1. The circumstances in which this reference has been made are these:
Raja Jaleshwari Pratap Singh was the lessee of a piece of land which, on the 3rd January, 1935, he sub-Jet to Lala Ram Swaroop Agarwal who on the same day executed a quabuliat containing a covenant with regard to the payment of zare-chaharum to which we refer more fully later. A building was subesquently constructed on this piece of land in which Lala Ram Swamp Agarwal and one Bhairo Prasad had a 10/16th share, the remaining 6/16th share being possessed by one Hira Lal. Lala Ram Swarup Agarwal and Bhairo Prasad were the partners of a firm known as Badridas Chunnilal. and that firm was declared insolvent on the 17th January, 1939, the second respondent being appointed the official assignee. On the 31st March, 1943. the official assignee sold the 10/16th share of the insolvents in the house in question to the appellant for Rs. 7,500/. Thereafter Raja Jaleshwari Pratap Narain Singh filed a suit against the official assignee the two insolvents and the present appellant for payment to zare-chaharum amounting to Rs. 1875/-together with pendente lite and future interest. In that suit a decree was passed against the appellant, the suit being dismissed against the other defendants. Against this decision the appellant appealed unsuccessfully to the Civil and Sessions judge and thereafter he filed a second appeal in this Court. His contention is that he is in no way bound by the covenant to pay zare-chaharum. That covenant is In these terms: 'If in accordance with this quabuliat the executant, his heirs or representatives sell the house on the land then the executant, his heirs and representatives shall be liable to pay the zare-chaharum. .'
The learned Judge before whom the appeal came up for hearing was of opinion that there was a conflict between two Division Benches of this Court, Prabhu Narain Singh v. Ramzan, 17 All LJ 469: (AIR 1919 All 235) and Abdus Shakur v. Munshi Nand Lal. : AIR1931All552 , as to the liability of a purchaser to pay zare-chaharum, and he has referred to a larger bench the question:
'Whether a covenant to pay zare-chaharum can be enforced against a transferee with constructive notice of the covenant.'
In 17 All LJ 469 : (AIR 1919 All 235) decided by Piggott and Walsh, JJ., the plaintiff had given permission to one Mst. Mahugi to build on a certain piece of land belonging to him. According to Pig-gott, J. an agreement was entered into between the parties which provided that if at any time Mst. Mahugi were to vacate the land and to sell any house which she had built thereon she would pay to the plaintiff one fourth of the purchase money. Mst. Mahugi built two houses on the land which was sold by her heirs and successors to one Ramzan.
A suit was then filed by the plaintiff against the surviving heir of Mst. Mahugi and Ramzan for a one fourth of the purchase money. The trial court decreed the suit against both the defendants, but on appeal the District Judge dismissed the suit as against the defendant Ramzan. On further appeal this Court set aside the judgment and decree of the District Judge and restored the decision of file trial court. Mr. Justice Piggott decided the appeal on the basis of the admissions made by the defendant Ramzan in his written statement.
2. Mr. Justice Walsh described the agreement which Mst. Mahugi had entered into with the plaintiff as an undertaking 'under which the tenant enjoined her holding binding her in the most absolute form (and alleging further that it was in accordance with a custom prevailing in that locality) not to part with her interest by transfer with-out the zamindar receiving his right of one-fourth of the purchase money.' The learned Judge appears to have regarded the agreement as embodying a zamindar's customary right of zare-chaharum, that is say the right to a share of the purchase money and not merely a right to claim that share from the vendor (see Heera Ram v. Deo Narain Singh, 1867 NWP HCR 63 (FB)), for the learned Judge goes on to say 'it cannot be contended that there is any legal or equitable ground which would justify a purchaser who had read that document in paying the tenant purchase-money without seeing that the Zamindar received his one-fourth, share. It seems that it was for this reason that the learned Judge appears to have taken the view that the obligation to pay zare chaharum was in the nature of an incumbrance on the land (see page 473 (of All LJ) : (at p. 237 of AIR)). He however based his decision primarily on the view that the agreement amounted to a restrictive covenant binding upon a purchaser with notice.
3. In the later case of : AIR1931All552 the plaintiffs were the zamindars of a piece of land which was leased to the first defendant who executed a quabuilat whereunder he agreed to pay to the plaintiffs one-fourth of the sale price whenever he sold his interest in the land. This defendant sold his interest to the second defendant and the plaintiffs filed a suit for the recovery of zare-chaharum from both defendants. The lower appellate court held both defendants to be jointly and severally liable for payment of this amount. The second defendant appealed to this Court and Young, J., delivering the judgment of the Court, was of the opinion that the provision in the qubuliat imposed a personal obligation on the lessee, the first defendant, to ray a sum of money to the vendor on the happening of a certain event, that it could not possibly be a restrictive covenant and that the purchaser, the second defendant, was under no liability.
4. In our judgment it is unnecessary for us to consider whether a covenant such as that contained in the qubuliat in the present case can in any circumstances run with the land and bind subsequent vendors; and on that question we express no opinion. The covenant in the present case imposes an obligation on the executant, his heirs and representatives' to pay to the zamindar one-fourth of the sale price on the sale of the house on the land. It imposes a liability on the vendor; it does not even purport to impose any liability on the purchaser qua purchaser. The latter's liability will arise (if it arises at all) if and when he in his turn sells the house.
5. We are accordingly of opinion that the question referred to this bench, in the wide terms in which it has been framed, does not arise. We answer the reference by saying that the covenant in the qabuliat executed on 3-1-1935, imposes no liability on the appellant to pay to the plaintiff the sum claimed in the suit out of which this appeal arises.