KANAI LAL GHOSH Vs. BASANTA BEHARI SEN

JUDGEMENT

(1.) The facts necessary to he stated for the purposes of this appeal are these: In 1309, the plaintiff and his co-sharer obtained a darpatni settlement of 4 annas share of three villages from the predecessors of Defendant No. 1 and executed a kabuliyat in their favour hypothecating the said 4 annas share of the three villages as well as 7 other mouzahs as security for the payment of the darpatni rent and for the performance of obligations and discharge of liabilities incidental to the darpatni. In 1312 they sold the said darpatni to the Defendant No. 2; and the Defendant No. 1 recognized the transfer and accepted rent from the Defendant No. 2. In the kobala by which the darpatni was sold there was a stipulation that the Defendant No. 2 would furnish security to the Defendant No. 1 or to the plaintiff and his cosharer in order to replace the security given by the plaintiff and his cosharer. On the Defendant No. 2 failing to furnish the said security the plaintiff, to whom the seven mouzaha in suit were subsequently allotted on partition between him and his cosharer, instituted a suit against the Defendant No. 2 making the Defendant No. 1 pro forma defendant, for specific performance, and obtained a deposit of security in cash; but the Defendant No. 1 did not accept the said security. The plaintiff then instituted the present suit praying for a declaration that the said seven mouzahs were no longer subject to any charge.

(2.) The Munsif dismissed the suit, but the Subordinate Judge, on appeal, reversed that decision and granted the plaintiff a decree declaring that the charge no longer subsisted. From that decree the present appeal has been preferred by the heirs of the Defendant No. 1.

(3.) The appellants contention, which was the defence to the action, is that the liability of the lessee to the lessor continued notwithstanding the transfer, as based on the privity of contract between the parties; that the lessor had also a remedy against the transferee for rent and on the covenants running with the land, the transferee was under a liability based on privity of estate; that although the lessor has his remedy as against the transferee who is to be treated as primarily liable, the original lessee remains in the position of a surety and he cannot get rid of his liability merely by transfer. It is contended further that even if the liability to pay the rent be held to cease in consequence of the transfer the security remains in force and the charge is not extinguished.