RAI GIRENDRA NARAIN Vs. BABU GANGA NARAIN

JUDGEMENT

(1.) These two second appeals arise out of two different suits, but as the point which ultimately emerges for consideration is the same in both, they have been connected and hive been heard together. One Abdullah Shah is the muafidar of certain plots of land, the total area of which is stated to be 99 of an acre, in qasba Ganjdundwara in the district of Etah. On March 29, 1927, Abdullah Shah executed a perpetual lease in respect of these plots of land in favour of one Ganga Narain. The rent reserved was Rs. 400 per annum, and the lease was expressly stated to have the power to transfer his lessee rights. On March 28, 1928, the lessee, Ganga Narain, sold his lessee rights to one Narain Das by means of a sale deed executed on that day and registered on March 31, 1928. It was laid down in this deed of sale that the vendee should comply with the conditions laid down in the lease and that the lease would be as much binding on him as it was on the vendor, the original lessee. On July 14, 1928, Narain Das the purchaser of the lessee rights from Ganga Narain, executed a deed of usufructuary mortgage in respect of the lessse rights which he had acquired under the sale deed of March 28, 1928, in favour of the present appellant, Rai Girendra Narain, and put the latter in possession of the property as usufructuary mortgagee of the lessee rights. One of the terms laid down in this deed of mortgage was that the mortgagee should continue to pay the rent due to Abdullah Shah according to the terms laid down in the lease. In accordance with that term the appellant paid to Abdullah Shah the rent due up to March 21,1930, and did not pay it thereafter.

(2.) Abdullah Shah brought Suit No. 563 of 1931 for the rent due for the period, April 1, 1930, to September 30, 1931, and impleaded Ganga Narain, Narain Das, and the appellant as defendants. Subsequently Abdullah Shah withdrew the suit as against the appellant with liberty to bring a fresh suit in future. Ultimately the suit was decreed against Ganga Narain. On July 6, 1932, Ganga Narain paid to Abdullah Shah a sum of Rs. 728-4-0 due under the said decree. Thereafter Ganga Narain filed Suit No. 659 of 1932 against the appellant and Narain Das for the recovery of the said sum of Rs. 728-4-0 together with a sum of Rs. 110 on account of certain costs and a sum of Rs. 16-7-0 for interest, in all Rs. 854-11-0. The learned Munsif decreed that suit against the appellant as well as Narain Das for the recovery of a total sum of Rs. 807-7-0. The appellant alone appealed to the lower Appellate Court and that Court upheld the decree of the trial Court. Second Appeal No. 839 of 1934 has been filed by Rai Girendra Narain against that decree. On December 7, 1932, Abdullah Shah filed Suit No. 846 of 1932 against Ganga Narain. Narain Das and Rai Girendra Narain for the recovery of Rs. 400 as the rent due for the period October 1, 1931, to September 30, 1932, together with Rs. 13 as interest, total Rs. 413. The learned Munsif decreed the suit against all the defendants. The present appellant, Rai Girendra Narain alone appealed and the lower Appellate Court upheld the decree of the Court of first instance. Second Appeal No. 840 of 1934 has been filed by Rai Girendra Narain against that decree.

(3.) The main contention of the appellant in both the appeals is that he is liable to pay the rent to his mortgagor, Narain Das alone that he is not liable to Abdullah Shah, the lessor, that therefore Abdullah Shah has no right in law to recover the rent from him direct, and that therefore neither Abdullah Shah can bring a suit against him for the recovery of the rent, nor can Ganga Narain sue him for contribution on account of the payment which he has made to Abdullah Shah. The argument is that there is no privity of estate between the appellant and Abdullah Shah, and that therefore Abdullah Shah has no fight at all to bring a suit against him for the recovery of the rent. He contends that if there is a sale of the lessee rights, then the whole of the rights of the lessee are transferred to the purchaser and vest entirely in him, and so in that case a privity of estate between such purchaser and the lessor comes into existence; but where as here, there is only a usufructuary mortgage, some rights are still left in the lessee mortgagor and so no privity of estate between the mortgagee and that lessor comes about.