P L D 1957 (W (PLP)

CONSTANTINE, J.

The plaint filed by the respondent stated that he had been authorised by the Custodian to recover the rent of the suit-house, of which the defendants were the tenants. Their father, Karim had executed a lease dated 21st June 1948 in favour of Manghanmal agreeing to pay Rs. 85 per month as rent. On 16th January 1948, the said Manghanmal had executed an agreement whereby he authorised the plaintiff to recover rent of the house in question, and made an endorsement to that effect on the rent note of the 21st January 1948. The agreement dated the 16th January 1948 was confirmed by the Deputy Custodian on the 15th April 1950, and the Custodian on the 17th December 1950 dismissed an appeal against this confirmation filed by the defendants. The defendants approached the Rent Controller, who, by his order dated 29th November 1950, fixed Rs. 50 per month as rent with effect from 6th June 1950, the date of the defendants' application. The defendants' father Karim paid six months' rent to Manghanmal for the period 21st January 1948 to 20th July 1948 ; thereafter no rent has been paid. The cause of action arose on the 21st of each month from July 1948 to Janury 1951, and on 21st July 1951 when notice was sent to the defendants. The defendants admitted execution of the rent note in favour of Manghamal. Both the lower Courts have treated the agreement passed by Manghanmal as having been executed by Manghanmal. This document is upon a two-rupee non-judicial stamp paper and is entitled "Special Power of Attorney". The material portion of the document is as follows: "As I am migrating to Jaipur, I am giving the charge of the building to the claimant with a condition that he shall look after my said building and shall be competent to let it to tenants of his own choice and to recover rents there from and my said attorney shall act in the matter of letting the tenement to the tenants, and recovering the rents from them in the same manner as if done by me. For that purpose I have given all the powers to my said attorney today. The claimant can recover the rent from the tenants and is entitled to keep the same with him and he can also use the building for his own purpose. In consideration of the said rent and of letting the building and recovering the rent, the claimant has given me his own building situate in Mohalla Kumbhar, Ramchandra Square at Jaipur. For that purpose the claimant shall get executed and attested a special power of attorney in my favour at Jaipur. I have handed over the possession of my building to my Special Attorney. Now he shall let the building to the tenants of his own choice and get rent deeds executed by them, and recover the rent from them. In the event the Governments of Bharat and Pakistan come to an agreement regarding exchange of properties (evacuees), we both the parties can willingly exchange the properties. I, the executant and my special attorney, who has appointed me his special attorney, can cancel the respective powers of attorney only after we have handed over the possession of our respective buildings to each other." The plaintiff applied to the Deputy Custodian Hyderabad who passed the following order on 15th April 1950, which appears in the judgment of the lower Appellate Court "This is an application for confirmation of an agreement dated 16th January 1948 by virtue of which the respondent authorised the applicant to remain in possession of his house bearing C. S No. B/19-693 situated in Malkani Lane, Hyderabad (S) in consideration of the applicant having entered into a similar arrangement with the respondent with respect to his house at Jaipur. An Income- Tax Certificate has been filed. Applicant has obtained possession. Respondent is absent is proved from the applicant's evidence that the respondent executed the above-mentioned agreement for an adequate consideration. Hence the agreement referred to above is hereby confirmed." The first defendant Ibrahim appealed to the Custodian who passed an order dated 17th January 1951, entitled "Appeal under section 36 of the Pakistan (Administration of Evacuee Property) Ordinance XV of 1949 in the matter of confirmation of exchange of property." The Order reads: "The appeal is at least three months beyond limitation. It appears also to be without merit otherwise. I reject it." Before this Appellate order the defendant had admittedly applied to the Rent Controller in June 1950. After the order of the Deputy Custodian a letter was addressed to the defendants by the Deputy Custodian stating that the plaintiff had obtained confirmation of the agreement dated 16th January 1948 by virtue of which he was entitled to remain in possession of the suit house and defendants were hereby informed that he was entitled to realise the rents of the house from them. After the appellate decision of the Custodian, an order was passed dated 28th March 1951, upon an application of the plaintiff of the same date to the effect that the rent bill in respect of the suit house