Chamier, C.J:— This appeal arises out of a suit by the respondent for possession of a small plot of land in Mauza Madhuban, which adjoins the celebrated hill of Parasnath, both being within the zamindari of the Raja of Palganj. The respondent is the manager of the affairs of the Sitambari Jain Society at Parasnath and Madhuban and he brought this suit for and on behalf of that Society. His case is that under an iqrarnamah of 16th May, 1872, executed by Raja Parasnath Singh, father of the present Raja of Palganj, in favour of Harakh Chand Golaicha representing the Sitambari Jain Society, the Society is entitled to build temples and dharamsalas anywhere that it pleases on the Parasnath Hill or in Madhuban and to take possession of the land required for the same in case the Raja for the time being refuses to give it, that accordingly in 1907 the Society, being under the necessity of building a dharatnsala on the land now in suit, gave Raja Parsanath Singh notice to that effect and took possession of the land without objection on this part and remained in possession till April 1910, when it was dispossessed by the appellant Daya Bbair acting in the interest of a rival sect of Jains (Digambaris).
2. The appellants, Daya Bhai and others, who were the principal defendants to the suit, denied that notice had been given to the Raja or that the Sitambari Jains had any intention of building a dharamsala or that they had taken possession of the land, or that they were entitled, as and when they pleased, to take possession of land on the Parasnath Hill or in Mauza Madhuban. These defendants pleaded that they were entitled to the land in suit under a patta granted to them in 1910 by Rani Parbati Kuar, who holds Mauza Madhuban under a khorposh mukarrari executed in her favour in 1902 by Raja Parasnath whose daughter-in-law she was. The Munsif held that the respondent was bound to give notice to the Raja before taking possession of the land. He doubted whether any notice was given in 1907 but held that if notice was given, it was irregular and did not entitle the respondent to take possession; he held also that the respondent had failed to prove that the Sitambari Jains had been in possession from 1907 to 1910. The Judicial Commissioner on appeal held that notice was proved to have been given to the Raja but that it was irregular and defective, inasmuch as it should have been given either to khorposhdar or to the manager of the Raja's estate, which was at the time under the Chota Nagpur Encumbered Estates Act. He held however that the defect in the notice was not fatal to respondent's claim that the Sitambaris were entitled to take possession of the land without notice under the iqrarnamah of 1872, which was a “limited transfer” of the Raja's rights, and that they had in fact taken and held possession for three years. He accordingly decreed the claim. In second appeal it is contended that the provision in the iqrarnamah on which the respondent relies is void for uncertainty and vagueness and also because it offends-against the rule against perpetuities or remoteness.
3. Alternatively it is contended that the provision in question was only a personal contract to convey land to the Sitambaries and created in their favour no interest entitling them to maintain the present suit. The respondent dispute the correctness of the first contention. His position is that the land which was the subject of the iqrarnamah was not the property of the Raja, but was dedicated to the deity on whose behalf the Sitambari Jain Society managed it and that this was recognized by the iqrarnamah. The respondent urges that if the alternative contention is correct and there was only a personal contract to convey land to the Sitambaris, the contract is binding on the present Raja and his assignees and further that the Sitambaris having taken possession in pursuance of a contract which could be specifically enforced, have on the principle of the decision in Walsh v. Lonsdale(1) the same rights as if the land had actually been conveyed to them. In the last resort the respondent contends that the suit should be treated as one for specific performance. The provision in question runs as follows:
“If the Sitambari Jain Society shall require any place on Parasnath. Hill or below at Madhu-ban for erecting mandir or dharmasala and for doing repair and making bricks for the said purpose in that case I and my heirs shall give for making mandir, dharmasala and bricks, land, stones and timber from the hill free of cost, and if I and my heirs refuse to give, in that case the Sitambari Jain Society shall take the same of its own power (upne ikhtyar se).”
