1. The suit out of which this appeal has arisen was brought by the plaintiff-respondent for specific performance of a contract which came into existence in the following circumstances: There is a tank which originally belonged to defendants Nos. 1 and 2. They sold a moiety of it to the plaintiff on the 16th Pous, 1275. The two weeks after, namely, on the 29th Pous they entered into an agreement the principal clause of which runs thus:
If by chance the condition of either party becomes deplorable or if either party voluntarily wants to transfer the whole or a portion of his interest in the said tank or it becomes necessary to execute hot or simple mortgage of the tank, it must be to the other party. If it becomes necessary for any party to execute absolute sale, or kot simple mortgage of the whole or a portion of that property for any reason, then the party or their successors-in-interest transferring or mortgaging their share do so to the other party or their successors-in-interest.
2. This is followed by another clause to the effect that if any party fails to carry out this agreement he will be mulcted in damages to the extent of Rs. 1,000. There is a further clause which is as follows:
We both parties or our successors-in-interest will be bound to carry out the conditions aforesaid. We both parties down to our sons and grandsons and successors-in-interest shall possess the tank with its water and banks in equal half share.
3. The plaintiff's case is that defendants Nos, 1 and 2 secretly executed a kobala in favour of their wives (defendants Nos. 3 and 4) conveying a 6 annas of the tank and that defendant No. 5 has attached the remaining 2 annas in execution of a fraudulent claim. The plaintiff, therefore, prays for specific performance of the contract aforesaid, namely, that defendants Nos. 1 and 2 may be directed to convey their share in the tank to the plaintiff by virtue of the aforesaid contract. Both the Courts have found that the plaintiff is not entitled to specific performance of the contract in respect of 6 annas, transferred to defendants Nos. 3 and 4 which transfer they have held to be benami, the property not having passed from defendants Nos. 1 and 2. With regard to defendant No. 5, however, they have agreed in holding that the covenant is enforceable and have directed the defendants Nos. 1 and 2 to execute a conveyance to the extent of 2 annas share and ordered the plaintiff to deposit a share of Rs. 50 to the credit of the 5th defendant and on such deposit being made directed the defendant to execute a kobala in favour of the plaintiff conveying to him absolutely the two-annas share in the tank. It has been further ordered that the attachment by defendant No. 5 should be withdrawn and that the money thus deposited by the plaintiff may be withdrawn by defendant No. 5. Against this decree defendant No. 5 has preferred S.A. No. 1915 of 1921 and defendants Nos. 1, 3 and 4 have preferred S.A. No. 328 of 1922, raising in both the appeals the same contentions. There are several points taken by the appellant but the one which requires consideration and is sufficient to dispose of these appeals is that there is no covenant against involuntary alienations. The view taken by the Courts below that the defendants Nos. 1 and 2 are restrained in fact, though not expressly, from allowing the properties to be attached is not correct and I think that the contention of the appellant ought to prevail. The law is now firmly established by authority that where property is sold off or leased out with a covenant attached to it that the vendee or lessee, will not be entitled to transfer the property to any one but to the vendor or lessor such a covenant does not apply to involuntary alienations. There are a number of authorities on this point but it will be enough to refer to a few of them, namely, the cases of Nilamadhab Sikdar v. Narattam Sikdar (1890) 17 Cal. 826, Golaknath Roy v. Mathura Nath Roy (1893) 20 Cal. 273 and Promode Ranjan Ghose v. Aswini Kumar Nag (1914) 18 C.W.N. 1138. This view has been adopted by the other High Courts also. In fact, so far as reported cases go, it was first considered by the Bombay High Court in the case of Tamaya v. Timapa (1883) 7 Bom. 262. The Madras High Court has also held the same view from a long time and has lately asserted it in the case of Parameshri v. Vittappa (1903) 26 Mad. 157. I, therefore, hold that in this case also the covenant restraining alienation by sale or mortgage does not extend to an involuntary transfer. In this case this principle applies with greater force. The property originally belonged to defendants Nos. 1 and 2. They sold one-half of it to the plaintiff. The agreement that came into existence did not form any part of this transaction but was executed subsequently. It cannot be said that this covenant attaches to the land for, in the first place, the covenant, which the plaintiff now seeks to enforce is not a covenant which runs with the land, for it came into existence long after conveyance. As it stands, it may also very well be argued that this covenant is bad as it contravenes the provisions of Section 107, Transfer of Property Act. It may also be argued that it is bad on the ground of its offending the rule against perpetuity as it not only binds the parties but also their heirs ad infinitum. There is another objection as to why the plaintiff's suit should not succeed. The two-annas share which is the subject-matter of this appeal has not yet been alienated. The defendant No. 5 has attached this share in execution of a decree against defendants Nos. 1 and 2 which has been found by the Court below to be bona fide. The real cause of action, therefore, has not yet arisen. On this ground also I am of opinion that this appeal should succeed.
4. The result is that these appeals are allowed, the decrees of the Courts below are set aside and the plaintiff's suit will stand dismissed. The defendant No. 5 is entitled to his costs in all the Courts. The defendants Nos. 1, 3 and 4 are entitled to their costs of this Court; but they will bear their costs in the Courts below.