SATIBAI Vs. VISHNIBAI KIMATRAI

JUDGEMENT

(1.) This appeal arises out of a suit filed by the plaintiff as the landlord o certain premises in Karachi for arrears of rent from 8-6-1948, to 22-9-1949, and for a certain amount paid by her for Municipal and oilier taxes for the year 1948 and 1949. The suit is very simple in character, but the complications arise by reason of the fact that Karachi ceased to be a part of India and the parties have migrated to this country and are now residing in Bombay.

(2.) The facts briefly are that the plaintiff demised the property in suit which is in Karachi, as business premises, to one K. Shewakram by an indenture of lease, dated 21-6-1947. The rent fixed under the lease was Rs. 400 per month, and in the lease there is an express covenant on the part of the lessee that he will pay the rent reserved under the lease. The arrears of rent in respect of which this suit is filed is for the period 8-6-1948, to 22-9-1949, and the defence taken by the defendants, who are the heirs of Shevakram, on merits was that Shevakram had assigned these premises to one A. Satar in February 1948 after there were serious troubles in Karachi in January 1948, & further the case of the defendants was that this assignment was made with the consent of the plaintiff. This contention was given up by the defendants in the Court below, and the only contention that was urged was that the property in suit has vested in the Custodian of Evacuee-Property in Karachi and that according to the law of Pakistan the only person who is entitled to recover the rent in respect of this property is the Custodian and that the plaintiff has no right to the rents of this property.

(3.) Now, we will assume in this appeal that the Pakistan law is as suggested by the defendants and that the property has vested in the Custodian and that according to Pakistan law no person is entitled to recover the rents of this property excepting the Custodian. The question is whether this Pakistan law is an answer which the defendants can give to the plaintiff. The defendants admit that the amount claimed by the plaintiff is due to her as arrears of rent and they admit their liability to pay the amount to the plaintiff as the landlord, ft is not the case of the defendants that this debt has been discharged by them, but what they contend is that by the law of a foreign country the debt has to be discharged not to the creditor of the defendants, but to some other person who by that law has become their creditor. The question that we have to consider is whether there is anything in private international law which justifies the position taken up by the defendants. Mr. Chandiramani's contention is that the indenture of lease being executed in Karachi and She property being situated in Karachi, the rent was payable in Karachi and therefore the contract was to be performed in Karachi, and now that Karachi has become a part of Pakistan, the law that should govern the parties is lex loci contractus, i.e. the law of Pakistan, and if that law was to be applied, the only way the defendants can perform the contract, viz. pay the amount of rent, is by paying it to the Custodian and not to the plaintiff. There would be considerable force in this argument if the arrears of rent were payable in Karachi. As we shall presently point out, that contention is not a sound contention. The question is, where does the liability of a tenant arise to pay arrears of rent? There are two positions possible in law. The liability of a tenant may arise by reason of the fact that he is the tenant of an immoveable property and he is liable to pay rent as a tenant, or the liability may arise because he has entered into an express covenant with the landlord to pay rent. Whatever the position may be with regard to the first case, we are now concerned with the second case be-cause, as we pointed out, under the indenture of lease there is an express covenant by Shevakram to pay rent to the plaintiff. When you have an express covenant, the covenant may provide for the place where the rent is to be paid. If there is a provision to that effect, then the liability of the tenant would be under the covenant to pay the rent at the place specified in the covenant. But the covenant may not mention any place, in which case (and the authorities on this point are clear), the obligation upon the tenant would be the same as upon an ordinary debtor who has to discharge his debt to the creditor under a covenant to pay rent, a tenant is in no higher and better position than a debtor who has got to discharge his money debt to his creditor.