THOMMAN Vs. SUBRAMONIA IYEN
LAWS(KER)-1955-1-2
HIGH COURT OF KERALA
Decided on January 17,1955

THOMMAN Appellant
VERSUS
SUBRAMONIA IYEN Respondents

JUDGEMENT

- (1.) THE question that arises for decision in this Second appeal is whether the legal heirs of a deceased lessee, who after succeeding to the rights in the leasehold (on the death of their predecessor-in-interest)part with their rights by a transfer to a third party, are liable for the rent that accrue due after the transfer.
(2.) ONE Devassy took plaint-schedule item 1 on lease from the plaintiff-Samooham as per Ext. A, dated 27. 10. 1077, undertaking to pay an yearly rent of 60 paras of paddy. The Samooham had an usufructuary mortgage over the property from Kizhakkaniedath Mana who owned the jenmam right. The lease was for a period of 6 years certain, but Devassy continued to be in possession and enjoyment of the leasehold by holding over until he died in 1102. On that event happening his legal heirs took possession of the property. They however, parted with their rights in favour of the jenmi Kizhakkaniedath mana as per a release deed, Ext. VI dated 31. 1. 1107. The present suit was brought on 26. 11. 1119 for arrears of rent accrued due during the 12 years preceding its institution. Personal relief for rent for the 6 years immediately preceding the suit was claimed against defendants 1 to 17, the legal heirs of devassy. Defendant 18 was a Kudikidappukaran. Defendants 19 to 21 had come into possession of the leasehold property under the Mana sometime before the suit and they were sought to be made personally liable for the rent for the last 3 years. Defendant 1 died during the course of the suit and his heirs were impleaded as defendants 22 to 24. Item 2 of the plaint-schedule which belonged to Devassy was secured by him to the Samooham for due payment of the rent and this was effected by the deposit of title deed thereto (Ext. B) with the samooham. The plaintiff-Samooham claimed a charged decree for the rent for all the 12 years against item 2 of the plaint and the leasehold right over item 1. The District Munsiff of Crangannoore in whose court the suit was instituted gave the plaintiff-Samooham a decree in terms of the plaint except for a variation in the price of paddy. According to the decision of the district Munsiff the plaintiff-Samooham therefore got a decree for 12 years' arrears against item 2 and the leasehold right over item 1. Defendants 2 to 17 and 22 to 24 are made personally liable for arrears of rent for the 6 years immediately preceding the suit and defendants 19 to 21 for 3 years' arrears. Defendants 2,3 and 19 to 24 preferred an appeal against that decision before the Anjikaimal District Court and the learned temporary Additional District judge before whom the appeal came up for disposal exonerated defendants 19 to 21; in other respects the trial court's decree was confirmed. The present second Appeal is by defendants 2,3 and 22 to 24. Their complaint is that, as the arrears of rent which the plaintiff-Samooham claimed in the suit and obtained a decree therefor, related to the period after they had parted with their rights in the leasehold, they could not have been made liable at all and that the concurrent decisions of the two courts below making them liable should be set aside. These appellants and the plaintiff-Samooham were at issue on several other matters but they have all been concluded by concurrent decisions. The only point that survives for decision at our hands is the one set out above. Indeed that was the only point argued before us. The two lower courts have held that the legal effect of the release by Devassy's legal heirs of their rights in favour of the Mana was only that of a transfer by them of those rights to a third party. Mr. P. Govindan Nair, the learned Counsel for the appellants, contended before us that the liability of the legal heirs depended upon privity of estate and that once the leasehold went out of their hands their liability for rent came to an end. According to him when the rights in a leasehold devolved on the legal heirs of the lessee on the latter's death, there took place an assignment in their favour of the leasehold by operation of law and the liability of the heirs would last only so long as the leasehold remained with them. In other words he would have it that with reference to the liability for rent no distinction can be drawn between a person on whom a leasehold interest devolved under rules of inheritance and succession and a person who obtained such a right by transfer inter vivos. We are afraid we cannot accept the contention. A lessee's liability for rent is founded both on privity of contract and privity of estate. Admittedly, the lessee does not ipso facto cease to be liable for rent by a transfer of his interest to a third party. The legal heirs of a deceased person succeed to his rights as also to his liabilities, the only intimation being the liability will be determined by the extent of the assets that have come into their hands. The liability of the lessee based on privity of contract does not end when his life ends. Those who succeed him will continue to be liable on his covenant whether they obtain possession or not, provided they have sufficient assets of the deceased in their hands to meet the demand.
(3.) THE identical question arose in Narayanan Nair v. Velandy (1929) XX Cochin Law Reports 169 and the decision rendered there is in accord with the view expressed above. In that case the lease was one surrenderable on demand and Krishna Menon, J. observed that such leases are recognised in this country as creating alienable and heritable rights in immovable property and that as such defendant 1, who was the son of the lessee and had assigned away his interests in the leasehold, was liable for arrears of rent that accrued due after the transfer, provided he was shown to have sufficient assets of the deceased in his hands to meet the claim. The same view is seen taken in Manmatha Nath chukerbutty v. Balai Chandra Bag - A. I. R. 1924 Calcutta 359. There B. B. Ghose, j. said:- "the defendant is the legal representative of the original lessee, and under S. 1080) of the Transfer of Property Act, by which the present case is governed, the defendant does not cease to be subject to the liability to pay rent only by reason of the transfer made by him in favour of a third person. It is open to the landlord to enforce his rights under the covenant in the lease".;


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