charities and the remaining 14th for the personal benefit of the settlor during his lifetime and to his heirs thereafter
Later on the share of the settlor was changed to 516
Under the deed dated 4101959 the settlor transferred upon trust to himself and his son the appellant in Civil Appeal No 946 of 1975 as trustees six other properties almost for the same purposes and kept a fixed share for the benefit of the settlor during his lifetime and thereafter to his heirs
In the proceedings of assessment to Estate Duty the question arose whether the trust deeds attracted and fell within 270 section 121 of the Estate Duty Act
The Deputy Controller of Estate Duty the Appellate Controller of Estate Duty in the first appeal and the Income tax Appellate Tribunal Calcutta in the second appeal held that the entire subject matter of the deeds must be held or deemed to pass on death and the value of the properties should be included in the principal value of the Estate passing on death
At the instance of the accountable person a reference was made to the High Court for opinion as to whether the properties comprised in both the trust deeds were dutiable under section 121 of the Act
The High Court held that properties comprised in the deed dated 2191953 were settled property within the meaning of section 219 and that section 121 was attracted
In relation to the properties covered by the deed dated 4101959 the High Court held that Section 121 was not applicable to them as they were not settled properties
Feeling aggrieved both the accountable person and the Deputy Controller of Estate Duty filed these cross appeals
Dismissing the appeal of the accountable person allowing that of the Revenue and answering the question referred to by the High Court for opinion in the affirmative and against the assesee this Court  HELD The first contention of the accountable persons that the interest in the property corresponding to the benefit retained by the settlor was not a subject matter of the disposition at all is essentially a matter of construction of the deeds
There is no doubt a discernible difference between a case of settlement of property with reservation of a benefit to the settlor on the one hand and the case where what is settled is only a share or interest or part of the property excluding the part or the share corresponding to the benefit that the settlor has chosen to retain
There is indeed no transfer at all in the latter case
The accountable person contends that there is really no transfer of the share corresponding to the benefit reserved in both the cases
278F G In the present case any possibilities of such an argument are ruled out by the explicit terms of the deeds
The subject matter of the deeds are not 1116 share and 12 share in the properties respectively
The whole of the properties are conveyed upon trust
There is therefore no scope for this submission
280C D St Aubyn vs Attorney General 1951 2 All England Reports 496 Controller of Estate Duty AP Hyderabad vs Smt
Godavari Bai  at 635 and Controller of Estate Duty Kerala vs Ms RV Vishwanathan and Ors  at 97 and 99 referred to
271 The second contention of the accountable person that provisions of section 121 are not attracted as the properties did not fill the bill as Settled Properties within the meaning of Section 219 has no substance
Section 121 refers to and deals with a case of property passing under a settlement in which the settlor had reserved to himself an interest in such property either expressly or by implication
Apparently on its language the section does not draw upon the incidents and implications of Settled Property for the satisfaction of its requirements
The passing of property under a settlement which means any disposition including a dedication or endowment whereby property is settled coupled with a reservation of an interest in the property would suffice
The further incident that the properties covered by the settlement must in addition partake of the character of Settled property and accordingly should stand limited in trust for any person natural or juridical by way of succession etc
are not to be held as part of the requirements of section 121
Those incidents of Settled Property need not be imported to the ingredients of section 121 which would be satisfied if there is a Settlement as defined under the second part of section 219 and if there is reservation of an interest by the settlor in addition
280D 281C E In the instant case the two deeds clearly answer the description of Settlement as defined under Section 219 viz that there is a disposition including a dedication whereby property is settled
Indeed under both the deads the reservations of the benefit of the income from the trust properties were made in favour of the settlor
These reservations by themselves in our opinion bring the properties within the net of section 121
In addition the settlor in this case constituted himself during his life time and thereafter constituted his heirs as the shebaits of the two deities
Indeed where while endowing properties to a deity the settlor stipulates that he shall during his left time and thereafter his heirs be the shebaits of the deity the settlor can possibly be said to provide not only for certain duties to be vested in connection with the endowment but also secures a beneficial interest in the property
281F H 282A Angurbala Mullick vs Debabrata Mullick at 1132 and Kalipada Chakraborti  Anr
vs Palani Bala Devi The reservation interest so as to attract Section 121 must be in the property as such and that mere collateral benefits reserved by the settlor emanating from some other property or some other source inde 272 pendent of the property so settled will not attract the section
The distinction between a case of a benefit arising collaterally and a case of the benefit being reserved by implication would require to be kept clearly distinguished
282H 283A C Controller of Estate Duty vs R Kanakasabai  Ors at 257 referred to
The terms of the two documents satisfy even the extended requirement that for purposes of section 121 the settled property must be by way of succession
284E Attorney General vs Owen 1899 2 Queen s Bench Division 253 at 266 and Hamid Hussain vs Controller of Estate Duty at 315 referred to
There is no substance in the 3rd contention also of the accountable person that all the properties covered by the two settlements cannot be held to pass under section 121 but only the value of the share of the properties corresponding to the benefit reserved must be held to pass
There are certain fallacies in some of the assumptions basic to this contention
The quantum of the interest reserved does not determine the extent of the property passing under Section 121
This is not a case where several distinct properties or parcels are settled and a beneficial interest is reserved out of one alone when it might be possible to predicate that all properties comprised in such settlement which must be held to be a composite deed dealing with several items do not attract section 121 but only the parcel out of which an interest is carved out and reserved for the settlor s benefit
Under Section 121 if the deceased makes a settlement and reserves for himself an interest therein for life or for any period determinable with reference to death the whole of the property so settled would be deemed to pass
The interest reserved might be very small indeed but however small the interest when by virtue of such a reservation a settlement falls within the purview of section 12 the whole property would be deemed to pass
284F H 285A B Attorney General vs Earl
Grey at 325 referred to
The expression interst  in section 121 is also not used in a restrictive sense
285D Attorney General vs Heywood and Attorney 273 General vs Farrel  referred to