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Dwijendra Nath Mukherjee Vs. Promode Kishore Mondal and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Property
CourtKolkata
Decided On
Case NumberA.F.A.D. No. 811 of 1944
Judge
Reported inAIR1951Cal251,54CWN673
ActsLimitation Act, 1903 - Schedule - Articles 62, 110, 115 and 116; ;Transfer of Property Act, 1882 - Section 108
AppellantDwijendra Nath Mukherjee
RespondentPromode Kishore Mondal and ors.
Appellant AdvocateChandra Sekar Sen and ;Sudhir K. Acharjya, Adv. for ;Ranajit Aaharjya Choudhury, Adv.
Respondent AdvocateSatyapriya Ghose, Adv.
DispositionAppeal dismissed
Cases ReferredNarayanan v. Ramunni Menon
Excerpt:
- .....clear that there could be no liability for the period prior to the date of assignment as at that date the privity of estate was not existing. i, therefore, agree with the learned subordinate judge that unless by some other clear contract the assignee became liable to pay rent for the period prior to the assignment, the plaintiffs landlords were not entitled to obtain any rent for this previous period from him. the learned court below has on a consideration of the documents come to the conclusion that there was no such contract. nothing has been said to us to show even remotely that there was any such contract. i do not find the existence of any such separate contract which would make the defendant liable to pay the rent for the previous period. it was argued by the learned advocate for.....
Judgment:

Das Gupta, J.

1. The main question which arises for consideration in this appeal is whether the plaintiffs' claim for arrears of rent for the period Ashar 1342 B. S. to As win 1345 B. S. or any portion thereof is barred by limitation. The original lease for the property in suit which consists of land with a pucca structure thereon was taken by one Daud Musaji Asmal from the present plaintiffs at a rental of Rs. 180 per year, payable in four equal quarterly kists. Daud Musaji having been declared an insolvent on 24-4-1933, his interest vested in the Official Assignee. This interest was thereafter on 13-3-1937 assigned by a registered deed in favour of the present defendant. The suit was instituted on 14-7-1941.

2. The two main contentions of the defendant were that the suit was barred by limitation and that in any case, he was not liable for rent beyond the date of his purchase which was on 13-3-1937.

3. On the question of limitation, the defendant's case was that Art. 110, Limitation Act, was applicable so that the claim for the entire amount except the last kist would be barred.

4. The contention on behalf of the plaintiffs was that Article 116 was applicable, inasmuch as the liability to pay rent was the result of a contract contained in a registered deed.

5. The trial Court held that Article 116, Limitation Act was applicable and decreed the suit in full holding, also that the defendant was liable even for the rents of the period prior to his purchase.

6. On appeal, the learned Subordinate Judge of 34 Parganas agreed with the trial Court that Article 116 and not 110 applied to this case but held that the defendant was not bound to pay the rents due prior to his purchase. Accordingly, he allowed the appeal in part and decreed the suit for arrears of rent for the period after the date of purchase.

7. It is now contended by Mr. Chandra Sekhar Sen on behalf of the defendant-appellant that Article 116 cannot apply to this case inasmuch as there was no privity of contract between the plaintiffs and the defendant assignee and that Article 110 should apply. He has further put forward as an alternative view that Article 62, Limitation Act which also prescribes a period of three years' limitation may be applicable. Article 62 prescribes a period of limitation for suits 'for money payable by the defendant to the plaintiff for money received by the defendant for the plaintiff's use.' In my opinion, it will require a considerable stretch of imagination--for which I find no justification--to say that where the assignee of a lease is being sued for rent, the money due is in the nature of money received by this defendant assignee for the use of the plaintiffs landlords. If at the date of the assignment some rent was already in arrears, it might perhaps be argued that the assignee when he received the leasehold property might be held to have received such arrears from the original lessee for the purpose of payment to the landlord lessor. The claim for such arrears which fell due prior to the date of assignment might then be considered to be thus 'money received by the defendant for the plaintiff's use.' The decision in the case of Panku Menon v. Thazeth Meladam, 41 Mad. 488 ; (A. I. R. (5) 1918 Mad. 288), on which Mr. Sen relied, contemplated a case of this nature and it was with respect to such arrears which were due at the date of the assignment that the Court held that Article 62, Limitation Act would be applicable. For reasons mentioned later in this judgment, I do not consider that the plaintiffs can lawfully claim from the assignee, the rents which were due prior to the date of assignment, so that we are hardly concerned with the question of limitation as regards that portion of the plaintiffs' claim. If however the plaintiffs would have been entitled to obtain these arrears prior to the date of the purchase. I might have agreed with the learned Advocate that their claim as regards those arrears would be barred under Article 62, Limitation Act.

8. As regards the claim for the rent which fell due after the date of assignment, I see no justification, as I have already stated, for holding that this was in any way money received by the defendant assignee for the plaintiffs landlords' use. At the date of assignment these amounts were not due at all and consequently there could be no scope for an argument that the defendant assignee may be considered to have received such an amount from the assignor. Article 62 therefore has, in my opinion, no application to the claim in so far as it is for the arrears of rent which fell due after the date of the assignment.

