DAYA DEBI Vs. CHAPALA DEBI

JUDGEMENT

(1.) The question raised by the petitioner in this Rule is of some importance and that question is whether in a proceeding under Section 17 of the West Bengal Premises Tenancy Act of 1956 the tenant is required to deposit under Sub-section (1) of that section, the arrears of rent which were transferred by the landlord in favour of another. The admitted facts are these: Premises No. 101, Durga Charan Mitra Street belonged to a lady named Harimati and under her the petitioner was a tenant at a monthly rent of Rs. 70/- and the tenancy was held by the petitioner according to the Bengali calendar month. On 13-4-1949 Harimati executed a deed of settlement by which she appointed one Dulal Chandra Dutta and Puma Chandra Agarwalla as her trustees. On 27-9-1957 Dulal Chandra Dutta and Purna Chandra Agarwalla sold the premises to the opposite party Sin. Chapala Devi by a document -- Ex. 1. By another document Ext. 3, the two trustees sold the arrears of rent from the month of July up to date i.e. up to 27-9-1957 to Chapala Devi. Shortly thereafter the assignors of the arrears of rent gave notice of the assignment to the tenant by Ex. 3. The 27th of September, 1957 corresponds to the 10th of Aswin, 1364 B. S. It is admitted that the petitioner, as soon as she came to know of the assignment, sent the rent due for the 20 days of Aswin 1364 B. S. by money order to Chapala Devi but Chapala Devi refused the money order and the petitioner has been depositing the rent from month to month with the Rent Controller ever since that date. On 23-2-1958 Chapala Devi instituted a suit for ejectment and arrears of rent. In paragraph 4 of the plaint she states that the tenant is a habitual defaulter and has failed to pay rent from the 17th Ashar, 1363 B. S. up to Magh, 1364 B. S. (corresponding to 1st July, 1956 up to 12th February, 1958), and as such the defendant is not entitled to any protection under the provisions of the West Bengal Premises Tenancy Act of 1956. On the 5th of May, 1958 the plaintiff Chapala filed an application under Section 17(3) of the West Bengal Premises Tenancy Act, 1956 for striking out the defence of the petitioner against delivery of possession on the ground that she had made defaults in depositing in court within one month from the service of the writ of summons on her, the arrears of rent as well as current rent. Upon this application the learned Chief Judge of the City Civil Court has made an order in favour of the plaintiff opposite party. In his order the learned Chief Judge has held (1) that the petitioner sent rent for 20 days of the month of Ashar by money order to the present plaintiff, (2) plaintiff's witness No. 3 stated that he received the sum of Rs. 560/- on account of rent sent by defendant by money order, which was actually received by him on the 25th Bhadra, 1361 B. S. and he has further testified that since then the defendant did not pay any rent to them either by hand or by money order, (3) "On a careful consideration of the evidence on the record I must hold that the plaintiff has succeeded in proving that rent remains in arrears from the defendant from the 17th Ashar, 1363 B. S. to the date of the plaintiffs purchase and this amounted to Rs. 980/- as stated by Dulal Babu and it also appears from the deed of assignment -- Ex. 3''. The learned Chief Judge accordingly made an order under Section 17(3) of the West Bengal Premises Tenancy Act of 1956 and against that order the tenant defendant has obtained the present Rule.

(2.) Mr. Hemanta Krishna Mitter appearing in support of the Rule has raised a point that under Section 17(1) of the West Bengal Premises Tenancy Act of 195b the tenant is not required to deposit arrears of rent which have been transferred by the last owner to the present plaintiff. On hearing the learned advocates on both sides it appears to us that this point must be accepted. The point has to be considered from three points of view. In the first place it seems to us that a claim for arrears of rent loses the character of rent as soon as it is assigned. Mr. Lala appearing for the landlord opposite party contends that what is assigned to the assignee is not the right to recover arrears o rent but the cause of action for recovery of arrears of rent and he contends that a consideration of the recitals of Ext. 1 and Ex. 3 would show that what was intended to be assigned by the last owners was the cause of action for recovery of arrears of rent. In order to avoid the effect of section 6 (e) of the Transfer of Property Act, which provides that the transfer of a mere right to sue is non-transferable. Mr. Lala contends that in the present case the right to sue was assigned in favour of the same person to whom the proprietary right in the house itself was conveyed, otherwise the transfer of a mere right to sue would be invalid under Section 6 Clause (e) of the Transfer of Property Act. To give effect to Mr. Lala's contention would lead to the consequence that a claim for recovery of arrears of rent in order to be valid cannot be transferred to anybody else except the person to whom the proprietary right in the house itself has been conveyed. I cannot agree that this is a legal consequence of the assignment of arrears of rent. In my opinion, the cause of action for recovery of arrears of rent is completely satisfied as soon as the assignor receives the consideration For which he sells the arrears of rent and what the assignee purchases is not the cause of action for recovery of arrears of rent, but the right of the assignor to recover those arrears. The right of the assignor to recover arrears of rent is a property and as such it is transferable under the main provisions of Section 6 of the Transfer of Property Act and it is not hit by any of the clauses which appear in that section. Such a right can be transferred either in favour of the person who has acquired title to the house itself or in favour of a stranger. It is quite possible that the house is sold to 'X' and the claim for recovery of arrears is sold to 'Y'. For these reasons I have reached the conclusion that the claim for arrears of rent ceases to be a claim for rent and in converted into an actionable wrong as defined by Section 3 of the Transfer of Property Act and is assignable in the manner contemplated by Section 130 of that Act. This conclusion is supported to some extent by the decision of the Full Bench of this Court in the case of Hari Lal Sinha v. Tripura Charan Roy, ILR 40 Cal 650. In that case arrears of rent were transferred to a legal practitioner who instituted a suit for recovering the arrears assigned to him. One of the points raised before the Division Bench was that the claim for arrears of rent was an actionable claim and as such the plaintiffs suit was hit by S, 136 of the Transfer of Property Act. On this point the Division Bench recorded the following opinion:

(3.) The Full Bench made the following observation at page 677 on this point: "It is conceded that, as held by the Division Bench, the plaintiff cannot successfully claim the arrears of rent purchased by him".