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Khitish Chukder Roy and ors. Vs. Bhikan Mamud Pramanik and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in25Ind.Cas.530
AppellantKhitish Chukder Roy and ors.
RespondentBhikan Mamud Pramanik and ors.
Cases ReferredBanee Madhab Banerjee v. Joy Kishen Mookerjee
Excerpt:
lease for definite term granted for general purposes - heritable and transferable. - .....48 : 1 suth. p.c.j. 152 : 1 sar. p.c. 27 : 18 e.r. 497 that where, as here, there is a definite term, it is heritable.2. the only question then is whether it is transferable. the lease was apparently granted for general purposes and for a term of no less than 105 years. these facts might perhaps be considered as themselves sufficient to show that the interest was assignable, as was the view of sir barnes peacock in banee madhab banerjee v. joy kishen mookerjee 7 b.l.r. 152 : 12 w.r. 495., where the circumstances were somewhat similar to the present. but over and above that, we have here the fact that the subordinate judge has held that the conduct of the parties points to its having been regarded on both sides as transferable and treated as such. it seems to me, therefore, that the.....
Judgment:

1. This is a suit to recover possession of land. The plaintiffs based their title on a lease, creating a term for one hundred and five years, running from 1862 to 1967. If they acquired the rights created by that lease, then unquestionably. they are entitled to succeed in this suit. They are resisted by the reversioner on the lease who claims that the interest under the lease was neither heritable nor transferable. The case came before this Court and was heard by Mr. Justice Sarada Charan Mittra sitting singly. He remanded the case for the determination of the question as to the interpretation of the document in the light of the conduct of the parties, and in this he seems to have had in view the interpretation of the document in relation to heritability as also transferability. So far as the heritability is concerend, I think there was no necessity to send back the case, for it has been decided by the Privy Council in Maharaja Tej Chand Bahadur v. Sri Kanth Ghose 3 M.I.A. 261 : 6 W.R. (P.C.) 48 : 1 Suth. P.C.J. 152 : 1 Sar. P.C. 27 : 18 E.R. 497 that where, as here, there is a definite term, it is heritable.

2. The only question then is whether it is transferable. The lease was apparently granted for general purposes and for a term of no less than 105 years. These facts might perhaps be considered as themselves sufficient to show that the interest was assignable, as was the view of Sir Barnes Peacock in Banee Madhab Banerjee v. Joy Kishen Mookerjee 7 B.L.R. 152 : 12 W.R. 495., where the circumstances were somewhat similar to the present. But over and above that, we have here the fact that the Subordinate Judge has held that the conduct of the parties points to its having been regarded on both sides as transferable and treated as such. It seems to me, therefore, that the plaintiffs have made out their case, and are entitled to a decree for possession. This has been awarded to them by the Subordinate Judge, and we must, therefore, dismiss the appeal, and agree with Mr. Justice Coxe in confirming the decree of the lower Appellate Court.

3. The appellant must pay the costs of this appeal.


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