JUDGMENT
Untwalia, C.J.
1. This is a second appeal by defendant No. 1 from the judgment and decree of the lower appellate Court affirming the decision of the trial Court decreeing the suit of plaintiff respondent No. 1 for eviction of the appellant. In the appeal is involved an interesting question of law whether a second lessee who is known as a lessee of a concurrent lease during the pendency of the first lease can have a right of eviction of the first lessee on any of the grounds mentioned in Section 11 (1) of Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (hereinafter called the Building Act).
2. Facts are elaborately stated in the judgments of the Courts below and some of them may be stated in a narrow compass here. There is a building within the meaning of the Building Act situated at New Dak Bungalow Road in the town of Patna, bearing holding No. 297/226 circle No. 6, Ward No. 2 of the Patna Municipal Corporation. There were many portions of this building. In one of the main portions respondent No. 1 was a tenant of defendant-respondents 2 and 3 in the eastern room. The appellant company has been a tenant of the western room. On the 16th of March, 1964 respondents 2 and 3, the owners of the building and the original landlords of the appellant, executed a registered deed of lease (Ext. 10), in favour of respondent No. 1 demising the entire building in its favour for a period of ten years. It may not, perhaps, be out of place to mention here that we are informed at the Bar that this lease has been further renewed. Respondent No. 1 is a registered partnership firm. By execution of exhibit 10, it became a second lessee of the premises in occupation of the appellant. In other words, there came into existence a concurrent lease in respect of the suit premises in favour of respondent No. 1, Intimation was given to the appellant both by respondent No. 1 and respondents 2 and 3 that on and from the 1st of April, 1964, from which date the concurrent lease was effective in favour of respondent No. 1, rent for the suit premises should be paid by the appellant to respondent No. 1. The appellant refused to do so. It insisted to pay rent to respondents 2 and 3 and on their refusal to accept rent it proceeded to remit it by money order to the said respondents as also proceeded to make deposits purporting to do so under Section 13 I (2) of the Building Act. Respondent No. 1 served notice under Section 106 of the Transfer of Property Act on the appellant–first, on the ground of requiring the premises for its bona fide personal use and, second, on the ground of the appellant’s liability to be evicted for non-payment of rent as envisaged in Section 11 (1) (d) of the Building Act. The appellant failed to vacate the premises. Hence arose the necessity of institution of the suit by respondent No. 1 against the appellant, in which were impleaded the owners of the building as defendants 2 and 3 who are respondents 2 and 3 in this second appeal.
3. The suit was resisted by the appellant on several grounds. It was, however, decreed by the trial Court both on the ground of personal necessity of respondent No. 1 as also on the ground of the appellant being a defaulter liable to be evicted in accordance with the provisions contained in the Building Act. On appeal by the appellant, the learned Additional, Subordinate Judge has maintained the decree of the trial Court on the ground ot non-payment of rent only; he has not accepted the case of respondent No. 1 that it requires the suit premises for its bona fide personal use. Defendant No. 1 has come up in second appeal. This appeal came up for hearing before a learned single Judge of this Court, but, since the point involved in it was an interesting and somewhat difficult one, he was pleased to refer this case for hearing to a Division Bench. Thus the case came before us for hearing.
4. In this appeal Mr. S. C. Ghosh, learned Counsel for the appellant, could not attack the finding of the lower appellate Court that a valid and proper notice under Section 106, Transfer of Property Act was given by respondent No. 1 purporting to terminate the tenancy in respect of the suit premises enjoyed by the appellant. He also could not combat the position that vis-a-vis respondent No. 1 there was no payment of rent by the appellant. But in connection with both the points, the strenuous (argument) put forward on behalf of the appellant was that on the basis of exhibit 10, the concurrent lease, respondent No. 1 could not claim to be the landlord of the appellant within the meaning of the Building Act and could not be permitted to get a decree for eviction on any of the grounds mentioned in Section 11 (1) of the said Act. If the contention put forward on behalf of the appellant could be accepted as correct, it is plain that service of notice under Section 106 of the Transfer of Property Act by respondent No, 1 or nonpayment of rent to it could be of no avail to sustain the decree for eviction passed against the appellant. And, here arises the interesting and somewhat difficult proposition of law, which falls for our decision in this appeal. The question is: whether, on the strength of exhibit 10, respondent No. 1 could claim to be entitled to get rent from the appellant and whether, on non-payment of rent by the latter to the former, the latter could be evicted on the ground mentioned in Section 11 (1) (d) of the Building Act. I may mention here that we are not concerned in this case with the decision of the point whether, on the ground of personal necessity, a concurrent lessee like respondent No. 1 can evict the prior lessee like the appellant in accordance with Section 11 (1) (c) of the Building Act. Learned Counsel for the appellant founded his argument to resist the decree of eviction based on Section 11 (1) (d) of the Building Act by inviting us to decide, within the scheme of the said Act, that a decree for personal necessity cannot be passed in favour of a concurrent lessee. But I would rest content by deciding in this case the question which directly falls for decision and not by going to the more vexed question as urged on behalf of the appellant. To my mind, the direct question which falls for decision in this appeal can be decided without going to the more vexed question of the legality of passing a decree for eviction on the ground of personal necessity in favour of the concurrent lessee. If in an appropriate case that question would arise, it may have to be decided either on the basis of the view which will be expressed in this judgment or by pointing out some distinctive features of the two matters. Be that as it may, so far as the present appeal is concerned, it has to be tested whether the judgment of the lower appellate court affirming the decree for eviction against the appellant on the basis of its non-payment of rent to respondent No. 1 is fit to be affirmed in law.