was issued by mistake and was cancelled since the plaintiff was entitled to realise the rent. During the pendency of the suit, which was filed on 10th February 1951, it appears that a reference under section 34 of the Ordinance was made to the Custodian for we have on record a letter from the Custodian addressed to the Chief Ministerial Officer with reference to the suit between these parties, stating that the suit property was evacuee property but by virtue of an agreement between the evacuee owners and the plaintiff, which had been con firmed by us, the plaintiff had acquired a right to remain in possession of it to put in tenants and to realise rents from them: the other rights of ownership vest in us. There is thus no dispute as to facts in the present case. The lower Court framed the following issues: "Is the suit maintainable ? Has the plaintiff no cause of action to bring a suit against the defendants ? Whether the Custodian has - authorised the plaintiff to recover the rent of the suit-house, and whether the said agreement creates any right, title or interest in the property in favour of the plaintiff?" The Sub-Judge held that the power of attorney was defective. The Sind Civil Courts Rules read with Form 5 appearing on page 189, shows that a general power of attorney is necessary to enable an attorney to sue. Further more the power itself did not give authority to the plaintiff to file a suit. Even more vital was the objection that Manghanmal's rights having vested in the Custodian, an authority given by him was useless. The learned judge then said that though the Custodian had purported to give the right to the plaintiff to recover the rents, this order was illegal since when the property vested in the Custodian all tile rights of the owner were centralised in him and he could not divide those rights which were indivisible. He rejected the argument that the plaintiff can be treated as an agent of the Custodian for no authority had been obtained from the Custodian; and moreover accord ing to the. Rules of the Court the Custodian could not appoint the plaintiff as his attorney, since the Custodian was at Hyderababad. He held that arrears of rent were an action able claim which had vested in the Custodian and the Custodian alone could recover. The learned Appellate judge reversed the decision of the Sub-Judge. He did not deal with the question whether the plaintiff was entitled to sue as an agent of either the evacuee or the Custodian. He said the document had expressly entitled the appellant to recover rent and use the house for all purposes in lieu of the house owned by him at Jaipur. In other words the appellant and Manghanmal had ex changed all rights to their respective properties short of ownership. The recovery of rent was also an actionable and transfer able claim and could come within the definition of evacuee property. This right of the appellant was even recognised by the Custodian's Department. He then set out the relevant orders of the Custodian's Department. He said the Civil Court was debarred from disputing the validity and legality of orders of the Custodian, apparently meaning that if the Custodian directed them to pay rent to the plaintiff that order had the effect of creating a legal right in the plaintiff to enforce the order by suit. He said, further, that the document authorised the appellant to remain in possession and realise the rents from any tenant and this right had been confirmed by the Custodian. Lastly he held that the respondent was estopped from denying the rights of appellants as they had admitted the factum of the tenancy he apparently was referring to .the fact that the defendants had applied to the Rent Controller making the plaintiff a party thereto. It is to be noted that the plaint at its outset is based upon the authority given by the Custodian to recover the rent of the suit house. It stated further with reference to the agreement executed by Manghanmal that by this agreement Manghanmal authorised the plaintiff to recover rent of the house and that this agreement had been confirmed by the Deputy Custodian. Nowhere in the plaint is there any allegation that the plaintiff had become the owner of the house. By pleading authority of the Custodian to recover rent prima facie the plaintiff meant that he had been constituted the agent of the Custodian to recover rents. The Sub-Judge has stated the reason why if this is the cause of action, the suit fails, namely, that the Rules of the Court do not permit an agent to sue unless he has a general power of attorney. The case, however, did not concede (?) solely upon this point. It was also contended that a substantive right vested in the plaintiff whereby he was entitled to recover rents from the defendants. It is to be noted that the agreement with Manghanmal was dated the 16th January 1948 whereas the tenancy created by Manghanmal in favour of the defendants' father is dated the 21st January 1948. There is no allegation that the defendants had ever attorned