JUDGMENT 1. This is an appeal by the Defendants Nos. 1 to 10, represented by the Court of Wards, in a suit, which was instituted for recovery of khas possession of an 1/30th share of 16 plots of land after partition, or in the alternative for recovery of arrears of rent due on that share, should it be found that the Plaintiff was not entitled to khas posses-ion. The facts are the following:-- Defendant No. 7 had an 1/30th share in the proprietary right in the lands, the Defendants Nos. 1 to 6 and 8 to 10 being his co-sharers. Four persons. Dutts, their names being Surendra, Purendra, Gocul and Banku. who had been carrying on certain businesses in partnership and had constituted themselves a firm under the name and style of P. N. Dutt and Company under a deed of partnership dated the 30th August, 1919, took a maurasi mokurari lease of 15 out of the aforesaid plots, being plots Nos. 1 to 15 of the schedule to the plaint and comprising an area of about 80 bighas, from the said co-sharers on the 31st March, 1920. The rent reserved under the lease was Rs. 16,008 per year; the proportionate amount thereof as payable on account of the Defendant No. 7's 1/30th share would, on calculation, be Rs. 533-9-1 1/2 gds.. By an acquisition made under the Land Acquisition Act, the area of the leasehold was reduced by 1 bigha and odd and the rent became Rs. 15,469-l-8p. Also in execution of a decree for rent obtained by some of the co-sharers against the Duttas in a suit instituted in 1922, two plots of land comprising an area of 2 bighas and odd were purchased by the Defendants Nos. 10 and 11 in February, 1926. The area and rent of the leasehold thus came to be 76 bighas and odd and Rs. 14,763-9-8p, respectively. 1/30th of the rent which was payable on account of the share of the Defendant No. 7 thus came to be Rs. 492-1-11-1/15 pies. On the 19th May, 1924, the Defendant No. 7 mortgaged in favour of the Plaintiff his right to receive the rent of Rs. 533 and odd per year under the lease aforesaid for a loan of Rs. 2000 carrying interest at the rate of Rs. 1-4as. p. c. p. m. 2. 492-1-11-1/15 pies. On the 19th May, 1924, the Defendant No. 7 mortgaged in favour of the Plaintiff his right to receive the rent of Rs. 533 and odd per year under the lease aforesaid for a loan of Rs. 2000 carrying interest at the rate of Rs. 1-4as. p. c. p. m. 2. On the 8th February, 1926, the co-sharers commenced a suit for rent against the Dutts for the leasehold for the period April, 1921, to January, 1926, less certain deductions. One of the Dutts, namely Banku, died within a few months of the institution of the suit; and thereupon his heirs and legal representatives were substituted in his place as Defendants by an order dated the 28th September, 1926. On the 21st February, 1927, the firm of P. N. Dutt and Company was adjudicated insolvents and their interest having vested in the Official Assignee, the latter was made a party Defendant in the suit by an order dated the 6th June, 1927. In that suit on the 14th July, 1927, a preliminary decree was passed for a sum of Rs. 96 thousand and odd, to be realised, in case of non-payment by the 13th August, 1927, by sale of the. leasehold as by way of enforcement of a charge thereon. Later on, on the 25th August, 1927, a final decree for sale was also passed. 3. In the meantime, on the 27th August, 1927, the Defendant No. 7 sold to the Plaintiff his 1/30th share in the 16 plots of land described in the schedule to the plaint. The consideration for this transaction was the amount of Rs. 3,648 due on the mortgage already referred to, and a further amount of Rs. 1,300 now paid in cash, i.e., a total amount of Rs. 4,948. It is not disputed, certainly not at this stage, that the Plaintiff was wholly unaware of the rent-suit or the proceedings in connection therewith. 4. In pursuance of the final decree for sale made on the 25th August, 1927, as aforesaid, the leasehold was put up to sale on the 9th October, 1928, and purchased by the decree-holders for Rs. 1 lac. The decretal dues had by this time come up to over that amount and by a petition filed on that day they obtained an order setting off the purchase-money against the decretal dues. On the 15th November, 1928, the sale was confirmed. 1 lac. The decretal dues had by this time come up to over that amount and by a petition filed on that day they obtained an order setting off the purchase-money against the decretal dues. On the 15th November, 1928, the sale was confirmed. the execution case was dismissed on part satisfaction and a sale certificate was issued in the names of the ten co-sharers as purchasers. 