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Tamaya BIn Annaya Vs. Timapa Ganpaya and - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Judge
Reported in(1883)ILR7Bom262
AppellantTamaya BIn Annaya
RespondentTimapa Ganpaya and ;bairapa and ors.
Excerpt:
.....against alienation--alienation voluntary or by act of law--attachment and sale--no clause of forfeiture or re-entry--non-payment of rent--rights of the lessor. - indian succession act (39 of 1925), section 63: [s.b. sinha & cyriac joseph, jj] will validity - deceased, was a very wealthy person - he floated several companies - he left behind his daughters, s and j - he was suffering from various diseases including some neurological ones - for his treatment, he used to frequently visit united states of america accompanied by his wife and daughter - by reason of a will, he is said to have bequeathed 50% of his property to s and 50% to j in a letter addressed to the 1st respondent, viz., s, he is purported to have recorded that the he had given all his shares to..........lessee. however, as regards defendant no. 5 who purchased the share of defendant no. 2 by private sale, this alienation was undoubtedly in breach of the covenant; and as he must be taken to have purchased with full knowledge of the covenant in the lease, if the plaintiff had applied to restrain the completion of the sale by injunction, it would doubtless have been granted, but the sale has been completed, and defendant no. 5 is in possession, and as there is no clause of forfeiture or re-entry in the lease, the plaintiff cannot recover the lands, but must confine himself to such relief as the breach of the covenant not to alienate may afford him in damages. as to the rent due for 1879-80, we think the three brothers, defendants 1,2 and 3, are severally liable for the entire amount of.....
Judgment:

Charles Sargent, Kt., C.J.

1. In this case plaintiff had leased his estate in 1871 by a 'mulgeni chitti' to the defendant at a yearly rent of Its. 67. The defendant was then living in union with his brothers, defendants 2 and 3, and acting as manager of the family. The lease contained a clause that the mulgenidar had no right to transfer by mortgage, gift, sale, exchange, or otherwise, but there was no clause providing for the forfeiture of the estate on breach of the covenant. The brothers subsequently became divided in estate, and the land in question was partitioned into three shares. The share of defendant No. 1 was afterwards attached and sold at a Court sale, and purchased by defendant 4. The share of defendant 2 was also sold privately to defendant 5.

2. The plaintiff now seeks to recover from the defendants the piece of land demised by the lease, on the ground that the stipulation against alienation has been broken, and also the rent for the year 1879-80 which, he says, he is entitled to be paid in one lump sum by defendant No. 1, and not in proportionate parts by the defendants.

3. The first question which arises on the pleadings is whether the clause in the lease against alienation is void. The Subordinate Judge held it to be so, but the District Judge reversed that decision, and held the restriction to be valid, which is in accordance with the ruling of this Court in Vyankatraya v. Shivrambhat Ante p. 256. The clause, however, in the lease only prevented alienation by mortgage, gift, sale, or otherwise, which last expression must, we think, be confined to some act of the lessee ejusdem generis with those expressly mentioned. This clause, therefore, affords no ground for impeaching the title of defendant 4, who purchased the share of defendant 1 at an auction sale, and to whom the alienation was by act of law and not of the lessee. However, as regards defendant No. 5 who purchased the share of defendant No. 2 by private sale, this alienation was undoubtedly in breach of the covenant; and as he must be taken to have purchased with full knowledge of the covenant in the lease, if the plaintiff had applied to restrain the completion of the sale by injunction, it would doubtless have been granted, but the sale has been completed, and defendant No. 5 is in possession, and as there is no clause of forfeiture or re-entry in the lease, the plaintiff cannot recover the lands, but must confine himself to such relief as the breach of the covenant not to alienate may afford him in damages. As to the rent due for 1879-80, we think the three brothers, defendants 1,2 and 3, are severally liable for the entire amount of Rs. 67, as the lease was admittedly taken by the defendant 1 for the benefit of the undivided family, and plaintiff has not recognized the defendants 4 and 5 as his tenants in their place. The fact of the partition between the three brothers to which the plaintiff was not a party, and the arrangement between themselves to pay the rent in certain proportions, cannot affect their liability to the plaintiff, and as the plaintiff was, therefore, justified in refusing to accept payment of the rent except in a lump sum, he is entitled to interest on the Rs. 67 at 9 per cent from the date of the institution of his suit. The decree of the Court below must, therefore, be reversed, and the plaintiff's claim to recover the land comprised in the mulgeni lease, or any part thereof, rejected. The plaintiff to recover the rent of Rs. 67 and Rs. 2 perquisites from each of the three first defendants with interest on the same from the date of the institution of his suit. Defendants 1, 2 and 3 to pay plaintiff half his costs throughout. Plaintiff to pay the other half of his own costs. Defendant 5 to pay his own costs. Plaintiff to pay defendant 4 his costs throughout.


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