ABDUL REHMAN MOHAMUD YUSUF Vs. SIR PHIROZE CURSETJI SETHNA

JUDGEMENT

(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.

(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.