5. P. N. Dutt and Company had mortgaged for a loan of Rs. 4 lac. 40 thousand with the Kernani Industrial Bank Limited certain immovable properties including this leasehold by deposit of title deeds on the 2nd September, 1920. In 1924, the Bank had instituted a suit on this mortgage and by a settlement arrived at between the parties a mortgage decree on consent was passed on the 18th March, 1926. One of the terms of this decree was that the Dutts would convey and assign unto the Bank all the mortgaged properties then existing including the leasehold in question. 6. As already stated, P. N. Dutt and Company were adjudicated insolvent on the 21st February, 1927. The Official Assignee on the 2nd June, 1927, applied under sec. 62 of the Presidency Towns Insolvency Act (III of 1909) to the High Court for leave to disclaim the lease. In this petition, he referred to the mortgage in favour of the Bank and the claim to the extent of a lac of rupees that was pending decision in the suit for rent which the co-sharers had commenced, and he also stated that one of the co-sharers through his solicitor had enquired of him whether he desired to keep on the said lease. 7. Notices of the disclaimer in terms of the relevant Insolvency Rule were served on the co-sharers, the Bank and also on the three surviving partners of the firm namely Surendra, Purendra and Gocul;--Banku, as already stated, having died before the adjudication order had been made. The Bank entered opposition, challenging the application as not made bond fide but made at the instance of the co-sharers with the object of helping the co-sharers at the expense of the creditors. The Court made an order containing observations, the meaning and effect of which has been a matter of some controversy, but all the same declaring-- There is nothing, therefore, which the Official Assignee is entitled to disclaim. The Court made an order containing observations, the meaning and effect of which has been a matter of some controversy, but all the same declaring-- There is nothing, therefore, which the Official Assignee is entitled to disclaim. If, however, the view which I have expressed be not correct, the Official Assignee who has appeared and claims to be entitled to disclaim on the ground that the lease is set out in the schedule and that he may be personally liable for the rent, may disclaim, and there will be an order in that case that the lease be disclaimed. I see no objection to such a course, for nobody opposes the right of the Official Assignee to disclaim, if the circumstances are such as entitle him to do so 8. I appears that the co-sharers and the Bank appeared through Counsel at the hearing of the application and there was no application for vesting order under sec. 66 of the Act on behalf of any of the parties. And, in the result, an order' was drawn up which said,-- It is ordered that the lease be treated as disclaimed 9. Upon these facts the Plaintiff on the 24th February, 1931, instituted the present suit. He based his claim upon two broad grounds: firstly, he alleged that by the purchase that he made from the Defendant No. 7, he acquired title to the arrears off rent due on the properties including the arrears for which the co-sharers had obtained the decree against the Dutts, that he was fraudulently kept out of knowledge of suit for rent, the decree therein and the execution that followed, and that therefore he could not get into the execution proceedings as a party; and that as the co-sharers had purchased the lands of the leasehold in execution of the decree, the purchase of the Defendant No. 7 which was to the extent of an 1/30th share in the leasehold enured to his benefit. Secondly, he alleged that by the disclaimer of the lease by the Official Assignee the lease was determined and the leasehold interest became merged in the Maliki interest of the co-sharers. and so the Defendant No. 7's 1/30th share in the leasehold was merged in his 1/30th share in the proprietary interest and was extinguished with the result that by his purchase he acquired that share free of the lease. and so the Defendant No. 7's 1/30th share in the leasehold was merged in his 1/30th share in the proprietary interest and was extinguished with the result that by his purchase he acquired that share free of the lease. On these two broad contentions the Plaintiff claimed khas possession and partition. In the alternative and in case it was held that he was not entitled to khas possession, he prayed for a decree for Rs. 5,100 together with interest thereon This figure was arrived at upon the following calculation: 1/30th share in the lac of rupees, which was the amount of the decree, was deemed to have been realised by co-sharers by purchase of the leasehold; to that was added the amount of interest due thereon, and the amount of rent due on account of the Plaintiff's share together with interest thereon; and on the total thus obtained an, amount of remission was allowed in order to bring the total within that figure. 