JUDGMENT
Das, J.
1. This is a suit instituted by the plaintiff respondent for declaration of his title to and for recovery of possession of certain properties specified in the plaint. The plaintiff claims as the reversioner of one Bhola Nath, who died long ago leaving a widow Musammat Meghdei Koer. On the 6th of April 1889 Mutammat Meghdei Koer exeauted a zerpeshgi lease in favour of one Sukhlal and another. On the 7th July 1915 she executed a zerpeshgi lease in favour of the defendants, and it is found by the Court below that the latter lease was executed in order to raise a sum to pay off the first mentioned lease. Mussammat Meghdei Koer died on the 29th of November 1915, and on her death, the plaintiff brought a rent suit against Sukhlal claiming rent for the period between 1321 and 1324. It will appear that the widow died on the 8th of Aghan 1323. It cannot, therefore, be disputed that the plaintiff was claiming rent in respect of the period subsequent to the death of the widow.
2. In these circumstances the question arises whether the plaintiff could avoid the lease executed by the widow in favour of the defendants on the 7th of July 1915. Now upon the finding of the lower Appellate Court, it must follow that there was a valid consideration for the lease executed on the 7th of July 1915. The Courts below find as a fact that the lease was executed in order to discharge the security brought into existence on the 6th of April 1889. The lower Appellate Court went, and rightly went, into the question whether there was any consideration for the transaction of the 6th of April 1889. It there was, then, in my opinion, the transaction of the 7th of July 1915 must stand; if there was not, then the plaintiff, as reversioner, is entitled to succeed in the action.
3. That, therefore, was the question which the lower Appellate Court tried, namely, was there a legal necessity for the transaction which was entered into by the widow on the 6th of April 1889? And the Courts below have answered the question in the negative. In my opinion the view expressed by the Courts below on this point cannot be supported. It may be that there was no consideration for the transaction of the 6th of April 1889 and that, therefore, if there was nothing else in the case, the plaintiff would be entitled to succeed in the action. But an other very important point arises, which has not been considered with the fullness it deserves by the lower Appellate Court, namely, the effect of the rent suit instituted by the plaintiff on the transaction in question. Now upon the death of the widow it was open to the plaintiff either to affirm the transaction of the 6th of April 1889 or to repudiate it. It is obvious that he could not both affirm and repudiate it. He did bring a rent suit. The suit was in respect of the rent which had accrued due not only daring the lifetime of the widow but subsequent to her death. In other words, he elected to affirm the transaction of the 6th of April 1889. If the transaction of the 6th of April 1889 stands, I fail to see how he can challenge the transaction of the 7th of July 1915, for the transaction of the 7th of July 1915 was entered into in order to discharge the security brought into existence on the 6th of April 1889.
4. I am, therefore, unable to agree with the view taken by the Courts below. I must allow this appeal, set aside the judgments and decrees of the Courts below and dismiss the plaintiff’s suit with costs throughout.
Bucknill, J.
5. I agree. If it is, as I understand it is, settled law that a person who sues another for rent cannot after wards be heard to impugn such person as a tenant, it appears to me that the plaintiff here was in that position. It is admitted that a second lease was substituted for the first and if the plaintiff is unable to attack the first, he can clearly not attack the second.