The suit is maintainable as a suit to recover money under Section 69 of the Indian Contract Act. The Receiver's payment of rents due out of the funds in his hands is equivalent in law to a payment made by the owner himself. The suit is not based on misrepresentation but on recovery of money actually paid on behalf of the plaintiff and out of the plaintiff's estate, which, it is alleged, the respondents were bound to pay. The liability to pay the arrears of rent was not taken over by the plaintiff by his purchase. The rights and liabilities of the old and new Companies were identical.

JUDGMENT

Walmsley, J. - This appeal is preferred by the second and fourth defendants that is the Eastern Mortgage and Agency Company, Ltd., (1902), the new Company and Mr. Tweedie. The other defendants were the old Company and its liquidator: against them the suit was dismissed, and they are not parties to the appeal. There was a fifth defendant, Mr. A.M. Parukh, added pro forma on account of a financial arrangement between him and, the plaintiff.

2. The plaintiff is Moulvi Md. Fazlul Karim: he bought from the defendant Company, on December 1919, the Company's interest in an estate called Haturia.... The purchase-price was Rs. 3,20,000. It was also agreed that a sum of Rs. 30,000 should be paid to Mr. Tweedie, the Company's manager as brokerage. There-is no dispute about the payment of these sums. It is also agreed that a further sum of Rs. 10,000 was paid, but the parties differ as to the reason for this payment. The defendants assert that the back rents were not included in the transaction, and that as the result of a discussion and on account it was arranged that for a further payment, of Rs. 10,000 the plaintiff was to have an assignment of the back rents coupled with an obligation to pay rents due to the superior landlord. The plaintiff, on the other hand, maintains that this sum of Rs. 10,000 was exacted by Mr. Tweedie as additional brokerage, and that, so far from there being such an arrangement as the defendants describe, it was always intended that his purchase should include the back rents, and it was never suggested that he should accept liability for rent due to the head landlord.

3. Mr. Tweedie was not only manager of the Company, but he was also Receiver of the Haturia Estate. He was appointed Receiver in a mortgage suit of 1911, instituted by the Company. It was in the subsequent execution sale that the Company acquired its interest in Haturia. Before that suit was disposed of a partition suit was instituted and Mr. Tweedie was continued as Receiver" in that suit, and his possession as Receiver went on until. May 1922, that is, until long after the institution of the present, suit. In his capacity as Receiver he paid the rents due on account of the whole estate to the superior landlord for the period prior to sale, and he entered those payments in Ms receivership accounts. The substance of the plaintiff's case is that rents due to the superior landlord up to the date of the conveyance should have been paid by the defendant Company, to the extent of their interest, and that by including the whole of the payments in the receivership accounts, the Receiver has reduced the profits of the plaintiff. Stated in this form the plaintiff's grievance is intelligible, and it at once occurs to the mind that he may be entitled to recover under the provisions of Section 69 of the Contract Act.

4. The plaint, however, does not proceed upon such simple lines. The main plank is that there was fraudulent misrepresentation on the part of Mr. Tweedie, the fraudulent misrepresentation consisting of a representation that "the properties were free of encumbrances, and that rents and cess due to the superior landlords for the properties sold up to the date of the deed of sale were fully paid up." It was only in a secondary manner that the plaint referred to the aspect which I have just mentioned. No emphasis was laid upon it, with the result that no issue was raised dealing specifically with the applicability of Section 69 of the Contract Act, and the learned Judge was not asked to find that the provisions of that section are applicable.

5. In the trial the plea of fraudulent misrepresentation was pressed, and a second argument was advanced based on the words of the conveyance, and that free from all encumbrances whatsoever."

6. It was urged that rents due to the superior landlords for the period before sale were encumbrances, and that therefore by the terms of the conveyance the company ought to have paid them. Incidentally much time as spen