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Naduvil Edom Kelu Achan Vs. Ayya Pattar's son Varadaraja Iyer (23.12.1913 - MADHC) - Court Judgment

LegalCrystal Citation
SubjectProperty;Property
CourtChennai
Decided On
Reported inAIR1914Mad692; 24Ind.Cas.481; (1914)26MLJ283
AppellantNaduvil Edom Kelu Achan
RespondentAyya Pattar's son Varadaraja Iyer
Cases ReferredKrishnan Nambiar v. Kannan I.L.R.
Excerpt:
- .....act is applicable because the assignee has impliedly contracted with the kanomdar to pay the rent to the jenmi, and the jenmi can sue on the contract which is for his benefit. reliance is placed on krishnan nambiar v. kannan i.l.r. (1897) m. 8 and some cases which have accepted the same view, for the position when a covenant is implied by law in a contract of transfer, if the deed effecting the transfer is registered, article 116 of the limitation act will apply to a breach of the implied covenant. that principle does not seem to me to come in question here, because i do not understand the assignee to contract with the kanamdar for the benefit of the jenmi. the obligations of the assignee to the jenmi have been held in this country to be based on a privity of estate created by the.....
Judgment:

Miller, J.

1. The question is whether the Jenmi is entitled to recover six years arrears of rent from the assignee of the Kanom or only arrears for three years. The original Kanom is not for a term of years expressed, but is in writing and registered, and the assignment was also it is said in writing and registered, and the assignee obtained a decree against the Jenmi for a renewal deed, which it is stated, has not yet been executed. For the petitioner it is contended that Article 116 of the 1st schedule of the Limitation Act is applicable because the assignee has impliedly contracted with the Kanomdar to pay the rent to the Jenmi, and the Jenmi can sue on the contract which is for his benefit. Reliance is placed on Krishnan Nambiar v. Kannan I.L.R. (1897) M. 8 and some cases which have accepted the same view, for the position when a covenant is implied by law in a contract of transfer, if the deed effecting the transfer is registered, Article 116 of the Limitation Act will apply to a breach of the implied covenant. That principle does not seem to me to come in question here, because I do not understand the assignee to contract with the Kanamdar for the benefit of the Jenmi. The obligations of the assignee to the Jenmi have been held in this country to be based on a privity of estate created by the assignment: Kunhajan v. Anjelu I.L.R. (1889) M. 296 and Monica Kitheria Saldanhav Subraya Hebbara I.L.R. (1907) M. 410 . No doubt it may be said that the effect of taking the assignment is to raise by implication a promise by the assignee to pay the rent (18 Halsbury para 1133), but that is I think a promise for the benefit of the lessee and not a promise for the benefit of the lessor. The lessee remains bound to pay the rent under his contract and the agreement between him and the assignee is for his benefit and not for that of the lessor. The non-payment of rent to the lessor, though it may be a breach of an implied promise to the lessee, is not therefore a breach of any covenant on which the lessor can sue and consequently Krishnan Nambiar v. Kannan I.L.R. (1897) M. 8 is not applicable and Article 116 of the Limitation Act also is not therefore applicable to the breach. Moreover the deed of assignment is not exhibited in this case and I am unable to say what its contents are, but even assuming that it contains an express promise to pay the rent to the Jenmi, Mr. Ananthakrishna Aiyar's client could not succeed for the suit is not on the deed of assignment but on the original Kanom. As regards the original Kanom it seems clear that the non-payment of the rent reserved under the Kanom is not a breach by the assignee of any contract with the lessor.

2. Mr. Ananthakrishna Aiyar argued that the contract had in some way, devolved upon the assignee, and it was to enable him to substantiate that contention that I adjourned the hearing but he did not pursue that point further in his argument at the adjourned hearing.

3. I dismiss the Petition with costs.


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