1. This appeal arises out of a suit for rent of a permanent tenure which was held by the defendants Nos. 1 and 2 under the plaintiff. The defendants Nos. 1 and 2 sold the tenure to the defendant No. 3 on the 4th of Assin 1322. The plaintiff also transferred his interest, i.e., the landlord's interest, to the defendant No. 3 on the 22nd Assin 1322. The plaintiff then brought this present suit for recovery pf rent for 1321 and up to Assin 1322 against the defendants or against such of them as would be found liable. He subsequently withdrew the claim for the period from 5th to 26th Assin 1322 B.S.
2. So far as the claim for 1321 was concerned, there was a decree against the defendants Nos, 1 and 2. There was no appeal so far as that period was concerned. For the year 1322, the Court of first instance gave a decree to the plaintiff for rent up to 4th Assin against defendants Nos. 1 and 2, and dismissed the claim as against defendant No. 3. The defendants Nos. 1 and 2 appealed and although the plaintiff and the defendant No, 3 were respondents to the appeal, the appellants applied to have the name of defendant No. 3 struck out. That, however, was not done. The lower Appellate Court was of opinion that the liability for the rent was with the defendant No. 3 and that the defendants Nos. 1 and 2 were not liable for the rent, and as no cross objection had been filed against defendant No. 3, it held that no decree could be pasted as against her.
3. The plaintiffs have appealed to this Court.
4. Now the conveyance by which the defendant No, 3 purchased the tenure from defendants Nos. 1 and 2 states that 'the purchaser shall and will at all times pay the yearly rent reserved by the said Bengali deed of potta and observe and perfrom all the covenants and conditions contained therein and henceforth on the part of the vendor to be observed and performed and will at all times hereafter keep indemnified the said vendor, ste.,.from and against the payment of the said rents and the observance and performance of the said covenants and conditions,'
5. This conveyance, (which was executed on the 4th Assin) therefore, shows that the defendant No. 3 took upon herself the liability to pay the lent whiah, according to the deed, was payable in two instalments Magb and Falgun, As between the defendants NOS. 1 and 2 and the defendant No. 3 we think that, upon the construction of the conveyance, the latter was liable for the rent of 1322.
6. As stated above, there was no appeal by the plaintiff against the defendant No. 3, but that did not prevent the Court from giving relief to the plaintiff as against the said respondent, having regard to the provisions of Order XLI, Rule 33. The powers conferred by that rule should be exercised in cases where, as the result of the Appellate Court's interference in favour of the appellants, further interferenae is required to adjust the rights of the parties in accordance with justice, equity and good conscience [see the case of Ganga Dhar Muradi v. Banabashi Padihari 24 Ind. Cas, 208 : 22 C.L.J. 390].
7. In the present case the matter is somewhat complicated. Although the defendant No. 3 took upon herself the liability to pay the rent of the tenure, under the conveyance from the defendants Nos. 1 and 2 she purchased the landlord's interest. The plaintiff sold the landlord's interest to the defendant No, 3 on the 26th (sic) 1322. The rents, however, fell due according to the lease in Magh and Falgun, so that they fell due after the defendant No. 3 had the landlord's interest vested in her. As between herself and her vendor the plaintiff, however, the rent is to be deemed to have accrued from day to day, having regard to the provisions of Section 36 of the Transfer of Property Act The question whether the equities between the plaintiff and the defendant No. 3 can be properly adjusted in the present suit has not been gone into by the Court of Appeal below.
8. We think, therefore, that the case should go back to that Court in order that it may consider that question. If it finds that the equities can and should be adjusted in this ease, it will proceed to apportion the rent. If, however, it finds that it cannot be done in the present suit without injustice to defendant No. 3, the decree of the lower Appellate Court will stand.
9. It is contended before us that the two instalments in Magh and Falgun are unequal and that, in the circumstances, the rent cannot be properly apportioned. This also will be considered by the Court below. Costs will abide the result.
10. The appeal against defendants Nos. 1 and 2 is dismissed with costs. Let the record be sent down without delay.