Maharaj Kumar Ram Ranbijaya Prasad Singh vs Harihar Prasad Singh and Another

Wort, J.—This appeal depends upon the construction of a compromise before their Lordships of the Judicial Committee of the Privy Council, a compromise dated 20th July 1928. By that compromise certain property was to be transferred to the plaintiff-appellant (the appellant here being the appellant before the Privy Council), and it was provided that the appellant

should be entitled to all rents and profits accruing in respect of those properties as from the 20th day of July 1928.

It is upon the words "all rents and profits accruing," after the date mentioned, that the appeal depends. It would appear from the facts found in this case that the kist in question was that of 29th September 1928, but it would appear that the respondents had collected that rent in advance from the tenants prior to the date of the compromise, i.e., 20th July 1928. The learned Judge in the Court below, for reasons which it is unnecessary to mention, dismissed the plaintiff''s claim.

Two questions arise: first, whether the plaintiff is entitled to the whole; and secondly (a matter depending upon the question of apportionment), if not the whole, whether the plaintiff is entitled to a part of the claim. I should have stated that the main claim together with interest was Rs. 4,264-14.6. It is contended by Mr. Sushil Madhab Mullick on behalf of the plaintiff-appellant (as I understand his argument) that the words "all rents and profits accruing in respect of those properties" which we have to construe, are descriptive and that therefore he, under the agreement being entitled to the rents in any event from the tenants, would be entitled to those sums which have been collected by the defendant in advance. The point is in a small compass, and by the argument of the learned advocate appearing on behalf of the appellant, depends very largely upon a question decided in De Nicols v. Saunders (1870) 5 CP 589. The facts there were somewhat different and the question arose in an action by a tenant against his immediate landlord for damages for wrongful distress. It would appear that after the assignment which was by way of mortgage, the assignor had collected rent in advance from the tenant. No notice was given to the tenant of the assignment by way of mortgage, and it was in those circumstances that the assignee put in a claim for the rent which the tenant had already paid to the assignor. The fact which distinguishes that case from the present was that the collection by the assignor was after the date of the assignment, and Willes, J., in delivering the judgment of the Court stated that in the circumstances, apart from the question of notice, had the collection been made before the date of the assignment, it would have been a complete discharge of the tenant. But the relevance of the case depends upon certain observations of the learned Judge with regard to Section 10, 4 Anne, C. 16. The learned Judge made this observation:

These cases (referring to certain Common law cases) depend upon a rule of general jurisprudence not confined to choses-in-action, though it seems to have been lost sight of in some recent cases, viz. that if a person enters into a contract, and without notice of any assignment, fulfills it to the person with whom he made the contract, he is discharged from his obligation; that is a rule which is declared rather than enacted by 4 Anne, C. 16, 8. 10.

And then he made this observation with regard to the payment of money in advance:

That statute did away with the necessity for attornment, but protected the tenant in cases where he had paid the rent due from him before notice of the assignment; this provision of the statute, however, clearly applies to the fulfillment of an obligation to pay rent imposed by the lease. There has been no such payment here, for payment of rent before it is due is not a fulfillment of the obligation imposed by the covenant to pay rent, but is, in fact, an advance to the landlord, with an agreement that on the day when the rent becomes due such advance shall be treated as a fulfillment of the obligation to pay the rent.

Section 53, Bihar Tenancy Act, which applies to this case, provides that:

Money rent payable by a tenant shall be paid in four equal instalments falling due on the last day of each quarter of the agricultural year.

It is therefore argued by Mr. Sushil Madhab Mullick, that when the words ''accruing after 20th July 1928,'' were used, the parties were referring to the date of the kist, that is to say, that rent which accrued after that day should be paid by the tenant, and accrued in the sense used meant the date upon which the payment fell due; and, relying upon the words of Willes, J., it is contended that in spite of the payment which might in certain circumstances have been a full discharge of the tenant although in fact the payment had been made the rent still accrued due after 20th July 1928 and that therefore the plaintiff was entitled to recover this sum from the defendants. The case has all the more strength in. India by reason of the fact that apart from Section 36, T.P. Act, in India it is clear that rent does not accrue from day to day. There are a number of authorities which have pointed out that Section 36, T.P. Act, is the only statutory provision in India relating to the apportionment of rent and I think it is quite clear that by Section 2 of that Act Section 36 does not apply to this case.

We are therefore in the position of having to deal with rent which, although it had been paid, did accrue after 20th July 1928. The only question that remains is whether, under the agreement, the plaintiff was entitled to recover it from the defendants. There are authorities in India particularly the decision in Gooroo Das Pyne v. Earn Narain Sahoo (1883) 10 Cal 860, which speaks of an action of this kind as an action in which the plaintiff attempts to follow sums which are in fact due to him in the hands of the defendants, The case is more particularly relevant on the question of limitation to which I shall in a moment refer. But in my judgment on a plain reading of this compromise, assuming as we must that the parties were contracting with the full knowledge of the law, that there is an agreement and an undertaking by the defendants to pay those sums (if they had already collected them) to the plaintiff in so far as they are rents which accrued due after 20th July 1928. In my judgment the observations of Willes, J., in the case to which I have already referred, do apply to this case, and the conclusion at which I arrive is that this rent accrued after 20th July, although in fact there had been (to use the words of Willes, J.) an advance to the defendants which might in certain circumstances have been a complete discharge as against the defendants. So far as the question of the amount which the plaintiff is entitled to recover is concerned, I have already indicated the view I hold by stating that rent does not accrue from day to day in India and therefore it did not accrue until the date of the kist of September 1928. There, therefore, can be no question of any diminution of the amount which the plaintiff claims.

So far as the question of limitation is concerned, it was variously contended that Article 62 applied, or that Article 109 applied, or in the alternative, as Mr. Mullick contends, Article 120. I think it impossible to hold that Article 109 applies for the very simple reason that that article refers to profits of moveable property which belonged to the plaintiff and which has been wrongfully received by the defendants, which this is not. It cannot be said that these sums received by the defendants prior to 20th July were wrongfully received: it cannot be that case. So far as Articles 62 and 120 are concerned, it seems to me on the facts of this case and for the consideration which I have stated, that it matters not whether it is Article 62 or Article 120. Article 62 is for money payable by the defendant to the plaintiff for money received by the defendant for the plaintiff''s use. On the view I take as to the expression "accruing" used in the compromise it did not accrue till the end of September 1928 and, therefore, in any event, the plaintiff''s action is within time. Naturally if Article 120 applies the plaintiff''s action is equally within time. For those considerations I am of the opinion that the decision of the learned Judge in the Court below is erroneous and the action of the plaintiff should have succeeded. I would therefore set aside the decision of the Court below and decree this appeal with costs. The plaintiff is entitled to judgment for Rs. 2,941-7-3 with interest at the rate of 6 per cent.'' per annum throughout.

Agarwala, J.

I agree.