to the plaintiff as their landlord except a statement in the plaint that the defendants approached the Rent Controller. Even this state ment in the, plaint does not state that the plaintiff had been made a party to that application, nor does the document on record, Exh. 35, the decision of the Rent Controller, show that the plaintiff was a party. But it is conceded that when the Rent Controller in his order says "Landlord was present" this refers to the plaintiff. But it is not to be presumed from this that the defendants had stated that the plaintiff was the landlord. They may we:: have stated that the plaintiff claimed to be entitled to recover the rents without admitting such a claim and. the expression 'landlord' may have been used in a vague sense by the Rent Controller. It is admitted in the plaint that no rent had ever been paid to the plaintiff ; the written statement stated that approaching the Rent Controller did not decide the fact that the plaintiff has a right to recover rent. There is, therefore, in our opinion no basis for the con tention that the defendants had attorned to the plaintiff. Equally, there is no basis for the finding of the lower appellate Court that the defendants are estopped from denying the title of the plaintiff as landlord. It is argued that the Custodian had confirmed the exchange of property, but though the heading of the appellate order is worded "In the matter of confirmation of exchange", yet the order which was confirmed in appeal was merely that the plaintiff was authorised to remain in possession of the suit house, and the reply of the Deputy Custodian under section 34 of the Ordinance, which is binding on the Civil Courts, was "The other rights of ownership vest in us." Under section 34 of the Ordinance the decision of the Custodian as to what right or interest, if any, an evacuee has in any evacuee property, is conclusive, and it is clear that this includes the question, what right or interest of the evacuee has vested in the Custodian. When, therefore, the Custodian states that the whole rights of ownership have not passed to the plaintiff, there can be no question of a transfer of the property leased under section 109 of the Transfer of Property Act. It is true that the Custodian said that the plaintiff had acquired a right to remain in possession, to put in tenants and to realise rents, but the plaintiff had never acquired possession, for, as has been shown, the defendants never attorned to the plaintiff. Secondly, it is to be noted that though under section 34 the decision of the Custodian is conclusive as to the rights or interests of the evacuee, it is not conclusive as to the rights of other persons in the evacuee property. An exchange of property requires registration and we consider that though the Custodian has the right under section 16 to confirm the creation or transfer of any right or interest made by an evacuee, such confirmation does not dispense with the requirements of the Registration Act. It is true that by section 4 the provisions of the Ordinance shall have effect, notwithstanding anything inconsistent in any other law for the time being in force, but we find nothing inconsistent between the provisions of the Ordinance and the Registration Act. In fact section 17 of the Ordinance refers to the registration of documents and states that until the transaction has been confirmed, registration shall not take place. In so far, therefore, as exchange of immovable property over Rs. 100 in value requires registration, it appears to us that there has been no valid transfer of the property to the plaintiff. There is, thus, neither privity of estate nor contract between the parties. It was argued that a delegation of the Custodian's' powers of management had taken place under section 20 of the Ordinance but the Custodian has nowhere mentioned B such a delegation on the contrary he states that the power to collect rents belongs not to the Custodian, but to the plaintiff. There remains whoever a further aspect of the case which was dealt with or touched upon by both the lower Courts. The learned Sub-Judge held that arrears of rent are an actionable claim. He then said that an actionable claim being property within the meaning of the Ordinance this actionable claim vested in the Custodian, and the Custodian alone could recover and could not "bifurcate the said right". Exh. 29 (the agreement executed by the evacuee) though confirmed gave the plaintiff no right to recover the rents through Court. The lower Appellate Court stated in dealing with this aspect that Exh. 29 expressly entitled the appellant to recover the rent, and that as admitted by the Sub-Judge to recover rents is also actionable and transferable claim and can come within the definition of evacuee property and that this right was even recognised by the Custodian Department. In argument before us Mr. Chundrigar pressed us with Ward v. Shaw (1833 (Cr.) L J C P 58), But that case refers only to the right of distress, and as Woodfall on