1. This second appeal arises out of a suit brought by the plaintiffs-appellants for a declaration that defendant 1 had no right in execution of a decree against defendants 2 and 3, to get attached and sold the right to realize a sum of Rs. 190. The facts of the case are as follows:
2. Defendant 1 is said by the respondents' counsel to be the zamindar; of the holding. Defendants 2 and 3 are the occupancy tenants. The plaintiffs obtained possession of the holding from defendants 2 and 3 under an agreement purporting to be a sub-lease, dated the 29th June 1921. This document recited that the plaintiffs should occupy the holding as sub-tenants of the defendants 2 and 3 on an yearly rental of Rs. 190. It recited further that no payment in cash or kind of the Rs. 190 should be made by the plaintiff to the defendants 2 and 3 but that this sub-rent, as soon as it became due, should be appropriated in the following manner: Rs. 51-12 were to be paid to the proprietor of the land as rent in chief by the plaintiff on behalf of the defendants 2 and 3. The remaining Rs. 138-4 were to be retained by the plaintiffs as payment towards advances made under simple money bonds, dated respectively 15th January 1917, and the 29th June 1921. At the end of five years the holding was to be given back by the plaintiffs to defendants 2 and 3, and there should be no accounting up to the end of the five years. Defendants 2 and 3 should have no right to get back the holding by redemption or otherwise and the plaintiffs should have no right to keep possession of the holding even if their money due under the money bonds had not been realized. On the 6th January 1922, defendant 1 got a simple money decree against defendants 2 and 3. It is said by his counsel that defendant 1(at present respondent) got this simple money decree as a decree for rent of the holding due to him as zamindar from defendants 2 and 3. He then attached the (liability assuming any liability existed) of the plaintiffs to pay sub-rent for the year 1329 to 1330 fasli of Rs. 190, a liability alleged to exist under the lease of the 29th June 1921. The plaintiffs objected to the attachment on the ground that the lease itself entitled them to appropriate the money in the way described above, that they had done so and that nothing remained which defendant 1 as zamindar could attach in payment of his decree against defendants 2 and 3. The objection was dismissed by the lower Court; hence this suit for declaration. It may be mentioned that, subsequent to the filing of this suit, the alleged liability of plaintiffs to pay Rs. 190 in respect of the year in question has been put up for sale and purchased by defendant 1.
3. The trial Court held that plaintiffs were entitled to the declaration inasmuch as under their lease they were not bound to pay any rent to the defendants 2,and 3. In first appeal this finding was set aside on the ground that the lease of the 29th June 1921, by the defendants 2 and 3 to the plaintiff was not sub-letting within the meaning of Section 24, Tenancy Act, and consequently it was a transfer of the interest of an occupancy tenant forbidden by law under Section 20, Tenancy Act. The lower appellate Court accordingly dismissed the suit.
4. In this appeal the plaintiffs-appellants take in effect two grounds. They say that the lease to them as sub-tenants by defendants 2 and 3 was a sub-lease for a period not exceeding 5 years and was consequently valid. Under the terms of it they were entitled to pay over to themselves the rent due, as soon as it became due, and no right to claim the rent in cash remained due to the defendants 2 and 3. This right could not, therefore, be attached in execution of the decree against defendants 2 and 3. The question then is whether the document of the 20th June 1921 was merely a sub-lease or amounted to a transfer. It was recently held by a Bench of this Court on which I sat that a sub-lease contemplated by Section 24, must be an agreement whereby a person as subtenant promised to pay something in cash or kind in the future and that when the whole sum had been realized before the sub-tenant occupied, the transaction did not amount to a sub-lease under Section 24: vide Bhawani v. Choudhri Mangli Singh : AIR1927All567 decided on 13 April 1927, by Hon'ble Mukerji and Ashworth. JJ.)
5. In the present case, it is clear that no liability to pay anything in cash or kind remained with the plaintiffs. The transaction was, therefore, a transfer and not merely a sublease for five years. It is immaterial to consider whether it should be considered a mortgage, since, any kind of transfer other than a sub-lease as contemplated by Section 24 would be void.
6. The second point taken up is that, assuming the transaction was an attempt to transfer occupancy rights, it was void ab initio under Section 20, Tenancy Act, as being forbidden by law. If so, no liability could arise out of a void agreement. The plaintiff being in possession of the holding under a void agreement may be liable on a suit by the defendants 2 and 3 for possession under Section 65, Contract Act, or for damages, for use and occupation of the land, but any such liability has yet to be established. At present the only right existing in the defendants 2 and 3 is a mere right to sue for damages which cannot be attached under Section 60(f), Civil P.C. This argument appears to me unanswerable.
7. The consequence is that the plaintiffs have no property in the hands of defendants 2 and 3 which can be attached, but the execution Court has attached a certain sum of Rs. 190 in their hands as due to the defendants 2 and 3. It makes no difference what that sum is called. If it cannot be attached, the plaintiffs-appellants are entitled to a decree to this effect. They asked for a decree that they were the owners of the rent attached by defendant 1 against defendants 2 and 3. This may be construed as meaning that they were entitled to retain the sum attached by the defendant 1 as due from them (the plaintiffs) to defendants 2 and 3. Rent was a misnomer under the circumstances stated, but the plaintiffs were entitled to call it rent as the defendant 1 called it rent. Relief A therefore claimed by the plaintiffs was sufficient to allow the declaration justified by the facts and the law. In any case the plaintiffs ask any other relief that the Court might think fit and this is obviously a case where a Court would be justified in framing the relief in a different manner to that in which the relief was asked for.
8. The consequence is that this appeal is allowed with costs throughout. The decree of the trial Court will be restored with the following variation. It will be declared that there is no rent in the hand of the plaintiffs due to defendants 2 and 3 in respect of the year 1329 to 1330 fasli which is liable to attachment by the defendant 1 in execution of the defendant l's decree against defendants 2 and 3.