Musammat Phul Kuer vs Rambhanjan Singh and Musammat Dhako Koer and Others

Ross, J.—This is an appeal by defendant No. 1 against the decree of the Subordinate Judge of Gaya reversing the decision of the Munsif of Aurangabad and decreeing the plaintiff''s suit.

Rani Chandradeo Kuar was the proprietor of Mauza Kesour, she leased the property in zurpeshgi to Lohari Mai who died leaving a widow, Musammat Dhako Kuar, defendant No. 2, a daughter Musammat Phul Kuar, defendant No. 1, and two sons Chuni Lal and Muni Lal, defendants Nos. 3 and 4. Dhako Kuar made a gift of 8-annas share in the zarpeshgi lease to defendant No. 1 and of other 8-annas share to defendants Nos. 3 and 4 t some time not specified. On the 7th December 1916, corresponding to Aghan 1324, defendant No. 1 sold her 8-annas interest to the plaintiff. Thereafter, Rani Chandradeo Kuar brought a suit for arrears of rent for the years 1322 and 1323, impleading as defendant only Musammat Dhako Kuar. There was an attachment before judgment of the landlord''s portion of the standing crop and in order to release the crop from attachment the plaintiff paid Rs. 511-4-6 to the Rani on the 23rd January, 1917. The present suit was brought against the defendant No. 1 for the recovery of this sum with interest. The Munsif dismissed the suit on this ground among others that there was no allegation in the plaint and no evidence on the plaintiff''s side, that the defendant No. 1 was in possession of the leasehold in the years 1322 and 1323 for the rent of which the suit was brought by Rani Chandradeo Knar. His decision was reversed by the learned Subordinate-Judge, and the only ground taken in second appeal is that, in the absence of any allegation or proof that defendant No. 1 was in possession of the leasehold in 1322, and 1323 and therefore, liable for the rent of these years, the plaintiff waft not entitled to recover from her.

The learned Subordinate Judge has relied upon the provisions of Section 55(1)(g) of the Transfer of Property Act which requires the seller to pay all public charges and rent accrued due in respects of the property up to the date of sale, the interest on all incumbrances on such property due on such date, and, except where the property is sold subject to incumbrances, to discharge all incumbrances on the property then existing. He infers from this provision that defendant No. 1 was bound to pay the arrears of rent due up to the end of 1323 irrespective of the period of her actual possession. This provision of the Transfer of Property Act implies a covenant against incumbrances and the question for decision is, whether the covenant extends only to such incumbrances as have been created by the vendor or to all incumbranoes on the property at the time of sale. It is only on the latter interpretation that the plaintiff can succeed, because there is nothing to show how long: the defendant No. 1 was the owner of the property or how much rent, if any, accrued, due during the period of her ownership.

The defendant No. 1 obtained the property by gift from her mother Dhako, who in turn inherited it from her husband Lahori Mal. The rent certainly accrued due during the tenancy of one or other of these persons. The inoumbrance, therefore, was created either by the plaintiff''s vendor or by a person through whom she claimed otherwise than by purchase. Even if the covenant against incumbrances implied by Section 55(1)(g) of the Transfer of Property Act were limited to the usual conveyancing coovenant implied in the Conveyancing Act (44 & 45 Vict. Ch. I)--Section 7(1) and the actual words of the Section seem to be wider than this--it must, in any view, cover this charge for rent. The decision of the learned Subordinate Judge is, therefore, correct and the appeal must be dismissed with costs.

Das, J.

I agree.