5. It is well established by now that when there is a conflict between the provisions of the Building Act and those of the Transfer of Property Act, the former prevail and the latter give way; but if there is no conflict then provisions of both the Acts have got to be given effect to. Under Section 105 of the Transfer of Property Act a lease or immovable property is a transfer of a right to enjoy such property; the transferor is called the lessor and the transferee the lessee. Under Section 106 the notice of termination of lease has to be given either by the lessor or by the lessee. Section 109, however, confers certain rights on the lessor’s transferee. The main portion of the section reads as follows:–
“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 tbe 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 lessee elects to treat the transferee as the person liable to him:
………………………”
A case of absolute assignment by sale is undoubtedly covered by Section 109 of the Transfer of Property Act. The transferee in such a case, in the absence of a contract to the contrary, gets all the rights of the transferor, namely, the lessor. He becomes entitled to rent from tbe date of transfer subject to certain conditions mentioned in Section 109. He also gets a right to determine the tenancy by service of a notice under Section 106. And, there can be no doubt that he can seek ejectment of the lessee inducted by the transferor on any of the grounds mentioned in Section 11 (1) of the Building Act. The question for consideration is that if the lessor transfers only a part of his interest in the property leased then what right the transferee gets. In terms of Section 109 he comes to possess all the rights of the lessor. Transfer of a part of the interest may be made by creating a usufructuary mortgage or the like. Is it possible to take the view that the case of a subsequent lessee on the basis of a second lease created during the pendency of the first lease is covered by Section 109 of the Transfer of Property Act?
6. Under the English law the position is firmly established under the common law and also the Law of Property Act, 1925. Woodfall has said in paragraph 632 at page 262 of the Law of Landlord and Tenant, 27th Edition,–
“A concurrent lease is one granted for a term which is to commence before the expiration or other determination of a previous lease of the same premises to another person. Such a lease is said to take effect in reversion expectant upon the earlier term, which may be either shorter or longer than the concurrent term. But it should be observed that the concurrent term takes effect at once from the time limited for its commencement, and operates as an assignment of the reversion during such time as the two terms run concurrently. It is not a future lease postponed to the termination of the earlier term. It entities the lessee, as assignee of part of the reversion, to the rent reserved in the previous lease, and to the benefit of the covenants therein contained, which are to be respectively paid and performed during the then residue of the term granted by the first lease, and the continuance of the concurrent lease.”
Then at page 263 in paragraph 634 is mentioned that no attornment is necessary at the present time; formerly a concurrent lease was inoperative to pass any estate during the prior term, unless the attornment of the previous tenant could be obtained when it could operate as an assignment of the reversion. Of course, until the tenant has notice of such assignment, he can safely continue to pay rent to the lessor. In paragraph 28 at page 18 of the 8th Edition of Foa’s General Law of Landlord and Tenant is a passage to the same effect. In Halsbury’s Laws of England, Volume 23, 3rd. Edition at page 476 in paragraph 1099 it is stated as follows:–
“After a lease has been granted, another lease of the same premises, known as a concurrent lease, is sometimes granted, for a term beginning before the expiration of the earlier lease and ending before or after the earlier lease, A concurrent, lease, provided it is made by deed, operates as a grant of the reversion upon the earlier term and entitled the tenant of the concurrent lease to the benefit of the rents and covenaas of the earlier lease. The rule of law that a legal term may be created to take effect in reversion expectant on a longer train is confirmed by statute. Concurrent lease by deed take effect as legal estates.”
