1. The rights of the parties who are interested in the result of the litigation leading up to the present appeal are to be determined principally upon the terms and conditions of a lease granted by Maharaja Mahatab Chand Bahadur of Burdwan to one Panjab Lal Babu, on 23rd Assar 1271 B. S. The kabuliyat executed by the lessee, so far as it is relevant for the purposes of the present case is to the effect following:
I have remained in possession by taking lease in the benami of Sreenath Sen and paying Rs. 4-8-0 as the annual rant; now giving increase of 8 annas par year on the said rent, that, is, at the jama of Rs. 5 per year, and in consideration of Rs. 5, and on condition that if the Sarkar requires it, I shall give up the building and trees which I at my own expense may make (or grow), on taking the proper value at the market price at the time ... On the above conditions I applied for a mukarrari lease, and my prayer being granted, I being present, sign the mukarrari seharbund on the 30th Jaistha, and deposit the consideration money of Rs. 5....In case of there being any necessity for Hoozoorali to resume possession of the land demised, I shall relinquish it on getting the market price of the building and trees...and I shall get back the consideration money without any interest.
2. The son of the executant of this lease sold the properties covered by the same to defendant 3 in the suit, out of which this appeal has arisen, and defendants 1 and 2 are the purchasers of the same from defendant 3. Defendant 4 in the suit, the grandson of Panjab Lal Babu, is the executant of the kabuliyat mentioned above. Defendants 5 to 7 are sub-lessees of portions of the leasehold properties. The case of the plaintiff Maharajadhiraj Bahadur Bejoy Chand Mahatab of Burdwan, as stated in the plaint, and so far as it is relevant for the purposes of this appeal, was that, under the terms of the kabuliyat, he was entitled to eject the defendants for the reason that an Ayurvedic dispensary which was founded in the building standing on the lands in suit, under the patronage of the Burdwan Raj, might, by the acts of the defendant in the suit, cease to exist in the building. Defendants 1, 2 and 3 resisted the plaintiff's claim in suit; it was asserted by the contesting defendants, that the plaintiff could not, under the terms of the kabuliyat, eject them and get khas possession of the properties in suit.
3. The case sought to be made at the hearing of the case before the trial Court, has been very clearly stated in the judgment of the Munsif. The defendants contended that the covenant relating to determination of the lease and khas possession as contained in the lease was a personal covenant and did not run with the land; that the lease was a permanent lease, and a covenant like the one sought to be enforced in this case, offended the rule of perpetuities, and was therefore void; and lastly that the plaintiff was unable to make out the necessity for khas possession, for which alone the lease could be determined, and khas possession obtained by the plaintiff, under the terms of the lease. With reference to the last point mentioned above, the Courts below have concurrently held that the necessity for khas possession has been made out. The Courts below have however differed in their decisions in regard to the other two questions mentioned above. The Court of first instance held that the lease granted to Panjab Lal Babu was not a permanent one, though the rent was fixed for all time. The trial Court further held that the covenant relating to resumption of possession for the requirement of the landlord was not a personal covenant, but was one running with the land. In this view of the case the plaintiff's claim in suit was allowed by the Court of first instance, and a decree was passed in his favour in the terms mentioned in the concluding portion of its judgment. On appeal by defendant 2, the Court of appeal below, has reversed the decision of the trial Court, on the material points arising for consideration in the case. The learned Subordinate Judge, in the Court of appeal below, has held that the lease granted to Panjab Lal Babu was a permanent mukarrari lease; that the covenant relating to determination of the lease and khas possession was a personal covenant, and after the demise of Maharaja Mahatab Chand Bahadur, the grantor of the lease, the covenant has no force. The learned Subordinate Judge has also come to the decision that in the supposition that the covenant as to khas possession was one running with the land, it was a bad covenant under the rules of 'perpetuities.' As against the decision and decree which merely directs defendants 1, 2 and 3 to pay rent to the plaintiff for a certain period, in accordance with the terms of the kabuliyat under which the defendants are in possession of the properties in suit, the present appeal has been taken, and the decision of the Court of appeal below has been assailed as erroneous and unsustainable.
4. The most important, and indeed the vital, question involved in the appeal, is whether the lease granted by Maharaja Mahatab Chand Bahadur to Panjab Lal Babu in 1271 B.S. was a permanent lease or a non-permanent one. The material portions of the kabuliyat executed by Panjab Lal Babu in favour of Maharaja Mahatab Bahadur has been set out above and on a careful examination of the terms of the document which do not appear to be ambiguous in any way, the conclusion is irresistible that the lease is not a permanent one: the word mukarrari used twice in the kabuliyat, which was accepted by the lessor, on payment of Rs. 5 only as consideration or selami, indicates that there was to be a fixity, so far as the rent settled was concerned. There is not the least indication, anywhere in the document, the permanency in the tenure was intended by the parties to the contract. The tenancy created was one to be held at a fixed rate of rent; there was to be no variation in rent. No other sort of permanency could be inferred from the clear and definite terms of the kabuliyat relating to the tenancy, which could be determined, and khas possession taken by the lessor, in case of there being any necessity for the lessor for resuming possession of the property demised. The learned Subordinate Judge, in the Court of appeal below, has adopted a rule of construction which cannot apply-to a case like the present, where the document is definite, clear, and unambiguous in its terms. Regard being had to the terms of the kabuliyat in this case where the intention has been clearly expressed, the acts of parties cannot be invoked in aid of its true construction. The Court below has noticed that in the lease itself there was no word to indicate that it was heritable or transferable; it has also observed that the word mukarrari denoted fixity of rent only; still it has, upon the evidence relating to acts of parties, and from the fact of long possession, inferred that the parties to the lease intended the same to be permanent, in spite of the clear covenant in the kabuliyat that any structure raised or trees grown by the lessee on the land were to be removed whenever the lessor wanted to take possession on account of the lessor's requirement.
