JUDGMENT Nasim Ali, J. - This is an appeal from the decision of the Additional District Judge of Howrah, dated the 30th July, 1935, affirming a decision of the Additional Subordinate Judge of that place, dated the 8th January, 1934. The suit out of which this appeal arises was instituted in the Court of the Subordinate Judge of Howrah by the Commissioners for the Port of Calcutta, Respondent No. 1, in the present appeal, on the 25th September, 1931, against one Annada Prasad Dutt who is now represented in this appeal by Respondents Nos. 2, 3 and 4, for recovery of Rs. 3395/1 on account of arrears of rent of 3 plots of leasehold properties due from 1st October, 1930, to 31st August, 1931. On May 19th, 1933, the Plaintiffs made an application to the Subordinate Judge for adding Sachindra Mohan Ghose, the Appellant in this appeal, as a party Defendant to the suit on the ground that he was in possession of the leasehold from November 18th. 1927, under a mortgage executed by Annada Prasad on that date. This prayer was allowed. Annada Prasad in his defence admitted the amount claimed but pleaded set off. The defence of the Appellant is that he is not liable to pay the rent claimed in the suit as there is neither privity of estate nor privity of contract between him and the Plaintiffs. 2. The Subordinate Judge refused to consider the plea of set-off taken by the lessee Annada Prasad as he did not pay court-fees on the set-off claimed by him. He overruled the defence of the Appellant that he was not liable to pay the arrears of rent. He accordingly decreed the suit against the lessee as well as the mortgagee, namely, the Appellant in this appeal. The decision of the learned Subordinate Judge has been affirmed on appeal by the Additional District Judge. Hence this Second Appeal by the mortgagee. 3. There is no privity of contract between the Plaintiffs and the Appellant. 4. The contention of the Plaintiffs is that the mortgagee is liable to pay the arrears of rent, as there is a statutory obligation on him to pay rent accruing due in respect of the leasehold during his possession of the leasehold as mortgagee. By cl. (d) of sec. 4. The contention of the Plaintiffs is that the mortgagee is liable to pay the arrears of rent, as there is a statutory obligation on him to pay rent accruing due in respect of the leasehold during his possession of the leasehold as mortgagee. By cl. (d) of sec. 65 of the Transfer of Property Act, in the absence of a contract to the contrary the mortgagor shall be deemed to contract with the mortgagee that where the mortgaged property is a lease, the mortgagor will, so long as the security exists and the mortgagee is not in possession of the mortgaged property, pay the rent reserved by the lease. By sec. 76, cl. (c) of the Act when a mortgagee takes possession of the mortgaged property during the continuance of the mortgage, he must, in the absence of a contract to the contrary, out of the income of the property pay the rent accruing due in respect thereof during such possession. 5. Now "as between mortgagor and mortgagee sec. 65 provides that the mortgagor of the leasehold is responsible for the payment of the rent so long as the mortgagee is not in possession," Per Rankin, C. J., in the case of! Bengal National Bank, Limited v. Janaki Nath Roy I. L. R. 54 Cal. 813: s. c. 31 C. W. N. 973 (1927). This section does not give the lessor right to sue the mortgagee in possession for rent of the leasehold. In sec. 76 the words " shall be deemed to contract" do not appear. The contention of the Plaintiffs is that the absence of these words in sec. 76 indicates that the liability of the mortgagee in possession to pay rent is not as between the mortgagee and the mortgagor only but is absolute. It is also contended that the object of sec. 76 (c) is to create a trust or obligation on the mortgagee in possession for the benefit of the lessor. But the last clause of sec. 76 lays down that if the mortgagee in possession fails to pay the rent due in respect of the mortgaged property, he may, when accounts are taken in pursuance of a decree made under Chap. 4 of the Act. be debited with the loss, if any, occasioned by such failure. This indicates that sec. 76 enacts the statutory duties of a mortgagee in possession vis-a-vis the mortgagor. 