P.V. Rajamannar, J.
1. The petitioner sued to recover arrears of rent due under a mulgeni chit, enhanced assessment and half cess with interest thereon due for two years 1943-44 and 1944-45 from the two respondents. The District Munsiff of Karikal who tried the suit passed a decree in his favour though not for the entire amount claimed. The decree was against the two defendants severally and against each in respect of a moiety of the total amount found due.
2. Three points were taken by Mr. Krishna Rao, the learned Advocate for the petitioner, in revision. The first is that the two defendants should have been made jointly and severally liable for the decree amount. To appreciate this point it is necessary to state a few facts. On 1st June, 1900, one Sankarayachari executed the mulgeni chit on which the suit is based in favour of the plaintiff's father. The tenant sold his leasehold interest to one Appu Bhandari in 1917, Ex. D-1. On 28th May, 1926, Appu Bhandari in his turn transferred the interest which he obtained from Sankarayachari in favour of Rangu Hengsu the mother of the two respondents. After Rangu Hengsu's death, the two respondents in this petition were in enjoyment of the demised property jointly. On 11th May, 1943, the two respondents effected a division between them by a registered partition deed, Ex. D-6, in accordance with which they have been enjoying the plaint mulgeni in two moieties. The learned District Munsiff held that because of this partition each of the defendants was only severally liable for a moiety of the rent to the plaintiff.
3. We are not here concerned with the case of a transfer or assignment of a share of the demised premises by the lessee. Whether it be by a transfer of the entire interest of the lessee in a part of the demised property or a share of the lessee's interest in the entire property, if the transferee or assignee holds that share in physical severalty, the law is fairly well settled that the lessor would be entitled to recover from such transferee or assignee only proportionate rent based on the extent in the separate possession of such Transferee or assignee-vide observations of Ramesam, J., in Mosafkanni Ravuthar v. Doraiswami (1926) 54 M.L.J. 30. and Kunhi Sou v. Mullnli Chathu : (1912)23MLJ695 . As a corollary to this rule it would follow that if the assignee or transferee is only in joint possession of the whole along with the original lessee or lessees, they will all be jointly liable. In the present case there is no such partial transfer. Admittedly the transfer by the original tenant in favour of Appu Bhandari and the transfer by Appu Bhandari in favour of the mother of the respondents was a transfer of the entire mulgeni interest. Mr. Adiga on behalf of the respondents contended that once there is a transfer of the leasehold interest by the lessee, the liability of the transferee and the right of the lessor in respect of the rent of the leased property rests on a privity of estate. The liability of the original lessee will continue as it rests on a privity of contract though such liability would cease to exist when the. lessor collects the rent from the transferee. That will be so. The generally accepted view in England and India appears to be that if after a transfer the lessor recognises the transfer' and collects rent from the transferee, not only is the lessee's liability to the lessor under the original contract at an end but there is further privity of contract established between the lessor and the transferee. In Mayor of Swansea v. Thomas (1882) 10 Q.B.D. 48. Baro Pollock, dealt with this point thus:
On the part of the defendant it was contended, first, that the plaintiffs, upon the facts stated, must be taken to have recognised Watson and Over end as their tenants, and therefore that they could not now maintain an action against the defendant (Original lessee) for the rent sued for. If the plaintiffs had received rent from the defendant's assignees this might have been so, because by 30 doing they would be taken to have accepted the assignees as their tenants, and so privity of contract between the plaintiff's and the defendant would have been extinguished, in accordance with the well known doctrine laid down in Walker's case (1587) Co. Rep Part III. 22 A.B. : 76 E.R. 676.
In Theethalan v. Eralpad Rajah, Calicut : (1917)32MLJ442 Mad Sir John Wallis, C.J., after referring to Section 108 (j) of the Transfer of Property Act says thus:
One effect of this provision is that the lessee does not cease to be liable on the lease by reason only of an out and out assignment, but he will, as in England, cease to be liable if the lessor accepts rent from the assignees and thereby creates privity of contract between them.
It follows from this rule of law that when after the transfer in favour of the mother of the respondents the plaintiff continued to demand and collect the rent from her, privity of contract was established between them. The mother of the defendants became herself a mulgeni tenant.
4. When there is a lease in favour of a single person as a tenant and when that tenant dies, the liability of the heirs would be a joint liability-See Krishna Das Roy v. Kali Tara Chowdhurani 22 C.W.N. 289. The principle being that heirs of the original tenant constitute one body and there is only a joint liability. Chatterjee, J., says at page 294.
