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Hooghly Bank Ltd. Vs. Mahendra Nath Mukhopadhyaya and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Property
CourtKolkata
Decided On
Case NumberA.F.A.D. No. 1187 of 1944
Judge
Reported inAIR1950Cal195,54CWN327
ActsTransfer of Property Act, 1882 - Section 40
AppellantHooghly Bank Ltd.
RespondentMahendra Nath Mukhopadhyaya and ors.
Appellant AdvocateAtul Chandra Gupta, ;Shambhu Nath Banerji (Sr.) and ;Satya Prasad Banerjee, Advs.
Respondent AdvocateHiralal Chakravarty and ;Rabindra Nath Bhattacharjee, Advs.
DispositionAppeal allowed
Excerpt:
- .....they have now called upon the defendants, the assignees of the putni holder, for the lowazima and collection papers not submitted prior to the purchase by the plaintiff and within the period of limitation. both courts have held that the covenant is not which runs with the land but is only a personal covenant. the learned district judge's judgment is not very satisfactory as it deals with questions as to restraint on alienation etc., which really do not arise. the only question which has been urged is whether the covenant, we have mentioned before, is one which runs with the land and is therefore binding on the assignees of the original contracting parties. the case stood over for a long time as no decision actually covering the point could be shown, except an observation in a case by.....
Judgment:

1. This is an appeal against an appellate decree of the District Judge of Hooghly affirming the decree of the Subordinate Judge, 2nd Court of the same place.

2. The facts are very simple. The appellant is a successor-in-interest of one Prannath Choudhury of Satkhira. The defendants are the successors-in-interest of one Raj Krishna, Mukherjee. Both parties are assignees. Prannath Choudhury gave a putni lease of his share of touzi No. 37 of the Hooghly Collectorate to Raj Krishna Mukherjee, one of the terms of which was You shall submit duly year after year in my office the Jamawasil baki papers etc., and the Lowazima papers.' On 1st May 1942, the plaintiff, the Hooghly Bank Ltd., purchased also the putni interest and took delivery of possession on 30th June 1942. They found an utter absence of papers and as the assignees of the original creators of the putni they have now called upon the defendants, the assignees of the putni holder, for the lowazima and collection papers not submitted prior to the purchase by the plaintiff and within the period of limitation. Both Courts have held that the covenant is not which runs with the land but is only a personal covenant. The learned District Judge's judgment is not very satisfactory as it deals with questions as to restraint on alienation etc., which really do not arise. The only question which has been urged is whether the covenant, we have mentioned before, is one which runs with the land and is therefore binding on the assignees of the original contracting parties. The case stood over for a long time as no decision actually covering the point could be shown, except an observation in a case by this Court in which the Divisional Bench assumed that such a covenant may run with the land. It did not decide the point. Some decisions were cited regarding covenants to pay chout or 1/4th share of the purchase money on sale of occupancy tenancies. Those are clearly distinguishable as they are creating a new right which as tenants the occupancy tenants did not possess and so conditions on the exercise of the right could be imposed.

3. It is clear that in order to be a covenant running with the laud the covenant must touch and concern the land, that is, it must affect the nature, quality or the value of it. If it runs with the land then the covenant will bind not merely the original contracting parties, but even assignees provided privity is proved. In the present case, there is no question that there was privity between the assignees of the landlord's interest and the assignees of the tenant's interest. Land also means interests in land.

4. It is also clear that the covenant in question does not affect the nature or quality of the land. The only question, therefore, is : Does it affect the value of it It is again clear from the decided cases that the covenant, to run with the land, must affect the value from the very time when it is entered into. In other words, would a purchaser take the existence of such a covenant into consideration in deciding upon the money he would spend for the purchase of the lands or the interest in lands It is clear that a purchaser at an astam sale i. e. compulsory sale of putni under the Regulation or the landlord, if he becomes the successor of the putnidar by surrender of the putni, would be in great difficulties as to collection unless he got proper collection papers of the tenant putnidar. In the two instances we have mentioned, he would not be likely to get any such help from the previous putnidars. Therefore, whether a person is a purchaser of the putni interest or of the landlord's interest, both will know that a duplicate set of collection papers submitted by the putnidar and kept in the landlord's sherista will supply requisite materials and facilitate collection and show the real state of affairs of the putni and the dues etc., from the tenants. This-, factor will weigh with a purchaser of the interest in estimating the money that may reasonably be paid in the purchase of such property or interest, Under the circumstances, it cannot but be said that a covenant like this will affect the value of the land and that from the very moment it is entered into. As it does so, it is a covenant running with the land and therefore binds the assignees. The defendants were therefore liable as assignees of the original putnidar to submit collection papers to the assignees of the original landlord. Both the Courts were therefore wrong in dismissing their claim. The case cannot be fully disposed of here as the question of damages will have to be fully gone into now in the trial Court.

5. The order therefore is that the appeal succeeds and is allowed and the decrees of the Courts below are set aside and the case is remanded for further action by the Subordinate Judge in the light of this judgment. The plaintiff appellant will have all the coats incurred by him so far further costs being at the discretion of the Subordinate Judge.


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