James Quain Pigot and Robert Fulton Rampini, JJ.

1. In each of the three suits out of which these appealsarise, the plaintiff sues the defendant No. 1 for rent due under a leasegranted by the plaintiff to that defendant. In each case the lease is admitted,the rent is admittedly due, and the only defence is that the defendant No. 1has assigned to the defendants No. 2 the lease under which the rent has becomedue.

2. In each case the defendants No. 2 were added as partiesdefendant, apparently at their request. The Munsif made in each case a decreeagainst the defendants No. 2 alone. On appeal the Subordinate Judge has held(in one judgment disposing of all the cases) that the defendant No. 1 isliable: and has made a decree against him, letting the decree against thedefendants No. 2 stand as against them. Defendant No. 1 appeals.

3. In each case kabuliyats only are put in evidence : we aretold that no pottahs were executed.

4. In appeal 249 the suit is for rent for one year, fromAssin 16th, 1298, to Assin 15th, 1299 : the lease is of the right to cut andtake limestone from plaintiffs Mouzah Bagmara at the annual jumma of Rs. 300.

5. In appeal 232 the suit is for rent for one year fromAughran 1298 to Kartik 1299 : the lease is of the right of mining and takingcoals in and from the plaintiffs Mouzah Uttrara at the annual jumma of Rs.900.

6. In appeal 250 the suit is for arrears of rent for 1298and for the Sraban kist of 1299 : the lease is of the right of cutting stonesfrom nine hillocks in Mouzah Nadnara at the annual jumma of Rs. 200.

7. The quarrying lease, that in appeal 250, does not purportto give an interest to the lessee beyond the term of his own life. The twoother leases purport to confer the interest for a larger period. In 249 theright is given to the lessee and his heirs; in 232, to the lessee, to his sons,sons sons, and so on in succession.

8. The judgment of the Lower Appellate Court was given inthe case concerning the first mentioned lease, that in question in appeal No.250, in which the lease does not purport to extend beyond the lessees life. Asto all the leases the Lower Appellate Court held that defendant No. 1 couldnot, by reason of having assigned to the defendants No. 2, claim exemption fromliability to pay rent to the plaintiff even if the rent claimed be for a periodsubsequent to the sale.

9. In all three cases the assignments to the defendants No.2 were made on the 24th Assar 1298.

10. It is not contended that the plaintiff accepteddefendants No. 2 as his tenant, at or after the time of the assignment, or atany time.

11. The case is governed by the provisions of Section 108,Sub-section (j), of the Transfer of Property Act: the lessee may transferabsolutely, or by way of mortgage or sub-lease, the whole or any part of hisinterest in the property, and any transferee of such interest or part may againtransfer it. The lessee shall not, by reason only of such transfer, cease to besubject to any of the liabilities attaching to the lease. Nothing in thisclause shall be deemed to authorize a tenant having an untransferable right ofoccupancy, the farmer of an estate in respect of which default has been made inpaying revenue, or the lessee of an estate under the management of a Court ofWards, to assign his interest as such tenant, farmer, or lessee." It wasargued that this provision must be interpreted with reference to the ordinarylaw of India with respect to the relation of landlord and tenant at the timethe Act was passed. It was contended that, according to that law (described inthe argument addressed to us as the "common law" of India), it wascompetent for the tenant to rid himself of his liability to pay rent byassignment, or at any rate by assignment and notice thereof to his landlord.With reference to this, a construction was urged of the words in Sub-section(j): "the lessee shall not, by reason only of such transfer, cease to besubject to any of the liabilities attaching to the lease." It wascontended that, although the mere transfer would not put an end to the lesseesliability under this provision, notice by the tenant to the landlord of suchtransfer would, combined with the transfer itself, do so : as this, it wassaid, was the general rule of law relating to the relation of landlord andtenant in India at the time the Transfer of Property Act was passed.

12. We shall assume, for the purposes of this argument, thatin this case such a notice of the transfer as is contended would be sufficient,was in fact given. Assuming this to have taken place we do not think that underSub-section (J) the liability of the tenant under the lease would cease byreason of such transfer and such notice.

13. If there was such a common law of India as wascontended for, enabling the tenant to put an end to his liability by transferand notice (we express no opinion as to whether there was or was not), it didnot, at all events, extend to leases of a non-agricultural character such asthese: and we think that in this case the sub-section must be construed withoutreading it as governed by, or interpreted with reference to, any suchprinciple.

14. We must interpret the words of the provision bythemselves. The subsection provides that the liability of the lessee shall notcease by reason only of the transfer; and we think that this cannot imply thatit may be made to cease merely at his pleasure, upon notice to his landlord.His liability to the landlord is expressly preserved, notwithstanding thetransfer : that is to say, the landlords right to the benefit of his contractwith the lessee is expressly preserved to him, unaffected by the transferitself. We can find nothing in the sub-section itself to countenance theconstruction of it, that a fight so belonging to the landlord may be put an endto without any act or consent on his part and solely at the will of the personon whom the liability rests.

15. We say nothing whatever about agricultural leases : andnothing that we now say can be taken in any way, by implication or otherwise,to suggest any opinion about them, one way or the other. We hold that theliability of the defendant No. 1, the appellant in these appeals, is in no waymodified by his transfer to defendants No. 2, or by any notice of it, if heever gave any, to the plaintiff respondent, and we dismiss these appeals withcosts.

.

Tara Lal Singh Deo Bahadurvs. Sasi Bhushun Raha (05.05.1895- CALHC)