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ArpIn Khan and ors. Vs. Chandi Charan Guha and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1926Cal950,95Ind.Cas.252
AppellantArpIn Khan and ors.
RespondentChandi Charan Guha and ors.
Excerpt:
bengal tenancy act (viii of 1885), section 11 - landlord and tenant--lease--covenant against alienation, construction of--right of re-entry--covenant, validity of. - .....necessity for you and your heirs to sell the said lands and jamas, then you and your heirs shall sell or transfer the same at proper value to us and our representatives; besides this, you shall not be competent to sell, or make a gift of the property to any body or to transfer it in any way; if you or they do, the same shall be rejected by court and your osat nim howla right shall be cancelled and we shall be entitled to the right of khas possession of the said properties.' i am reading a passage contained in the patta of the 17th magh 1285 b. s., but we are told that it is similar in terms to that contained in the kabuliyat.3. now, what is urged is, as i have stated, that when you come to the part of the covenant which deals with the right of re-entry on sale the persons entitled to.....
Judgment:

Greaves, J.

1. This is an appeal by the defendants Nos. 1 to 4 against a decision of the Subordinate Judge of the Second Court of Bakargunj, affirming a decision of the Munsif of the Sixth Court at Barisal.

2. The suit out of which the appeal arises was one by the landlords for possession of certain lands which formed the subject-matter of a permanent tenure held at a fixed rent by defendant No. 1. The defendant No, 1 purported to transfer to the defendants Nos. 2, 3 and 4, the tenure in suit and the plaintiffs contended that by virtue of a covenant contained in the lease the transfer was bad and the plaintiffs were entitled to re-enter under the terms of the kabala. I shall refer in a moment to the terms of the covenant but the two points urged before us in second appeal on behalf of the appellants are that on the terms of the covenant itself it cannot be enforced by the appellants who are successors of ills original lessor, it being contended, that upon the true construction of the covenant the benefit of right of re-entry was only reserved to the lessor and not to his successor-in-interest.

3. Secondly, it is urged that a covenant of this nature is bad. The covenant is in these words: 'Be it further known that, if there is necessity for you and your heirs to sell the said lands and jamas, then you and your heirs shall sell or transfer the same at proper value to us and our representatives; besides this, you shall not be competent to sell, or make a gift of the property to any body or to transfer it in any way; if you or they do, the same shall be rejected by Court and your osat nim howla right shall be cancelled and we shall be entitled to the right of khas possession of the said properties.' I am reading a passage contained in the patta of the 17th Magh 1285 B. S., but we are told that it is similar in terms to that contained in the kabuliyat.

3. Now, what is urged is, as I have stated, that when you come to the part of the covenant which deals with the right of re-entry on sale the persons entitled to re-enter are described as ' we,' that is, the lessors and not their successors-in-interest and accordingly, it is urged that there is no right of re-entry under the covenant in the plaintiffs who are successors-in-interest of the original lessor. There is no doubt that a covenant which involves a forfeiture must be construed strictly as against the grantor or in this case the lessor, but we must read the covenant as a whole and I think if one reads it so one is forced to the conclusion that it was intended to reserve the provisions of re-entry for the benefit of the lessor or for his successor-in-interest. The persons precluded from selling are the lessees and their heirs and the persons to whom the sale is to be made if they desire to sell are the lessors and their representatives. Accordingly this part of the covenant is not intended merely to extend to the lessors themselves, and I think, therefore, upon the true construction of the covenant taken as a whole that the right of re-entry was intended to extend to the representatives of the lessors if and when any sale took place by the lessees of the lands and jamas. So much for the first point.

4. With regard to the second point, we were referred to the provisions of Section 11 of the Bengal Tenancy Act, But I do not think that this section supports the contention of the appellants. After, all, in the present covenant there is no absolute covenant against sale or transfer: the covenant merely provides that if the lessees desire to sell or transfer they shall only do so to their lessor or representative at a proper value. It seems to me, therefore, they are not absolutely debarred from alienation but merely restricted as to the persons in whose favour they are to alienate and they are protected by the fact that the sale is to be made at a proper value. I think, therefore, there is no reason why we should say that this covenant is bad and cannot be enforced by the plaintiffs as representatives of the original lessor.

5. In the result, therefore, the appeal fails and is dismissed with costs.

Ghose, J.

6. I agree.


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