10. The defence taken were all overruled. It was found that two specific parcels of land within the lease belonged, one to the Defendant No. 11, and the other to the Defendant No. 1, on purchase from the Defendant No. 12. It was also found that plot No. 16 which was not a part of the lease-hold was in the possession of a tenant. 11. The Subordinate Judge has made a decree in Plaintiff's favour, the terms of which that are now relevant are the following: Declaring the Plaintiff's title to an 1/30th share in the 16 plots of land in suit; ordering that the said share in the said lands with the exception of the two plots in possession of the Defendant No. 11 and the Defendant No. 1 be partitioned and demarcated: ordering that the Plaintiff do get khas possession of the said demarcated share except in so far as it relates to plot No. 16 which is in the possession of a ticca tenant and that so far as the said plot is concerned the Plaintiff will get his share but no khas possession at present. There are other terms in the decree which do not concern us in this appeal. The decree is a preliminary 'decree for' partition. 12. There are other terms in the decree which do not concern us in this appeal. The decree is a preliminary 'decree for' partition. 12. The first contention of the Plaintiff, as already stated, was that by virtue of the kobala under which he made his purchase he was entitled to get the back rents due from the tenants and so to the Plaintiff's 1/30th share in the rent-decree and consequently to the corresponding share in the leasehold which was purchased in execution of the said decree and for that reason should be taken as representing that share. One of the contentions of the Defendants was that as a matter of fact the back-rents were not sold. This contention however cannot be upheld. The kobala opens with words expressly stating that it was for the lands together with arrears of rent; it states that the agreement was for sale and purchase of the properties together with rent in arrears and that the price fixed upon was for the same and on that basis, it also states that the entire consideration so fixed was received and on such receipt the sale was being made. It is true that there was a passage in the deed saying,--"I sell to you the properties described in the schedule below with all rights appertaining to them." --and in the schedule it was only the plots of land that were described. These alone however do not, having regard to the form. in which the deed is drawn up, constitute the whole of the operative part of the deed. The whole of the deed should be taken together to determine what was intended to be conveyed by it. It is clear from the tenor of the deed that the expression " with all rights appertaining to them " in the passage quoted above was not intended to be understood in its ordinary sense, but also as including the right to realise the arrears of rent. This construction is strengthened by the further statement that is to be found in the deed,--" Be it further known that I have received rent for one year only from the said Surendra Nath Dutt and others for the said properties, and rent for the remaining period is in arrear. If my aforesaid statement prove to be untrue in any respect, etc. If my aforesaid statement prove to be untrue in any respect, etc. etc." Though however the back rents must be taken as having been included in the kobala, there is no mention in it of the suit for rent that was pending, nor any reference to the decree, and I am therefore unable to see how the Plaintiff can claim to have acquired any interest in the snit or the decree. Nor is it possible to hold that there was any assignment of the decree, either in writing or by operation of law, such as would have entitled the Plaintiff to step into the decree as a decree-holder in the place of the Defendant No. 7 and apply for or proceed with its execution (Vide Or. 21, r. 16, C. P. C.). On behalf of the Plaintiff it has been urged that the Defendant No. 7 was in the position of a trustee or at any rate held a fiduciary position analogous to that of a trustee and that, in any case, he utilised the money which belonged to the Plaintiff,--namely the arrears of rent for which the decree has been obtained and which he has already transferred to the Plaintiff by the kobala,--in purchasing the leasehold; and that therefore the purchase must inure to the Plaintiff's benefit. Reliance in support of this contention has been placed upon secs. 82 and 88 of the Trusts Act (II of 1882). In my opinion it cannot be held that the Defendant No. 7 stood in any fiduciary relationship in relation to the Plaintiff so as to justify the application of sec. 88 nor that the Plaintiff paid or provided the consideration of the purchase so as to attract the operation of sec. 82. The case is a simple case of fraud perpetrated by the Defendant No. 7 upon the Plaintiff; and