P.S Mishra, J.:— This appeal by the plaintiffs is against a judgment and decree of affirmance by the First Additional Subordinate Judge, Gaya in an appeal arising out of a suit for eviction of the tenants-defendants. For the purposes of appreciating the questions involved in this appeal some facts are relevan to be stated.

2. Smt. Sharda Devi, Shanti Devi, Shaktt Devi, Shanti Devi and Binapani Devi were the owners of the house bearing Holding No. 63 Ward No. 3 situate in Mohalla Purani Go-down within Kotwali Police Station in the District of Gaya, which has been fully described in Schedule ‘A’ of the plaint. Sharda Devi and her sisters inducted the original defendant Hari Ram as a tenant in the southern portion of the said house on 1.8.1960 A registered document was created on 10.8.1960 between them creating a fixed term tenancy at a rental of Rs. 70/- per month. Before, however, the period of tenancy under the said document could expire yet another deed of lease was created on 13.12.1962 The rental this time was settled at Rs. 85/- per month and the period of tenancy was fixed from 1.12.1962 to 30.11.1967 Hari Ram, in accordance with one of the conditions of the document executed on 13.12.1962, paid a sum of Rs. 510/- by way of advance adjustable at the end of the tenancy. Hari Ram, however, continued as a tenant even after expiry of the said lease on 30.11.1967 and paid rent at the rate of Rs. 85/- per month to the landlords. The advance amount of Rs. 510/-, however, was neither refunded nor was adjusted towards the rental of any period either before 20.11.1967 or thereafter. On 7.12.1971 the plaintiffs purchased the said premises under a registered sale deed and, accordingly, Hari Ram was informed. No rent, however, was paid by Hari Ram to the plaintiffs and since he defaulted in paying rent and incurred the liability of eviction under Section 11(1)(d) of the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1947, a suit for eviction was filed on the allegation of default. The plaintiffs also alleged that they required the house in question for their own occupation and sought eviction of Hari Ram on that ground as well.

3. Hari Ram, however, died during the pendency of the suit and his heirs were substituted in his place. The defendants contested the suit on several grounds and alleged that they had not defaulted in payment of rent, inasmuch as, when rent was offered to the husband of plaintiff no. 1 he declined to accept the same and thereafter rent was sent by moneyorder to the plaintiffs duly apportioning the rental in accordance with their respective shares, but the plaintiffs refused to accept the same. Even thereafter the defendants remitted the rent by moneyorder regularly and there has been no default by them in this regard. They further stated that as Hari Ram had been inducted as a tenant originally at a rental of Rs. 70/- per month on 1.8.1960, enhancement of rent from Rs. 70 to Rs. 85/- per month in December, 1962 was illegal and any excess paid over and above Rs. 70/- had to be adjusted towards future rent. The defendants also paid municipal taxes and met some other expenses and according to them they were entitled to the adjustment of such payment; and expenses from any amount of rent claimed from them by the landlords.

4. The trial court dismissed the suit holding that the taxes paid by the defendants to the defendants to the municipal authorities plus the amount of Rs. 510/- paid in advance to Sharda Devi and her sisters were together in excess of the claim of rent at the rate of Rs. 85/- per month from December, 1971 to June, 1972 and thus there has been no default in payment of rent and that there has been no personal necessity to the plaintiffs for the house in question. The appellate court has also affirmed the said findings and dismissed the appeal.

5. Learned counsel for the appellants has raised two contentions. He has first contended that the payment of advance of Rs. 510/- by the tenant to the landlord was in violation of the express prohibition prescribed under Section 3 of the said Bihar Buildings Control Act. This being an illegal contract, the defendants cannot claim adjustment of the said amount towards rent for the period they defaulted in payment of rent to the plaintiffs. In this connection he has placed reliance upon a Bench decision of this Court in the case of Jagannath Tewar… v. Dr. Gopal Prasad…. (AIR 1983 Patna 50) (:1983 PLJR 137) and the case of Ramswarup Prasad v. Budhdeo Sao (AIR 1983 Patna 266) (:1983 PLJR (NOC) 22). These cases are decided on the strength of the maxim that “in paride licto potiorest condition possidentis”. Undoubtedly it is a mxim of law, established, not for the benefit of the plaintiffs or defendants, but is founded on the principles of public policy which will not assist a plaintiff who has paid over money or handed over property in pursuance of an illegal or immoral contract to recover it back for the court will not assist an illegal transaction in any respect, and similarly will not assist the defendant who has paid over money or handed over properly in pursuance of an illegal or immoral contract to recover it back for the same reason. But the maxim that is founded on principle of public policy is not as bald as the learned counsel for the appellants wants it to be. It has got its well known exceptions. The principle that the Court will refuse to enforce an illegal agreement at the instance of a person who is himself a party to an illegality or fraud is invariably not applied to the cases falling into the following three categories:—

