T. EZHUMALAI Vs. PADMAVATHI AMMAL

JUDGEMENT

(1.) THE tenant is the petitioner herein and he questions the validity of the order of eviction passed against him at the instance of the respondent (landlady) Under Section 10(2)(1) and 10(3)(a)(iii) of Madras Act XVIII of 1960. The respondent sought an order of eviction against the petitioner on two grounds (1) that she required the building bona fide for her own occupation for carrying on a business which her husband is carrying on in a rented premises and (2) that the petitioner has committed wilful default in payment of the arrears of rent. The petition for eviction was resisted by the petitioner and his defence was four -fold. (1) That there is no relationship of landlord and tenant between the petitioner and the respond dent who is only a usufructuary mortgagee to whom he had not attorned, (2) that the respondent's requirement is not bona fide as neither the respondent nor her husband was carrying on any business, (3) that the default, if any, was not wilful and (4) that the notice terminating the tenancy was invalid. The Rent Controller, the appellate as well as the revisional authorities had concurrently held that the notice terminating the tenancy was quite valid and that the petitioner's contention in that regard cannot be sustained. Hence this ground has been given up before me.

(2.) ON the question of default also the Courts below have concurrently held that the petitioner has committed wilful default in payment of the rents. This finding is challenged by the learned Counsel for the petitioner on the ground that, as there is no attornment by him to the respondent who is a usufructuary mortgagee from the owner, Subramania Chettiar, rents are not payable to the respondent and therefore, there cannot be said to be any default much less wilful default. This contention of the petitioner has to be rejected in view of the provisions in Section 76 (b) of the Transfer of Property Act which enables the mortgagee in possession to collect the rents and profits of the mortgaged property. After the usufructuary mortgage was intimated to the petitioner which is not disputed, the petitioner was bound to pay the rent to the mortgagee and not to the mortgagor and the liability of the tenant to pay rent is only to the mortgagee and not to the mortgagor. In Pashupati v. Monjubhan : AIR 1943 Cal 160, it has been held that a person, who becomes entitled to possess the mortgaged property either by contract or by operation of law becomes the landlord of the tenants of the mortgaged property and that the tenants of such property are bound to pay rent to him alone and not to the mortgagor. In Pulin Behary v. Miss Lila Dey : AIR 1957 Cal 627, it was laid down that under the Indian, law a letter of attornment is not necessary to complete the title of the assignee of the reversion, that Under Section 109 of the Transfer of Property Act, the title of the assignee is complete on the execution of the deed of assignment and it is not postponed till the notice of assignment and that the liability of the tenant to pay the rent to the assignee arises from the moment of the assignment though under proviso to Section 109 the lessee is under no obligation to pay rent to the assignee if he had paid to the assignor without the notice of assignment. Section 109 of the Transfer of Property Act, specifically states that if the lessor transfers the property leased, the transferee shall possess all the rights of the lessor. In this case the respondent, after she became the usufructuary mortgagee, intimated that fact to the petitioner, demanded the rent, but the petitioner chose not to pay the rent to the respondent stating that the usufructuary mortgage in a sham transaction entered into for the specific purpose of filing an eviction petition, as the owner had failed in his attempt to evict him earlier. Whatever the reasons which motivated the petitioner not to pay the rent to the respondent, the fact remains, the rents have not been paid to the respondent even after the mortgage was notified and a demand had been made for payment of her rents to her. Hence I overrule the plea raised by the petitioner that there has been no wilful default in payment of the rent, and hold that wilful default has been duly established.

(3.) ON a due consideration of all the facts and circumstances and the materials adduced before the Court, I hold that the respondent has been rightly held to be entitled to an order of eviction. The civil revision petition is, therefore, dismissed. No costs. Time for vacating three months.