Macpherson and Banerjee, JJ.
1. This appeal arises out of a suit brought by the plaintiffs-respondents to recover arrears of rent of a certain tenure for the years 1249 to 1252 Maghi, the plaint praying for a decree against defendants 1 to 5, the former holders of the tenure, and stating that as the tenure was liable for those arrears, defendants 6 to 8, who had purchased the tenure at a sale for its arrears of rent for 1248 and certain previous years, were also made parties.
2. Defendants 1 to 5 did not appear, but defendants 6 to 8 contested the suit on various grounds, of which it is now necessary to notice only one, namely, that the tenure was not liable for any arrears that accrued due before their purchase.
3. The first Court held that the claim for 1249 was barred by limitation, and the tenure was not liable for any arrears that fell due before the sale at which the defendants 6 to 8 purchased it.
4. On appeal by the plaintiff's, the Lower Appellate Court, relying chiefly on Section 65 of the Bengal Tenancy Act, has made the tenure liable for the whole amount of arrears, irrespective of the question whether it fell due before or after the purchase by the defendants 6 to 8.
5. Against that decision the defendants 6 to 8 have preferred this second appeal, and it is contended on their behalf that the tenure was not liable for any arrears that fell due before their purchase.
6. We think this contention is sound. It is true that Section 65 of the Bengal Tenancy Act makes arrears of rent due in respect of a tenure a first charge thereon; but that section, after enacting that a tenure-holder shall not be liable to ejectment for arrears of rent, declares that his tenure shall be liable to sale in execution of a decree for rent, and the rent shall be a first charge thereon. That, we think, goes to show that rent falling due during the time that a tenure belongs to any particular tenure-holder is a first charge on the tenure only so long as it is his and has not been sold for arrears of rent. And this, we think, is made clear beyond doubt by Clause (c) of Section 169, which enacts that if any surplus remains of the proceeds realized by the sale of a tenure in execution of a decree for arrears of rent, after satisfying that decree, any rent falling due between the date of the suit in which the decree was passed, and the date of sale, shall be paid therefrom to the decree-holder. This provision of the law evidently shows that the Legislature intended that the charge in respect of any rent falling due between the date of suit and the date of sale in satisfaction of the decree passed therein, shall be transferred from the tenure to its sale proceeds, and that the tenure shall pass to the purchaser at a sale for arrears of rent free of all liability created upon it by the default of the previous holder.
7. The learned vakil for the respondents contended that el. (c) of Section 169 could not limit the charge created by Section 65, and that the landlord might have a charge on the tenure as well as on the surplus sale proceeds. If that was the law, it might lead to greater injustice to the defaulter. For the tenure in the hands of the purchaser being liable for the rent falling due between the date of suit and date of sale, the purchaser will evidently bid for it so much less than its full value; while the surplus sale proceeds being also charged with such rent, the landlord may recover it from the surplus; and thus the defaulter may be made to pay the full rent and yet not get the full value of his tenure, while the auction-purchaser will get the tenure for less than its full value without having to pay any back rent. This we do not think the Legislature could ever have intended. If the value of the tenure is sufficient to pay off all the arrears due up to the date of sale, as the tenure would, upon the view we take of the law, fetch its full value, the landlord's demand would be paid in full. But if the value of the tenure be not sufficient to pay oft all the arrears due upon it, then it must necessarily be an insufficient security for the arrear, and no view of the law can enable the landlord to realize his dues fully out of it, The opposite view of the law, if correct, would result in lowering the value of the tenure at any sale for arrears of rent, and what the landlord might get from the tenure by a second sale will be counterbalanced by the deficiency in price at the first.
8. The cases cited for the respondent--Obhoy Chunder Bundopadhya v. Nilambur Mookerjee W.R. 1864, 73 and Khoda Bux v. Degumberee Dossee W.R. 1864, 207--are not in point. They relate to the liability of purchasers at ordinary sales in execution of decrees, and not to that of purchasers at sales in execution of decrees for arrears of rent.
9. For all these reasons we think the view taken by the first Court is correct, and the decree of the Lower Appellate Court must therefore be reversed, and that of the first Court restored, with costs in this Court and in the Court of Appeal below.