Randipurazil Kunhisow Karnavan and Manager of his tarwad vs Alukandiyil Parkum Mulloli Chathu

This is a suit for rent for three years 1083 to 1085 Malayalam year. Defendants 1 to 3 are sought to be made liable directly under the mampa or

rental instrument, the 1st Defendant and the manager of the family of defendants 2 and 3 being the executants of the Marupat. The 4th Defendant

purchased the rights of defendants 1 to 3 in the land on the 4th January l909 during the currency of the year 1084 and assigned his rights to

defendants 6 & 7 on the 29th April 09; about 3J months after his purchase. The plaintiff''s case is that the 4th Defendant is also liable for the rent of

the Malayalam year'' 1084 andthat Defendants; 6 and 7 are liable for the rents of the years 1084 and 1085. The District Munsif passed at decree

against the 4th Defendant for the rent of the year 1084. He appealed to the District Court on the ground that he was liable only for the rent

accruing from the date of his purchase up to the date of his assignment to defendants 6 and 7 i.e., from the 4th January to 28th April 1909. The

District Judge upheld his contention.

The plaintiff has preferred this second appeal and his contention is that the 4th defendent is liable for the whole of the rent for the year 1084 in as

much as the rent for that year became payable after his purchase. Exhibit A. The rental instrument, did not fix any specific date for the payment

ofthe annual rent. A rent of Rs. 60 per annum was fixed to be paid from the 25th Meenam, 1069. It is argued that this must be construed to mean

that the rent should be paid on the 25 th Meenam each year. In the plaint the allegation is that the annual rent is was payable in monthly instalments.

We cannot say, onthe construction of A that the 25th of Meenam can be regarded as the date fixed for the payment of rent every year. The

Malayalam year 1084 expired only after the 4th defendant''s assignment of his rights under the lease. If the rent is regarded as payable at the end of

each Malayalam year, the plaintiff can have no ground for holding the 4th defendant liable for the whole rent of 1084. If the tenancy be regarded as

running from the 25th Meenam each year to the 24th Meenam of the succeeding year, then the rent due for 1084 fell due during the period that the

4th defendent held the leasehold interest by virtue of his purchase. Assuming that the whole rent for the year was intended to be payable on the

24th or 25th Meenam, can it be held that the 4th defendent is bound to pay the whole ofthe rent for 1084? Section 108 of the Transfer of Property

Act lays down that ""a lessee may transfer his interest in the leasehold property "" but that ha "" shall not, by reason only of such transfer, cease to be

subject to any ofthe liabilities attaching to the lease."" It does not enact any rule regarding the liabiliaty of the assignee but as the assignee becomes

the lessee from the date of the assignment, according to the section, he must be held liable for the rent accruing after the assignment. The

appellant''s argument is that a covenant to pay rent being one running with the land, the assignee is bound to discharge all obligations under the

covenant which mature after the assignment. It is no doubt the rule that an assignee is liable for all breaches of express covenant running with the

land accruing after the date of assignment. There is a privity of estate between the lessor and the assignee and the latter is bound to perform the

covenant of the lease after the assignment. If a covenant to keep the premises in repair or to do an act on a day which falls after the assignment is

broken subsequently, the assignee is undoubtedly liable. That a covenant to pay rent is one running with the land appears to be the established rule

in England. See Woodfall''s Landlord and Tenant p. 189. The assignee is liable for rent even though he may not have taken possession. See p. 296

of the same book. For possession is not the ground of his liabity, but the privity of estate which is created by the assignment itself."" 24 American

Cyclopasdia of Law and Procedure, page 1180."" But the question for our decision is whether the liabity on the covenant can be apportioned or

not. According to Section 36 of the Transfer of Property Act, all rents are, upon the transfer of the lease, to be deemed, as between the transferor

and transferee, to accrue due from day to day to be apportionable accordingly but to be payable on the days appointed for the payment therefor.

