1. This is an appeal by the plaintiffs in a suit for ejectment. There is no dispute about the fact that the defendants' father and predecessor Munshi Gazi was an under-raiyat under the plaintiffs by virtue of a kabuliyat executed in their favour. The kabuliyat was executed in 1317 for a term of nine years which expired in Chait 1325. It is admitted on all hands that Munshi Gazi died one month before Chait 1325. The substantial question before the Courts below was what construction was to be placed upon the kabuliyat. We have not had the advantage of examining the document for ourselves as it has not been placed before us and we are, therefore, bound to accept the interpretation which has been given to it by the learned Subordinate Judge. It contains a stipulation for a lease for a fresh term upon the expiry of the term already settled. It also contains the expression: 'I and my heirs will happily enjoy the land,' and it is further stated that in the event of their refusal to execute a fresh lease on fair rent they will not be able to raise any objection to khas possession being taken by the lessor.
2. The learned Munsif was of opinion that the contract was a personal one limited to Munshi Gazi and that the defendants as his heirs, were not entitled to avail themselves of it because an under-raiyati was not heritable. He, therefore, held that as the term of the kabuliyat had expired the defendants were liable to be ejected.
3. The learned Subordinate Judge has reversed that finding on the ground that the words used in the kabuliyat would not only not have the effect of debarring the heirs of Munshi Gazi from the benefit of the lease, but were clear indications of a contrary intention. The heirs would, in fact, be competent to enforce specific performance of the contract under Section 23 of the Specific Relief Act. He further observed that the defendants had all along expressed their readiness to execute a fresh kabuliyat, but that the plaintiffs refused to accept it. In his opinion the question of heritability did not arise. The decision turned upon the contractual relation between the parties.
4. The plaintiffs have appealed and the contentions advanced by the learned Vakil are twofold. The first is that the defendants being heirs of an under-raiyat cannot benefit by a covenant personal to their predecessor-in-interest and the second is that, even if they can, they did not avail themselves of the option and so are not entitled to succeed.
5. In support of his first argument, the learned Vakil has referred to an unreported decision in the case of Sm. Raklya Banoo v. Mahommod Junnach [No. 368 of 1919], where the learned Judges who decided that case held on the facts found that the lease and the agreement together contravened the provisions of Section 85, Bengal Tenancy Act, and, therefore, were void and has further contended that the defendants as heirs of an under-raiyat cannot claim the benefit of the covenant in the agreement as the interest of an under-raiyat is not heritable. It is plain that the facts upon which that judgment proceeded are different from those in the present case. There, so far as appears from the judgment, the kabuliyat made no mention of the heirs of the lessee. Here, however, there is more than one reference to the rights and privileges of the heirs of the lessee. The lessee and heirs are to enjoy the land in all happiness; they will have the right to a fresh lease on the expiry of the term and will not be entitled to object to the lessors taking possession of the land if they fail to execute a fresh kabuliyat.
6. It has been held that in spite of the provisions of Section 85, Bengal Tenancy Act, a stipulation contained in a lease granted by a raiyat to an under-raiyat that after the expiry of the nine years for which the lease was granted the raiyat would grant the under-raiyat a fresh lease is valid: Lani Mia v. Muhammad Easin (1916) 20 C.W.N. 948. That view was also taken in the case of Aminuddin Dafadar v. Ananda Chandra (1918) 28 C.L.J. 507. So the question is narrowed down to the short point whether the defendants, as heirs of the original lessee, were competent to execute a fresh kabuliyat by virtue of the covenant in the original document agreed on their behalf. It is found that they continued in possession of their holding for at least one month before the expiration of the term and were in consequence entitled to the rights and privileges enjoyed by them further under the kabuliyat.
7. This view, in our judgment, is well founded and we must, therefore, hold that the decision of the learned Judge, that the question involved is not one of heritability but of simple contract, should be maintained.
8. We are not much impressed by the second argument. The learned Judge has found that the defendants have always expressed their willingness to execute a fresh kabuliyat and the mere fact that the plaintiffs refused to accept it does not relieve them of this contractual liability to accept it when offered.
9. The result, therefore, is that the decree of the lower Appellate Court is affirmed and this appeal is dismissed with costs.