KRISHNA BHATTA Vs. NARAYANA ACHARY

JUDGEMENT

(1.) The petitioner sued to recover arrears of rent due under a mulgeni chit, enhanced assessment and half cess with interest thereon due for two years 1943-44 and 1944-45 from the two respondents. The District Munsiff of Karikal who tried the suit passed a decree in his favour though not for the entire amount claimed. The decree was against the two defendants severally and against each in respect of a moiety of the total amount found due.

(2.) Three points were taken by Mr. Krishna Rao, the learned Advocate for the petitioner, in revision. The first is that the two defendants should have been made jointly and severally liable for the decree amount. To appreciate this point it is necessary to state a few facts. On 1 June, 1900, one Sankarayachari executed the mulgeni chit on which the suit is based in favour of the plaintiff's father. The tenant sold his leasehold interest to one Appu Bhandari in 1917, Ex. D-1. On 28 May, 1926, Appu Bhandari in his turn transferred the interest which he obtained from Sankarayachari in favour of Rangu Hengsu the mother of the two respondents. After Rangu Hengsu's death, the two respondents in this petition were in enjoyment of the demised property jointly. On 11 May, 1943, the two respondents effected a division between them by a registered partition deed, Ex. D-6, in accordance with which they have been enjoying the plaint mulgeni in two moieties. The learned District Munsiff held that because of this partition each of the defendants was only severally liable for a moiety of the rent to the plaintiff.

(3.) We are not here concerned with the case of a transfer or assignment of a share of the demised premises by the lessee. Whether it be by a transfer of the entire interest of the lessee in a part of the demised property or a share of the lessee's interest in the entire property, if the transferee or assignee holds that share in physical severalty, the law is fairly well settled that the lessor would be entitled to recover from such transferee or assignee only proportionate rent based on the extent in the separate possession of such Transferee or assignee-vide observations of Ramesam, J., in Mosafkanni Ravuthar V/s. Doraiswami (1926) 54 M.L.J. 30. and Kunhi Sou V/s. Mullnli Chathu . As a corollary to this rule it would follow that if the assignee or transferee is only in joint possession of the whole along with the original lessee or lessees, they will all be jointly liable. In the present case there is no such partial transfer. Admittedly the transfer by the original tenant in favour of Appu Bhandari and the transfer by Appu Bhandari in favour of the mother of the respondents was a transfer of the entire mulgeni interest. Mr. Adiga on behalf of the respondents contended that once there is a transfer of the leasehold interest by the lessee, the liability of the transferee and the right of the lessor in respect of the rent of the leased property rests on a privity of estate. The liability of the original lessee will continue as it rests on a privity of contract though such liability would cease to exist when the. lessor collects the rent from the transferee. That will be so. The generally accepted view in England and India appears to be that if after a transfer the lessor recognises the transfer and collects rent from the transferee, not only is the lessee's liability to the lessor under the original contract at an end but there is further privity of contract established between the lessor and the transferee. In Mayor of Swansea V/s. Thomas (1882) 10 Q.B.D. 48 at 50. Baro Pollock, dealt with this point thus: On the part of the defendant it was contended, first, that the plaintiffs, upon the facts stated, must be taken to have recognised Watson and Over end as their tenants, and therefore that they could not now maintain an action against the defendant (Original lessee) for the rent sued for. If the plaintiffs had received rent from the defendant's assignees this might have been so, because by 30 doing they would be taken to have accepted the assignees as their tenants, and so privity of contract between the plaintiff's and the defendant would have been extinguished, in accordance with the well known doctrine laid down in Walker's case (1587) Co. Rep Part III. 22 A.B. : 76 E.R. 676. In Theethalan V/s. Eralpad Rajah, Calicut Mad Sir John Wallis, C.J., after referring to Section 108 (j) of the Transfer of Property Act says thus: One effect of this provision is that the lessee does not cease to be liable on the lease by reason only of an out and out assignment, but he will, as in England, cease to be liable if the lessor accepts rent from the assignees and thereby creates privity of contract between them. It follows from this rule of law that when after the transfer in favour of the mother of the respondents the plaintiff continued to demand and collect the rent from her, privity of contract was established between them. The mother of the defendants became herself a mulgeni tenant.