1. On the 4th Bhadra 1303, B.S., the defendant No. 5 gave a patni lease of certain property to the plaintiff. It was a lease in the ordinary terms adopted in the case of patni settlements, that is to say, it was to be in force for ever. There was a saving clause in the lease with which we shall presently deal.
2. In Jaisto 1304, there occurred an earthquake by reason of which the dwelling house of the lessor, on a certain portion of the land covered by the saving clause, was destroyed, and.the materials of that house were sold by the lessor, defendant No. 5, to the defendants Nos. 1 to 4 in Agrahayan 1304. It appears that the defendants Nos. 1 to 4 were then on the land.
3. The plaintiff's suit was brought to obtain khas possession of the area 10 bighas, which is the subject-matter of the saving clause in the patni lease, and he based his cause of action on a possessory decree passed against him on the 26th January 1906. The Court of first instance dismissed the plaintiff's suit on various grounds, more especially, on a construction of the saving clause already mentioned.
4. On appeal, the District Judge has arrived at a different conclusion and given the plaintiff a decree against the defendant No. 5 only, the remaining defendants Nos. 1 to 4 being left in occupation of the land in suit.
5. The contentions advanced before us, on behalf of the defendant No. 5, are these, first, that the District Judge has misconstrued the saving clause in question; secondly, that, on the facts of the case, the plaintiff is not en-titled to khas possession of the land, the contingency, on the happening of which his right to the land as patnidar is to vest in him, not having arisen within the meaning of the clause, and, thirdly, that, by reason of his conduct, the plaintiff is estopped from obtaining a decree inasmuch as the tenants, defendants Nos. 1 to 4, were inducted on the land at his instance.
6. The saving clause provides that 'if I myself or any other person on my behalf who is a Hindu by religion, after making a purchase pr taking a settlement, constantly, dwells on 10 bighas of land described in boundaries given in schedule (khas) below appertaining to the said mahal on which the pucca house enclosed by walls and the garden and tank on the immediate west and south thereof stand, then the same will remain in my khas possession; but if no person dwells in the said house enclosed by walls or the said house is demolished and the materials removed, then I shall have no right or interest in the land on which the said dwelling house stands as well as in the said tank and garden, and you will be owner and possessor of the land described in boundaries below in the putni right mentioned in this patta.'
7. By the first mentioned clause the lessor excepts from the operation of the lease certain land on which stood his ancestral dwelling house, and covenants that in case certain contingencies happened, the lessee shall acquire aright thereto as patnidar. The concluding clause in the lease makes all the preceding clauses, including this last clause, binding on the heirs and representatives of the lessor and the lessee respectively.
8. It appears to us, on a reasonable construction of the language of the covenant, that no time was limited within which the contingencies indicated might happen. It is open to argument that the lessor's descendants, at some remote period, and not sooner, might cease to occupy the land. Such period being separated, it may be, by several generations from the present time. That argument would be based upon a perfectly correct rule which has been adopted by the Courts of this country and embodied in the statute Law. We refer to the rule against perpetuities. The rule is directed against the creation of such future interests as may possibly vest after an indefinite period for the reason that, by the existence of such interest, the owner is prevented from alienating his estate discharged of it, before the emergence of the condition, and that event may possibly never occur. The rule has been acted upon in cases of Chandi Churn Barna v. Sidheswari Debi 16 C. 71; Ramasami Pattar v. Chinnan Asari 24 M. 449 see the observations in the judgment of Bhashyam Ayyangar, J., at p. 469 of the Report and Nobin Chandra Soot v. Nabab Ali Sarkar 5 C.W.N. 343. The vice of remoteness renders the covenant altogether void and, therefore, ineffectual even as between the immediate parties thereto.
9. No doubt, this aspect of the case was not considered in either of the Courts below although there is some indication in the judgment of the Munsif that the difficulty was present to his mind. In this view of the matter we think that the plaintiff seeking to enforce his putni right over the excepted land cannot succeed on an indefinite clause of this description.
10. In the next place, without discussing the question whether, by reason of the earthquake, which was not anticipated by the parties, the saving clause can be given effect to, we think, on a proper construction of the saving clause, coupled with the evident intention of the parties, that the contingency contemplated by the parties has not happened. Although the house fell down and the materials were removed, it cannot be said that the defendant No. 5, lessor, or any other person on his behalf has ceased to dwell on the ten bighas of land mentioned. In the clause the word niyata, occurs, but 'niyata basat bash' means constant (ordinary) residence, and not, necessarily, 'continuous residence without a single break.'
11. It is in evidence that the tenants, defendants Nos. 1 to 4, have taken a lease of the land for residential purposes, and that they purchased the materials of the dismantled dwelling-house of the defendant No. 5 in order to utilise them for this purpose. The defendants Nos. 1 to 4 have erected their dwelling house on land immediately adjacent to the ten bighas in suit. It is quite clear to us that they have taken a lease of the larger area to include it in their premises. The second contention, therefore, on behalf of the defendant No. 5 must also prevail.
12. The third contention is based on a letter (Exhibit D), dated the 22nd Bhadra, 1305,and written by the plaintiff to the defendant No. 5. It has been found by the lower appellate Court that the defendants Nos. 1 to 4, took possession of the land, as tenants of the defendant No. 5, sometime before the execution of their written lease, and that they took possession of the land in the honest belief that the defendant No. 5 was entitled to lease it. It has been sought to connect the subsequent lease with the letter (Exhibit D). In this connection, it would be necessary to consider the question whether, if the plaintiff wrote that letter in ignorance of his right, the representation made by him would act as an estoppel so as to prevent him from repudiating the result induced by that communication. But, as we have already found for the appellant defendant No. 5 on the first two grounds taken in this appeal, we think it unnecessary to discuss this farther contention on his behalf.
13. We, therefore, decree the appeal. The suit of the plaintiff must be dismissed as against the defendant No. 5.
14. The cross appeal on behalf of the plaintiff has not been pressed.
15. The defendant No. 5 is entitled to his costs throughout from the plaintiff respondent who will also pay a separate set of costs (2 gold mohurs) to the defendants Nos. 1 to 4.