JUDGMENT 1. This second appeal on behalf of the tenant defendant involves a question which may be described as whether defaults can be tacked. The learned Advocates for both the sides could not refer to any decision exactly on the point and the point is somewhat important. The facts are that the property in dispute belonged to five brothers, who were joint owners of the premises in suit. There was a partition suit No. 1811 of 1952 in this High Court in respect of their joint property and by virtue of the partition decree the plaintiff became the sole owner of the suit premises together with all arrears of rent due from the tenants and the Official Receiver delivered possession of the premises to the plaintiff on the 15th July, 1955. 2. The position is that the tenant defaulted in payment of rent from July, 1954 and there is no dispute that the tenant defaulted in payment of rent referred to in clause (i) of the Proviso to sub-section (1) of section 12, Rent Control Act, 1950, on three occasions Within a period of eighteen months. This is not disputed but it is contended that the entire default between the period of July 1954 and July 1955 was during a period when five brothers were the joint owners of the property and not the plaintiff alone and, therefore the plaintiff is not entitled to get the benefit of the West Bengal Premises Rent Control Act of 1950. It is hardly necessary to say that the suit was a suit for ejectment and the tenant was the defendant who claimed protection under the West Bengal Premises Rent Control Act of 1950. The ground alleged by the plaintiff in his plaint is that the defendant was not entitled to the protection of the Act because of His own default as stated already. It is stated further by the defendant that there was a waiver of the notice to quit because of subsequent acceptance of rent. It was also said that, as the defendant had instructions to pay rent to the landlord, only when bills were submitted, they were not defaulters at all. With regard to the first question of waiver of the notice to quit, I am afraid, there is nothing on record to show that when sums of money were paid to the plaintiff, the plaintiff accepted them qua rent. Mr. With regard to the first question of waiver of the notice to quit, I am afraid, there is nothing on record to show that when sums of money were paid to the plaintiff, the plaintiff accepted them qua rent. Mr. Choudhury refers to section 113 of the Transfer of Property Act, but that refers to acceptance of money qua rent, not acceptance of money qua debt. Hence, there is no question of waiver of the notice to quit. The next point is that by acceptance of money defaults were waived. Defaults are something which are creatures of statutes and there is no estoppel against statute. The finding of the trial court on this point is that there was no waiver as the defendant had no assurance either from the Receiver or from the plaintiff and further the trial court says that there was no satisfactory evidence on the question of waiver. In the Appeal Court this question was not urged. The only point that was urged was that there was no default for three occasions within a period of eighteen months. In that view of the matter, I can not allow Mr. Choudhury to raise a question which involves determination of fact which was not raised in the Court of First Appeal. This point is overruled [after dealing with the question whether there were instructions to pay rent only when bills were presented, his Lordship continued. I now come to the other point, namely, whether the default that was made by the tenant during the time the property was joint, could be availed of by the landlord or could jeopardise the interest of the tenant and deprive the tenant of his protection under the Rent Control Act of 1950. 3. The Act is silent on such a point. All that is stated in section 12 (1) (i) is that where the amount of two months' rent legally payable by the tenant and due from him is in arrears by not having been paid within the time fixed by the contract, or in the absence of such contract by the fifteenth day of the month next following that for which the rent is payable. . . . . . ", the tenant would not be entitled to protection. . . . . . ", the tenant would not be entitled to protection. This again is subject to section 14 and section 14 says "if a tenant committed three defaults within the meaning of section 12 (1) (i) within a period of eighteen months, he could not get the protection of the Act. " 4. MR. Mukherjee on behalf of the respondent landlord later referred to three decisions of this Court-one reported in (1) 96 Calcutta Law Journal, page 53, between Manmatha Nath Joardar and Sasanka Mohan Guha; another reported in (2) 60 C.W.N. 121, between Charubala and Madhusudan Kundu and the third reported in (3) 61 C.W.N. 909, between Basumati Debi and Sannulal Shaw and he says that the three decisions aforesaid amply prove the proposition that the defaults made during the time of a previous landlord can be availed of by the succeeding landlord. In the first case P. N. Mookerjee, J. decided that, if defaults were committed during the time of one landlord, the transferee landlord was entitled to take advantage of the defaults. In the second case i. e. in (2) 60 C.W.N. 121, also P. N. Mookerjee, J. took the very same view, viz. a