Pigot and Banerjee, JJ.
1. This is a suit for possession of a piece of land, which was leased in osathowla by plaintiff's father to Boikant Nath Saha Roy, whose executor the 3rd defendant is. The osathowla was sold in execution of a decree against Boikant in January 1887 shortly after Boikant's death, and the plaintiff's case is that thereby by reason of the terms of the lease the auction-purchaser and his principal defendants 2 and 1 got nothing, and this suit is brought to eject them; no relief is expressly asked for against the executor.
2. The lease, addressed to Boikant in the usual manner, is by Sri Nath Roy, and commences thus: 'I*** do execute this osathowladari putta without the power of disposing of the property of the patta, either by sale, gift or transfer to the effect following':
It recites: 'You have applied to me for an osathowladari patta of the said house in order to dwell therein without the power of transferring the said house either by sale or gift.' 'According to your prayer, I grant you.' Then follows the description of the premises. 'You are to enjoy and hold the aforesaid' * * 'hereditarily in good felicity the property descending to your son and grandson, and so forth.'
' Neither you nor your heirs nor your representatives shall be competent to transfer this osathowla right either by sale or gift or by any other manner of alienation, or grant a mourasi patta of the property to anybody. Should you or your heirs do make any such transfer or grant, such transfer or grant should not be accepted by the Court. On these conditions, receiving a kabuliyat, I execute this osathowladari patta.
3. We may assume that the lessee was bound as by the kabuliyat. in similar terms. But the terms of the letting are only before us in this patta.
4. It is contended that, by virtue of these provisions, nothing passed under the sale to defendants L and 2. Vyankatraya v. Shivrambhat I.L.R. 7 Bom. 256, and Diwali v. Apaji Ganesh I.L.R. 10 Bom. 342 were relied on by the defendants, and the cases Tamaya v. Timapa Ganpaya I.L.R. 7 Bom. 262 and Subbaraya Kamti v. Krishna Kamti I.L.R. 6 Mad. 159 were cited and distinguished.
5. We take it to be clear law in India, as in England, that 'a general restriction on assignment does not apply to an assignment by operation of law taking effect in invitum as a sale * * under an execution' (Davidson's Conv., vol. V, p. 177). The Bombay cases cited are authorities for this proposition as regards India.
6. In the present case there is no provision in the lease for forfeiture, or for re-entry or forfeiture by reason of an assignment in violation of the provisions of it. Had there been such a provision, it would not have the effect, we think, of invalidating the sale in execution, which has always been held not to be of itself a breach of a covenant not to assign.
7. The case of Vyankatraya v. Shivrambhat I.L.R. 7 Bom. 256 does not affect, in our opinion, the present case. That decision only applied the special rules (perhaps it should be called exception to the general rule) that a clause in a lease is valid which expressly gives a right of re-entry by the laud-lord in case the term he taken in execution, the clause in the lease in that case on which the question arose not to let the lands be attached and sold in satisfaction of judgment-debts being held to have a similar operation, and to render a passive attitude by the lessee in respect of process of execution, to amount to a breach within the operation of the special rule in question.
8. In the present case there is no provision relating to process in execution, and we think the general rule applies.
9. It is also contended that as the lessee is expressly prohibited from alienating, there was not any interest in him or in his executor at the time of the sale which was 'saleable' within the meaning of Section 266 of the Civil Procedure Code, and in support of this contention the case of Diwali v. Apaji Ganesh I.L.R. 10 Bom. 342 was relied on.
10. We agree with the District Judge in thinking that the decision in that case turned on the very special nature of the limited usufructuary interest there in question. We do not understand the Court as in any way departing from the general rule recognised or acted upon in the cases of Vyankatraya v. Shivrambhat I.L.R. 7 Bom. 256 and Tamaya v. Timapa Ganpaya I.L.R. 7 Bom. 262 by the same high authority which decided the case of Diwali v. Apaji Ganesh I.L.R. 10 Bom. 342. We think, in the present case, the general rule must apply, that the sale passed a good title, and that the appeal must be dismissed with costs.