Foster, J.:— (after stating the facts, as set out above, proceeded as follows):—
Although the entire body of landlords were impleaded, this suit is for part only of the rent. It is a suit that falls neither under section 148A nor section 158B of the Bengal Tenancy Act and it is manifestly not a “rent suit.” The preliminary question that has arisen in the suit has been whether Sheo Grobind Singh, who is a mukhtar, is barred by section 136 of the Transfer of Property Act from joining in the present suit on the ground that be has purchased from Malik Mukhtar Ahmad, who is an honorary magistrate. These facts are admitted; the only question is whether the section is applicable to the case.
Looking at section 136 of the Transfer of Property Act we see that its terms are:
“No Judge, legal practitioner, or officer connected with any Court of Justice shall buy or traffic in, or stipulate for, or agree to receive, any share of, or interest in, any actionable claim, and no Court of Justice shall enforce, at his instance, or at the instance of any person claiming by or through him any actionable claim so dealt with by him as aforesaid.”
The words “actionable claim” are defined in section 3 as meaning:
“a claim to any debt, other than a debt secured by mortgage of immoveable property or by hypothecation or pledge of moveable property, or to any beneficial interest in moveable property not in the possession either actual or constructive of the claimant, which the Civil Courts recognize as affording grounds for relief, whether such debt or beneficial interest be existent, accruing, conditional or contingent.”
In the Court of the Subordinate Judge the suit was decreed, it being held that the suit was a “rent suit” and that the decree would create a charge and therefore the arrears of mukarrari rent did not constitute an actionable claim, and also on the ground that the plaintiffs' case had been proved on the merits.
In the Court of appeal this preliminary point under section 136 of the Transfer of Property Act was the only matter dealt with, and it held that the claim of Sheo Gobind Singh, plaintiff no. 2, was barred by that section. It is to be noted that the suit is for the arrears of rent from 1322 to 1325 F. and that these very arrears of rent were assigned by Malik Mukhtar Ahmad to the plaintiff Sheo Gobind Singh along with the conveyance of the share in the 8-annas takhta as being arrears of rent due to the vendor.
Now the first question is whether the arrears of rent constitute an actionable claim within the meaning of section 3 of the Transfer of Property Act. The definition of rent in the Bengal Tenancy Act as being:
“whatever is lawfully payable or deliverable in money or kind by a tenant to his landlord on account of the use or occupation of the land held by the tenant”
indicates, in my opinion, that arrears of rent are moveable property. It also appears to me that arrears of rent must, on this definition, be taken (after accrual due) to be a debt within the meaning of section 3 of the Transfer of Property Act. The point on which the controversy between the parties has taken a definite form is as to the meaning of the words “other than a debt secured by mortgage of immoveable property.” Admittedly these are the only words in the section that have to be considered in connection with the exceptions that are set out therein. We know what is meant by a mortgage; it is defined in section 58 of the Transfer of Property Act as being:
“the transfer of an interest in specific immoveable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt, or the performance of an engagement which may give rise to a pecuniary liability.”
It is manifest that the arrears of rent in this case are not secured by a mortgage within this definition. It appear to me therefore that the arrears of rent after accrual constitute a debt and that debt was not secured by a mortgage. The learned Vakil for the respondents has put before us a case which appears to me to be in point, Hira Lal Singha v. Tripura, Charan Ray. In that case the plaintiff sued both for arrears of rent that had accrued prior to his purchase of a house and for current rent which had accrued after his purchase. There was a grave matter involved as to the plaintiff's title which was put before a Full Bench, but the Divisional Bench had before it the question whether the purchase by the plaintiff, who was a pleader, was barred by section 136 of the Transfer of Property Act, in so far as the arrears of rent were concerned. It was held that the claim for the amount of arrears of tent was barred by that section. When the whole case came up again before the Full Bench, is was conceded that the claim for arrears of rent was so barred and there was no further discussion of that matter. In such a case as that section 55 of the Transfer of Property Act would make the arrears of rent which had accrued prior to the transfer a property that did not necessarily pass with a transfer and had to be specially mentioned, as was done in the present case. So it is clear that here there is an actionable claim.
It has been urged on the other side that the words “other than a debt secured by mortgage of immoveable property” should be taken to be equivalent in their application to this case, to “other than a debt secured by the charge created in section 65 of the Bengal Tenancy Act.” It is perfectly clear that although they have points of similarity charges and mortgages are not the same thing. As I have pointed out the definition of the word mortgage in the Transfer of, Property Act itself is inapplicable to the case, of arrears of rent, whereas, on the other hand, there is nothing that is repugnant to the meaning of the words in speaking of rent being a charge on the holding or tenure and in fact the expression is so applied in section 65. If we find therefore, as I do, that here there has been a transfer between a Magistrate and a mukhtar of an actionable claim, it is unnecessary to go into the question whether the arrears of rent carry a charge or not. In my opinion this appeal fails and should be dismissed with costs.
Dawson Miller, C.J:— I agree. I merely wish to add that I doubt very much whether the legislature, in passing, section 136 of the Transfer of Property Act, had in view a case such as the present where a purchaser of a proprietary interest in land acquires, at the same time and under the same instrument at right to recover the rent in arrear at the time of the purchase. At the same time we are bound to construe the section in its ordinary and natural meaning, and, regarded in this light, I entirely agree with the decision just pronounced by my learned brother and for the fame reasons as he gives.
Appeal dismissed.