transferee landlord can avail himself of default to the transferor landlord. In the third case reported in (3) 61 C.W.N. 909, Renupada Mukherjee, J. followed the above two decisions. The facts of this last case were slightly different. The defaults were made by the sub-tenant at the time when the tenant was his landlord. Thereafter, the superior landlord got the interest of the tenant and then sued for ejectment of the erstwhile sub-tenant. The question there was whether the superior landlord would be entitled to take advantage of the defaults made by the sub-tenant at the time when his immediate landlord was the tenant. Renupada Mukherjee, J. held that he would be so entitled. Renupada Mukherjee, J. found no distinction between the case of a transfer by act of parties as in (1) 96 C.L.J. 63, or in (2) 60 C.W.N. 121 and a transfer by operation of law as in the case of (3) 61 C.W.N. 909. In the present case the factual position is slightly different. The defaults were made during the time when the plaintiff and his co-sharers were the landlords. Thereafter, by partition the entire property was allotted to the plaintiff. In the present case the factual position is slightly different. The defaults were made during the time when the plaintiff and his co-sharers were the landlords. Thereafter, by partition the entire property was allotted to the plaintiff. The question here again is whether such defaults can be taken into consideration in a suit for ejectment. I may add most respectfully that the question is not whether the landlord is entitled to the benefit of default because the landlord is entitled to ejectment of a tenant after a notice to quit. Then the question comes whether the tenant is entitled to protection under the relevant section of the West Bengal Rent Control Act. The tenant would be entitled to protection unless he has made defaults. Therefore, the question that arises is whether the tenant is protected from eviction and whether the defaults made by the tenant during the time of the previous landlord can be taken into consideration in a suit for ejectment of the tenant by the succeeding landlord. 5. On behalf of the tenant it has been urged by Mr. Choudhury that when a property is transferred the benefit that the landlord gets because of default of the tenant can not be assigned or, in other words, when the property is transferred by a person to another person, the benefit of default is not assigned and such benefit is not assignable. As it is not assignable at all, the succeeding landlord or the transferee landlord is not entitled to the same benefit, I have already said that it is immaterial whether the benefit is assigned or not. I may agree that the benefit of a default may not be assigned because the liability or the benefit of a default is not something which is in the nature of property but may be something of a personal nature and may not be assignable at all; such benefit is not also in the nature of a covenant running with the land and it may not be assigned. But, in my opinion, the question whether the benefit can be assigned or not is immaterial. The only question is whether the tenant is protected from eviction and all that is necessary for the landlord to prove is that the tenant is not entitled to the protection under the Act. But, in my opinion, the question whether the benefit can be assigned or not is immaterial. The only question is whether the tenant is protected from eviction and all that is necessary for the landlord to prove is that the tenant is not entitled to the protection under the Act. For that we have to refer to the conduct of the tenant in depositing the rent or in paying rent to the landlord, if the tenant has not paid rent to the landlord or has not made a valid deposit, he is not entitled to protection under the West Bengal Rent Control Act. Therefore, as long as his default in depositing rent in favour of the then landlord continues, he would be in default and he would deprive himself of the benefit of the statute or, in other words, he would not get protection. In that view of the matter, in my opinion, the present tenant not having deposited rent in favour of the then landlord as rent became due, is a defaulter and is not entitled to any protection under the Rent Control Act. 6. Mr. Choudhury then refers to a decision reported in (4) 63 C.W.N. 976. According to Mr. Choudhury, this decision of the Division Bench overrules the three decisions reported above and I have therefore to consider that proposition. The question that arose in that case was regarding the construction of section 17 (1) of the Premises Tenancy Act, 1956. A landlord transfers his interest together with it, assigns all arrears of rent to the transferee landlord. The question that arose was whether the tenant was bound to deposit all rents which fell in arrears during the time of the previous landlord under section 17 (1) of the Premises Tenancy Act. Their Lordships were pleased to hold that this assignment was not of rent at all, it was assignment of a debt, because the person, who transfers his land, is no longer the landlord but merely a creditor with respect to a certain debt and what he assigned was the debt. This proposition to some extent may support a theory that the benefit of a default was not assignable. According to this decision, when arrears of rent