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David Cutinha Vs. Salvadora Minazes and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1926Mad1202; (1926)51MLJ552
AppellantDavid Cutinha
RespondentSalvadora Minazes and ors.
Cases ReferredVenkataramana Bhaita v. Krishna Bhatta
Excerpt:
- - 2. the alienations complained of consist of the grant of a mulgeni lease by some of the tenants and also the grant of a simple mortgage, ex. that i think at once distinguishes the case from the well-known case of farley v. it clearly is an alienation. brown (1808) 15 ves 258 and says that the dictum of the lower court has never been disapproved of;.....does allege, and in fact was obliged to allege that the defendants have alienated portions of the leased property. the plaintiff also alleges that by arrangement among themselves defendants 4 to 6 are in possession of a particular portion of the leased property. but he is careful to add that the said arrangement does not bind him. there is some allegation in the written statement that the rent was paid in shares. but in one of the written statements it is admitted that the mulgar is entitled to receive rent in one lump sum. this theory seems to have been started for the first time in this court and there seems to be no evidence and no finding in either of the lower courts that the mulgar ever recognised this division or partition, or whatever it may be called, among these indian.....
Judgment:

Odgers, J.

1. This is a case which has taken some time to argue as it involves the question of forfeiture of a mulgeni lease. The lease is contained in a decree (Ex. A) of the 30th August, 1910. It sets out If there is necessity to alienate the said mulgeni right and the right of improvements, the same should be surrendered to plaintiff only on receiving from him the value of improvements fixed by four wise men, and it should not be alienated to any other parson by means of mortgage, sale, gift, etc., in any manner whatever. If the plaintiff refused in writing to take the property on paying the value of the improvements in that manner, the defendants may alienate the same to othtir persons. If in contravention to this, the defendants alienate their right, the said alienation and also the mulcpeni right should be cancelled and the property should come under plaintiff's possession.

2. The alienations complained of consist of the grant of a mulgeni lease by some of the tenants and also the grant of a simple mortgage, Ex. J. Both the Lower Courts have held that none of these matters falls within the clause restricting alienation. The tenants, i. e., the persons in possession at the present moment seem to be descendants of the original lessees and their alienees. Mr. Pinto for the appellant has strenuously argued that these lessees are entitled by arrangement among themselves to some kind of definite shares in the leased lands. The plaint, it is true, does allege, and in Fact was obliged to allege that the defendants have alienated portions of the leased property. The plaintiff also alleges that by arrangement among themselves defendants 4 to 6 are in possession of a particular portion of the leased property. But he is careful to add that the said arrangement does not bind him. There is some allegation in the written statement that the rent was paid in shares. But in one of the written statements it is admitted that the mulgar is entitled to receive rent in one lump sum. This theory seems to have been started for the first time in this Court and there seems to be no evidence and no finding in either of the Lower Courts that the mulgar ever recognised this division or partition, or whatever it may be called, among these Indian Catholics.

3. A distinction has been attempted to be applied by Mr. Pinto in considering cases which I shall shortly notice. It is an axiom of the law that a forfeiture clause should be very strictly construed. As long ago as 1808 in Church v. Brown (1808) 15 Ves 258 Lord Chancellor Eldon said:

These covenants having been always construed by Courts of Law with the utmost jealousy to prevent the restraint from going beyond the express stipulation.

4. It is admitted and indeed found by the Lower Appellate Court that these alienations have been not only of portions of the leased property, but even adopting what I may call the partition theory, extend only to a portion of the defendants' share. That I think at once distinguishes the case from the well-known case of Farley v. Voppard (1872) 7 Com Pleas 505, which was a case of assignment to a partner and the case of Langton v. Henson (1905) 92 L T 805, which is a similar case of assignment between partners. There is ample authority in the English Law and in fact in the law here too to show that unless there is a restriction against the assignment of any portion of the demised property, the restraint on the alienation of the demised premises will not prevent the alienation of a portion. I am not impressed with the reasoning of the learned District Judge as to the grant of a mulgeni lease not being an alienation. It clearly is an alienation. But I think that the respondents must succeed on the ground that the restriction on alienation of a portion of the demised premises is not contained in the words of the lease which I have set out above. It is perhaps not necessary to multiply examples, but there arc some cases which have been cited and which lend support to the contention for the respondent, for instance, in Grove v. Portal (1902) 1 Ch D 727. Joyce, J. quotes the passage already cited from Church v. Brown (1808) 15 Ves 258 and says that the dictum of the Lower Court has never been disapproved of; and again in Russell v. Beecham (1924) 1 K B 525 Scrutton, L.J. says quoting Lord Eldon again that ' a covenant not to part with possession of premises would not restrain the tenant from parting with a part of the premises, these covenants having been always construed by Courts of Law with the utmost jealousy to prevent the restraint from going beyond the express stipulation.' In Chatterion v. Terrel (1933) A C 578 Lord Wrenbury says.

It is said and said with truth, that if there be a covenant not to assign or underlet the premises, it is not a breach to assign or sub-let part of the premises. It was not so stipulated, if those be the words, for the words 'or any pant thereof are not found in the covenant.

5. See also Venkataramana Bhaita v. Krishna Bhatta : AIR1925Mad57 . The covenant here, I think, does not restrain the alienation of a portion or portions of the property. In that view the decree of the Lower Appellate Court was right.

6. This Second Appeal must be dismissed with costs.


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