4 of the Act. be debited with the loss, if any, occasioned by such failure. This indicates that sec. 76 enacts the statutory duties of a mortgagee in possession vis-a-vis the mortgagor. It deals mainly with the debit side of the mortgagee's account while sec. 72 of the Act deals with the credit side. In the case of Kannye Loll Sett v. Nistoriny Dossee I. L. R. 10 Cal. 443 (1884), Garth, C. J., while dealing with the question of the liability of a mortgagee of a leasehold property who is put into possession of it under circumstances which amounted to an assignment of the leasehold interest, to pay rent due in respect of the leasehold observed: Neither that section (section 76 of the Transfer of Property Act) which relates to the mortgagees in possession nor Sec. 65 which relates to the duties of the mortgagors contain any rules applicable to cases like the present. Those cases are therefore governed by the general law. 6. The Appellant in my opinion therefore, cannot be made liable to pay the arrears of rent of the leasehold under sec. 76, cl. (c) of the Transfer of Property Act. 7. It is next contended on behalf of the Plaintiffs that the Appellant being mortgagee in possession of the leasehold property is liable to pay the rent under the general law. In support of this contention reliance was placed on behalf of the Plaintiffs on the following passage in the law of Mortgage in India by Dr. Rash Behary Ghose. Where the subject of mortgage is leasehold property and the mortgagee is put in possession of it, he becomes liable, as a rule, to pay the rent. 8. This observation of the learned author is based on certain decisions of this Court and the Bombay High Court namely Kalee Dass Bhuttacherjee v. Charles Butcher 12 S. D. A. Rep. 1019 (1856), E. R. Macnaghten v. Lalla Mewa Lall 3 C. L. R. 285 (1878), Kannye Loll Sett v. Nistoriny Dossee I. L. R 10 Cal. 443 (1884), Lala Bharub Chandra Karpur v. Lalit Mohan Singh I. L. R. 12 Cal. 185 (1885), Krishnaji Ravji Godbole v. Ramchandra Sadashiv I. L. R. 1 Bom. 70 (1875), E. Macnaghten v. Bheekaree Singh 2 C. L. R. 323 (1878), Vithal Narayan Kalgutkar v. Raje Bahadur Shriram Savant I. L. R. 29 Bom. 443 (1884), Lala Bharub Chandra Karpur v. Lalit Mohan Singh I. L. R. 12 Cal. 185 (1885), Krishnaji Ravji Godbole v. Ramchandra Sadashiv I. L. R. 1 Bom. 70 (1875), E. Macnaghten v. Bheekaree Singh 2 C. L. R. 323 (1878), Vithal Narayan Kalgutkar v. Raje Bahadur Shriram Savant I. L. R. 29 Bom. 391 (1905), Govind Shesha Kamti v. Shamtaya Dattaya Yennimadi 5 Bom. L. R. 118 (1903) and Madhubmoney Dassee v. Nundolall Gupta I. L. R. 26 Cal. 338 (1899). 9. In the case of Kalee Das Bhuttacharjee 12 S. D. A. Rep. 1019 (1856), the mortgagee was in possession under a decree of foreclosure on the basis of a mortgage by a conditional sale. In the case of E. Macnaghten 2 C. L. R. 323 (1878), the mortgage was in the English form. The mortgagee foreclosed and took possession of the leasehold. In the case of E. R. Macnaghten 3 C. L. R. 285 (1878), the mortgagee (Macnaghten) came into possession of the leasehold on the basis of a foreclosure decree. The Munsif passed a decree against the heirs of the original lessee as well as the mortgagee who had foreclosed the mortgage. The decree of the Munsif was affirmed on appeal. On special appeal to this Court by Macnaghten the decree against the Appellant was set aside. In the case of Kannye Loll Sett I. L. R. 10 Cal. 443 (1884) to which reference has already been made, the mortgagee was put in possession of the leasehold property under circumstances which amounted to an assignment of the leasehold interest. In that case the mortgagee not only obtained possession but had her name entered into the landlord's book as a tenant of the property in place of the orginal lessee. In the case of Lala Bharub Chandra Karpur I. L R. 12 Cal. 185 (1885) the decision in Kannye Loll Sett's case I. L. R. 10 Cal. 443 (1884) was simply followed. In the case of Krishnaji Ravji Godbole I. L. R. 1 Bom 70 (1875), it was held that a kind of privity of estate was created between a superior holder, (the person having highest right under the Government to hold land or to engage with Government for the land revenue due on account of any village or estate) and the inferior holder, the occupant who took the profits of the land by sec. 5, cl. 5, cl. (2) of Regulation XVII of 1827, which provided that the revenue, if not discharged by the superior holder, might be realised from the inferior holder. In the case of Govind Shesha 5 Bom. L. R. 118 (1903), the mortgagee of the leasehold