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Nil Madhab Sikdar and ors. Vs. Narattam Sikdar and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in(1890)ILR17Cal826
AppellantNil Madhab Sikdar and ors.
RespondentNarattam Sikdar and ors.
Cases Referred and Subbaraya v. Krishna I.L.R.
Excerpt:
lease - condition restraining alienation--alienation voluntary or by act of law--condition for benefit of lessor--re-entry--forfeiture landlord and tenant--transfer of property act (iv of 1882), sections 10, 11, 12, 111, clause (g). - .....case of occupancy raiyats a landlord has always the right of re-entry when the raiyat abandons the land leased to him-bibi suhodra v. smith 12 b.l.r. 82 : 20 w.r. 139; narendro narain rai v. ishan chandra sen 13 b.l.r. 274 : 22 w.r. 22; dwarka nath kisra v. murrish chandra i.l.r. 4 cal. 925. but the original lessee in this case was not an occupancy raiyat, and the subject of the lease is not agricultural land. moreover, it seems doubtful whether, when a landlord grants a permanent and heritable tenure in land, he has any estate left in him, unless he reserves to himself a right of reentry or reversion; for it has been held in the case of sonet koer v. himmat bahadur i.l.r. 1 cal. 391 that in the case of the grant of an absolute hereditary mokarari tenure it will, on failure of heirs of.....
Judgment:

W. Comer Petheram, C.J. and Rampini, J.

1. In this case the plaintiffs are tenure-holders, and they seek to eject the defendants from some bastu land which was leased by the plaintiff's predecessors in the tenure to one Jai Chandra Kundu by a registered lease on the 9th Joisto 1282 or 22nd May 1875. The lease is a permanent and maurasi one at a fixed rent of Rs. 2-8 per annum, and in the kabuliyat executed by Jai Chandra Kundu there is a clause by which he stipulates that he will not transfer in writing in any way to any person the aforesaid bati (or homestead land), adding-' If I do so, it (i. e., the transfer) shall become void.' The land was, however, in 1879 sold in execution of a decree obtained against Jai Chandra Kundu, and the defendants then purchased it and have since then been in occupation of it. The plaintiffs accordingly contend that the covenant in the lease restraining the lessee from alienation has been broken, and that they are therefore entitled to re-enter and eject the defendants from the land. The Lower Appellate Court decided against the plaintiffs, and they now appeal to this Court.

2. We are, however, of opinion that the plaintiffs are not entitled to eject the defendants, as the lease contains no clause giving the lessors aright of re-entry or providing that the lease shall become void in case of a breach of a covenant against alienation. There being no such proviso in the lease, the condition against alienation cannot be said to be for the benefit of the lessor, and hence it is void under the provisions of Section 10, Act IV of 1882, and the lease cannot be said to have determined under the provisions of Section 111,* Clause (g) of the same Act.

3. It has been pressed upon us by the learned pleader for the appellant that in the case of occupancy raiyats a landlord has always the right of re-entry when the raiyat abandons the land leased to him-Bibi Suhodra v. Smith 12 B.L.R. 82 : 20 W.R. 139; Narendro Narain Rai v. Ishan Chandra Sen 13 B.L.R. 274 : 22 W.R. 22; Dwarka Nath Kisra v. Murrish Chandra I.L.R. 4 Cal. 925. But the original lessee in this case was not an occupancy raiyat, and the subject of the lease is not agricultural land. Moreover, it seems doubtful whether, when a landlord grants a permanent and heritable tenure in land, he has any estate left in him, unless he reserves to himself a right of reentry or reversion; for it has been held in the case of Sonet Koer v. Himmat Bahadur I.L.R. 1 Cal. 391 that in the case of the grant of an absolute hereditary mokarari tenure it will, on failure of heirs of the lessee, escheat to the Crown, and will not revert to the original grantor or his heirs.

4. We are further of opinion that even if the lessor had provided in the lease for a right of re-entry in case of a breach of the covenant against alienation, no such breach as would entitle the lessor to re-enter can in this case be said to have been committed.

5. In the kabuliyat executed by Jai Chandra Kundu, he merely stipulates not to transfer in writing the land leased to him; but when the land has been sold against his will by the act of a Court, as in this case, we do not think that he can be said to have voluntarily transferred in writing the land forming the subject of the contract between him and the plaintiff's lessor. (See Tameya v. Jimapa Ganpaya I.L.R. 7 Bom. 262, and Subbaraya v. Krishna I.L.R. 6 Mad. 159.

6. We accordingly dismiss the appeal with costs.

* [Section 111: A lease of imnoveable property determines:

Determination of lease.

(g) by forfeiture; that is to say, (1) in case the lessee breaks an express condition which provides that, on breach thereof, the lessor may re-enter, or the lease shall become void; or (2) in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself; and in either case he lessor or his transferee does some act showing his intention to deter- mine the lease :]

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