1. Plaintiff is a lessee of a plot of land at Kirkee measuring 13,639 square yards, under a lease from the Secretary of State for the term of thirty-three years from April 1, 1918.
2.The plaintiff' sub-leased to the first defendant a plot out of the said land measuring 8,704 square yards. The sub-lease was dated April 8, 1922, but the term began from September 1, 192], and was for seven years. The rent reserved by the sub-lease is Rs. 600 per mensem, and the sub-lessee covenanted to pay a proportion of the ground-rent and taxes of the property so demised. The ground-rent was a proportionate part of the rent reserved by the head-lease to the Secretary of State.
3. On June 1,1922, defendant No. 1 with the consent of the plaintiff' assigned by way of mortgage his interest as sub-lessee to the third defendant.
4. Plaintiff has been paid rent up to January 31, 1923, but no ground-rent or taxes have been paid ever since the commencement of the terms a from September 1, 1921.
5. Plaintiff sues to recover these arrears up to February 29, 1924.
6. Defendant No. 1 was adjudicated insolvent on January 24, 1924, and defendant No. 2 is the Official Assignee. No relief is claimed against the Officer Assignee and he is not liable and he is not a necessary party for the term was assigned prior to the insolvency and did not vest in him; and the liability on which defendant No. 2 is sued is purely personal and contractual.
7. There is no question as to the liability of defendant No. 1 who has not appeared. He is the lessee of the plaintiff and is liable on his covenant for rent from February 1, 1923, and for a proportion of the ground-rent and taxes from September 1, 1921, Section 108 (j) of the Transfer of Property Act expressly enacts that a lessee does not by assignment escape personal liability on the covenant of the lease, and follows on this point the English law, for which see Eaton v. Jaques (1780) 2 Doug. 455 and Auriol v. Mills (1790) 4 T.R. 94 .
8. The arrears of rent are from February 1, 1923, to February 1, 1924, Rs. 7,800. The plaintiff drops his claim for a proportion of the taxes. The proportion of the ground-rent from September 1, 192), till February 29, 1924, is the fraction of 8,704/13,639 multiplied by 150 per month, i.e., Rs. 95 per month for thirteen months, For defendant No. 3, the assignee of the lessee it is contended that his liability is limited by Section 76 of the Transfer of Property Act as he is a mortgagee. That section defines his duties to his mortgagor but has no bearing on his liability to the lessor. The Transfer of Property Act defines the rights and liabilities of the lessor's transferee in Section 109, but is curiously silent as to the assignee of the lessee. But under English law it is clear that an absolute assignment by the lessee creates privity of estate, and that the assignee is liable to the lessor on all covenants that run with the land including the covenant to pay rent: Walker v. Reeves (1780) 2 Doug. 462 n. and Williams v. Boaanquet (1819) 1 Brod. & Bing. 238. And this law has been followed by the Madras High Court before and after the Transfer of Property Act in Kamala Nayak v. Rangn Rau (1862) 1 M.H.C. 24 and Kunhanujan v. Anjelu I.L.R. (1889) Marl. 296 and has been applied by this High Court in Timmappa v. Rama Venkanna I.L.R.(1897) 21 Bom. 311.
9. The mortgage to defendant No. 3 is by way of absolute assignment and therefore creates privity of estate: see Thethalan v. The Eralpad Rajah, Calicut. I.L.R. (1917) Mad. 1111 Defendant No. 3 is, therefore, liable to pay rent from the date of the assignment, i.e , from June 1, 1922. The covenant to pay ground rent and taxes is a covenant which runs with the land as it affects the land, which is the subject of the demise. See Spencer's case; 1 Sm. L. Cas. 55 Dyson v. Forater  A.C. 98 and Mathewsonv. Ram Kanai Singh Deb I.L.R.(1909) Cal. 675 . In South of England Dairies, Limited v. Baker  2 Ch. 631 a similar covenant to pay rates and taxes was held to be a covenant running with the land. Defendant No. 3 is, therefore, liable to pay a proportionate share of the ground-rent and taxes from June 1, 1922. The plaintiff drops his claim for the share of taxes, i.e., water rate and conservancy, and. it is agreed that the proportion of the ground-rent is Rs. 2,644.
10. There will, therefore, be a decree for the plaintiff against the first defendant for the sum of Rs. 95 per month for nine months from September 1, 1921, to May 31, 1922. There will also be a decree against defendants Nos. 1 and 3 for rent at the rate of Rs. 600 per mensem from February 1, 1923, till February 29, 19'24, and for a proportion of the ground-rent at the agreed figure of Rs. 2644 with costs and interest and interest; on judgment at six per cent.