keeping the Plaintiff entirely in the dark, the Defendant No. 7 proceeded with the suit which was pending, obtained a decree and acquired the property. However immoral and reprehensible his conduct may have been, the Defendant No. 7 did not hold any fiduciary character which bound him to protect the interest of the Plaintiff so that the principle of sec. 88 may operate. He intercepted the rents the right to which he had already transferred in Plaintiff's favour and utilised the same in making the purchase at the auction sale. 88 may operate. He intercepted the rents the right to which he had already transferred in Plaintiff's favour and utilised the same in making the purchase at the auction sale. But even so, it cannot, in my opinion be said that the Plaintiff paid or provided the consideration; for the Plaintiff, though he had the right to realise the rents, was not the owner of the decretal amount with which the purchase was made. Sec. 82 therefore cannot have any application to the case. If the Defendant No. 7 had undertaken to have the arrears of rent realised for the Plaintiff or had bound himself to the Plaintiff by an indemnity in case the Plaintiff was unable to realise them, and if in such circumstances he had himself got the rent converted into the property by his purchase at execution so that the rents were no longer available to the Plaintiff, the Plaintiff could possibly have pursued his remedy against the property. But on the facts such as they are as regards this part of the case, Plaintiff s remedy against the Respondents in my judgment, is confined to the rents which have been lost to him by reason of the decree and the execution, and does not extend to recovery of the share in the lease-hold. 13. To turn now to the second contention of the Plaintiff, namely the contention based on the disclaimer by the Official Assignee. It would be useful to repeat here some of the relevant dates in connection with this matter. The disclaimer was on the 2nd June. 1927, the preliminary decree for sale on the 14th July, 1927, the Plaintiff's purchase on the 7th August, 1928, the final decree for sale on the 25th August, 1927, and the sale on the 9th October, 1928. The effect of the disclaimer, if it was in order, has first to be considered. In this case no vesting order as contemplated by sec. 66 of the Act was asked for or made and the complications that might otherwise arise are not present. So far as sec. The effect of the disclaimer, if it was in order, has first to be considered. In this case no vesting order as contemplated by sec. 66 of the Act was asked for or made and the complications that might otherwise arise are not present. So far as sec. 63 of the Act is concerned it is not disputed that the Court did grant the leave that was necessary, and that the notices necessary to be given under the circumstances were as matter of fact given; and it is also clear that no terms were imposed by the Court as a condition of granting the leave that was in fact granted. We are therefore concerned only with sec. 62 of the Act and only with the question as to what was the effect of the disclaimer upon the lease-hold and only as against the Defendant No. 7 or, it may be, as against the ten co-sharers under whom the lease was held by the Dutts. It has been contended on behalf of the Defendants that the only effect of the disclaimer was to discharge the Official Assignee from all personal liabilities in respect of the property as from the date when the property vested in him and that it did not affect the rights or liabilities of any person other than the insolvent and the Official Assignee except to the extent that the same be necessary for the purpose of releasing the insolvent and his property and the Official Assignee from such liability. This contention is obviously based upon the words to be found in sub-sec. (2) of sec. 62 of the Act; but it is obvious that it overlooks another equally important clause in the same sub-section. namely, the first clause, which must also be given effect to in construing the sub-section. The clause runs in these words:-- The disclaimer shall operate to determine, as from the date thereof, the rights, interests and liabilities of the insolvent and his property in or in respect of the property disclaimed. 