1. A landlord to whom rent was due transferred his right to the rent by Ex. B. The question that arises in this second appeal is whether the assignee can enforce the rent as a charge on the interest of the tenant in the land. It is not denied that if the respondent had been a landlord his suit would have been in time, because of the charge referred to in Section 41, Malabar Tenancy Act. The question is whether the assignee has an equal right. Section 41 reads:
. . . arrears of michavaram or rent due to the landlord together with interest, if any, payable on the same shall be a charge on the interest of the person from whom they are due in the holding. . . .
It would seem from this section that the charge attached itself to the land as soon as the rent was due. If that is so, then a transfer of the right to collect rent would transfer the charge also. It is difficult to see how, when once the charge has attached itself to the land, it becomes disattached because the landlord subsequently transfers his right to collect the rent to some other person. Fortunately, it is not necessary for me to discuss this question at any great length; because precisely the same question has been considered by my learned brother, Somayya J. in Swaminatha Iyer v. Ramanatha Iyer A.I.R. 1943 Mad. 573 Two decisions on which the learned advocate for the appellant relies to defeat the claim of the transferee of the rent are Vyraperumal v. Alagappan A.I.R. 1932 Mad. 189 and Forbes v. Maharaja Bahadur Singh A.I.R. 1914 P.C 111. In the former case, this question did not arise, because the suit was one for contribution; but during the course of his judgment Krishnan Pandalai J., with reference to a somewhat similar provision in Section 5, Madras Estates Land Act, said:
What Section 5 declares in effect is that, subject to any right of Government, the rent on ryoti land shall be a first charge on the holding and on the produce of the holding or any part thereof. That is a charge created for the benefit of the landholder and applies to rent only so long as it is due to him, in that character; Forbes v. Maharaja Bahadur Singh A.I.R. 1914 P.C. 111
The question whether an assignee could rely upon the charge was not at all discussed; and the question did not arise in that litigation. The similarities and differences between the wording of the relevant sections of the Madras Estates Land Act and the Bengal Tenancy Act, were not referred to. Somayya J., has pointed out that difference in his judgment. In Forbes v. Maharaja Bahadur Singh A.I.R. 1914 P.C. 111. their Lordships had to deal with the provisions of the Bengal Tenancy Act, which are very different from those in the Madras Estates Land Act or in the Malabar Tenancy Act. One very important provision in Section 148 (c), Bengal Tenancy Act has no equivalent in the Malabar Tenancy Act-or even in the Madras Estates Land Act for that matter. I respectfully agree with Somayya J. in the case above quoted. The appeal is dismissed with costs.