(i) where the illegal purpose has not yet been substantially carried into effect before it is sought to recover money paid or goods delivered in furtherence of it;

(ii) where the plaint in is not in pari delicto with the defendant; and

(iii) where the plaintiff or defendant does not have to rely on the illegality to make out his claim.

6. The less guilty party may be able to recover money pud on property transferred even under illegal contract if the contract is of a kind made illegal by statute in the interest of a particular class of persons of whom the party concerned is one. This law has been candidly stated in the case of Sita Ram v. Radha Rai (AIR 1968 Supreme Court 534) by the Supreme Court. Section 3 of the said Bihar Buildings Control Act says that “it shall not be lawful for any person to claim or receive, in consideration of the grant, renewal, or continuance of a tenancy of any building, the payment of any premium, salami, fine or any other like sum in addition to the rent, or the payment or any sum exceeding one month's rent of such building as rent in advance.” Obviously it is a law made for the protection of the interest of the tenants and operates as a prohibition against the landlords. A landlord receiving money in advance towards future rent from a tenant, commits a wrong but a tenant, although a party to the illegal agreement may not be denied the claim of adjustment of the advance rent paid by him, lest denial of his claim may not amount to a premium upon the recalcitrance of the landlord. In my considered view this case is evidently one which shall fall in the exception and escape the maxim as tenants in the instant case are not pari delicto with the landlords.

7. Learned counsel for the appellants has next contended that the appellants being transferees from the lessor have derived all the rights against the lessee, but as far as liabilities are concerned, assuming that Rs. 510/- paid in advance to the transferors was to be adjusted in future rent they do not automatically become liable to the lessee for those liabilities. The test, according to him, will be to find out if the liabilities are attached to the demised premises or not. If they are not attached to the demised premises on the general equitable principle that a man cannot assign his obligations, the transferor could not deliver his own liabilities to them. Advance of Rs. 510/- was a loan which could/can be realised by the lessee from the transferor. In support of this proposition he has placed reliance upon a Division Bench judgment of this Court in the case of Rameshwar Lal v. Butto Kristo Rai* (AIR 1934 Patna 653). Mohammad Noor, J. (as he then was) with whom Agarwala, J. (as he then was) concurred considered the question whether a mortgagee could demand from tenant rent paid in advance to the mortgagor and held that in case of usufructuary mortgage payment of rent to the mortgagor-landlord in advance, does not discharge a tenant who had notice of the mortgage before rent was due. He also observed that a voluntary payment of rent in advance is merely a loan to the tenant by the landlord. In recording the said opinion, Mohmmad Noor, J. followed an earlier judgment of this Court in the case of Ram Lal Marwari v. Mahadeo Marwari (AIR 1922 Patna 339). He quoted with approval a passage from Woodfall, Edn. 21 at pages ??? that “payment of rent to the mortgagor without notice of the mortgage is valid, but a voluntary payment of rent in advance is not within this rule, so as to discharge a tenant who had notice of the mortgage before the rent was due, for a voluntary payment of rent in advance is merely a loan by the tenant to the landlord. However a pay mem is a payment of rent when the rent falls due, and becomes irrecoverable by the mortgagee so far as it is made in respect of rent due before the notice.” Learned counsel for the appellants has further supported his argument by a judgment of M.M Ismail, J. of the Madras High Court in the case of G. Kesari chand v. T.A Sankunni Maistry (1972 Madras Law Journal 358) in which the principles laid down in the cases of Rameshwar Lal (Supra) and Ram Lal Marwari (Supra) have been quoted with approval. On the facts of this case, this contention is more or less academic. But since the learned counsel has raised it, I propose to record my views.

