Mathu vs Paliam Estate and Others

Varadaraja Iyengar, J.—This appeal is by the 1st Defendant and arfees out of a suit filed on behalf of the Paliam Estate for recovery of certain plots of land, aggregating in area to 1 acre 49 cents, on the basis of a with rent dues past and future. The original see was one Krishnan Raman but by suca assignments, the Defendants 1 to 4 had comei possession of separate portions of the lease) Under the original lease arrangement, rent" due at the rate per year of 53 paras 7 Edangi and 8 Visams of paddy besides Rs. 2-7-10 pi way of tax, this tax portion having been r from 1114 to Rs. 1-7-3 pies.

According to the plaint the arrears of rental tax due from the tenants till date of suit amqjinied to 1335 Paras 13 Visams of paddy and Rs. 27-'' pies. The plaint mentioned that major portion!) these amounts comprising the barred arrearjp] 1120 was being set off towards one-haif of the valu of improvements effected in the leasehold and"''du to the Defendants and decree for the balanc amount being the arrears for the 3 years befor suit viz. 1121 to 1123 was alone being claimed.

All the Defendants contested the''til Their contentions were however generally repelle by the court below and decree was passed in plaii tiff''s favour in terms of the plaint subject onl to payment of certain improvement value asce tained by the commissioner''s report in the'',|Cff to the several Defendants.

In this appeal by the 1st Defendant are concernec witn two only of the content" raised Adm in the court below. They an jillty at the rate only of 5 p. and 3 annas per year or in any even: fixed comparatively with reference to thi 2''2 cents in his possession, and (ii) right -i improvement value effected by him in hjents without set off of the barred of rent\\accrued in respect of other plots.

Taking up the first contention, as ''tdftl Defendant''s personal liability for rent, the lst.d fondant''s ease is that Ext. II assignment fjafa 24-10-1104 in his favour had provided for ajiat lity of 5 Paras of paddy and 3 annas only aijf was only on that basis that rent and tax by him and accepted by the Paliam estate. vl( Ext. Ill series of receipts between 1104 to 1J1 It was argued on his behalf that this rate accordingly be taken to be the proper rate as.lx ween him and the estate.

We cannot accede to this argument. For 36 111 series on scrutiny do not indicate any novat as between the parties but appear to denote some partial payments alone and acceptance as such. The alternative contention under this head on the basis of proportionate liability calculated with reference to the ratio of the area in 1st Defendant''s possession and the total area of the leasehold viz., 22 to 49i, is only proper and therefore accepted. We fix this amount roughly at 7& Paras and 5 1/2 annas per year. We hold accordingly that the 1st Defendant''s personal liability for rent from 1121 onwards will be fixed on the above basis.

Coming to the second contention regarding improvement value, learned Counsel urged that the ccilirt below was wrong in having allowed set off of barred arrears accrued in respect of the entire property as against the improvement value of Rs. 416-1-10 pies found by the court below to have been affected by the 1st Defendant in the 22 cent plot held by him. This contention is, in our opinion, well founded. For unlike in the case of a mortgage, the relationship between a lessor and lessee arising on the contract of lease is purely legal. The mortgagor may have been assigned remedies analogous to that of a trustee as against the mortgagee in particular situations.

There is no scope however for introducing trust relationship as between the lessor and the lessee. In the matter of arrears of rent their relationship cannot be anything more than that of debtor and creditor. It was held accordingly in Arumugha Perumal v. Syed Muhammad 57 Ker LR 1051 (FB) (A) that the auction purchaser of a lessee''s right to improvements was entitled to the value of improvements without regard to arrears of rent due to the lessor, so long as no specific charge was created for the rent in the instrument of lease. The same principle is laid down in Quseph Chacke v. Varki Joseph, 1950 DLR (TC) 34.

It (follows therefore that the improvements effected by the first Defendant in his portion of the holding cannot be available for set off of arrears, barred or otherwise, clue for the original lessee of his othei assignee. The proportionate rents that accrued due as against the 1st Defendant in respect of his own portion, could o[ course be set off, but in doing so, what tin: 1st delendant Chad already paid under Ext. Ill scries viz., 20 Paras and 12 annas should also be given credit to. We hold accordingly that all the proportionate rents due in respect of the 1st Defendant''s portion of the holding from 24-10-1104 the date of his assignment till the end of 1120 as calculated above, subject in the first instance to a deduction of the amounts covered by Ext. Ill series receipts, may be set oft against the amount of its, 41(1-1-10 found to be the value of Improvements due to the 1st Defendant. We further hold that this set off will be available in respect also of such proportionate dues as accrue for the three years before suit and also the date of plaint. The commutation rate regarding paddy to be adopted, we need hardly say will be the rates prevalent at the times when the proportionate rents fell due.

We wish to add that we leave open the question if the applicability of Act VIII of 1950 (Stay of Execution Proceedings Act) so far as the Defendants and the plots in their respective possession are concerned.

In the result the decree of the court below will stand modified to the extent indicated above. The appeal is allowed to the above extent and dismissed otherwise. The parties will suiter'' their costs in this Court.