Pudia Kovilagath Srimanavedan alias Kunhanujan Rajah Avergal vs Mudichan Kondi Anjela

Muthusami Aiyar, J.—This was a suit for house-rent. The house was let to the 1st defendant under a kulichit which he executed on the 23rd

September 1888. The 1st defendant assigned the lease to one Ali Koya and defendants Nos. 2 to 7 are his heirs. The 8th defendant purchased Ali

Koya''s interest at a court sale. The plaintiff claimed Rs. 210 as the balance of rent due by all the defendants. The 8th defendant did not enter into

possession and stated that he did not desire to take possession under his sale certificate though it was his intention to insist on his claim as

purchaser so far as the improvements made by Ali Koya are concerned. The Subordinate Judge held on the small cause side that as the principal

lessee, the 1st defendant was liable for rent, that defendants 2 to 7 were also liable as Ali Koya''s heirs from date of Ali Koya''s purchase and that

the 8th defendant was liable for rent from the date on which he purchased Ali Koya''s interest. The 8th defendant is the petitioner in revision before

me and it is contended for him that unless he enters into possession as purchaser, he is not liable for rent u/s 108, Clause (j) of Act IV of 1882. It

is not denied that under the English law the assignee of a lease may be sued on covenants which run with the land, although he has not taken actual

possession of it, and that a covenant to pay rent is a covenant running with the land (Woodfall''s Landlord and Tenant, p. 239). The reason for the

assignee''s liability is the privity of estate created by the assignment as between him and the original lessor and the privity arises from the vesting of

the assignor''s interest in the assignee. The question, therefore, is whether, as argued on petitioner''s behalf, Section 108 (j) of Act IV of 1882

renders this view inapplicable in this country. That clause provides that the lessee may transfer absolutely or by way of mortgage or sublease the

whole or any part of his interest in the property and the lessee shall not by reason of such transfer cease to be subject to any of the liabilities

attaching to the lease. But from this it does not follow that the transferree is not also liable. The lessor may at the same time sue the lessee upon his

express covenant and the assignee upon the privity of estate though he can have execution against one only, Woodfall''s Landlord and Tenant, 11th

Ed, 238, I do not therefore consider that this petition can be supported and I dismiss it with costs.