1. The plaintiff in the lower Court is the petitioner and the only point pressed on his behalf is that he is entitled to a refund of so much of the manusham as is proportionate to the period of the kanom granted by Ex. A, the enjoyment of which he was deprived of by the decree in suit No 250 of 1925 on the file of the Additional District Munsif of Badagara. 'Manusham' has been held to be the consideration given by the lessee for the full term of the kanom. The right of the lessee to a refund of the proportionate amount of the manusham for the period for which the lessee was deprived of possession has been recognized by Madhavan Nair, J. in C.R.P. No. 348 of 1926, following the decision of Oldfield and Venkatasubba Rao, JJ., in S. A. No. 365 of 1919. The view taken by the District Munsif that 'manusham' is a present is unsustainable.
2. The material facts in this case relating to the plaintiff's claim are as follows:
The 1st defendant's father who was the kanomdar from the jemmi under a kanom document dated 14th August 1912 demised his kanom rights to one Cheeru on kanom for a period of 12 years from 23rd February 1922. The document recites a receipt of Rs. 130 by 1st defendant as manusham and provides that Cheeru is to be in possession for the said period of 12 years enjoying the usufruct and that he must surrender possession thereof after the expiry of the demise : see Ex. A. The plaintiff's case is that Cheeru assigned her kanom interests to one Kannan on 8th January 1925 and Kannan in turn assigned his rights under the kanom to the plaintiff on 14th January 1925. Cheeru got possession of the properties from defendant 1 and transferred the same to Kannan from whom the plaintiff also got possession on the date of the assignment to him. The documents of assignment executed by Cheeru and Kannan respectively are not produced in the case though the particulars of the assignments are referred to and set out in the plaint. The said assignments are also practically admitted by the defendants in para. 3 of their written statement.; It is also admitted that the plaintiff was dispossessed on 5th September 1928 by the jenmi in execution of the decree in suit No. 250 of 1925 to which both the plaintiff and 1st defendant were parties. The plaintiff as assignee of Cheeru says that the kanomdar under Ex. A to whom the property was demised for a period of 12 years and. his assignees including the plaintiff were in possession only for four years six months and nine days and that he is therefore entitled to claim refund out of the manusham amount, an amount proportionate to the remaining period of the kanom less the rent for that period which he would have to pay to 1st defendant if he had not been dispossessed. In the plaint further reliefs were prayed for, but they are not pressed before me.
3. It is argued for the plaintiff (petitioner) that under the terms of the demise Ex. A there is an implied covenant on the part of 1st defendant as grantor of the kanom, for quiet enjoyment of the demised premises by the tenant, for the full period of the demise and that the plaintiff as assignee of the lease from Cheeru is entitled to the benefit of that covenant as against 1st defendant. In support of this contention reliance is placed on Section 108, T.P. Act, which runs as follows:
In the absence of a contract to the contrary, the lessor shall be deemed to contract with the lessee that, if the latter pays the rent reserved by the lease and performs the contract binding on the lessee, he may hold the property during the time limited by the lease without interruption.
The benefit of such contract shall be annexed to and go with the lessee's interest as such, and may be enforced by every person in whom that interest is for the whole or any part thereof from time to time vested.
4. I am of opinion that this contention is well-founded. There is no provision in Ex. A evidencing a contract to the contract which will have the effect of depriving Cheeru of the benefit of Cl C of Section 108 and no plea has been raised by the defendants of any failure on the part of the tenants to pay rent or perform any other obligation to which they were subject under the lease. It is argued for the respondent that as the plaintiff has not produced either the assignment to him from Kannan or the assignment to Kantian from Cheeru, the plaintiff's claim should not be upheld. That contention will have force if the defendants had not practically admitted in this case the plaintiff's right as assignee of Cheeru's interest in the lease. It is further contended that as the plaintiff took the assignment after the period of the original kanom to defendant 1's father-had expired, plaintiff's claim is not maintainable as he must then have known that defendant 1 had no right to make a demise of his kanom rights as he purported to do under Ex. A. This contention also is in my opinion unsustainable and it cannot prevail so as to preclude a tenant from relying on a covenant for title or covenant for quiet enjoyment which are intended for his benefit and to secure him from loss due to the defective title of the grantor of the lease.
5. Lastly, it is contended that the covenant for quiet enjoyment is not one Which runs with the land but is only a personal covenant of the grantor of the demise which Cheeru alone can enforce. The plaintiff, it is said, will have his remedy only against his immediate assignor, Kannan, and against no other. In support of this contention the learned vakil for the respondent relies on a recent-case reported Mahendra Nath Srimani v. Kailash Nath Das : AIR1929Cal50 . The point decided in that case is thus stated in the head note: a covenant for renewal of entire lease which would come into operation after the expiry of the term of that lease of a portion of the land, is a mere personal covenant which can be enforced against the lessor if he gets a fresh lease himself and is not one which runs with the land. That case has no application to the present case in which the covenant for the breach of which the action is brought is not a covenant for the renewal of the lease but is one for quiet enjoyment during the full term of the lease as provided in Ex. A.S. 108 Clause (c), T.P. Act is quite clear on the point and it fully supports the appellant's contention. I am therefore of opinion that the plaintiff's claim to refund of a proportionate amount of the Manusham as part of the damages sustained by him by breach of the covenant must be up held. The plaintiff can get a decree only against defendant 1 but not against the other defendants. I therefore modify the decree of the lower Court by granting decree against defendant 1 alone for Rs. 32-2-11 with proportionate costs against him throughout. The suit against the other defendants is dismissed with costs.