The contract is with a single person as tenant, and when he dies the liability of his heirs is a joint liability.
When Rangu Hengsu died and the defendants succeeded her, they became jointly liable. It is true that joint lessees can effect a partition as between themselves, but if the lessor is not a party to the division, he is not bound by it and he cannot be compelled on that account to demand and recover only a proportionate share from each of the joint tenants. In Bholanath Sircar v. Baharam Khan 10 W.R. 392 it was held in a suit for rent in which defendants, admitting their joint tenancy, set up that they had as among themselves made an allotment of the land in certain shares, that as such partition was not recognised by the landlord, the plea could not avail. In Raghunath Kalwar v. Bala Din Kalwar I.L.R. (1910) All. 143. Stanley, C.J., observed thus:
There is no objection to joint tenants agreeing among themselves to occupy and cultivate distinct parts of the joint holding, provided that their so doing in no respect prejudices the rights of the landholder. Under such an agreement the tenants continue to be liable to the landlord for the entire rent, and the arrangement between them is not a partition which is enforceable as between them and the landlord. A partition to bind the landlord must be a partition with his consent.
Admittedly in this case the plaintiff was not a party to the partition between the two defendants. It may be that by common consent of the lessor and the two lessees or by appropriate proceedings to which the lessor is a party the liability inter se between the two joint lessees can be apportioned; but till such apportionment is made, a plea of several liability cannot be sustained in a suit like the present. The learned District Munsiff erred in passing a decree against each of the defendants severally for a moiety of the rent found due.
5. The second point taken is in respect of a provision in the mulgeni chit under which the lessor is entitled to a higher rent on default made by the tenant. The normal rent under the chit was Rs. 44 in cash after 1901, but if a default was made, The enhanced rent was Rs. 55 in cash. It was held in a prior suit between the parties (S.C.S. No. 265 of 1944) that this clause as to payment of enhanced cash rent was not unconscionable, but the provision was certainly in the nature of a penalty and the Court was entitled to award reasonable compensation instead of the enhanced rent provided in the deed. An amount of Rs. 4 was fixed as payable in addition to the normal rent. The learned District Munsiff adopted the same figure in the present case. Whether the decision in the prior suit operates as res judicata or not, I am not inclined to disagree with the learned District Munsiff on this point. The clause was certainly a penal provision though it may have been otherwise if the proper rent was the enhanced amount and if the tenant had been given a concession if he paid the rent within a prescribed time.
6. The last point relates to the question whether the lessor is entitled to claim the price prevailing at the material time of two Kalsiges of cashewnuts or whether he is precluded from claiming more than five annas as their value. The relevant clause in the mulgeni chit runs as follows:
Thereafter, the geni per annum is Rs. 44 in cash, 50 coconuts, two Kalsiges of cashewnuts of the value of five annas.
I read this clause to mean that there is provision for a cash rent of Rs. 44 and a lent in kind consisting of 50 coconuts and two Kalsiges of cashewnuts. No doubt the price of the cashewnuts prevailing at the date of the execution of the mulgeni chit is also mentioned. But it could not have been in the contemplation of the parties that the lessor was precluded from claiming more than five annas as representing the value of two Kalsiges of cashewnuts. The lessee is not given the option of either delivering two Kalsiges of cashewnuts or of paying five annas in lieu thereof. A case dealing with the language very similar to this is reported in Soodamani Pattar v. Somasundara Mudaliar (1948) 4 M.L.J.201. In that case the material words of the lease were as follows:
We agree to pay you 847 salagais of paddy worth Rs. 2,400 per annum.
The learned Judges Muthuswami Aiyar and Best, JJ., held that these words denote the average value of the paddy per annum or its equivalent in money, but not to create an alternative right to payment in money at that rate every year, however much it may differ from the market rate on the day when the paddy becomes due. The learned Judges point out that if it had been intended to create such right the word ' or ' or other apt words would have been used. With great respect I follow that decision and hold that the plaintiff is entitled to the value of two Kalsiges of cashewnuts in accordance with the prevailing market rate. As the learned District Munsiff held that the plaintiff was not entitled to anything more than five annas, he did not deal with the question whether the price claimed by the plaintiff was proper. The District Munsiff will now determine that issue and grant a decree in accordance with his finding.
7. The civil revision petition is allowed in part to the extent indicated above and dismissed otherwise. There will be no order as to costs.