Landlord and Tenant (Page 437, 25th Ed.) shows distress is an incident of the legal estate and goes with the reversion. According to Kuill v. Crowse (Empire Digest p. 569) future rents may be assigned and the assignee may sue the tenant for rent. Woodfall (loc. eit.) says rent considered as "debt" can be assigned, and cites this case as authority. So also Mulla at page 692, 2nd Edn. treats this case as an authority for the proposition that there can be a valid assignment of future rents. The difference between an assign ment of the rents and a lease of the reversion was pointed out in Rathuaswami v. Rs. C. Nagaraja (A I R 1938 Mad. 100). though it must be conceded that the question whether an assignment of future rents can take place was not directly in issue, since the learned judges held that a lease of the reversion had taken place and the rights of the lessor in respect of the original lease had passed to the lessee. The point arose directly in Lachman v. Jarbandhan (A I R 1928 All. 193) Relying on Webb v. Stenton the Bench held that there must be an existing obligation, though the obligation is to be discharged at a later date. No obligation to pay rent arises until the term is reached. In A I R 1926 Mad. 1173 a contrary view was held respecting future rents, but no reasons were given. The learned Commentator in Chitaley's Transfer of Property Act considers that the latter decision is not to be followed. It is, however, not necessary to decide the question. An assignment must be in writing (section 130, Transfer of Property Act), and under section 17, Registration Act (read with the definition of immovable property in the Registration Act) an assignment of future rents requires registration. In Moola Sons v. Rangoon Official Assignee (A I R 1936 P C 230) Sir George Rankin endorsed the following opinion of the Madras High Court in Mangalaswami v. Subbaia Pillai (34 Mad, 64 at p. 66) as a careful and accurate decision:- "The question is whether future rents payable in respect of land are benefits to arise out of land. It has never been doubted that a lease by a Zamindar or a transfer by him of the Zamindari interest, which is generally the right to the Melvaram, is a transfer of immovable property. If the assignment is however of an arrear of rent, the benefit has already arisen out of the land and is therefore outside the definition of immovable property. It has been held that a lease of a right to market dues upon a certain land requires registration as an instrument dealing with a benefit to arise out of land ; see Sikandar v. Bahadur (27 All. 462), though the profits which have already accrued from a Lambardar were held not to fall within the definition of immovable property, see Damodar Das v. Girdhari Das (27 All. 564). The decision in Venkaji Babaji v. Shidramapa Blapa, (19 Bom. 663), seems almost exactly to cover the present case. There, a right to assessment due upon certain land was assigned by an unregistered instrument, It was held that the instrumeut required registration as the assessment had not accrued due at the date of tile assignment but was only to become due in the future". This appears to be a clear authority that in so far as any document on the record purports to be an assignment of future rents it is inadmissible for want of registration. Both Courts have mentioned Exh. 89 as the assignment (though the Sub-Judge mentions "arrears of rent"). This, however, is ex hypothesi an assignment of future rents, as is also the endorsement on the rent note mentioned in the plaint. Exhibit 33 states : "You are hereby informed that he is entitled to realise rents from you". This statement applies to future rents whether it also applies to arrears of rent or not. Exhibit 44 dated 28th March 1951 states "Bill No. B/1047 in respect of (the suit house) was issued by a mistake and is cancelled. (The plaintiff) is entitled to realise its rent" No evidence is forthcoming to show what amount of rent was due under this bill, but assuming that the plaint recital of rents due stands proved and that we can calculate what rent was already due according to the bill of which no date is given, even so Exh. 44 is inadmissible since the expression "its rent" must be construed as referring to the rent of the house, not the rent due under the bill, and refers both to future and past rents. It is also to be noted that the plaint stated that the cause of action arose from month to month (a case compatible only with assignment of future rents) and on 27th January 1951, when notice was sent to defendants ; this date was before the date of Exh. 44, in fact the plaint also was filed on 10th February 1951, before the date of Exh. 44, and we cannot therefore regard the plaintiff as suing upon an assignment which had not taken place at the date of suit. The result is that the appeal is allowed. The decree of the Appellate Court is set aside ; the suit -is dismissed. The plaintiff-respondent, do the pay costs of defendant-appellant throughout. A. H. Appeal allowed.