1. The plaintiff-appellant took a lease of a rice mill from the Polavaram Zamindar under Ex. A in 1926 and by Ex. B he assigned the lease to the defendants. It is not correct to construe Ex. B as a sub-lease; it is really an assignment of the term. It follows both from the terms of Ex. B and under the general law that the defendants, as assignees, became liable to pay the rent due to the Zamindar and it is also well established that as the assignor nevertheless continued liable for the rent on his personal covenant, he is entitled to an indemnity from the assignees as regards the payment of rent to the superior landlord. The plaintiff instituted this suit for the recovery of the amount of the rent by payment to himself, alleging that the defendants had not paid rent to the superior landlord and that the landlord had given to the plaintiff a notice on 28th July, 1929. It has not been shown to us that, beyond giving this notice, the Zamindar took any steps for recovering the rent from the plaintiff or from the defendants. The question is whether the plaintiff is in these circumstances entitled to any and what remedy in respect of the rent payable to the landlord. The defendants raised a plea of discharge by payment to the Zamindar's clerk, but as the question of the maintainability of the suit was argued and as a preliminary issue and found against, the lower Court has not dealt with the plea of discharge.
2. In dismissing the suit the Court below observed that 'the plaintiff was not entitled to bring the suit without himself paying the rent to the Zamindar'. This would be taking too narrow a view of the plaintiff's remedy if the learned Judge intended to hold that the plaintiff would not be entitled to any remedy whatever until he actually paid the rent himself. But the learned Judge would be perfectly right if he meant to hold that unless the plaintiff had actually paid the rent he would not be entitled to sue for the payment of the money to himself. On the view that the relationship between the plaintiff and the defendants is that of assignor and assignee of the leasehold interest, the plaintiff would be entitled to an indemnity from the defendants in respect of the rent payable to the landlord; and in working out this indemnity, the plaintiff will not merely be entitled to recover the rent from the defendants if he himself had actually paid the rent to the landlord but will also be entitled to what is described in recent English cases as an 'anticipatory remedy', to protect him against the consequences of being called upon by the land-holder to pay Mohideen Batcha Sahib v. Sheik Dawood Sahib : AIR1926Mad1035 and Veerappa Chetty v. Arunachellam Chetty I.L.R.(1924) 4 Rang. 48 : 47 M.L.J. 168 (P.C.), therein referred. But the circumstances of the present case do not seem to call for any direction by way of such anticipatory protection. As observed already, the Zamindar of Polavaram is not shown, to have taken any steps whatever beyond issuing the notice of 1929 and there is nothing like an imminent danger of the plaintiff being called upon to pay the amount to him against which any equitable protection is called for.
3. On behalf of the appellant our attention has been called to cases like Rutnessur Biswas v. Hurish Chunder Bose I.L.R. (1884) Cal. 221 and Dorasinga Tevar v. Arunachalam Chetti I.L.R. (1899) Mad. 441 where a lessee who had sub-leased the term was held entitled to recover from the sub-lessee not merely the rent payable to himself but also the rent payable to the superior landlord or any other amount which the sub-lessee absolutely undertakes to pay. In the case of a sub-lease, there would be no direct liability of the sublessee to the superior landlord for rent due under the head lease and it may be that where a contract between the plaintiff and the defendant contained what is described in the cases as an 'absolute' covenant to pay to the superior landlord or to a third person and such absolute covenant is broken by the defendant, the plaintiff will be entitled to sue for damages. Whether in such cases, the damages can be estimated on the basis of the full amount payable to the land-holder or the third party, is not a matter that we need express any opinion upon, in the present case, because in Ex. B there is no such covenant as between the transferor and the transferee, for breach of which the plaintiff could be said to be suing. The obligation of the assignee of a lease to pay the rent due to the superior landlord arises under the law itself, by the fact of the assignment and not by reason of any covenant between himself and his transferor. Similarly the right of indemnity which the transferor has against the transferee is also one arising under the law. There is therefore no question in a case like this of any breach of covenant and a claim for damages arising on foot thereof.
4. Another line of cases referred to before us relates to the claims between the vendor and the purchaser of property when the vendor has directed the transferee to pay the consideration to a creditor of the transferor. In such cases, there is ordinarily no privity or right of action as between the creditor and the transferee and the transferee does not become liable directly to the creditor. The purchaser is only a kind of agent for the transferor and the cases hold that as the consideration money represents the funds of the transferor, he could at any time revoke the direction to pay it to the third party and sue for payment of it to himself, whether he has paid his creditor or not. These cases proceed on the footing that an arrangement of that kind is not really one in the nature of an indemnity but merely a direction by the transferor to the transferee to pay the money due to himself to a third person and that such a direction is revocable. They are not analogous to the present case.
5. The learned Judge was right in holding that the suit was not maintainable in the form in which it had been brought. The appeal therefore fails and must be dismissed with costs.