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Srimati Hemaprova Mozumdar Vs. Debendra Nath Basu and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported inAIR1919Cal251(1),51Ind.Cas.953
AppellantSrimati Hemaprova Mozumdar
RespondentDebendra Nath Basu and ors.
Excerpt:
transfer of property act (iv of 1882), section 108(j) - landlord and tenant--lands granted for purpose of erecting houses--transfer of osat raiyati holding--landlord, consent of, whether necessary--custom--noakhali. - .....the noakhali municipality. what has been found is this: the property is what is locally known as osat raiyati interest. that osat raiyati interest was granted to a gentleman named foranet--which seems to be a french extraction--for the purpose of erecting a house. it was granted to him and was made heritable. the document was registered. but the document is silent as to whether the persons acquiring the osat raiyati interest obtained or did not obtain the right of transfer and, therefore, apart from local usage, having regard to the fact that the contract said nothing about transfer, under section 103(j) of the transfer of property act, the lessee would have the right of transferring, either absolutely or by way of mortgage, the interest created by this instrument granting the osat.....
Judgment:

Fletcher, J.

1. The only matter urged in this appeal is this:--The plaintiff brought the suit for khas possession of certain land--not within but on the borders of the Noakhali Municipality. What has been found is this: The property is what is locally known as osat raiyati interest. That osat raiyati interest was granted to a gentleman named Foranet--which seems to be a French extraction--for the purpose of erecting a house. It was granted to him and was made heritable. The document was registered. But the document is silent as to whether the persons acquiring the osat raiyati interest obtained or did not obtain the right of transfer and, therefore, apart from local usage, having regard to the fact that the contract said nothing about transfer, under Section 103(j) of the Transfer of Property Act, the lessee would have the right of transferring, either absolutely or by way of mortgage, the interest created by this instrument granting the osat raiyati interest. The learned Judge has found that in Noakhali and in the neighbourhood with regard to the lands granted for the purpose of erecting houses on, there is a local usage or custom prohibiting transfer by a person holding an osat raiyati interest without the consent of the landlords. Therefore, the interest is not capable of being transferred except by and subject to the consent of the landlord. That is the point that has been urged in this appeal and it is said that the custom cannot be supported. There is nothing unreasonable in that and if it is proved to be the local law and if it has been adopted by everybody and adhered to, that is no reason why it should not be given effect to. The learned Judge held that it clearly was the local law that these osat raiyati interests could not be transferred without the consent of the landlord. In that view of the case the present appeal fails and must be dismissed with costs.

Cuming, J.

2. I agree.


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