1. This appeal has arisen out of a suit to eject the defendant under Section 49, Clause (a), Ben. Ten. Act, and for recovery of rent due from him for the years 1332 to 1334. The trial Court gave the plaintiff a decree for rent only; but the lower appellate Court, on appeal by the plaintiff, gave him a decree for ejectment as well. The defendant has appealed. The defendant held as an under-raiyat under a lease for nine years which ran from 1326 to 1334, and which he had obtained on payment of a selami. There was a renewal clause in the lease which ran in these words: 'On expiry of the term I shall possess the land after executing a fresh kabuliyat.' The suit was instituted on 11th July 1928(Ashar 1335). The trial Court held that the defendant was protected by this clause as to renewal. The Subordinate Judge held thus:
This covenant was for the benefit of the tenant, but it gave him no right to the land unless he chose to take advantage of it in the manner prescribed therein by executing a kabuliyat for another term. This the tenant has not done. I do not see how defendant can resist the claim of the plaintiff to khas possession.
2. It is conceded on behalf of the respondent that the view which the Subordinate Judge has taken cannot be supported; there was no stipulation in the lease that if the defendant was to exercise his option he would have to exercise it before the expiry of the term; and a sufficient period had not elapsed since the expiry of the term from which a refusal to exercise that option could be inferred. But the decision of the Subordinate Judge sought to be supported on the ground; firstly, that the renewal clause, if it is to be taken to have meant that on the expiry of the original period a fresh lease for the same period and on the same terms as in the original lease was to be given, effected a present demise for a second term and would be a clourable evasion of Section 85, Ben. Ten. Act, and therefore void; and secondly that if on the other hand it be held that the renewal clause left the terms undecided the contract was too uncertain to be specifically enforced and so would not afford a protection to the defendant against eviction. The argument no doubt is very ingenious. But I think the clause is capable of and does, in fact, bear an interpretation that on the expiry of the original term, it was optional with the defendant to ask for a fresh lease, if he desired to hold on, and if he did so apply the plaintiff would be bound to grant it on the same terms and for the same period as the original one. Such a contract would not effect a present demise nor be vague or incapable of specific performance and would protect the defendant. In that view of the matter, the appeal should succeed. The decision of the Subordinate Judge being set aside that of the Munsif should be restored with costs in this and the lower appellate Court. Leave to appeal under Section 15, Letters Patent, is asked for and it is granted.
3. In 1325 B.S. the plaintiff accepted from the defendant a kabuliyat which was registered and by which the plaintiff granted to the defendant an under-raiyati right in certain land for a term of nine years upon a certain rental therein specified. The kabuliyat contained the following clause:
Be it expressed that the right being kolekarsha the kabuliyat is executed for nine years under the requirements of law from 1326 B.S. till (the end of) 1334 B.S.; on expiry of the term I shall enjoy the land on executing a fresh kabuliat.
4. The plaintiff two months after the expiry of the nine years brought his suit in ejectment. He brought his suit, and it is important to notice this: under Section 49(a), Ben. Ten. Act, that is to say, not on the footing that the defendant was holding otherwise than under a written lease and had been given a year's notice but on the footing that the plaintiff was entitled to evict on the expiration of the term of the registered instrument.
5. The question before us now is whether the covenant which I have read with reference to a fresh settlement affords an answer to the defendant in the suit in so far as it is a suit for ejectment and Mr. Mitter for the appellant before us in the Letters Patent appeal puts forward two contentions. He says, first of all, that if this is a covenant for renewal then it is a mere colourable evasion of the provisions of Section 85, Ben. Ten. Act, as it stood before it was amended by Act 4 of 1928 and he says, secondly, that if according to the cases it be held that this is a lease for nine years with a valid contract for another nine the terms upon which the lease is to be renewed or a fresh lease is to be given are not sufficiently expressed and the contract cannot be specifically performed because it is too vague. Now, until the Full Bench decision in Chandra Kanta v. Amjad Ali AIR 1921 Cal 451 it was considered that as between the grantor and the grantee of an under-raiyati lease non-compliance with the conditions laid down by Section 85 did not render the lease invalid; but after the Full Bench decision it is clear law that if a lease is for a longer period than nine years then it is not capable of registration and as there is no estoppel against the statute the grantor can take advantage in ejectment of the invalidity of the instrument. I mention this merely because it may be that this turning point in the decisions on the question has a bearing upon whether or not previous decisions on other aspects of this matter have any authority.
6. To take the two points which have been put forward by Mr. Mitter in their order, the first is the question whether the covenant for renewal in the instrument before us is a mere evasion of Section 85. I am of opinion that it is not. No doubt a covenant may be entered into to the effect that at the end of the term of nine years the landlord shall be bound to grant and the tenant shall be bound to take a further term for another nine years. Whether that would be good or not is a question and I think a grave question. If the position be that the covenant before us is a covenant for the benefit of the tenant and is to the effect that the tenant may at his option continue for another term and the landlord at the tenant's request shall be bound to grant another term, that is not a mere colourable continuation of the old lease. As Mukerji, J., in the present case has pointed out such a contract that the tenant shall have an option for renewal would not effect a present demise nor is it capable of being so regarded. I have no doubt that from the language of the instrument before us it is to be construed as a covenant by the lessor in favour of the lessee that the lessee shall at his option have a grant for another term from the lessor. That being so, I have no difficulty in holding that the covenant is not rendered invalid by Section 85, Ben. Ten. Act. I come now to the second point which is whether this covenant is too vague to be specifically performed or to give the tenant any right. Of course if it is a mere covenant that the parties should enter into a new contract without specifying the terms such covenant is not a covenant at all. It is said however that in the case of Surendra Nath Sen v. Dinabandhu Naik (1909) 4 IC 535, a very similar clause was regarded by Mitra, J., as too vague to give the defendant any right. In my judgment, this is a matter which is governed by well-settled principles of which the fairness and convenience cannot be challenged. If I may take the statement of the principle from Foa's book on Landlord and Tenant:
a lease granting premises for a certain term and purporting to be granted 'with the option of renewal simply, may have effect given to it, as it imports that the renewed tenancy is to be of the same duration and (with the exception presently referred to)' (that means with the exception of the covenant for renewal itself), 'subject to the same terms as the one to which it succeeds. And in conformity with the principle that a doubtful grant is always construed in his favour, such option is vested only in the lessee.
7. If that principle is to be applied to the case before us there can be no question of the covenant being too vague to be enforced. I find from previous decisions on the point that, apart from the case before Rampini, J., Ali Mahamad v. Nayan Rajah Bhuiya (1912) 13 IC 912 where it was thought that a covenant for renewal was a covenant for renewal at a fair rent, there is ample authority in this Court for applying the principle which I have expressed to cases under the Bengal Tenancy Act. Probably the strongest authority is the case of Lani Mia v. Muhammad Easin Mia (1916) 33 IC 448 where the English principle was applied to a covenant almost exactly in the words which we have before us. This was followed by a Division Bench presided over by Suhrawardy, J., in the case of Shulochona Mazumdar v. Kali Bibi : AIR1925Cal516 , and there is therefore a body of authority now both to the effect that a contract for renewal at the option of the tenant is not invalid and for the proposition that where the terms of the renewal are not expressly stated in the contract it is to be presumed that the contract intended the same rate of rent and for the same period of tenancy. These are the propositions which Mukerji, J., has applied to the present case and it appears to me that no exceptions can be taken to the reasoning of the learned Judge. The Letters Patent appeal therefore fails and must be dismissed with costs.
8. I agree.
9. I agree with my Lord the Chief Justice.