Latifur Rahman, J.
1. This is an appeal by the plaintiff arising out of a suit for recovery of khas possession in respect of a piece of land, after evicting the defendants and removing certain structures erected thereon. Notice to quit was served on the defendants on the footing that the tenancy was a tenancy-at-will. The land in dispute is situated within the Municipality of Bogra and appertains to the Wakf Estate of which the plaintiff is the present mutwalli. One Mohammad Goahar Ali created a 'sarasari jote' in respect of the land in dispute in favour of the defendant 1's father by kabuliyat in 1307 B.S., Ex. 3. Thereafter defendant 1's father made a gift of the said jote to defendant 1 by a Hiba-bil-ewaz in 1328 B.S. The wakf estate was created by a wakfnamah in 1321 B.S., Ex. 1. While the plaintiff's father was a mutwalli, defendant 1 obtained a fresh 'sarasari bandabast' of the disputed land from him by a kabuliyat Ex. 3(a) on 30th Chait 1334 B.S. The plaintiff in whose favour his father relinquished the mutwalliship instituted the present suit alleging that defendant 1 took the settlement for residential purposes as a tenant-at-will, on an annual rent of Rs. 31 and while in possession admitted defendant 2 to a portion of the land without the plaintiff's knowledge and consent and that notice under Section 106, T.P. Act, to quit the land was served upon the defendants. The contention of the defendants was that the tenancy in question was a 'sarasari raiyati tenancy,' that it was a tenancy for the lifetime of the lessee, and not a tenancy, at-will or from year to year. They also denied that any notice was served on them. The material terms of the kabuliyat Exhibit 3(a) are as follows:
There being no custom of transferability in respect of Sarasari Jote in Pergana Sholbara, I have acquired no right by the aforesaid Hiba-bil-ewaz and you having been ready to bring suit for ejecting me from the said jote I have appeared before you and have applied for taking a new settlement of the aforesaid lands. You have granted my prayer and upon settlement of the said lands as a new sarasari jote at an annual rent of Rs. 31 you have demanded a kabuliyat from me.... I shall maintain the trees which are now in existence in the aforesaid jote and which will grow and be planted then in future. I shall not be able to cut away the said trees or their branches.... I shall not be able to build any brick built house on the said lands, nor shall be able to cause any damage to those lands by digging any pits thereon. I shall be able to cause any damage to those lands by digging any pits thereon. I shall be able to make the floors of any houses that I may build thereon, pucca and to build brick built boundary walls and to make the opening of any wells dug therein made of bricks and to build privies with corrugated iron roof. But by the said acts my jote will not be changed to a permanent one, it will remain as sarasari jote as before. By the said acts the said jote will not be regarded as a mokarari or mourashi jote nor shall I be able to claim it as such....
I shall not be able to introduce any musician, prostitute or any man of bad character or, a thief or a person dealing in hides nor shall I be able to let out these to them. If I do such act I shall be ejected therefrom:....
2. The construction of the kabuliyat is the main point for determination. From the terms of the kabuliyat, it is apparent that the jote is not a permanent one. Under certain conditions the defendants are even liable to be evicted. If it is not a permanent jote or mokarari or mourashi then the question may well arise as to whether it is a tenancy-at-will or from year to year. Although in specific terms a permanent lease is not created by the kabuliyat, yet the lessee has been given certain advantages, e.g. building a boundary wall, pucca floors and is not liable to be evicted unless he introduces bad characters, musicians, prostitutes and hide dealers. Clearly, the intention seems to be to allow the lessee to continue for an indefinite period so long as he pays the rent regularly and performs other conditions of the lease. In such a case, we are of opinion, that the general rule of construction that a grant of an indefinite nature enures for the life of the grantee should apply, as was pointed out by their Lordships of the Judicial Committee in Babu Lekhraj Roy v. Kunhya Singh (1879) 3 Cal. 210 at p. 224, that
if a grant be made to a man for an indefinite period it enures generally speaking for his lifetime and passes no interest to his heirs unless there are some words showing an intention to grant an hereditary interest.