14. The effect of the disclaimer of a lease as between the lessor and the insolvent lessee under sec. 55 of the Bankruptey Act, 1883, which included within it almost verbatim the provisions contained in secs. 14. The effect of the disclaimer of a lease as between the lessor and the insolvent lessee under sec. 55 of the Bankruptey Act, 1883, which included within it almost verbatim the provisions contained in secs. 62 to 67 of the Indian Act, has been explained by Lindley, L. J., in the case of In re Finley: Ex parte Clothworkers' Company L.R. 21 Q.B.D. 175(1888) in these words:-- Now the operation of those clauses in the simple case of a lease is not very difficult to ascertain. If there is nothing more than a lease and the lessee becomes bankrupt, the disclaimer determines his interest in the lease under sub-section 2. He gets rid of all his liabilities and he loses all his rights by virtue of the disclaimer. There is no need of any provision for vesting the property in the landlord, bat the natural and legal effect of sub-section 2 is that the reversion will become accelerated. There is nothing that I can see to be vested in the landlord. But he may require delivery of possession, and if as he can get it under sub-section 6. Then under sub-section 7, the lessor, if he is injured by the disclaimer, can prove against the bankrupt's estate for such damages, if any, as he sustained by the disclaimer. This is the operation of section 55 in the simple case of a lease. 15. Later on dealing with a more complicated case of a lessor, lessee and sub-lessee where the lessee becomes bankrupt his Lordship made it clear that in such a case also, as between the lessor and the lessee, the consequences will be the same as if there was no sub-lease. This is important as indicating that in the present case the fact that there was a mortgage in favour of the Bank and in view of the consent decree which the Bank had obtained, the Bank had certain rights as against the mortgagors, the co-sharers, in respect of the leasehold which was one of the mortgaged properties, would not affect the consequences of the disclaimer as between the lessors and lessees inter se. The effect of the disclaimer as between the co-sharers (including the Defendant No. 7) and the insolvents, the Dutts, was, to quote the words of the decision aforementioned, that the interest of the insolvent in the lease was determined, the reversion became accelerated,--there was no need for a vesting order in favour of the lessor though he might require delivery of possession and he could prove against the insolvents' estate for such damages, if any, as he might have sustained by the disclaimer. 16. On behalf of the Defendants it has been contended that even as between themselves and the insolvents certain rights and liabilities remained inspite of the disclaimer and for this purpose reliance was placed upon the observations of Jessel, M. R., in Ex parte Walton L.R. 17 Ch. Div. 746 at p. 754 (1881) :-- It appears to me.... that it will not affect the right of the lessors to distrain upon the property for the rent reserved by the original lease or to re-enter for bresch of the covenants contained in it. 17. The case was one in which there was a sub-lessee and it was the original lessee who had become bankrupt. It was decided under the Bankruptcy Act of 1869 and the Bankruptey Rules of 1871. And as Lindley, L. J., has pointed out in the case above cited,-- Section 55 is framed more or less upon the old lines but it contains some clauses which are not to be found in the old Act. It is important to bear that in mind in considering what weight ought to be attached to decisions upon the Old Act. Section 55 is an entirely new enactment. 18. In the present case, we are not considering the rights of the Bank nor was there any application for the making of any vesting order and so such cases as In re Cock: Ex parte Shilson L.R. 20 Q. B. D. 843 (1887), In re Baker: Ex parte Lupton [1901] 2 K. B. 628 or In re Carter & Ellis: Ex parte Savill Brothers [1905] 1 K. B. 735 are of no assistance. On the other hand in the case of In re Isaac Hyams: Ex parte H. J. Lindsay v. Isaac Hyams [1924] 93 L. J. Rep. Ch. On the other hand in the case of In re Isaac Hyams: Ex parte H. J. Lindsay v. Isaac Hyams [1924] 93 L. J. Rep. Ch. 184 (1923) decided under the Bankruptey Act of 1914, it has been held referring to the case of In re Finley: Ex parte Clothworkers' Company L.R. 21 Q. B D. 475(1888), that after a debtor has been adjudicated bankrupt and his trustee has disclaimed a lease belonging to him, the property thereby demised or revests in the landlord under sec. 54, sub-sec. (2) of the Bankruptcy Act 1914 (which is the same as sec. 62 of the Indian Act) and he may obtain an order for delivery of possession, and that neither the subsequent annulment of the bankruptcy nor the acceptance by the landlord from the debtor of rent for the period ending before the disclaimer operates to revest any interest in the lease in the debtor. If sec. 62 is to be taken by itself, as in my judgment it should be, in the present case where the rights as between the lessors and the lessees have to be considered, the lease came to an end with the disclaimer. the consequence being that the leasehold reverted to the lessors. [See In re Abubaker ILR 48 Bom. 589 (1924) and Krishna Chinnao v. Matubhai Kasanbhai ILR 63 Bom. 200 at p. 305 (1928)]. After the disclaimer and so after the leasehold had reverted to the lessors, if they put up the leasehold to auction in execution of the decree for rent, as they did in the present case, even though that decree created and declared a charge on the leasehold, they could not resuscitate the leasehold, as it were, and acquire a title to it by their purchase. The Plaintiff, therefore, in my judgment, was entitled to a decree for khas possession ' as against the Defendants Nos. 1 to 10. 