John Beaumont, Kt. , C. J. -
(1.) THIS is a suit in which the six plaintiffs sue the defendants for rent under a lease dated January 22, 1922. Defendant No.1 is the original lessee under the lease, and he is sued by virtue of his express covenant to pay the rent. Defendant No.2 is the assignee of the lease, and as against him a decree for payment of the rent was granted, and from that decree there is no appeal. Defendants Nos. 3 and 4 were sued in the capacity of partners with defendant No.2. The suit was dismissed against them, and there is no appeal from that dismissal. So that the only question with which we have to deal on this appeal is the liability of defendant No.1 on his express covenant for payment of the rent.
(2.) THE matter is one of very great importance to the parties, because the rent reserved under the lease was over Rs. 16,000 per month, the property, we are told, has fallen very much in value and cannot be underlet at anything like the rent reserved by the lease, and defendant No.2 is not in a position to meet his liability.
The lease in question which, as I have said, was dated January 22, 1922, was made between Sir Mohamud Yusuf (who is plaintiff No.6), who ft referred to as " the landlord,"-that expression to include " the reversioner for the time being' immediately expectant upon the term hereby created,"-of the one part, and defendant No.1, therein called "the tenant,"-which expression was to include " his heirs, executors, administrators and assigns," of the other part. The term of the lease was fifty years, commencing on the day on which the building to be erected was completed, and that date was subsequently agreed between the parties as August 16, 1923; and the rent reserved was the monthly rent of Rs. 16,667. The covenant for payment of rent was in these terms: The tenant for himself his heirs, executors, administrators and assigns and to the intent that the obligations may commence from the beginning of and continue throughout the term hereby created covenants with the landlord as follows :- (a) To pay the reserved rent on the days and in manner aforesaid at the office of the landlord in Bombay.
The only other covenant, which it is material to notice, is that against assigning without the written consent of the landlord-such consent not to be unreasonably withheld.
(3.) ON September 5, 1923, that is, shortly after the term of the lease had commenced, defendant No.1 applied in writing to the landlord for liberty to assign the lease to defendant No.2, and on September 24,1923, a reminder was sent to the landlord. ON September 28, 1923, the landlord wrote to defendant No.1: With reference to your letter dated the 5th instant, I have no objection to your assigning the lease of the Yusuf Building to Sir Fazulbhoy Currimbhoy, Kt. , provided you send me within two days the rent from 16th August to 30th instant as agreed. The rent was not sent within the time specified, but on October 5, 1923, Sir Fazulbhoy Currimbhoy, defendant No.2, sent the rent for the building due from August 16 to the end of September, 1923, that is, the rent due from the commencement of the term down to date; and thereupon, on October 17, 1923, the agent of the landlord wrote to defendant No.1: As per your request we have consented to the lease being assigned. Will you kindly let me know under what arrangement the lease was assigned. And the answer to that from defendant No.1 was that " I have absolutely transferred my entire interest in the lease to Sir Fazulbhoy Currimbhoy, Kt. " In fact, the lease was not actually assigned until March 28, 1924, when there was a deed of assignment between defendant No.1 and defendant No.2. The landlord was not a party to that deed, and therefore there is no question of defendant No.1 being released from his obligations under the lease by that deed.
Then on April 29, 1929, the lessor, that is, plaintiff No.6, assigned the reversion in this property to himself and others by way of wakf, and the six plaintiffs are now the persons entitled to the reversion as Mutawalis of the wakf. The relevant terms of the assignment are that the Wakif (that is, plaintiff No.6) doth hereby grant convey and assure unto the Mutavalis subject to all leases and tenancies now subsisting in respect thereof all the said lands hereditaments and premises described (which included the property, the subject-matter of the lease in question), together with rights liberties easements profits privileges and appurtenances whatsoever to the said lands hereditaments and premises or in anywise appertaining or with the same or any part thereof now or at any time heretofore usually held used occupied or enjoyed and all the right title and interest claim and demand whatsoever of him the. Wakif into or upon the said lands hereditaments and premises hereby granted, conveyed or assigned. Those are all the documents which are relevant to the question which we have to decide.;