3. In the present case, there are no such words used in the kabuliyat that there is any heritable interest. The trial Court has held that the lease must enure for the lifetime of defendant 1, and as such he is not liable to be evicted and dismissed the suit. The Court has followed the decision in Ashutosh Lahiri v. Chandi Charan Mitra : AIR1927Cal179 . There the terms of the lease were as follows:
You having applied to get settlement of 6 kanis of land as described in the schedule below for the purpose of constructing your basha I hereby fix annual rent for the 6 kanis of land at Rs. 3 and settle the same with you. You shall enjoy and possess the said land by constructing your basha and residing therein regularly paying rent.
4. The learned Judges held that in view of the terms of the lease it would be right to apply to it the general rule of construction which is to the effect that if a grant is made to a man for an indefinite period it enures generally speaking at least for the lifetime of the grantee unless there were some words showing the intention that a heritable grant was made: see also Chandi Charan Mitra v. Ashutosh Lahiri (1935) 40 C.W.N. 52. The lower Appellate Court has dismissed the appeal upholding the decision of the Court below. On behalf of the appellants reliance has been placed on the case in Luxman Chandra v. Charu Chandra : AIR1935Cal783 . There one of the terms of the kabuliyat was as follows: '...nor shall I acquire any right to transfer by way of gift or sale or any other legal right.' The learned Judges deciding the case observed in their judgment:
But the clause to which we have referred and which provides that the lessee shall acquire no legal rights by which we understand that he shall not acquire any other legal right under the lease is a clause which in our opinion makes a good deal of difference.
and accordingly held that the kabuliat did not create in favour of the lessee any interest which can be held to be anything more than a tenancy-at-will. The case is thus clearly distinguishable. The other cases namely Janki Nath Roy v. Dina Nath Kundu , Sarat Chandra v. Jadav Chandra (1918) 5 A.I.R. Cal. 906, Secy. of State v. Madhusudan : AIR1933Cal260 , Chandi Charan Mitra v. Ashutosh Lahiri (1926) 13 A.I.R. Cal. 558 and Mohim Chandra Sarkar v. Anil Bandhu Adhikari (1902) 13 C.W.N. 513 which were cited do not support the contention of the appellant. We are of opinion that the Courts below have correctly construed the document Ex. 3(a). The land being taken for residential purposes and being situated within the Municipal area, there is no substance in the cross-objection by defendants that the tenancy should be governed by the provisions of the Bengal Tenancy Act, and not by the Transfer of Property Act. The cross-objection accordingly fails, and the appeal is dismissed with costs.
5. I have had the advantage of reading the judgment which has just been delivered by my learned brother and have little to add. The main question for our decision in this case is whether a certain rule of construction still applies. That rule was formulated in these terms by Mukerji J. in Ashutosh Lahiri v. Chandi Charan Mitra : AIR1927Cal179 :
The general rule of construction is to the effect that if a grant was made to a man for an indefinite period it enures, generally speaking, at least for the lifetime of the grantee unless there were some words showing the intention that a heritable grant was made.
6. On behalf of the appellant it has been contended that that rule is inconsistent with the terms of Section 106, T.P. Act, and that therefore since that enactment was passed the rule has no longer any force. The result would be that decisions to the contrary effect made since the passing of the Transfer of Property Act would not be good law. On the other hand, it has been contended on behalf of the respondents that Section 106 does not have that effect. The relevant words in that Section are these, 'in the absence of a contract to the contrary.' Now, this rule is a rule of construction and, if it is a good rule, the result is that when it applies there is a contract to the contrary. In our opinion, this contention made by Mr. Sen on behalf of the respondents must be accepted. The only authority against him is the case in Mohim Chandra Sarkar v. Anil Bandhu Adhikari (1902) 13 C.W.N. 513. The result is that the overwhelming weight of authority in this Court is to the effect that this rule of construction ought to be applied in spite of the 'terms of Section 106, T.P. Act. Apart from the application of this general rule of construction, the Courts below have construed the lease as one for the life of the grantee by its very terms. I agree with that view. If Section 106, T.P. Act, applies, the lease is a monthly one. The provision for annual rent is enough to show that it is not. It is also specifically provided that it is not permanent. The learned Judge then pointed out certain terms which are not really consistent with a mere annual lease. Hence, the reasonable inference to make from the terms of the lease is that it was intended to enure for the lifetime of the grantee. The cross-objection was not pressed and was also misconceived. The only part of the decree which was against the respondent was the failure to award him costs. Although the ground taken in the cross, objection might have been urged as a ground for supporting the decree made by the lower Appellate Court, it cannot form 'the subject-matter of a cross-objection.