who received the rents from the tenants in actual possession was made liable to pay rent to the lessor as there were circumstances presumptive of a privity of contract between the lessor and the Mortgagee. In the case of Madhubmoney Dassee I. L. R. 26 Cal. 338(1899), Maclean, C. J., observed as follows : The case made by the plaintiff is that Dwarka Nath Mitter was in possession of the leasehold promises as a mortgagee in possession. To my mind he was nothing of the sort. Under the deed he was entitled to keep a durwan on the premises and clerk in charge of the books etc. He put the durwan and clerk on the premises not to take possession of the premises but to look after the chattels assigned to him by way of mortgage, and he did so on the very day that the deed was executed; and so matters remained up to the time of Dwarka Nath Mitter's death. There was no change in the position and he never took possession as mortgagee of the leasehold premises. But if he had, I do not appreciate how this would have assisted the plaintiff. The mere fact of his being in possession would not constitute the relation of landlord and tenant, so as to entitle the plaintiff to sue for use and occupation. 10. In the case of Vithal Narayan Kalgutkar I. L. R. 29 Bom. 391 (1905), Russel, J., held that where the mortgagee put himself into possession of the leasehold he was liable to pay the rent to the lessor. In the case of Thethalan v. The Eralpad Rajah I. L. R. 40 Mad. 1111 (1917), Wallis, C. J., pointed out that the authorities referred to in Vithal Narayan Kalgutkar's case I. L. R. 29 Bom. 391 (1905) do not support the decision in that case. 11. The authorities on which Dr. Ghose relied for his opinion contained in the passage on which reliance was placed on behalf of the Plaintiffs, with the exception of Vithal Narayan's case I. L. R. 29 Bom. 391 (1905) and Govinda Shesha's case 5 Bom. 391 (1905) do not support the decision in that case. 11. The authorities on which Dr. Ghose relied for his opinion contained in the passage on which reliance was placed on behalf of the Plaintiffs, with the exception of Vithal Narayan's case I. L. R. 29 Bom. 391 (1905) and Govinda Shesha's case 5 Bom. L. R. 118 (1903), appear to require that if the mortgagee is to be made liable for rent the whole of the lessee's interest must be transferred. In those cases, as I read them, the liability was not based upon possession as such. The fact of possession was taken into account as 'a matter for consideration in determining whether the entire interest of the lessee had been transferred to the mortgagee as, "Mere possession will not render a man liable for rent if the lease has not been assigned to him," Ananda Chandra Roy v. Abdullah Hossein Chowdhury I. L. R. 41 Cal. 148 (1913). 12. It is argued by the learned Counsel appearing on behalf of the Respondents that sec. 108, cl. (j) of the Transfer of Property Act by which a lessee is empowered to transfer absolutely or by way of mortgage or sub-lease, the whole, or any part of his interest of the property indicates that under certain circumstances a mortgagee may be liable to pay the rent to the lessor, and possession by the mortgagee is one of those circumstances which would make the mortgagee liable for the rent to the lessor. Sec. 108, cl. (j) however says nothing about the liability of the transferee. Before the passing of the Transfer of Property Act the tenancies of homestead land in Bengal were not transferable except by custom. The object of sec. 108 (j) was to make these tenancies transferable and at the same time to maintain the liability of the transferor attaching to the lease on account of privity of contract between the lessor and the lessee. This statutory provision says nothing about any privity between the lessor and the transferee of the leasehold. 13. It has been pointed out by the Privy Council in the case of Hunsraj v. Bejoy Lal Seal L. R. 57 I. A. 110 : s. c. 34 C. W. N., 342 (1929), that a sub-lease for the whole of the lessee's unexpired term does not operate as an absolute assignment of the lease in India. 13. It has been pointed out by the Privy Council in the case of Hunsraj v. Bejoy Lal Seal L. R. 57 I. A. 110 : s. c. 34 C. W. N., 342 (1929), that a sub-lease for the whole of the lessee's unexpired term does not operate as an absolute assignment of the lease in India. It is well settled that there is neither privity of contract nor privity of estate between the head lessor and the under-lessee and hence the under-lessee is not personally liable for the rent reserved by nor on the covenants contained in the head-lease. Akhoy Kumar Chatterjee v. Arkan Molla 19 C. W. N. 1197(1914). 