Attornment

Attornment:—

Ss. 105 and 108 of Transfer of Property Act, 1882:-— An agreement of the tenant to a grant of the reversion made by the landlord to another or as it has been defined, “the act of the tenants putting one person in the place of another as his landlord”. This means that in the first instance attornment is made in favour of the person who has derived his title or supposed title from the original landlord. It implies a continuity of the tenancy created by the original landlord in favour of the tenant. It is in these circumstances that the existing tenant for the rest of the period of his tenancy, agrees to acknowledge the new landlord as his landlord. Such an agreement of the tenant amounts to attornment and by such an attornment the tenant by his act substitutes the new landlord in place of the previous one. Such attornment is complete the moment the tenant agrees to acknowledge the new landlord to be his landlord. Any future payment or non-payment of rent does not affect the relationship created by the attornment. The new landlord will have his remedies with respect to the rents falling in arrears. Once the tenant has agreed to accept the person claiming title from the previous landlord, that amounts to effective attornment in favour of the landlord and is no more dependent on the future conduct of the tenant by way of payment of rent or otherwise, Uppalapati Veera Venkata Satyanarayanaraju v. Josyula Hanumayamma, AIR 1967 SC 174: (1962) 3 SCR 910: (1962) 1 An LT 81.

Attornment by the tenant is not a test of the petitioner being rightful receiver of the rent. If a tenant attorns in favour of some stranger, he would not become landlord. The person entitled to receive rent needs to have legal a right to receive the rent either as owner or as successor ofthe owner/landlord or as agent of the landlord. See. Amit Goel v. State Bank of India, 2010 SCC OnLine Del 1148.

There is always a distinction between a fresh tenancy and continuation of an old tenancy by extending the time period. See. Shivani Properties Pvt. Ltd. v. United B …, 2013 SCC OnLine Cal 9022.

Section 109 of the Transfer of Property Act creates an exception to the general rule that a tenancy cannot be split up by unilateral act of lessor. By virtue of section 109 proprto vigore transfers of the part of the property leased itself splits up the tenancy. What is transferred is the right, title and interest of the lessor in the part transferred and section 109 creates what may be called statutory attornment which substitutes and has the same effect as contractual attornment so that because of the transfer of the leased property or part thereof the transfers ipso facto acquires all the right of the lessor and new relationship is created between the transferee and the lessee. It is not dependent on the consent of the lessee and letter of attornmentis not necessary. The title of the assignee is complete on execution of deed of assignment and is not postponed till notice of the assignment. A transferee of a part of the leased property can thus exercise all the rights of the transfer or as if the part transferred had alone been comprised in the lease and he can therefore evict the lessee from the part transferred and he is so entitled whether the lease is determined before the transfer or not. The transferee can determine the lease of the part transferred in any ofthe circumstances enumerated in section 111. See.B.P. Pathak v. Dr. Riyazuddin Haji Mohammad Ali, 1976 MPLJ 9 .

The Supreme Court in the case of Mohar Singh v. Devi Charan, AIR 1988 SC 1365, has considered this question about the splitting of tenancy and has held that when two shops were leased by co-owners and on partition when one shop goes to the share of one of the co-owners, then action for eviction of tenant can be taken by one of the co-owners without impleading another co-owner. In that case two adjacent shops were owned by the co-owners and those two shops were obtained in lease by a tenant under a single lease. On partition one of the shops came to the share of a co-owner. The transferee of co-owner shop claimed ownership on the shop on the ground of bona fideneed. The Supreme Court in such circumstances held that on partition the co-owner transferee became the exclusive owner of one of the shops which came to his share. Threfore, there was no question of splitting of tenancy. On proof of bona fide need, the transferee-landlord was entitled to evict the tenant and there was no necessity of joining another co-owner in the action.

Case-Law:-

Plea of Attornment— National Spiritual Assembly of Bahais of …, 1994 Supp (2) SCC 704.

Survival of Attornment :— Ayub Mehmood Khan v. Mumbai Corporation, 2019 SCC OnLine Bom 5818.

Documents relating to Attornment of tenancy,
Jayashree Dwarkadas Divecha v. State Bank, 2019 SCC OnLine Bom 3055.

Service of notice of Attornment of tenancy,
Central Bank of India v. Sagdeo Towers, 2007 SCC OnLine Bom 437.

Attornment by the tenant is not necessary to confer validity of the transfer of the landlord’s rights.:-
L.Rs of Arjun Lal v. L.Rs of Kundan Lal, 2012 SCC OnLine Raj 4003.

Sec.116 of Evidence Act, 1872, Estoppel against tenant’s denial or disclaimer of derivative title of land. Tej Bhan Madan v. IInd ADJ, (1988) 3 SCC 137

In view of Section 109 there is no requirement of attornment by lessee.:— Suboth Chandra Deb v. State of Assam, 2003 SCC OnLine Gau 99.

It is settled law with regard to attornmentthat it does not create any new tenancy. Apollo Zipper India Ltd. v. W. Newman, (2018) 6 SCC 744.

It has been held that as between the lessor and lessee there can be no splitting of tenancy and even the Court or Rent Controlling Authority cannot by its decree or order split up a tenancyunless there is a specific provision in the statute for splitting tenancy. — B.P. Pathak v. Dr. Riyazuddin Haji Mohammad Ali, 1976 MPLJ 9 : AIR 1976 M.P. 55.

Civil LawT.P. ActTENANCY LAW

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