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A. Rama Rao Vs. A. Thimmappa - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1925Mad732; (1925)48MLJ463
AppellantA. Rama Rao
RespondentA. Thimmappa
Cases Referred and Chandi Churn Earn v. Sidheswari Debi
Excerpt:
.....generation to generation. he relies upon' the use of the term 'kayamgeni chit 'and also upon the clause that the lessee was to enjoy the land from generation to generation and upon the fact that the rent is a fixed rent. venkatachalla aiyar that this clause is bad for remoteness. i fail to see how it can be said that this clause is bad for remoteness. 166 is, further, if the case be regarded in another light--namely an agreement to grant in the future whatever land might be selected as a site for a temple--as the only interest created would be one to take effect by entry at a later date, and as this date is uncertain, the provision is obviously bad as offending the rule against perpetuities, for the interest would not then vest in presenti but would vest at the expiration of an..........the contract entered into by the lessor with the lessee. it is open to the lessee to surrender the land leased to him and it is also open to the lessor to contract with the lessee that the land should be available for him whenever he requires it. the mere use of the word ' kayamgeni chit ' would not take away the force of the recital in the document that the lessee should surrender the land whenever required by the landlord. in construing a document of this kind the whole of the document should be taken into consideration. if there are clear words in the body of the document that the landlord was not to enter upon the land at any time, then the clause in question would be considered repugnant to the general tenor of the document. but so far as i can see there is nothing in the body of.....
Judgment:

Devadoss, J.

1. The plaintiff sues for possession of the plaint land on the ground that he terminated the lease granted to the defendant. The District Munsif gave a decree in favour of the plaintiff, but the District Judge dismissed the suit on the ground that the clause with regard to the right of re-entry was repugnant to the nature of the document.

2. Mr. Sitarama Rao's contention on behalf of the appellant is that though the lease is called 'Kayamgeni Chit,' yet the body of the document shows that it was not intended by the lessor that the lease should be permanent. No doubt the document is headed 'Kayamgeni Chit' and begins with the words 'Kayamgeni Chit executed on the 10th Pushuabahula,' etc., and the counterpart is similar in terms and in the body of the document there is a recital that the lessee is to enjoy from generation to generation. But in the end of the document there is a clause ' When we require the property you should take half the value of the improvements for the trees planted by us and full value for the plants planted by you out of the value fixed by wise persons for the improvements and surrender the property to us.' Does this clause give the landlord the right to terminate the lease?

3. For the respondent, Mr. Venkatachalla Aiyar who appears for Mr. Anantakrishna Aiyar contends that the document should be construed as containing the terms of a permanent lease. He relies upon' the use of the term 'Kayamgeni Chit ' and also upon the clause that the lessee was to enjoy the land from generation to generation and upon the fact that the rent is a fixed rent. No doubt in interpreting the document, in the absence of clear words to the contrary, these things would be of great value, namely, the nature of the terms used for the description of the document, the clause with regard to the enjoyment of the property from generation to generation and the rent being a fixed rent. But in a lease of this kind the Court has to see what is the contract entered into by the lessor with the lessee. It is open to the lessee to surrender the land leased to him and it is also open to the lessor to contract with the lessee that the land should be available for him whenever he requires it. The mere use of the word ' Kayamgeni Chit ' would not take away the force of the recital in the document that the lessee should surrender the land whenever required by the landlord. In construing a document of this kind the whole of the document should be taken into consideration. If there are clear words in the body of the document that the landlord was not to enter upon the land at any time, then the clause in question would be considered repugnant to the general tenor of the document. But so far as I can see there is nothing in the body of the document itself to show that the landlord contracted with the lessee that the lessee should have a perpetual or a permanent lease without the right of re-entry on the part of the landlord.

4. For the respondent several cases were quoted. But I think they are not applicable to the case of a lease of this kind. For instance the case in In re Dugdut, Dugdab v. Dugdab 38 Ch D 176 was a case of bequest; and the Court held that the legatee took an absolute interest under the gift, and that the attempted executory gift over was void for repugnancy.

5. It is also contended by Mr. Venkatachalla Aiyar that this clause is bad for remoteness. I fail to see how it can be said that this clause is bad for remoteness. As I have observed it is open to two persons to contract to do or not to do a certain thing, the only question is whether the contract is one which offends against any rule of law. The decision in Maharaj Bahadur Singh v. Balchand Chowdhury (1920) 6 P LJ 163 does not apply to this case. In that case a body of Jains were given by a Rajah the right to build on a hill belonging to him whenever they wanted a place for their people. The Privy Council held that there was no covenant running with the land; and the observation at p. 166 is, ' Further, if the case be regarded in another light--namely an agreement to grant in the future whatever land might be selected as a site for a temple--as the only interest created would be one to take effect by entry at a later date, and as this date is uncertain, the provision is obviously bad as offending the rule against perpetuities, for the interest would not then vest in presenti but would vest at the expiration of an indefinite time which might extend beyond the expiration of the proper period.'

6. It is not necessary to notice in detail the other cases such as Banamali Chowdhury v. Ram Kinkar. 15 IC 575 , Mohin Chandra Pal v. Prodyat Kunwar Tagore (1918) 45 IC 651 and Chandi Churn Earn v. Sidheswari Debi ILR (1888) C 71. The agreement in Exs. A and A (1) is one which does not offend against any rule of law. On a proper construction of the document I have no hesitation in holding that the parties did agree that the land leased should be surrendered whenever required by the landlord and that they so contracted is clear from the fact that the landlord agreed to pay half the value of the improvements for trees planted by himself. This evidently is in consideration of the fact that at some future time the lessee may be required to surrender the land to the lessor. I therefore hold that the learned District Judge was wrong in construing that the last clause of the document was repugnant to the rest of the document.

7. Mr. Sitarama Rao's next contention is that his client should not be asked to pay for the value of the buildings on the land. I do not think the landlord is entitled to re-enter upon the land without paying for the value of the improvements. In the document itself the expression is ' full value for plants planted by you out of the value fixed by wise persons for the improvements and surrender the property to us. ' I think this clearly shows that the lessor contracted to pay for the improvements on the land whatever be the nature of the improvements. I do not think the lessor is entitled to re-enter without paying compensation for the value of the buildings and other improvements effected by the tenant.

8. In the result the decree of the District Judge is set aside and that of the District Munsif restored.

9. Each party will bear his costs in this Court. Appellant will have his costs in the Lower Appellate Court.


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