14. If sub-lessees are not liable, there is " no reason for applying a different rule to mortgagees from the lessees." " To hold otherwise would, it need hardly be pointed out, introduce all sorts of complications as to apportionment, notice to quit, etc." [Thethalan v. The Eralpad Rajah I. L. R. 40 Mad. 1111 (1917)]. 15. A distinction however has been made between an English Mortgage in India and other forms of mortgage. In the case of Bengal National Bank v. Janaki Nath Roy I. L. R. 54 Cal. 813 : s. c. 31 C. W. N. 973 (1927), Rankin, C. J., observed as follows: I am not prepared to hold that in India the lessor does not part with his 'whole estate' under an English mortgage. His right to redeem is a right on certain conditions to get it back and in India this right cannot be looked on as an ' equitable estate existing before reassignment. 16. The learned Chief Justice in that case held that under an English mortgage the leasehold is transferred absolutely within the meaning of sec. 108 (j) and that the whole of the interest of the lessee having been assigned over to the mortgagee by such mortgage, the latter becomes liable for the rent. 17. In the case of Falakrishna Pal v. Jagannath Marwari I. L. R. 59 Cal. 1314; s. c. 36 C. W. N. 709 (1932), Mukerji and Guha, JJ., observed as follows: There are difficulties in the way of adopting this view in its entirety. 17. In the case of Falakrishna Pal v. Jagannath Marwari I. L. R. 59 Cal. 1314; s. c. 36 C. W. N. 709 (1932), Mukerji and Guha, JJ., observed as follows: There are difficulties in the way of adopting this view in its entirety. The definition of an English mortgage as given in the Transfer of Property Act, section 58, Clause (e) must be read subject to the definition of a mortgage as given in Clause (a) of that section and consequently, an English mortgage in India can hardly bo regarded as the transfer of the entire estate of the mortgagor to the mortgagee. It is correct, however, not to regard what is left in the mortgagor as an equitable estate, but it is nevertheless some estate, an interest only in the estate having been transferred under the mortgage. In our opinion, therefore, it is not easy to say of an assignment by way of an English mortgage in India executed by a lessee that the whole of his estate passes under the mortgage to the mortgagee. 18. The mortgage in favour of the Appellant is not an English mortgage. He is in possession as an usufructuary mortgagee. By this mortgage there has been no assignment of the lease and consequently there is no privity of estate between the Plaintiffs and the Appellant. 19. There being therefore neither privity of contract nor privity of estate between the Plaintiffs and the Appellant, the Plaintiffs are not entitled to get any relief against the Appellant in the present suit. 20. The result therefore is that this appeal is allowed, the judgments and decrees of the Courts below, so far as they relate to the liability of the Appellant for the rent of the leasehold property are set aside and the suit as against him is dismissed with costs throughout. Remfry, J. 21. In this appeal the argument for the Appellant was that the Defendant, a mortgagee of a monthly tenancy and in possession, having agreed to pay the lessor's rent, was, although the mortgage did not assign to him the entire estate of the lessee, liable to pay the lessors their rent. 22. The argument was that this liability arose under sec. In this appeal the argument for the Appellant was that the Defendant, a mortgagee of a monthly tenancy and in possession, having agreed to pay the lessor's rent, was, although the mortgage did not assign to him the entire estate of the lessee, liable to pay the lessors their rent. 22. The argument was that this liability arose under sec. 76 (c) of the Transfer of Property Act-either as a statutory liability or in consequence of an implied trust-and in the alternative that any mortgagee in possession was liable to pay the lessor's rent. 23. The last point was based not on the doctrine of privity of estate, but on what Counsel urged should be-so to speak-the common law of this country. 