19. It has been contended that the disclaimer was bad in law. One ground on which this contention is based is that Rule 197, cl. (4) of the Insolvency Rules has not been complied with. There was no such plea in the written statement and such materials as are on the record suggest that there was such compliance. 19. It has been contended that the disclaimer was bad in law. One ground on which this contention is based is that Rule 197, cl. (4) of the Insolvency Rules has not been complied with. There was no such plea in the written statement and such materials as are on the record suggest that there was such compliance. Secondly, it has been urged that the lease was taken by the four brothers, the Dutte, and not by the firm of partnership of which they were members. The Subordinate Judge has referred to certain materials and has found that the contention has no substance and we agree with him in the view he has taken of this matter. Another ground on which this contention has been pressed is that the firm of P. N. Dutt and Company consisted of four persons who jointly took the lease and of them one, namely Banku, having died before the firm was adjudicated insolvent, his interest must have devolved on his heirs and so the disclaimer by the Official Assignee was not a complete disclaimer. The answer to this contention is to be found in paragraph 22 of the partnership deed. The clause " subject to the payment to the outgoing partner or his heirs etc," in that paragraph, in my judgment, does not mean that such payment is a condition precedent to the devolution of the share on the surviving partners, but only specifies how the share is to be assessed, and in that respect it merely reproduces the general law on the point (Vide Lindley on Partnership, 10th Edition, pages 416 and 712). The disclaimer was m respect of the entire interest in the leasehold which at the time had devolved on and belonged to the three insolvent Dutts who were the surviving members of the firm, and so was a good disclaimer. Fourthly, it has been argued that because the two out of the 15 plots which constituted the leasehold had gone out of it, therefore the disclaimer was only a partial disclaimer. The two plots had been lost to the leasehold; and so long as the entire interest of the insolvents in the leasehold was disclaimed, there could possibly be no objection. The two plots had been lost to the leasehold; and so long as the entire interest of the insolvents in the leasehold was disclaimed, there could possibly be no objection. Moreover there are cases reported showing that even where a lease was taken by more persons than one and only some of them were adjudicated insolvents, the Official Assignee was allowed to disclaim to the extent of the interest of the insolvents only. Though the disclaimer is somewhat in the nature of a surrender and though the two terms are often indiscriminately used, a disclaimer, being a creature of statute with statutory consequences, is not quite the same as a surrender which is governed by the law as between landlord and tenant. Lastly, it has been contended that the disclaimer was not in accordance with law. Certain observations in the order granting leave are relied on in this connection. It is true that the learned Judge, whose order it is, did express the opinion that there was nothing to disclaim. Whether he was right in the view that he took of this question is not a matter for our consideration, though speaking for myself I would venture to note my dissent on it. For in my opinion, an English mortgage under the Indian Law does not transfer the entire estate of the mortgagor to the mortgagee [Fala Krista Pal v. Jagannath Marwari 36 C.W.N. 700 (1932)] and the fact that by the consent decree the Dutts had been ordered to assign the mortgaged properties including the leasehold to the Bank did not, in the absence of an actual assignment, extinguish the rights of the co-sharers to the leasehold. But whatever may be correct view to take of the matter, leave was in fact granted and it was ordered that the lease be treated as disclaimed. That being so, the disclaimer was one which must be regarded as having been made in accordance with law. The result is that it should be held that the decree which the Court below has made is right, and the appeal therefore should be dismissed with costs.