ORDER
Bharuka, J.
1. This Revision Application has been preferred by the tenants who have suffered an order of eviction under Clause (h) of Section 21 (1) of the Karnataka Rent Control Act, 1961 (‘the Act’, for short) which pertains to the personal necessity of the landlady.
2. Admittedly the schedule building had been leased out to the present tenants by Sri A.M. Sufi PW-3 under a registered Lease Deed dated 19.7.1973 (Exhibit P-16) on a monthly rental of Rs. 550/- for a term of five years. Pursuant to the order of compromise passed by this Court in RSA No. 600 of 1966, Sri Sufi made an oral Gift dated 31.10.1974 in respect of the schedule building to his sister Smt. Muneera Begum who has filed the present eviction petition as the landlady. The said Gift was confirmed by Sri Sufi by making a written declaration dated 1.11.1974 (Exhibit P-1) and the same was accepted by the landlady by another written declaration of the same date being Exhibit P-2. Pursuant to this Gift, Bangalore Corporation transferred the Khatha in the name of donee as is evident from the Endorsement dated 4.12.1974 (Exhibit P-3). It appears, despite the Gift so made, for certain reasons till 1983 the rent was being collected by the said Sri Sufi on behalf of his sister, and since 1983 the tenants started paying rents directly to the present landlady as is evident from the deposition of PW-1 landlady and the letter & its postal certificate of tenant PW-3 marked as Exhibit P-14 and P-15, and from the evidence of RW-1 tenant. The tenant RW-1 in paragraph 3 of her examination-in-chief has clearly admitted thus:
“3. I know the petitioner. I used to send the rent to Mr. Soofi and he in turn used to pay it to the petitioner. Later Mr. Soofi brought the petitioner, introduced her to me and directed me to pay the rents to her. Since then I have been paying rents to the petitioner.”
3. From the said oral and documentary evidence it could not have been disputed that the present landlady is the owner of the schedule property and tenants knowing the said fact had been remitting the rents to her. Still the tenants apart from disputing the relationship contested the eviction petition on merits disputing the plea of personal necessity. Accordingly, the Court below formulated the following Points for Determination:
“1. Whether the petitioner proves that she is the owner and landlady of the petition premises and that the respondents are tenants under her in the premises and there exists a relationship of landlord and tenant between them?
2. Whether the petitioner proves that she reasonably and bona fide requires the petition premises for her own use and occupation?
3. Whether comparative hardship will be more on the petitioner if an order of eviction is refused in her favour, or whether it will be more on the respondents if ordered to be evicted?”
The Court below on considering the oral and documentary evidence answered the first three Points in affirmative and in favour of the landlady, and accordingly passed an order of eviction.
4. Sri U.L Narayana Rao, learned Counsel appearing for the tenant has assailed the impugned order by raising the following contentions:
(i) The Gift made in favour of the landlady Muneera Begum is sham and nominal which has been made only for the purpose of seeking eviction of the tenant from the premises.
(ii) Eviction cannot be sought by splitting the tenancy;
(iii) On the basis of evidence brought on record, the plea of bona fide requirement of the landlady is not sustainable in terms of Clause (h) of the Proviso to Section 21 (1) of the Act.
5. So far as the first question is concerned, as discussed above, the donor PW-3 and the donee PW-1 have clearly averred about the making and acceptance of the Gift which are duly substantiated by written declarations made by them under Exhibit P-1 and P-2 and handing over of legal possession thereof is duly supported by the transfer of Khatha in the Municipal Records as evidenced by Exhibit P-3. As noticed above, even the tenant RW-1 since the date of Gift has accepted the donee as her landlady and had been remitting the rents to her.
6. In Mulla’s Principles of Mahomedan Law (19th Edition) it has been stated in Section 149 thereof that the three essentials of making a gift valid under Mahomedan Law are: (1) A declaration of gift by the donor; (2) An acceptance of the gift, express or implied, by or on behalf of the donee; and (3) Delivery of possession of the subject of the gift by the donor to the donee. Section 152 of the said Law deals with delivery of possession of immovable property. Sub-section (2) of this Section enunciates that a gift of immovable property which is in occupation may be completed by a request by the donor to the tenants to attorn to the donee, or by delivery of the title deed or by mutation in the Revenue Register or the landlord’s Sherista. In the present case, apart from the required declarations of giving and accepting the Gift made by the donor and the donee, tenancy has been duly attorned to the present tenants and the mutation of the donee has also been made in the Municipal Records. In view of these factors, as rightly held by the Court below, it does not lie in the mouth of the tenants to challenge the Gift made in favour of their landlady as sham and or nominal. In my opinion, the Court below has rightly held that the Gift as valid in law confirming the valid title on the present landlady.
