Thakur Deyal Singh v. Rai Promatha Nath Mitra

Agarwala, J.:— Second Appeal No. 702 of 1932 arises out of a suit by the lessors for recovery of possession on breach of a covenant not to transfer the demised property. In 1868 the ancestors of the plaintiffs, who were the proprietors of an 8 annas share in mauzas Pandepura and Dihri, granted a mukarrari lease of 7½ annas to Gouri Singh and Gobind. The interest of each of the lessees in the mukarrari was specified to be one-half. The lease contained a covenant by the lessees not to alienate the demised property without the consent of the lessors. Gouri Singh sold a 1-anna share to three persons in 1864 without the consent of the lessors. In 1899, however, the sons of the purchasers executed a Jamognama in respect of this 1-anna share in favour of the lessors, containing all the terms of the original grant of 1863. It is not disputed that one result of this was that the rent of the 1-anna share was separated from the rent payable for the remainder of the mukarrari property. In 1906 the purchasers sold the 1-anna share to defendants 1-7 without the consent of the lessors. Thereafter the latter sued defendants 1-7 for rent and, in execution of the decree obtained in that suit the 1-anna share which was purchased by defendant 8. On 23rd February, 1925, defendant 8 re-sold his interest to defendants 1-7 by a sale-deed which was registered on 25th May, 1925. Two years later defendants 1-7 instituted a suit for partition of the 1-anna share. This suit was decreed. Pending an appeal from the decree the lessors served on defendants 1-7 a notice alleging that their purchase was in contravention of the terms of the lease and demanding possession. The partition decree was confirmed in appeal. In the meanwhile, on 11th August, 1928, the lessors instituted the present suit for recovery of possession. Defendant 8 did not enter appearance. The suit was decreed in the trial Court and this decision was affirmed in appeal. Defendants 1-7 have preferred this second appeal.

2. The Courts below held that the covenant in restraint of alienation was a covenant running with the land and, therefore, it was binding on defendant 8, the purchaser in execution of the rent decree, and on defendants 1-7 who had re-purchased from him. In 37 CLJ 538(1), Mukerjee and Chotzner, JJ., following (1868) 3 QB 739(2), (1902) AC 104(3) and (1869) 4 QB 634(4), held that an express covenant not to transfer the demised property without the consent of the landlord is a covenant running with the land and, therefore, that it was enforceable against a person who purchased the lessee's interest in execution of a decree for rent obtained by the lessor against the lessee. In the present case, therefore, the covenant in restraint of alienation was binding on defendant 8, the; auction-purchaser. A covenant running with the land binds not only the lessee but also assignees from him although they are not expressly mentioned: (1915) 1 Ch 549(5).

3. It was, however, contended by the appellant that, inasmuch as the transfer to defendants 1-7 was a transfer to persons whom the lessors had previously accepted as tenants, it was not a transfer which brought the forfeiture clause into operation. This was negatived in (1902) AC 104, where it was held that a covenant by a lessee, not to assign without the lessor's consent, applies to a re-assignment to the original lessee. This case was followed by Boss and Chatterji, JJ. in S.A No. 1468 of 1928 which was decided on 13th June, 1930. It was not contended that a covenant by a lessee not to assign without the landlord's consent implies that the landlord's consent will not be unreasonably withheld. The answer to this is that the landlord's consent was never asked for, so that there is no question of it being unreasonably withheld: see (1891) 1 QB 417(6). It was suggested, however, that in such a case the Court should relieve against forfeiture if in fact the transferee is a person to whom the landlord could not reasonably object. The power of a Court of equity to relieve against forfeiture is reproduced in Section 114 of the Transfer of Property Act, 1882, and is confined to forfeiture for non-payment of money. 42 Mad 654(7), following (1811) 18 Ves 56(8), at p. 64, where, with regard to the right of re-entry on breach of a covenant in restraint of alienation Lord Eldon said: “It is sfficient that the lessor insists upon his covenant; and no one has a right to put him in a different situation”: see also 38 MLJ 190 : 55 IC 781(9).

4. It was also argued that as the landlords had recognized Gouri Singh's transferees on payment of a nazrana by them, it should be held that the object of the proviso for re-entry on breach of the covenant in restraint of alienation was merely to secure payment of a sum of money and, therefore, that the Court has power to relieve against the forfeiture. There is nothing in the terms of the lease to indicate that this was the intention of the parties, and it cannot be inferred that this was the intention from the fact that on a previous occasion the landlords condoned a breach of the covenant on receipt of consideration for so doing. It was suggested, however, that by this conduct ‘the landlords’ had waived the right to insist upon re-entering on breach of the covenant or were estopped from asserting their right. No question of estoppel can possibly arise and the mere fact that the landlords refrained from enforcing their right on one or more previous occasions, whether for consideration or not, does not amount to a surrender of their right to enforce it when a subsequent occasion arises.

5. The next point raised was with respect to the Bengal Tenancy Act, 1885. S. 155 of that Act enables the Court to relieve against forfeiture in a suit for the ejectment of a tenant on the ground inter alia that he has broken a condition on the breach of which he is, under the terms of a contract between him and the landlord, liable to ejectment. Even assuming that the lease in the present case is governed by the Act, S. 155 is of no assistance to the appellants unless he can show that he is a tenant of the respondents. A transferee from a lessee who is bound by a covenant not to alienate is not a tenant and, therefore, is not entitled to the benefit of the section, see 21 CWN 117(10), where it was held that a purchaser in execution of a decree obtained against the lessee, the landlord not having recognized him as a tenant, is a trespasser, and, therefore, that S. 155 does not apply to a suit to eject him.

6. Lastly it was argued that unless the landlord proves his right to immediate possession he is not entitled to succeed in a suit for ejectment even against a trespasser. Reliance is placed upon the judgment of Suhrawardy, J. in 47 CLJ 21(11). The reasoning of the learned advocate for the appellants is that the landlords not having instituted within one year of the transfer a suit to eject the transferor, their right to re-enter is barred by Article 1, of Sch. 3, Ben. Ten. Act, and, therefore, they have no right to immediate possession. In the case last referred to a similar contention was upheld. This decision was approved by Guha and Ghose, JJ. in 36 CWN 819(12). In the first of these two cases the original tenant contested the suit and the second case was a suit for ejectment against the original tenant only. In the present case defendant 8 (the transferor) did not enter appearance in the suit and a decree for ejectment has been passed against him against which he has not appealed. In this respect the facts of the present case are similar to those in 13 CLJ 672(13), where the landlord was held entitled to eject the transferees, and which was approved by Sanderson, C.J and Mookerji, J. in 21 CWN 117. I would accordingly dismiss this appeal with costs. The facts of second appeals No. 1761 of 1932 are similar to those of Second Appeal No. 702 of 1932, and the questions of law which arise there are the same. This appeal must also be dismissed with costs.

7. Dhavle, J.:— I agree. The learned advocate for the appellants has laid much stress inter alia on the recital in the Jamognama of 1899 that the Rai Sahibs passed orders for the payment of nazrana hasb sharah wo riwaj ke. But though this may point to a scale of nazrana, it does not by any means imply that the landlords were bound to accept nazrana in lieu of enforcing the forfeiture.

8. We have to read the document as a whole and construe it fairly; and when this is done, the meaning is perfectly clear and free from any reasonable doubt notwithstanding the criticism which has been levelled before us against particular words or expressions.

V.B.B/R.K

9. Appeals dismissed.