CHAND MOHATAB BAHADUR Vs. SARAT CHANDRA ADHYA

JUDGEMENT

(1.) This appeal arises out of a suit brought by plaintiff appellant to recover arrear of rent due for the years 1313 to--1316 in respect of a certain tenure known as Lot Tajpur and to enforce a charge upon another property (a 4-annas share in Sandhya Bazar) hypothecated by way of security for the rent.

(2.) Both properties have passed out of the hands of the persons who may be spoken of as the original owners and the question for our consideration in this appeal is, whether the hypothecated share of Sandhya Bazar in the hands of the new owners continues liable for the rent of Lot Tajpur. In both cases the transfers, it should be observed, were by private sales.

(3.) The answer to the question propounded depends in the first instance upon the construction of a kabuliyat executed on the 12th December 1891 by the original tenants, Udoy Chand and Pran Krishna Mukherjee. The relevant portions of the kabuliyat run thus: "If default be made in the payment of rent, you (i. e., the landlord) will realize the arrears by instituting suits...and by the auction sale of the said Lot. If the whole be not realised by the auction sale, then we shall be liable for the balance and shall pay the amount from our own pockets. If we do not do so, you will realise the same by the attachment and sale of our property hypothecated as security and of our other moveable and immoveable properties...so long as we are not released from the liability to pay the rent of this mokarari mahal, we shall not be able to transfer in any manner the property mortgaged as security for the rent of the Lot.... The terms of the kabuliyat thus executed by us shall, on our death, be binding equally on our heirs, successors and representatives."