NANJAPPA GOUNDAN Vs. RANGASWAMI GOUNDAN

JUDGEMENT

(1.) The main question for determination in this second appeal is a short one and it arises on the following facts. The property in suit originally belonged to the respondent and his brother. It was sold to one Ramaswami Goundan subject to a charge for Rs. 100 per annum for the maintenance of one Minakshi, the widow of a deceased coparcener of the family. Ramaswami subsequently leased the property for an annual rent of Rs. 125 to the respondent for a term of five years commencing from 13 May, 1926, Ramaswami himself undertaking to pay the maintenance due to Minakshi. On 4 August, 1928, the respondent sub-leased the property to the appellant herein under Ex. A for the remainder of the term. Ramaswami was adjudicated insolvent sometime in 1928 and his interest in the property having been brought to sale by the Official Receiver in public auction, it was knocked down to the appellant as the highest bidder on 1 March, 1930, but the sale was completed by the Official Receiver executing the necessary conveyance (Ex. IV) only on 2nd December, 1930. In the meantime, however, Minakshi demanded payment of the arrears of maintenance due to her up to 21st January, 1930, that is, in respect of a period prior to the auction sale held by the Official Receiver and the appellant paid Rs. 215 to her on 27 April, 1930, in satisfaction of that claim. Similarly, he paid her another sum of Rs. 100 on 27 May, 1931, for maintenance which fell due on 21 of January, 1931. To the respondent's claim in this suit for the rents due under the sub-lease Ex. A, the appellant pleaded that he made these payments under the instructions and on account of the respondent and that, if these amounts and the admitted payment of Rs. 125 as advance rent for the first year of the sub-lease were given credit to, nothing would be found payable to the respondent by way of rent under Ex. A.

(2.) The learned District Munsif upheld this plea and dismissed the suit. On appeal, however, the learned District Judge held that it was not proved that the respondent had authorised or required the appellant to pay the maintenance due to Minakshi, and that the payments by the appellant must be regarded as having been made to protect his own interest as purchaser of the property and not qua tenant of the respondent. He therefore decreed the suit.

(3.) The appellant's learned Counsel assailed this decision on two grounds. First he contended that though Ex. A purports to be a sub-lease, it must in law be regarded as an absolute assignment of the lease to the respondent, as the rent reserved by it was the same as the rent reserved in that lease and it was for the entire residue of the term. It was therefore urged that the question must be viewed as one arising between the original lessor Ramaswami and the appellant, and as the former was undoubtedly bound to pay the maintenance allowance to Minakshi but neglected to pay, the appellant was entitled to pay it to her and to deduct it from the rent due. This contention is clearly untenable. It is no doubt true that in English Law an underlease for the whole residue of the term operates as an assignment but as pointed out by their Lordships of the Privy Council in Hunsraj V/s. Bejoylal Seal (1929) 58 M.L.J. 293 : L.R. 57 I.A. 110 : I.L.R. 57 Cal. 1176 (P.C.), the law in India is different in this respect, having regard to the provisions of the Transfer of Property Act. No question of assignment can therefore arise.