See Lakshmi Narayanappa v. Mallothraman Nair ILR (1902) M. 540. No rule of apportionment has been laid down in the Act, with regard to

liability for rent, as between the lessor and the transferee from a lessee. It is settled law that the privity of estate between the lessor and the lessee''s

assignee is terminated by the assignment to a third person by the assignee and the latter would not be responsible to the lessor for rent after he has

assigned his rights under the assignment to himself. The question whether the assignee of a lease can claim as against the lessor an apportionment of

the rent accruing after the date of his assignment does not appear to have been definitely decided either in this country or in England in cases arising

between the /lessor and the assignee. But on principle there seems to be no reason why he should not be entitled to do so and why the rent should

not be deemed accruing due from daj to day as between him and the lessor. The liability of the assignor of a lease continues notwithstanding the

assignment and the lessor cannot be damnified in any manner by the apportionment of liability on the personal covenant for rent so as to make the

assignee liable only for the rent accruing after the assignment. Privity of estate being the ground of assignee''s liability, there is no reason why it

should be made heavier than the extent of that privity would justify. If the lease contains any provision entitling the lessor to any right in case of a

breach of the covenant to pay rent on a day subsequent to the assignment, he should no doubt be entitled to exercise that right as against the

assignee. But it does not follow from this that he should be liable to have a decree passed against him personally for the payment of more than the

rent accruing after the assignment in his favour. If the assignment be of a portion only of the premises included''in a lease it is settled law that the

assignee is not liable for more than the proportionate rent due on what is comprised in his assignment. Why should not the same principle apply

where diminished liability is claimed not on the ground that the whole of the premises has not been assigned, but on the ground that the assignment

has been in operation only during a portion of the period for which rent is claimed. In Halsbury''s Laws of England Vol.18 p 483, it is stated that

an apportionment can be made not only as between the persons entitled to the rent but also as against a tenant whose liability for rent ceases or

changes its character between two rent days and after the day when the entire portion of rent has or would have fallen due and that proportionate

rent is recoverable against the tenant as rent due under the lease. Consequently, a lessee who surrenders his lease between two rent days is liable

for rent up to the surrender and a lessee on whom a lessor lawfully re-enters is liable for rent up to the re-entry."" In Swansea Bank v. Thomas

(1879) 4 Ex. D. 94 a liquidator in whom the residue of a term under a lease became vested assigned over during a current quarter. In an action

brought after the expiration of the quarter against the transferee by the lessor to recover a proportionate part of the quarter''s rent up to the time of

the assignment over by him, it was held that the lessor was entitled to apportionment. In England the law of apportionment has long been regulated

by Statutes and the case was decided on the construction of 33 and 34, Viet, chapter 35 which provided that "" all rents annuities, dividends and

other periodical payments in the nature of income, whether reserved or made payable under an instrument in writing or otherwise, shall, like interest

on money lent be considered as accruing from day to day and shall be apportionable in respect of time accordingly. According to the common law

of England rent neither accrued due nor was payable except on the day on which it was reserved although interest on money lent accrued due de

die in diem although it might be payable on certain specified days. In India there is no reason for not applying to rent the principle adopted in

England in the case of interest. There are other cases in England which follow the rule laid down in Swansea Bank v. Thomas (1879) 4 Ex. D. 94.

See Be Johnson exparte Blackett (1894) 70 L.T. 381 and Be Wilson exparte Hastings (1893) 62 L.J.Q.B. 628; in Re South Kensington Co-

operative Stores (1881) 17 Ch. D. 161; in Re Howell exparte Maudleburg and Co. (1895) 1 Q.B. 844. If the lessor can claim apportionment as

against the lessee assigning his right, there is no reason why the assignee should not have the right to make a similar claim against the lessor.

ReaSon and equity seem to us to require that he should have such right. In Glass v. Paterson (1902) 2. Rep 660 it was held that an assignee was

only liable for the apportioned rent from the date of assignment In America a different view appears to have been taken. McAdum in his work on

Landlord and Tenant"" Vol. I p 801, says "" When a covenant to pay rent becomes broken after an acceptance of an assignment and during actual

possession, the assignee is liable for the whole rent then becoming due."" It is not clear how the question of actual possession is material, seeing that

privity of estate and not possession is the ground of the assignee''s liability. The Irish decision in Glass v. Paterson (1902) 2. Report 660 seems to

be more in accordance with the ratio of the English cases referred to above and with principle and justice.

We must therefore hold that the plaintiff''s claim against the 4th defendant for the whole rent of the year 1084 should not be sustained and this

second appeal must be dismissed with costs.