Sharma, J.—A very interesting point of law arises in this appeal. The plaintiff-appeallants father Ghisi Lal purchased half a share in a shop situated in Tripolia Bazar, Jaipur along with some other property from Mst. Chameli as per sale deed dated the 12th April. 1947. Mst. Ohamelis share in the shop was occupied by the defendant Chotteylal as a tenant under Mst. Chameli at a monthly rental of Rs. 13/-. The plaintiff-appellant gave a notice to the defendant which was served on him on the 8th May, 1947. The plaintiff brought a suit out of which this appeal has arisen for arrears of rent of 31 months from the 12th April, 1947, the date of purchase, to the date of the suit. He was met by a plea of the defendant that a sum of Rs. 495/11/- had been paid by the defendant to Mst. Chamelis mukhtar-i-am Radha Krishna on the 6th April, 1947 which included advance rent of Rs. 208/- for 16 months from Phagun Sudi 15, Smt. 2003 to Jeth Sudi 15, Smt. 2005, corresponding to the 21st of June, 1948.

2. The first court found that this advance rent could not be deducted from the dues of the plaintiff. On appeal, the learned Senior Civil Judge, Jaipur City, held that this amount of Rs. 208/- having been paid to the mukhtar-i-am of the former landlord, should be deducted from the amount claimed. The decree of the first court was, there fore, modified and plaintiff was given a decree only for Rs. 221/- i.e. for the rent accruing after the 21st of June, 1948. This judgment of the learned Senior Civil Judge is dated the 26th of February, 1953 and it is against this that the plaintiff has come in second appeal.

3. I have heard Shri C. B. Bhargava on behalf of the plaintiff-appellant and Shri L.L. Sharma on behalf of the defendant-re: pendent.

4. It has been argued by Shri Bhargava that the rent paid in advance cannot be treated as a discharge against the transfer. He* has relied upon two rulings of Patna High Court in the cases of Ramlal Marwari vs. Mahadeo (1) and Rameshwarlal vs. Buto Kristo Rai(2). and a ruling of Rangoon High Court in the case of Pale Zabaing Rural Cooperative Society vs. Maung Thau Daw/3) and of Sind Judicial Commissioners Court in the case of Official Assignee vs. Abdul Hussain (4). He has also relied upon a ruling of Calcutta High Court in the case of Tilok chand Surana vs. J.B. Beattie & Co.(5).

5. On behalf of the respondent, it has been argued by Shri Sharma that the rent was paid in advance before the transfer was made and it is binding upon the transferee unless he could prove that he had no notice of the payment of the rent.

6. I have considered the arguments of both the learned counsel. So far as the ruling of the Calcutta High Gourt(5) is concerned, in that case, there was agreement in accordance with which rent was paid in advance for the repairs of the property which was let out to the tenant and it was agreed that the tenant shall remain in possession of the property till the entire advance rent had been set off against the rent becoming due. In that case, it was held as a fact that the plaintiff was aware of the said agreement. In the case of Rameshwarlal vs. Butto Kristo Rai (2) and the case of Pale Zabaing Rural Co-operative Society vs. Maung Tbu Daw (3), the rent had been paid in advance before the date of transfer Still, it was held that the transferee could not be held bound by the payment of the rent in advance because the rent in order to bind the transferee should be paid as rent after it has become due and not as an advance. In case, it is paid as an advance, it is mere loan to the former landlord. In the Sind case (4) referred to above it is not cear whether the rent was paid before the date of transfer or thereafter but the principle has been laid down that the rent must be paid as rent and must not be paid in advance which in the circumstances is a mere loan to the former landlord. The two rulings, one of the Patna High Court (2) and the other of the Rangoon High Court (3) are exactly in point and I respectf

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