24. The doctrine of privity of estate did not rest on the fact of possession- Williams v. Bosanquet [1819] 1 Brod. & B. 238-but on the assignment of the entire estate of the lessee. As far as mortgagees are concerned, this doctrine no longer applies in England. See Law of Property Act, 1925, sec. 86 and Wood fall on Landlord and Tenant, 23rd Ed., p. 728. It has been doubted whether this doctrine applies to India-See Keshovlal Tribhawan v. Adhyaru Maganlal I. L. R. 58 Bom, 327 (F. B.) (1933), but we are bound in this Court by the decision in Bengal National Bank, Ltd. v. Janaki Nath Roy I. L. R., 54 Cal. 813: s. c. 31 C. W. N. 973 (1927), where the doctrine was applied. 25. There is in my opinion no ground for extending the doctrine. For, mortgagees in possession or not have never been held liable for rent unless the mortgage conveyed the entire estate of the lessee. There is one decision to the contrary, but the weight of authority is against it. 26. The law when the Transfer of Property Act was passed, was that certainly unless the mortgagee obtained the whole estate of the lessee, he was not liable for the rent to the lessor. It was argued that the law was altered by sec. 76 (c) of the Act. In my opinion sec. 76 (c) of the Transfer of Property Act shows that the liability to pay the rents is not part of the general law in this country. It was argued that the law was altered by sec. 76 (c) of the Act. In my opinion sec. 76 (c) of the Transfer of Property Act shows that the liability to pay the rents is not part of the general law in this country. The section deals with mortgages of all kinds and provides that subject to a contract to the contrary, a mortgagee in possession is liable out of the income of the property to pay certain rents. Under cl. (h) the position of a mortgagee, who personally occupies the mortgaged property, is provided for, subject to sec. 77. 27. Those provisions appear to me to presuppose that a mortgagee in possession was not ipso facto liable to pay rent under the general law, for it clearly shows that a mortgagee by taking possession is not necessarily made liable to pay any rent. Two questions arise under the section-whether it creates a statutory liability and whether it applies to all rents. 28. On the first point the English law does not afford any guidance as the statutory covenant is that the lessee who mortgages must pay the rent, Coote on Mortgage, 9th Edition, p. 194. The words used do not suggest that a statutory liability in respect of the lessor was intended-for the liability depends on the absence of a contract and is limited to cases where there is actual income or income under el. (h). The position of the section in the Act suggests that it was only concerned with the relations of the mortgagor and Mortgagee inter se. In my opinion therefore it does not create any statutory liability in favour of the lessor and this was the decision in Kannye Loll Sett v. Nistoriny Dossee I. L. R. 10 Cal. 443 (1884). Further, in my opinion the last words of the section qualify both arrears of rents and rent. The section would be very badly drafted if it meant that rent and arrears of rent were of different kinds, and when it was amended by adding rents, the obvious construction is that that was to correct the curious result of the original section that the mortgagee would not be liable to pay the current rents of the kind specified. But whether the section applies to all kinds of rents or not, in my opinion, it only affects the relations of the mortgagor and mortgagee. But whether the section applies to all kinds of rents or not, in my opinion, it only affects the relations of the mortgagor and mortgagee. The effect of this section was not considered in any reported case, save as noted above but as the decisions were with one exception to the effect that a mortgagee in possession, who had not obtained the entire interest of the lessee, was not liable for rent, it cannot be supposed that the section was overlooked. 29. My view of the section is that it is inconsistent with the existence of any doctrine of privity of estate, for though the doctrine did not depend on the possession of the property by the mortgagee, it would be curious if the position of a mortgagee, under an English mortgage, was that he was liable for the rent if he did not take possession, but if he did, his liability under the section depended on whether he obtained income from the property, or when he occupied it personally, depended on the absence of an agreement to take the " receipts " of the property in lieu of interest under sec. 77 and was also dependent on the absence of any agreement to the contrary, or depended on whether a failure to pay the rent might result in a summary sale. This difficulty does not disappear if the section is construed as defining the relations between mortgagor and mortgagee, for it clearly presupposes that apart from the section the liability to pay rent did not exist. 