9. The question remains whether Article 110 or Article 116 is applicable. It seems clear that unless the plaintiffs can get the benefit of Article 116, it must be held that Article 110 which is the general Article for suits for arrears of rent should apply. There can be no doubt at least since the decision in the case of Tricomdas Gooverji v. Gopinath Jiu, 44 I. A. 65 : (A. I. R. (3) 1916 P. C. 182) that where the suit is against the lessee in whose favour the lease was created by a registered deed Article 116 would apply instead of Article 110 and the period of limitation would be six years from the point of time 'when the period of limitation would begin to run against a suit brought on a similar contract not registered.' The question is whether the same Article would apply when the suit is brought not against the lessee but by an assignee of the lessee. It cannot be gainsaid that there is no privity of contract as between the landlord lessor and the assignee. In spite of the assignment the lessee remains liable on the contract because of the privity of contract between him and the lessor. The liability of the assignee to pay rent is on the basis of the privity of estate which is created by the assignment. This was the view taken as early as 1910 in the case of R.D. Mehta v. Gadadhar Rai, 37 Cal. 683 : (7 I. C. 198) where their Lordships quoted with approval from the Treatise on the law of Landlord and Tenant by Foa the doctrine that the

'liability of the assignee to the lessor being founded wholly upon privity of estate .... it obtains as long as his estate lasts and no longer.'

In that case the Court had to consider the liability to pay rent as between the first assignee from the lessee and the subsequent assignee from the first assignee, and the decision that the subsequent assignee was liable was based upon this doctrine that the liability of the assignee to the lessor was founded wholly upon the privity of estate. Mr. Sen contends that the liability of the assignee to pay rent being only on the basis of the privity of estate, the mere fact that the original liability was created by a registered contract would not make the suit a suit on the registered contract, He relied for this view on a decision of the Madras High Court, Kelu Achan v. Varadaraja Iyer, 26 M. L. J. 283 : (A.I.R. (1) 1914 Mad. 692), In that case, Miller J., sitting singly held that as the liability of the assignee was by reason of his privity of estate and not by reason of any contract in writing registered--in that case also the original lease was registered--Article 116 was not applicable. As Mr. Sen, however, has himself pointed out, a different view was taken in two other decisions of the same High Court, one earlier than the case of Kelu Achan v. Varadaraja Iyer, 26 M. L. J. 283 : (A. I. R. (1) 1914 Mad. 692) and the other later. In the case of Chengiah v. Thimma Nayanim Bahadur, 6 I. C. 766 : (20 M. L. J. 555) a Division Bench of the Madras High Court took the view that in a suit for rent against the assignee of a registered lease Article 116 and not Article 110 would be applicable. In the case of Narayanan v. Ramunni Menon, 56 I. C. 241 : (A.I.R. (7) 1920 Mad. 380) the same view was taken.

10. The principle on which these decisions were based appears to me to be clear and irrefutable. It is no doubt true that the liability to pay rent arises because of the privity of estate while the original lessee remains liable on his privity of contract. The way, however in which the liability arises by reason of the privity of estate is that the covenant to pay a certain sum fixed as rent is a covenant running with the land. By reason of the privity of estate the assignee becomes liable for this covenant running with the laud. The covenant has no existence except by the registered contract. When, therefore, the plaintiff sues the assignee for the rent he is in substance suing him on the basis of the covenant created by the registered deed. It must follow, therefore, that Article 116, Limitation Act would apply.

11. The result is that no portion of the plaintiff's claim is barred by limitation.

12. On the other question which the plain, tiffs raised, namely, whether the defendant is liable to pay rent for the period prior to his purchase, the decision of the Court below is against them and they have filed a cross-objection. As the liability to pay rent arises because of the privity of estate, it is, in my opinion, clear that there could be no liability for the period prior to the date of assignment as at that date the privity of estate was not existing. I, therefore, agree with the learned Subordinate Judge that unless by some other clear contract the assignee became liable to pay rent for the period prior to the assignment, the plaintiffs landlords were not entitled to obtain any rent for this previous period from him. The learned Court below has on a consideration of the documents come to the conclusion that there was no such contract. Nothing has been said to us to show even remotely that there was any such contract. I do not find the existence of any such separate contract which would make the defendant liable to pay the rent for the previous period. It was argued by the learned Advocate for the respondents that as there was a stipulation in the original lease that all arrears of rent would remain a first charge upon the structures of the rent land, the assignee holding the estate would become liable for such previous arrears of rent. In this case the plaintiffs have not sought to enforce any charge on the land and it is not necessary for me to go into the question whether be could so enforce it.

13. For the reason I have already stated, I am of opinion that the plaintiffs are not entitled to obtain any rent for the period before the date when the privity of estate commenced on the assignment being made. My conclusion, therefore, is that the decree passed by the learned Court of appeal below is right, I would, therefore, dismiss both the appeal and cross-objection. The contesting respondents will get their costs from the appellant in the appeal. I make no order for costs in the cross-objection.

Guha, J.

14. I agree.


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