S. R. Das, J. - (1.) This is an appeal by special leave by the State of West Bengal from the judgment and decree passed on the 9th March 1950 by a Division Bench of the Calcutta High Court affirming the judgment and decree pronounced by Sinha, J., on the 4th August 1949 in exercise of the ordinary original Civil Jurisdiction of that Court. The question for consideration in this appeal is whether on a proper interpretation of Articles 8 and 9 of the Indian Independence (Rights, Property and Liabilities) Order, 1947, the appellant can be held liable for payment of rent and taxes for a period prior to the 15th August 1947 in respect of a premises which has been taken on lease by the undivided Province of Bengal.
(2.) The relevant facts are shortly these. By an indenture of lease dated the 22nd February 1947 the respondent demised to the Governor of the undivided Province of Bengal the first, second and third floors of premises No. 73, Dharmtolla Street in the town of Calcutta for a term of three years commencing from the 1st day of February 1947 yielding and paying unto the lessor therefor during the said term a monthly rent of Rs. 1,800/- only clear of all deductions by equal monthly payment on the 5th day of each and every month for the month immediately preceding and also the sum of Rs. 150/- per quarter towards payment of occupier's share of municipal taxes. By the lease the lessee covenanted that he would, during the said term, use the demised premises only for a hostel for the students of the Campbell Medical School and shall not at any time during the said term use the demised premises or any part thereof for any other purpose whatsoever. The lessee further agreed to pay the costs of and incidental to the lease. On the 15th August 1947 the partition of India took place and amongst other things, two new provinces came into existence, namely, West Bengal and East Bengal in place of the old Province of Bengal. The Province of West Bengal formed part of the Dominion of India and is now the State of West Bengal in the Union of India while the Province of East Bengal became and is still a part of the Dominion of Pakistan. The Indian Independence Act, 1947, by Section 9 empowered the Governor-General, amongst other things, to make such provision as appeared to him to be necessary or expedient for dividing between the new provinces to be constituted under that Act the powers rights, properties, duties and liabilities of the provinces which under that Act were to cease to exist. In exercise of that power the Governor-General promulgated an Order called the Indian Independence (Rights, Property and Liabilities) Order, 1947, hereinafter referred to as the said Order, to deal with the powers, rights, property, duties and liabilities of the respective Governments of West Bengal and East Bengal. Article 8 (2) of that Order, which is material for the purposes of this appeal, was in the following terms: "Any contracts made on behalf of the Province of Bengal before the appointed day shall, as from that day- (a) if the contract is for purposes which as from that day are exclusively purposes of the Province of West Bengal, be deemed to have been made on behalf of the Province instead of the Province of Bengal; and (b) in any other case be deemed to have been made on behalf of the Province of East Bengal instead of the Province of Bengal; and all rights and liabilities which have accrued or may accrue under any such contract shall, to the extent to which they would have been rights or liabilities of the Province of Bengal, be rights or liabilities of the Province of West Bengal or the Province of East Bengal, as the case may be." Clause (6) of Article 8 provided that the provisions of that Article would have effect subject to the provisions of Article 9 of that Order. The relevant portion of Article 9 was as follows: "9. All liabilities in respect of such loans, guarantee and other financial obligations of the Governor-General in Council or of a Province as are outstanding immediately before the appointed day shall as from that day- (a) ........................ (b) in the case of liabilities of the Province of Bengal, be liabilities of the Province of East Bengal."
(3.) On the 8th May 1948 the respondent filed a suit in the Calcutta High Court against the appellant claiming Rs. 21,600 as arrears of rent at Rs. 1,800/- per month from February 1947 to January 1948, Rs. 600/- as occupier's share of municipal tax for the same period and Rs. 523/9/3 being the costs of and incidental to the lease, aggregating to Rs. 22,723/9/3. During the pendency of this suit, the appellant paid Rs. 9,250/- being the arrears of rent and taxes from the 15th August 1947 but denied liability for the arrears of rent or taxes for any period prior to that date or for the costs of the lease.;