1. This is a suit by the Maharajadhiraj of Darbhanga to recover nearly Rs. 71,000 for arrears of rent and taxes in respect of certain premises in the Ultadanga Main Road.
2. There was a registered lease made in Calcutta on July 4, 1928, between the Maharajadhiraj of Darbhanga and Merwanji Nanabhoy Mehta since deceased and Pherozsha Merwanji Nanabhoy Mehta. Under the lease the lessees jointly and severally covenanted to pay rent, and interest or any rent in arrear, and to pay the occupier's share of all Municipal rates. The lessees were also monthly tenants under the Maharaja in respect of premises Nos. 81-1-1 and 81-1-2 Ultadanga Main Road on a monthly rent of Rs. 50. That tenancy expired on December 14, 1929, but certain arrears of rent are still due. One of the lessees Merwanji Nanabhoy Mehta died on July 14, 1928, and the present three defendants are the two executors and the executrix of his last will, and they obtained probate on September 9, 1929. No rent has been paid since September 1929 and there are also arrears of Municipal rates from the 3rd quarter of 1932 33. The lessor died intestate on July 3, 1929, and the present plaintiff succeeded, him as his eldest son. Payments have been made to the extent of Rs. 6,000 between July, 1932 and August, 1933, and credit has been given for this payment in the plaintiff's claim. The first defendant in his written statement set up an agreement for reduction of rent. He also challenged the method of appropriation of the payments which were made, but he has not appeared at the hearing. No question now arises as to appropriation, as the accounts have been readjusted so as to meet his view.
3. The second defendant is the executrix, and she states that the first defendant who was the son of the testator was partner with his father in a match business which was carried on in the leasehold premises and she also states that under the testator's will the first defendant became solely entitled, as proprietor, to the match factory business and was entitled to possession of the leasehold premises as his father's legatee. She alleges that she never entered into possession of the lease hold premises and denies liability for the rent.
4. The third defendant admits that he is an executor, but does not admit the amount due and states that the first defendant has been in possession of the premises in connection with his match business. There was some question as to whether the second defendant actually took out probate of the will, but a copy of the probate has been produced and Mr. Choudhury on her behalf has admitted that she did take out a probate.
5. The second issue was: 'Did the defendants Nos. 2 and 3 enter into possession of the premises leased? Are they liable as executor and executrix of the estate?'
6. There is no evidence that they ever entered into possession, but it is contended on behalf of the plaintiff that they are nevertheless liable to the extent of any assets of the testator which may have come into their hands.
7. In support of this contention I have been referred to Williams On Executors, 12th Edition, page 1150, where it is stated:
If rent accrues alter the death of the lessee, but the executor does not enter upon the demised premises, he cannot be personally responsible for such rent. He is, however, liable as executor, for he cannot waive the term so as not to be liable for the rent as far as lie has assets.
On the other hand, if the executor enters upon the demised premises the lessor has an election either to sue the executor in his representative capacity, or to sue him personally as assignee of the term. This is so whether the action is for rent accrued, or for breach of covenant committed, after the death of the lessee.
8. Reference has also been made to a decision reported in Coghill v. Freelove 3 Modern Rep. 325 where it is stated:
Popham (Lord Chief Justice), himself in reporting that very case, was of the opinion that so long as the covenant in the lease has the nature and essence of a contract it shall bind the executor of the lessee, Who as well as to that, as to many other purposes represents the person of the testator and is privy to his contracts....
and later on it is further stated
The privity of contract of the testator is not determined by his death but that his executor shall be charged with all his contracts so long as he has assets, and, therefore, such executor shall not discharge himself by making of an assignment, but shall still be liable for what rent shall incur after he has assigned his interest....
9. Reliance is also placed on Sections 211 and 323 of the Indian Succession Act.
10. For the second defendant Mr. Choudhury has contended that the first defendant, although he was an executor, became under the testator's will also a legatee; that he entered on the premises and was a person responsible for rent to the landlord, and he contends that this responsibility of the legatee wipes out any liability which there may be in the other executors for the rent which may accrue. The case which I have cited shows that this argument, is wrong, for the executors still remain liable on a covenant of this nature to the extent of assets that have come into their hands, but the first defendant as legatee and executor would be liable not merely to the extent, of assets of the estate which have come into his hands but also personally liable as legatee, and as lessee.
11. With regard to the question which was raised is one of the written statements that there was variation of the terms of the lease to reduce the rent, evidence has been given by the financial agent of the Darbhanga raj that no such agreement was ever concluded through him, and that although there were negotiations to that effect no concluded agreement was reached, and that had there been any such agreement, it would have been made through him.
12. It has also been pointed out that no such agreement could be arrived at except by means of a registered document in view of the fact that the terms of the original lease were registered, and reference is made to the Full Bench case reported in Lalit Mohan Ghose v. Gopali Chauk Coal Co., Ltd. 39 C. 284 : 12 Ind. Cas. 723 : 14 C.L.J. 411 : 16 C.W.N. 55. Evidence has been given by an accountant of the Darbhanga raj showing the amount that is now due, and there will be a decree for that amount against the first defendant in his personal and representative capacity and also as lessee and against the second and third defendants to the extent of any assets in their hands. Plaintiff to get his costs, and the executor and executrix will retain their costs out of the estate as between attorney and client.