There is nothing in the Transfer of Property Act or in Section 109 thereof to compel us to take a view of law different from the one which is in vogue in England. The English principles aforesaid have been uniformly followed and adopted in India by several High Courts. No case was brought to our notice making any departure in this regard. Reference may be made to the cases of Ram Anant Singh v. Shankar Singh, (1908) ILR 30 All 369, Manikka Pillai v. Rathnasami Nadar, 43 Ind Cas 210 = (AIR 1919 Mad 1186), Parbhu Ram v. Tekchand 53 Ind Cas 865 = (AIR 1919 Lah 31.) Sm. Jammini Bala Dassee v. The Administrator General of West Bengal, (1951) 55 Cal WN 656; Bhogilal M. Davay v. S. R. Subramania Iyer, AIR 1954 Mad 514 and Bhagat Ram v. Keshab Deo, AIR 1965 Assam 55, In all these cases the principle has been accepted that a concurrent lessee gets an assignment of reversion during the overlapping period of the two leases and is entitled to get rent from the first lessee. On authorities aforesaid, it is, therefore, clear that respondent No. 1, on execution of the concurrent lease (Ext. 10) in its favour in respect of the suit premises, became entitled to get rent from the appellant when the latter was asked by the former as also by respondents 2 and 3 to pay rent to respondent No. 1. There is no escape from the position, therefore, that the appellant was clearly in error in refusing to pay rent to respondent No. 1 in spite of notice. Sending rent by money order under Section 13 (1) of the Building Act to respondents 2 and 3 was not a valid tender or payment of rent. There, could not be any bona fide doubt or dispute within the meaning of Section 13 (2) of the Building Act to enable the appellant to deposit rent in Court. The deed was a registered one and when both sides intimated to the appellant to pay rent to respondent No. 1, no doubt ought to have been left or no dispute was necessary to be raised in respect of the question of payment of rent. Clearly, therefore, the appellant incurred the liability of being evicted on the ground of non-payment of rent to respondent No. 1.
7. Learned Counsel for the appellant submitted that under Section 11 (1) of the Building Act it was only tile lessor who could have a right for asking for an order of eviction and the provision contained therein could not be controlled by Section 109 of the Transfer of Property Act In my opinion, the non obstante clause, with which Sub-section (1) starts, brings into operation the provision contained in Section 11 (1) in supersession and derogation of the provisions contained in the Transfer of Property Act, provided the latter are contrary to the former but not otherwise. There are no words in Section 11 or in any other portion of the Building Act to suggest that operation of Section 109 of the Transfer of Property Act in case of a concurrent lease is contrary to the provisions of the Building Act. The definition of the word ‘landlord’ in Clause (d) of Section 2 clearly includes a person who is entitled to receive the rent of a building. Respondent No. 1 became entitled to receive the rent of the suit premises as held by me above. It was, therefore, clearly a landlord within the meaning of Section 2 (d) which reads as follows:–
“Landlord includes the person who for the time being is receiving, or is entitled to receive, the rent of a building whether on his own account or on behalf of another, or on account or on behalf or for the benefit, of himself and others or as an agent, trustee, executor, administrator, receiver or guardian or who would so receive the rent or be entitled to receive the rent, if the building were left to a tenant.:”
8. Learned Counsel for the appellant placed strong reliance upon three decisions, namely, Rahimbax v. Samsu, AIR 1951 Nag 215, Mohd. Bashir v. Azizul Qadar, AIR 1967 All 1 (FB) and Devji Keshavji and Co. v. Dahibai Bhailal Shah, AIR 1971 Bom 285. The first two cases need not be discussed in detail as the point decided therein are different and no principle of law enunciated in either of the two militates against the view taken by me on the basis of several other authorities. It is, however, necessary to deal with the decision of Patel, J. sitting singly in AIR 1971 Bom 285. In the Bombay case a similar question arose with reference to the rights of a concurrent lessee. But the definition in the Bombay Act brings about the distinction very clearly. There in the definition of the landlord was included any person who from time to time derives title under a landlord; but from this inclusive definition was expressly excluded a person who was a tenant deriving title from the landlord, as would be noticed from column 1 of the report at page 287. In view of that definition, a second lessee deriving title from the landlord could be held to be not a landlord within the meaning of the Bombay Act. But for that point of distinction 1 would have ventured to respectfully differ from the view of Patel J. and surely he does not seem to be right–and I say so again with respect–when he differs from the view expressed by Madras High Court in AIR 1954 Mad 514, I, however, must hasten to add that the Madras case was one of personal necessity and I reserve my opinion on the point of the alleged right of a concurrent lessee to seek a decree for eviction, against a first lessee on the ground of personal necessity. But that apart, the principle decided in the Madras case is wholesome and has got to be followed.
9. For the reasons stated above, this appeal fails and is dismissed with costs payable to respondent No. 1.
S.K. Jha, J.
I agree.