Francis W. Maclean, K.C.I.E., C.J.
1. Defendant No. 2 was the hikim of Pergunnah Barabhum. Defendant No. 1, H. Mathewson, held certain mauzas as a mortgagee in possession under defendant No. 2. The latter ceased to be the hikim from the 7th of Sraban 1307, and the plaintiff became the hikim from that date and took possession of the mauzas by ousting Mr. Mathewson.
2. The plaintiffs case is that before the 7th of Sraban 1307 defendant No. 1 collected from the tenants of the entire rent for the Fusli year 1307, and he brought this suit for a refund of the rent of 55 days from. the 7th of Sraban to he end of the Fusli year 1307. The question is whether he can recover it. The First Court held that he could not. The Lower Appellate Court has held that he could.
3. The Lower Appellate Court has proceeded upon the principle that the rent could be apportioned. But having regard to sub section(d)of Section 2 of the Transfer of Property Act, Section 36 of that Act, which is the only statutory provisio, in Inlia dealing with the question of apportionment, does not apply may refer to the case of satyendra Natk Thakur v. Nilkantha Singh (1893) I.L.R. 21 Calc. 383 , and except upon the principle of apportionment it is difficult to see upon what principle the present claim is sustain-.We. It may be that the tenants were wrong in paying the defendant No. 1 the rents in advance, and it may be that the present plaintiff has a claim against the tenants for that Payment, and that the latter may be entitled to be recouped by defendant No. 1. Upon those questions I express no opinion. The case of defendant No. 1 is that all the rent fell due in the month of Jaista, for the Fasli year 1307. and consequently he was entitled to receive the whole amount. I think he is right and I do not think that the plaintiff can sustain the present claim. The case of Lakshminaranappa v. Melolhraman Nair (1902) I.L.R. 26 Mad. 540 is clearly distinguishable and has no application to the case now before us. If anything, it is rather a decision against the plaintiff.
4. On these grounds, I think the plaintiffs case fails and it must be dismissed with costs in all Courts.
5. I agree.