was assigned it lost its character of rent. Therefore, that arrears would not take with it the stigma of default. This proposition to some extent may support a theory that the benefit of a default was not assignable. According to this decision, when arrears of rent was assigned it lost its character of rent. Therefore, that arrears would not take with it the stigma of default. I may say that was not the question that arose in that case. But, Mr. Choudhury says that there can be no other conclusion from the decision of the Division Bench except that the benefit of default could not be assigned and so could not be tacked. Reading section 17 (1) it shows that a tenant would have to deposit all arrears of rent which he is in default and the arrears of rent assigned is not arrears of 'rent' which the tenant defaulted to pay. Therefore, Mr. Choudhury says that the benefit of a default cannot be assigned and that theory is supported by the decision of the Division Bench aforesaid. I have considered this matter already and I have said that the essence of the aforesaid three judgments is not that the benefit of a default was assigned or tacked but that the tenant was not entitled to claim protection because he was in default to somebody, who was his landlord at the relevant time, and that default remained so far as the tenant is concerned. Therefore, the tenant is not entitled to protection. The question whether the landlord is entitled to benefit is not necessary to be considered. I need hardly consider all the reasons given by Lahiri, J., as he then was; but it can not be doubted that when arrears of rent are assigned, the benefit of a default is not assigned together with it. But supposing that to be so, that does not affect the question involved in this case because the question is not whether the landlord is not entitled to the benefit but whether the tenant still remains protected or not. In that view of the matter, I must hold that the decision of the Division Bench reported in (4) 63 C.W.N. 976, does not mitigate against the views expressed in the three aforesaid cases reported in (1) 96 Calcutta Law Journal page 53, (2) 60 C.W.N. 121 and (3) 61 C.W.N. 909. In that view of the matter, I must hold that the decision of the Division Bench reported in (4) 63 C.W.N. 976, does not mitigate against the views expressed in the three aforesaid cases reported in (1) 96 Calcutta Law Journal page 53, (2) 60 C.W.N. 121 and (3) 61 C.W.N. 909. The question is whether the cosharer landlord to whom the property was subsequently allotted exclusively can get en ejectment against a tenant who has committed acts of defaults during the time of the previous landlord. As, in my opinion, there is no question of assignment of default, the only question is whether the default committed by the tenant can be taken into consideration in a suit for ejectment by the succeeding landlord. The statute, as I have already held, protects only a tenant who has not defaulted in payment of rent. There is no doubt that the defendant as the tenant of the co-sharer landlords defaulted in payment of rent. Therefore, so far as the defendant is concerned, he is not entitled to claim benefit. There is nothing in the West Bengal Rent Control Act which says that in case of a transfer of a landlord's interest the defaults made by the tenant during the time of the last landlord should be wiped away. On the other hand, the Act itself is meant for protection of those tenants who pay rent diligently. The Act was never intended to protect persons who do not pay rent diligently. Therefore, I would say that the Act itself and the provisions under the sections do not support the view that in a suit for ejectment defaults made by the tenant during the time of a previous landlord should not be taken into account. The question whether there was a transfer of the landlords' interest by act of the parties or by operation of law is not, in my opinion, very relevant. The question is whether the particular tenant is protected or not and if he is not protected, then a decree must be passed against him. 7. The question whether there was a transfer of the landlords' interest by act of the parties or by operation of law is not, in my opinion, very relevant. The question is whether the particular tenant is protected or not and if he is not protected, then a decree must be passed against him. 7. The result is that the appeal is dismissed with costs but in consideration of the facts in this case I direct that the defendant would vacate on 31st January, 1962 provided (1) she pays the costs of this court and all costs of the courts below, if not already paid, within three months from this date either in the Trial Court or in the Executing Court; (ii) provided further the defendant deposits in court within three months from this date all sums, if any, which have already become due to the plaintiff on account of use and occupation of the premises at a rate equivalent to the rate of rent and which have not been paid or deposited, and (iii) provided she goes on depositing sums equivalent to rent within 15th of each month which she intends to occupy during this entire period. In case of defaults of any of the conditions above, the decree would become executable at once. Leave to file appeal under Clause 15 of the Letters Patent is prayed for and is refused.