5. We have no hesitation in coming to the conclusion, on the kabuliyat itself, that the lease granted by Maharaja Mahatab Chand Bahadur to Panjab Lal Babu was not a permanent lease, but was a lease on a fixed rent, with a covenant for re-entry by the lessor, in case of there being any necessity for the lessor to resume possession of the property dismissed.
6. The question next in importance which has to be considered in this appeal is whether the covenant relating to resuming possession of the property for the lessor's requirement, and taking khas possession of the same, was a mere personal covenant, the benefit of which could be taken by the original lessor Maharaja Mahatab Chand Bahadur only. Here also the document before us speaks for itself, and without any ambiguity. The terms of the kabuliyat enables us to ascertain the intention of the parties, and that intention was not that the covenant was in favour of the original grantor personally. We are unable to accept the view taken by the Court of appeal below that the expression 'Huzoorali' used in the kabuliyat meant Maharaja Mahatab Chand only.' On a plain reading of the document as a whole, it appears to be clear that the covenant relating to resumption of possession of the property demised, for the requirement of the lessor, meant the requirement of the Burdwan Raj, referred to in the document, at two different places, by two different expressions 'Sarkar' and 'Huzoorali.'
7. It was a covenant running with the land, in a lease which was precarious in its nature, and as such enforceable by the plaintiff in the present case, when upon the terms of the kabuliyat, and also upon the findings arrived at by the Courts below, sufficient necessity for resuming possession or obtaining khas possession of the property by the Burdwan Raj has been established. Some argument was advanced on this part of the case by the learned advocate for the respondents on the footing that a distinction must be drawn between the recitals contained in the kabuliyat in question and the operative part of the same, in view of the position that the word 'Sarkar' occurs in one part of the document, and the expression 'Huzoorali' occurs in another place. It is only necessary to state that the document has to be read and interpreted as a whole, and it is impossible, on the document as it stands, to give it such a forced construction as has been given to it by the Court of appeal below, and as has been contended for on behalf of the respondents in this Court. The application for obtaining a settlement was made on the condition that the grantee shall give up the property if the grantor (referred to as the 'Sarkar') required the same, and the grant was made on condition that the lessee shall relinquish possession of the property demised, according to the requirements of the grantor, referred to as ' Huzoorali' in the later part of the kabuliyat. The relinquishment mentioned in the document at three places was to be according to the requirement of the Burdwan Raj of which Maharaja Mahatab Chand Bahadur was in possession at the time of the lease granted to Panjab Lal Babu in the year 1271 B. S.
8. In the view we have taken of the rights of the parties under the lease it is wholly unnecessary, and it would serve no useful purpose by our entering into a discussion of an academical nature, relating to the question argued before us on behalf of the respondents, in support of the position indicated by the Court of appeal below, that the covenant relating to the lessor's right to get khas possession of the property according to the requirement of the lessor, on the footing that the lease in question was a permanent one, was void under the rule of perpetuities. The grant in the case before us was, in our judgment, a precarious and not a permanent one; there was a condition attached to the grant by virtue of which the lessor could re-enter. The contract as to re entry was binding as between the lessor and the lessee and their successors-in-interest; it was a covenant running with the land, contained in a lease which was in its very inception precarious in its nature. No question of offending against the rule regarding perpetuity could therefore arise in a case of the permanent nature. It may be mentioned that even if we were to hold in agreement with the view taken by the Court of appeal below, the lease in question was a permanent one; it is not possible to find any principle or authority in support of the proposition which has found favour with the Court below, and which has been urged before us, that a covenant running with the land, relating to the right of the lessor to re-enter, or the condition imposed upon the lessee to surrender or relinquish the property demised, as contained in the kabuliyat under consideration in this case, offended against the rule of perpetuity. The authorities upon which reliance has been placed in this behalf by the learned advocate for the appellants do not, in our opinion, support such a proposition.
9. It appears to us that the decision arrived at by the Court of first instance in the case before us must be affirmed. The result is that the appeal by the plaintiff, in the suit out of which it has arisen, is allowed. The decision and decree passed by the Court of appeal below are set aside, and the decree passed by the trial Court is restored, with this modification only in that decree, that the defendants will be entitled to remove the materials of the building on the property in the suit, within two months from the date of the decree of this Court, on the expiry of which period the plaintiff is to get khas possession of the property on complying with the direction in the decree as to payment of money.
10. The plaintiff-appellant is entitled to his costs in all the Courts.
M.C. Ghose, J.
11. I agree.