7. The second question has been raised by taking benefit of the error committed in the lease deed executed by the donor in favour of the present tenants wherein the lease-property has been shown as Door Nos.17 and 18. Door Nor.17 is the schedule building. So far as Door No. 18 is concerned, it has not fallen to the share of the donor Sri A.H. Haq. Nonetheless, the same was also shown to have been leased out under the lease deed Exhibit P-16. Notwithstanding this mistake, in my opinion, even otherwise, the plea based on splitting of tenancy is without any substance.
8. The law in this regard has been succinctly and clearly laid down by the Supreme Court in the case of MOHAR SING (DEAD BY L.Rs.) v. DEVI CHARAN AND ORS. , which reads as under:
“It is trite proposition that a landlord 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, T.P.Act, 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, T.P.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.”
Similar view has been earlier taken by this Court in the case of M/s JEETHAMAL NEMICHAND v. S.B. SUKRAJ ILR (Kar) 1978(2) 1125, wherein after considering Section 109 of the Transfer of Property Act, it has been held that a transferee of a part of the subject matter of the lease can maintain an action for the possession of that part alone of which he is the transferee.
9. Coming to the last question, I would first like to refer to the uncontroverted evidence of the landlady PW-1, She has deposed that except the petition premises she does not own any other premises. Neither she nor her husband owns any house in Bangalore. Her husband was an employee of HAL who had retired from service in April 1985. Thereafter they were forced to vacate the official quarters in October 1985. Thereafter finding no other alternative place to live, temporarily they occupied a room in the Bangalore Club as they were the members of the Club. Then with great difficulty they acquired a tenanted house on a monthly rent of Rs. 1,500/- with Rs. 15,000/- as deposit, with a clear understanding that they would leave or vacate the same within one year. This house has only two bed rooms. Members in the family are seven including the landlady, her husband, two grown-up daughters, one niece, a maid servant and a grand child. She has also deposed that her husband is a heart patient and there is no medical facility around the tenanted premises and they have to go a long way to the City, even in an emergency. Keeping in view these facts, the Court below has found the plea of personal necessity as reasonable and bona fide. Nothing has been brought to my notice to interfere with this finding which is based on consideration of cogent materials on record.
10. So far as the question of comparative hardship is concerned, keeping in view the fact that the tenants had taken the premises on lease only for five years and the major portion of the building is being used for the purpose of occupation of petitioner No. 2 claiming to be the owner of the school, the same has been recorded in favour of the landlady. The Court below has considered the relevant facts in this regard in paragraph No. 13 of the impugned order which reads thus:
“On the fact of hardship, I find that the petitioner will suffer greater hardships if an order of eviction is refused. The petitioner does not have any other premises where she can go and reside. She has got grown up children who are going to colleges and she has got to accommodate her retired husband who has no other premises to live in. She is paying exorbitant rent of Rs. 1500/-p.m. whereas the respondent is enjoying in her property by paying only Rs. 550/- p.m. If the order of eviction is not passed, she will suffer greater hardships. It was contended by the learned counsel for the respondent that the tenant is in occupation of the premises since a long time and therefore, if an order of eviction is passed, she will suffer greater hardships. But the High Court of Karnataka in its decision reported in 1968(1) Mys.LJ. 453 (R.R. Paints case) has held that the tenant’s occupation of the premises for a long time is no criterion to decide whether the tenant will be put into, greater hardships if ordered to be evicted. There is nothing to show that the respondent has made endeavour to secure alternative accommodation and that such other accommodation is not available. The respondent is well aware that the petitioner has sought her eviction long back. She has admitted in cross examination that she undertook to vacate the premises within 5 years, but she has no such intention to honour her admission made before the court, When the respondent herself admits that she has not made any attempt to secure an alternative accommodation, even though she had undertaken to vacate the premises, she is not entitled to say that she will suffer greater hardships if ordered to be evicted.”
11. With regard to the plea of partial eviction the Court below has recorded its finding in paragraph No. 16 of its judgment, which reads as under:
“The question of possibility of graining partial eviction does not arise in this case. No evidence has been let in to prove that the premises can be bifurcated into 2 portions conveniently without causing inconvenience. The petitioner’s husband was employed in H.A.L. and has led a very decent life. He requires the entire premises for his own use. By passing an order of partial eviction, the respondent will be allowed to continue in a portion of the premises with a large number of students. It will definitely cause inconvenience to the petitioner, Where inconvenience is caused to either of the parties, a partial eviction cannot be ordered.”
12. I have gone through the evidence on record to ascertain the correctness of finding with regard to hardship and partial eviction. But on the facts of the present case, I failed to persuade myself to interfere with the said findings, since according to me on the facts as set out and proved by the landlady, she is in genuine and immediate need of the schedule building bona fide and reasonably for her occupation; and, considering the health condition of her retired husband and the members in her family, any order of partial eviction will only lead to gross injustice.
13. Accordingly, finding no good ground for interference with the impugned order, the present Revision Petition is dismissed with costs. Lawyer’s fee is fixed at Rs. 1100/-.