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Kumar Monmatha Nath Mitter Roy Bahadur and Vs. Chini Lal Ghose and anr. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in70Ind.Cas.81
AppellantKumar Monmatha Nath Mitter Roy Bahadur And; Kumar Manmatha Nath Mitra Bahadur
RespondentChini Lal Ghose and anr.
Cases ReferredDayamoyi v. Ananda Mohan Roy Chowdhury
Excerpt:
construction of document - lease condition restraining alienation--involuntary transfer, whether covered--sale under money-decree--sale under mortgage-decree--distinction. - .....parately.' the tenure in respect of which this kabuliyat was given was sold in execution of a money-decree and was purchased by the second defendant in each of these suits. in his suits, in addition to other reliefs, the plaintiff claimed different sums as due as chauth salami under this clause. both the courts in each of these suits have held that this clause gives the lessor no right to chauth salami after a sale in execution of a decree.2. on behalf of the appellant two points have been taken. the first as that the words of the kabuliyat are wide enough to cover an involuntary sale; and, secondly, that a sale in execution of a decree stands on the same footing as a voluntary sale.3. as regards the first point, the lower courts in interpreting the document have given great weight.....
Judgment:

Newbould, J.

1. These two appeals have been heard together, as the point on which they both, depend is the construction of a clause in. a kabuliyat which is common to both the suits. This clause has been translated in the judgment of the learned Additional District Judge of the 24-Par-ganas, against whose decision Appeal No. 2645 of 1919 is preferred, as follows: 'If at every transfer, in any way, of the lands under this kabuliyat one-fourth, of the proper value of the land be not deposited in the office of yourself, your heirs and successors-in-interest, such transfer will not be recognized and to this no sort of plea or objection by any of us will be allowed. If we, the vendor and the vendee, both jointly or each of us separately and our heirs and legal represented do not pay amicably that amount to you, your heirs and representatives, you will be entitled to take khas possession of the land; under, this kabuliyat or, if you so desire, you can realise the money by suing the transferor parately.' The tenure in respect of which this kabuliyat was given was sold in execution of a money-decree and was purchased by the second defendant in each of these suits. In his suits, in addition to other reliefs, the plaintiff claimed different sums as due as chauth salami under this clause. Both the Courts in each of these suits have held that this clause gives the lessor no right to chauth salami after a sale in execution of a decree.

2. On behalf of the appellant two points have been taken. The first as that the words of the kabuliyat are wide enough to cover an involuntary sale; and, secondly, that a sale in execution of a decree stands on the same footing as a voluntary sale.

3. As regards the first point, the lower Courts in interpreting the document have given great weight to the Bengali words used for 'transferor' and 'transferee.' These words are data and grihita; and it appears that these are the words commonly used in documents of voluntary sales. Each of these suits was heard by a different Munsif and each appeal was heard by a different Judge. Three of these four Officers are Hindu gentlemen and I am not prepared to hold that they have wrongly interpreted the meaning of the Bengali words in the kabuliyat, Further, it has been repeatedly held by this Court that a condition in a lease restraining transfer is not applicable to a case of voluntary transfer unless there are words in the covenant which clearly make it applicable to such a transfer. We, therefore, hold that, so far as the first point of the appellant's argument is concerned, the lower Courts were right and the words in the kabuliyat are not wide enough to cover an involuntary sale.

4. As regards the second point, the argument is based on a remark of the learned Chief Justice in the case of Dwarika Nath Roy Chowdhury v. Mathura Nath Roy Chowdhury 34 Ind. Cas. 833 : 21 C.W.N. 117 : 24 C.L.J. 40. But in that case the covenant especially provided for the case of a sale by auction and also, what is more important in connection with he point now in consideration, the transfer in that suit was by s le in execution of a mortgage-decree. A sale in execution of a mortgage-decree stands on a different footing from a sale in execution of a money-decree. In the Full Bench case of Dayamoyi v. Ananda Mohan Roy Chowdhury 27 Ind. Cas. 61 : 42 C. 172 : 20 C.L.J. 52 : 18 C.W.N. 971 it has been decided that 'a sale is made involuntarily, where it is in execution of a money decree, but not of a decree founded on a mortgage or charge voluntarily made' Other authorities might be cited, if necessary, in support of the same view. Here the transfer was in execution of a money-decree, and it cannot be treated as on the same footing as a voluntary sale.

5. We, therefore, hold that the lower Courts were right and dismiss both these appeals with costs.

Suhrawardy, J.

6. I agree.


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