K.K. Sharma, J.
1. A very interesting point of law arises in this appeal. The plaintiff-appellant's father Ghisi Lal purchased half a share in a shop situated in Tripolia Bazaar, Jaipur along with some other property from Mst. Chameli as per sale-deed dated 12-4-1947. Mst. Chameli's share in the shop was occupied by the defendant Chhotey Lal as a tenant under Mst. Chameli at a monthly rental of Rs. 13/-The plaintiff-appellant gave a notice to the deferudant which was served on him on 8-5-1947.
The plaintiff brought a suit out of which this appeal has arisen for arrears of rent of 31 months from 12-4-1947, the date of purchase to the date of the suit. He was met by a pica of the defendant that a sum of Rs. 495/11/- had been paid by the defendant to Mst. Chameli's mukhtar-i-am Radha Krishna on 6-4-1947 which included advance rent of Rs. 2087- for 16 months from Phagun Sudi 15, Sambat 2003 to Jeth Sudi 15, Sambat 2005, corresponding to 21-6-1948.
2. The first court found that this advance rent could not be deducted from the dues of the plaintiff. On appeal the learned Senior Civil Judge, Jaipur City, held that this amount of Rs. 208/-/-having been paid to the mukhtar-i-am of the former landlord, should be deducted from the amount claimed. The decree of the first court was, therefore modified and the plaintiff was given a decree only for Rs, 221/-/-. i.e. for the rent accruing after 21-6-1948. This judgment of the learned Senior Civil Judge is dated 26-2-1953 and it is against this that the plaintiff has come in second appeal.
3. I have heard Shri C.B. Bhargava on behalf of the plaintiff-appellant and Shri L.L. Sharma on behalf of the defendant-respondent.
4. It has been argued by Shri Bhargava that the rent paid in advance cannot be treated as a discharge against the transferee. He has relied upon two rulings of Patna High Court in the case of, (i) Ram Lal v. Mahadeo, AIR 1922 Pat 339 and (ii) Rameshwar Lal v. Butto Kristo Rai, AIR 1934 Pat 653, and a ruling of Rangoon High Court in the case of Pale Zabaing Rural Co-operative Society v. Mautig Thu Daw, AIR 3931 Rang 292, and of Sind Judicial Commissioner's Court in the case of Official Assignee v. Abdul Hussain, AIR 1928 Sind 95. He has also relied upon a ruling of Calcutta High Court in the case of Tiloke Chand Surana v. J. B. Beattie and Co., AIR 1926 Cal 204.
5. On behalf of the respondent, it has been argued by Shri Sharma that the rent was paid in advance before the transfer was made and it is binding upon the transferee unless he could prove that he had no notice of the payment of the rent.
6. I have considered the arguments of both the learned counsel. So far as the ruling of the Calcutta High Court AIR 1926 Cal 204 is concerned, in that case, there was an agreement in accordance with which rent was paid in advance for the repairs of the property which was let out to the tenant and it was agreed that the tenant shall remain in possession of the property till the entire advance rent had been set off against the rent becoming due. In that case it was held as a fact that the plaintiff was aware of the said agreement. In the case of AIR 1934 Fat 653 and the case of AIR 1931 Rang 292 the rent had been paid in advance before: the date of transfer.
Still it was held that the transferee could not be held bound by the payment of the rent in advance because the rent in order to bind the transferee should be paid as rent after it has become duo and not as an advance. In case it is paid as an advance, it is a mere loan to the former landlord. In the Sind case, AIR 1928 Sind 95 referred to above, it is not clear whether the rent was paid before the date of transfer or thereafter but the principle has been laid down that the rent must be paid as rent and must not be paid in advance which in the circumstances is a mere loan to the former landlord.
The two rulings, one of the Patna High Court AIR 1934 Pat 653 and the other of the Rangoon High Court AIR 1931 Rang 292 are exactly in point and I respectfully agree with them, because what Section 50, T. P. Act excuses is the payment of rent and profits of any immovable property which means that the rent or profits should have become due. If before they become due, anything is paid in advance to the former landlord, it is a simple loan to him and it cannot be taken as a discharge for the rent becoming due after notice of transfer to the tenant. In this case, notice was served on the tenant on 8-5-1947 and the rent fell due on the 26th of every month. Therefore, the plaintiff-appellant was entitled to the rent also of the period from 8-5-1947 to 21-6-1948 which comes to Rs. 175/- for 13 months and 13 days.
7. The appeal is partly allowed and the decreeof the lower appellate court is modified in that theplaintiff shall get Rs. 175/-/- more than whal hasbeen awarded to him by the decree of the lowerappellate court. The lower appellate court hasgiven a decree to the plaintiff for Rs. 221/-.Adding Rs. 175/- to this amount, the total amountdecreed comes to Rs. 396/-. The plaintiff isconsequently given a decree for the recovery ofRs. 396/- instead of Rs. 221/- which has beengiven by the lower appellate court. In the circumstances of the case, the parties shall bear their owncosts of this appeal.