Prinsep and Pigot, JJ.
1. The plaintiff's case is as follows:--The plaintiff is assignee of one Rysona Dasi, who held in possession certain land specified in the plaint. Of that land she granted an ijara to one Gobind Chunder Sircar in 1279. He, in 1280, granted a dur-ijara of these lands to the defendant, and in 1281 gave up the ijara to Eysona Dasi. The defendant after this applied for and obtained from Rysona Dasi a confirmation of his dur-ijara; and after this, in 1284, Rysona Dasi assigned her entire right to the plaintiff.
2. The terms under which the defendant held are contained in a kabuliat, not part of the record in this case. The plaint states, as the reason for not filing it in the present case, that it is already filed in Suit 1230 of 1877, being a suit against defendant for the rent due under the kabuliat for the years 1282-83 in which a decree for plaintiff had been made, which decree had been appealed to the Judge's Court.
3. No objection was taken on the ground of the absence of the kabuliat containing the terms of the tenancy. It was in truth admitted in the defendant's written statement that the tenancy was held on the terms as to payment alleged by the plaintiff.
4. According to the terms of the kabuliat the tenant was bound to pay (1), Rs. 183-6-3 to the zamindar: 2), road and public works cess, Rs. 4-11-4 each; (3), Rs. 127-0-0 profit rent, and Rs. 3 for value of molasses to the plaintiff. The plaint alleged that 'plaintiff frequently called on defendant to pay to him the rent due to the zemindar, or to make over to him the dakhillas showing payment of it, and to pay him the profit rent due, but the defendant did not comply with his request.'
5. The plaintiff claimed Rs. 875-4-8, of which Rs. 645-9-10 was in respect of the moneys payable by the defendant for the years 1284 and 1285, and Rs. 229-10-10 as interest due on the unpaid 'instalments,' as they are called in the translation of the plaint.
6. The plaint seems to have been treated by the Munsif, and apparently understood by the parties, as including a claim for the delivery by the defendant to plaintiff of such dakhillas as he might have in his possession.
7. The defendant, among other defences (some of which need not be noticed) alleged: 1st, that he was Bani Madhub's benamdar; 2nd, that Bani Madhub had paid the rent due to the zamindar; and 3rd, that Bani Madhub had the dakhilla for the rents. As to the first defence, that defendant was a benamdar only, the Munsif held him estopped by his admission in, and by the decree in the previous suit. As to the second, the defendant tendered evidence to prove the payment of rent, and produced some dakhillas. The Munsif held that payment to the amount of Rs. 116-5-9 only was established, pronounced a decree for plaintiff for Rs. 529-4-1, the residue of the Rs. 645-9-10 together with interest, Rs. 132-3-11; and ordered the defendant to hand over the dakhillas to the plaintiff.
8. The Sub-Judge affirmed this decision save as to that part of it which held the defendant liable to pay to the plaintiff an amount equal to the sums payable to the superior landlord. As to these he reversed the Munsif's decision, on the ground, as stated in the judgment, ' that there is nothing to show that the plaintiff has been obliged to pay the same, or that any obligation has been cast upon him to pay it. The obligation was upon the defendant to pay these sums; and when no claim has been made upon the plaintiff, and when there is no allegation that the plaintiff has paid them, the presumption is that those sums have been paid by the defendant.' Before dealing with these reasons, a defence set up before us must be noticed.
9. It is contended, first, that this suit is merely a suit for rent; and second, that the moneys payable to the superior landlord are not rent, and cannot be recovered as such.
10. We think this latter contention correct. Rent cannot be made payable as such to a third person (Woodfall, 12th ed., 355; Lit. Section 346).
11. But although the suit is described in the first paragraph of the plaint as a suit for rent, we think the case made by the plaint sufficiently makes out (as an alternative) a claim for damages against the defendant for breach of his contract to pay the superior landlord. It was dealt with on that footing by the Subordinate Judge, and on that footing decided against the plaintiff for the reason given in the passage above referred to. The plaintiff's claim under this head must, we think, be construed as a claim for damages.
12. As to the grounds assigned by the Subordinate Judge for his decision, the defendant alleged in his written statement that the payments had been made and he tendered evidence to prove it. He failed. If we thought it necessary, we should send the case back for further evidence as to the payment or nonpayment of the money. But we think that, as the defendant undertook the onus of proof of payment, and having regard to the respective positions of the parties, the Munsif was right in deciding the issue as to the fact of payment to the superior landlord against the defendant.
13. It being established that the defendant's agreement to pay the superior landlord the rents for 1284 and for 1285 was broken, the remaining question is whether plaintiff was entitled to recover from the defendant, as damages for these breaches, the amount payable as rent (for each year) for which he himself remained liable : or whether, as plaintiff has not shown that he had paid the money, he is only entitled to nominal damages.
14. We think the plaintiff is entitled to recover as damages the full amount which the defendant agreed to pay, and has not paid.
15. In Loosemore v. Radford 9 M. & W. 657 plaintiff and defendant being joint makers of a promissory note, plaintiff as surety and defendant as principal, the defendant covenanted with the plaintiff to pay the money on a given day, and made default. It was contended that the plaintiff, not having actually paid any money on the note, had suffered no substantial injury, and was entitled to nominal damage only. The Court held that the defendant was liable in the full amount of the money that he ought to have paid according to the covenant. To this same effect is Lethbridge v. Mytton 2 B. & Ad. 772.
16. Here, the defendant's promise was an absolute promise to pay, in discharge of plaintiff's liability to the superior landlord, the rent due for 1284 and for 1285 within each year; and the plaintiff was entitled to maintain an action in damages for the amount the moment the time expired within which the defendant was bound to pay.
17. The decree of the Subordinate Judge must be reversed, and that of the Munsif affirmed. If the Munsif has awarded interest on the two sums of Rs. 183-6-3 or either of them, his decree must be modified by striking out the interest so allowed, as interest cannot be allowed on these sums, which are awarded to the plaintiff as damages.
18. Plaintiff to have costs throughout.