8. All the aforesaid three cases are distinguishable. Under Section 109 of the Transfer of Property Act, once the lessor transfers the property leased the transferee of the property practically becomes subrogated to the position of the lessor transferor in respect of the rights and liabilities as to the property so transferred. As far as the rights are concerned they are automatically transferred to the transferee and by virtue of the transfer of the demised premises, the transferee becomes entitled to exercise his rights against the lessee in the absence of a contract to the contrary. As far as the liabilities are concerned, the transferee does not automatically become liable to the lessee for those liabilities unless the lessee himself chooses to look to the transferee for the discharge of those obligations.

9. In the case in hand, however, Sharda Devi and her sisters bound themselves by a condition of an agreement under which they accepted the advance payment of Rs. 510/- from the tenants. If this was an obligation attached to the demised property the obligation to re-pay the amount by the lessor by adjusting the same towards rent stood transferred to the plaintiffs. Position, however, shall be different if the adjustment of the amount of rent paid in advance is not a condition of the lease.

10. Learned counsel for the appellants has, however, pointed out that admittedly the advance of Rs. 510/- was paid as a condition of tenancy under registered deed dated 13.12.1962 The said lease expired on 30.11.1967 Admittedly there has been no renewal of the lease. According to the defendants, Hari Ram continued as a tenant even after the expiry of the period of lease by paying monthly rental of Rs. 85/- to Sharda Devi and her sisters. Learned counsel appearing for the respondents has not disputed these facts. It is obvious, therefore, that the contract under which Rs. 510/- was paid by Hari Ram to Sharda Devi and her sisters ceased to exist after 30.11.1967 and along with it the condition that the advance of Rs. 510/- would be adjusted towards future rent. With the payment of rent per month at the rate of Rs. 85/- evidently a new relationship came to exist between the appellants transferor and their tenants. This month to month tenancy was independent of any written agreement or contract and it existed on the day plaintiffs-appellants purchased the property in question from Sharda Devi and her sisters, that is to say, 7.12.71 It is obvious that on the date the appellants purchased the property there was no existing conditition of adjustment of Rs. 510/- paid in advance towards future rent. This being the position there was no condition attached to the demised property which could follow it and go as a liability to the transferee-appellants. Learned counsel appearing for the respondents has fairly conceded that it will not be possible to suggest that on the date of purchase, the adjustment of advance paid by the tenant to the landlords was a condition attached to the property. It is obvious, therefore, that the courts below have committed error of law in granting the tenants adjustment of the said amount of Rs. 510/- towards future rent and erred in holding that there is no default in payment of rent.

11. Although it has been suggested by the respondents in their pleadings that they had sent rent by money-order to the plaintiffs but the learned counsel for the appellants has pointed out that they gave up their case in this regard before the trial court. There is no material or pleading on behalf of the respondents upon which it can be held that there has been no default in the payment of rent.

12. Since I have found as a fact that there has been default in the payment of rent for more than two months continuously, I have to hold that the respondents are liable to be evicted in accordance with the provisions of Section 11(1)(d) of the said Bihar Buildings Control Act. During the pendency of the appeal an application had been filed on behalf of Krishna Mohini Devi and Dinesh Chandra etc. stating that they have purchased shares of appellant nos. 2 and 3, namely, Smt. Sumitra Devi and Smt. Anpurna Devi on 4.3.1983 The have prayed the they should be substituted in place of appellant nos. 2 and 3 under Order XXII Rule 10 of the Civil Procedure Code. Lamed counsel appearing for them however, is not in a position to state that the appellant nos. 2 and 3 have left taking any interest in the appeal and his clients alone are interested in pursuing it. It is not possible, therefore, to grant leave to these persons to continue the appeal after deleting the name appellant nos. 2 and 3. Learned counsel appearing for them, however, has shown no interest in prosecuting the appeal instead he has pointed out that these purchasers do not want to prosecute the appeal. It is not possible to deny to the appellants the legal right of hearing particularly to the appellant no. 1 whose interests in the property are still intact.

13. In the result this appeal is allowed, the judgment and decree of the Court below are set aside and the suit for eviction only is decreed but, on the facts and in the circumstances of the care, without any cost.