Coutts, J.:— This is a suit for recovery of Rs. 1,017-13 as rent or minimum royalty. It appears that one Raghumy Marwari held a mining lease of mauza Chandakua from Parbati Charan Chatter it, defendant No. 3. The rights of Raghuroy Marwari were purchased in the year 1915 by the defendants Nos. 1 and 2. On the 6th June 1918, Parbati Charan mortgaged this village to the plaintiff, the agreement being that the plaintiff was to realize the royalty payable by defendants Nos. 1 and 2 in lieu of interest.
2. On the 31st December 1918 and again 26th April 1919 the plaintiff demanded the rent from defendants Nos. 1 and 2, but was met with a refusal on the ground that on the 17th September 1918, that is, a little more than two months after the date of Parbati Charan's mortgage to the plaintiff, they had paid, five years' rent in advance to Parbati.
3. The plaintiff “then brought this suit against these defendants for the rent of the Chait kist of 1325 and the Aswin kist of 1326 which fell due after the date of the mortgage.
4. The suit was dismissed in the court of first instance, and this decision has been upheld on appeal by the District Judge. The plaintiff has again appealed to this Court.
5. The sole question for decision in the appeal is whether the defendants Nos. and 2 are entitled to plead advance payment of royalty to the defendant No. 3. It is clear, I think, that they are not. Section 50 of the Transfer of Property Act protects a tenant against having to pay his rent twice over, if paid in good faith, but if he has paid rent before it was due, it is merely an advance to the landlord and is not a payment in fulfilment of an obligation to pay rent.
6. If, then, before the date on which the rent falls due, the landlord makes an assignment, the receipt of rent cannot be treated as a discharge by him because by assignment before the rent falls due, he has parted with the power of giving such a discharge, and payment of rent before it falls due cannot free the tenant from further liability. It may be that the tenant does not know of the transfer, but it is clear that if he had waited he might have known, and consequently an advance payment will not save him from liability.
7. The law on this point has been very clearly laid down in DeNicholls v. Saunders(1) and in Cook v. Guerra(2) and so far as I am aware the principle therein enunciated has never been departed from. The learned District Judge is, therefore, clearly wrong in the view which he has taken of the law on this point.
8. This District Judge has, however, further found that a small part of bari land in another village in Pandar Pargana was mortgaged merely for the purpose of enabling the deed to be registered in Raghunathpur, and he is of opinion that this was done with some sinister motive. This, however, was not a point in issue in the suit and as the learned District Judge has given absolutely no reason for his opinion his decision on this point cannot be upheld.
9. In the result then I would set aside the decree of the District Judge and would decree this appeal with costs.
10. Macpherson, J.:— I agree.
11. Appeal allowed.