30. There is a difficulty caused by sec. 65, where the mortgagor's covenant is- in the absence of a contract to the contrary-that he will so long as the mortgagee is not in possession pay all public charges accruing due in respect of the property and the rent reserved by the lease, if the mortgage is of a lease. 31. This is also difficult to reconcile with the existence of any doctrine of privity of estate. Sec. 76 as originally enacted mentioned only arrears of rent in default of payment of which the property may be summarily sold. Nothing was enacted as regard rents accruing due after the mortgagee entered into possession in default' of payment of which the property might be summarily sold or about rent reserved by a lease. Sec. 76 as originally enacted mentioned only arrears of rent in default of payment of which the property may be summarily sold. Nothing was enacted as regard rents accruing due after the mortgagee entered into possession in default' of payment of which the property might be summarily sold or about rent reserved by a lease. The amendment only inserted the words "all rents," and appears therefore to refer to rents of the same kind as the rents in respect of which the section had made provision, when in arrears. Had the legislature intended to refer to rents reserved by leases in default of payment of which the property could not be sold summarily or at all, there was no apparent reason for not using the same words as in sec. 65. 32. It may be that the draftsman overlooked the omission to make any provision for rents reserved under leases, for it certainly looks as if the original intention was to make the mortgagee in possession, subject to a contract to the contrary, pay those rents. But sec. 76 is full of omissions-for nothing is said as to the liability to pay revenue or rents of any sort when the income of the property is insufficient to meet them. The section is far from comprehensive. 33. But having regard to the fact that mortgagee before the Act was not bound to pay the lessor rent because he went into possession but was liable, if at all, because he had taken an assignment of the entire interest of the lessee, and having regard to the fact that the section as originally enacted only made the mortgagee in possession covenant to pay a particular class of rent-and in fact only arrears of such rent, it seems clear that the amendment was confined to the same class of rents. But having regard to the condition attached to the liability to pay such rents and particularly the provision that the mortgagor or mortgagee might make their own contract, it appears to me that the section is only concerned with the position of the mortgagor and mortgagee inter se, and does not give a lessor any right which he did not possess before the Act or its amendment. 34. 34. The aim of the section, as originally framed, was to provide for the payment of charges on the land or arrears of rent where the failure to pay might result in a summary sale, and the amendment is not so expressed as to widen or alter the object of the section. 35. Even if, as contended, the section makes the mortgagee liable to pay the rent reserved by the lease, that is merely adding a term to the contract between the parties, and a stranger to the contract would not under the law be entitled to sue on it-Jumna Dm v. Ram Autar Pande (18), where the reporter's note is inaccurate, for, as the judgment shows, there was a covenant to pay the mortgage debt-the facts and the covenant are set out in Jumna Das v. Ram Autor (19). A duty imposed by a statute does not as a rule give a right of suit to any one who derives a benefit from the performance of the duty-See Ward v. Hobbs (20) and a right, if any, is to sue for damages. 36. As regards the argument that the section created a trust, the decision of the Judicial Committee cited above shows that no trust would arise in the circumstances. In my opinion therefore the appeal should be allowed.