4. It is quite clear that the hill of Paras-math and the village Madhuban were the property of the Raja. On this point it is unnecessary to add anything to what was said by the Calcutta High Court in the famous ‘Piggery’ case [Dhunput Singh v. Paresh Nath Singh(2)]. There is no foundation whatever for the suggestion that the iqrarnamah recognized any title in the deity. If the respondent has any right in or to the land now in suit it must be under the provision set out above. If that provision should be regarded as an attempt to create an interest in favour of future generations of Sitambaris, it is void for remoteness, whether the case is governed by general principles or by Section 14 of the Transfer of Property Act, or by the Hindu law [if the operation of that section is excluded by Section 2(d) of the Act]: Chandi Churn Barua v. Sidheswari Debi(3), Avula Charamudi v. Marriboyina Raghavulu(4). If, on the other hand, the provision was no more than a personal contract to convey land to the Sitambarias it is not affected by the rule against remoteness [Avula Charamudi v. Marriboyina Raghavulu and South Eastern Rly. Co. v. Associated Portland Cement Manufacturers(5).] In my opinion the provision was not intended to create an interest in favour of the Sitambaries and further such a provision cannot in India be regarded as creating an interest in favour of the other party to the transaction. Section 54 of the Transfer of Property Act, which, as I understand, reproduces the previously existing law on the subject, provides that a contract for sale of immovable property does not of itself create any interest in the property, and it would seem to follow that a contract to give immovable property does not of itself create any interest in the property. The respondent, however, contends that the contract is binding upon the present Raja and his assignees including the appellants under Section 40 of the Transfer of Property Act. Mr. Pugh pointed out that the Act was passed before the decision in the case of London and South Western Rly. Co. v. Gomm(6) and he suggested that until that decision was pronounced the case of Tulle v. Moxhay(7) was understood to apply as well to affirmative as to restrictive covenants and hence Section 40 of the Transfer of Property Act, which was intended to reproduce the English law, is not confined to restrictive covenants but applies to every obligation arising out of a contract and annexed to the ownership of immovable property. In this connexion Mr. Pugh relied also upon Section 27(b) of the Specific Relief Act. Assuming that this contention is correct, we have next to consider whether the respondent is entitled to maintain this suit. The principle of the decision in Walsh v. Lonsdale has been applied in India with some misgiving: see Bibi Jawahir Kumari v. Chatterput Singh(8), Singheeram Poddar v. Bhagbat Chander(9) and Puchha Lal v. Kunj Behari Lal(10)]. It has never been applied to such a case as this where there is no question of an agreement for a lease. In the absence of authority I am certainly not prepared to apply the doctrine of Walsh v. Lonsdale to the present case, and I doubt very much whether it should be applied to any case in India except possibly in the Presidency towns. In my opinion the respondent has failed to prove any title to the land in suit and, therefore, the suit as a suit for possession should be dismissed.
5. Assuming that the respondent might have maintained a suit for specific performance, I do not think that we should at this stage allow him to convert this suit into a suit for specific performance. Nor is there anything in the conduct of the Sitambaris which should induce us to show them any indulgence. The dispute is in reality one between the rival sects. Each sect wishes to keep the other away from the Parasnath Hill. The Sitambaris have gone so far as to contend that the owner of the estate or his representative for the time being must for all time consult the Sitambaris before leasing to other persons any plots of land on the hill or in Madhuban. I would allow Second Appeal No. 2336 of 1912, dismiss the suit and give the appellants their costs in all three Courts.
6. Jwala Prasad, J.:— This appeal arises out of a suit which was brought by the respondent in the Court of the Munsif of Giridih to recover possession of a piece of land measuring two and a half kathas, from which the plaintiff is said to have been dispossessed. The plaintiff is a member and representative of the Sitambari Jain Society and manager and she-bait of Parasanathji on behalf of the said Society. The land in suit is situated at Madhuban close to the Parasnath Hill, which belongs to the Raja of Palganj. The plaintiff has based his claim upon an iqrarnamah, bearing date 16th May, 1872, executed by Raja Parasnath Singh, father of the present Raja of Palganj, in favour of Babu Harakh Chand Golaicha, then Manager of the Sitambari Jain Society, in order to settle certain disputes that existed between the Raja and the Sitambari Jain Society regarding the offerings presented to the Jain Mandir which stands on the Parsanath Hill, appertaining to the gaddi Palganj. The plaintiff asserts that by virtue of the said iqrarnamah the Sitambari Jain Society is empowered to build temples and dharamsalas at any place on the Parasnath Hill and in Madhuban according as it pleases and in case of refusal by the Raja or his heirs to give such land, the Society is competent to take the same of its own power. The plaintiff's case is that by virtue of the right vested in him by the iqrarnamah, he sent an ittala or notice to the Raja of Palganj in 1907, informing him that he required the land in suit for the purpose of erecting a dharamsala, took possession of it in that very year and continued to be in possession without any objection on the part of the said Raja till April 1910, when he was dispossessed by the defendant-appellants, representing the rival Jain Society called the Digambari. The appellants resisted the claim of the plaintiff. They took all possible pleas in their written statement, most of which do not now arise in this appeal and need not be stated.
7. They contend inter alia that the plaintiff never took possession of the land in suit, that his allegation of possession and dispossession is false and that the plaintiff did not acquire any right to the land and was not entitled to take any land at Madhuban at his own choice, as alleged by the plaintiff. The defendants claim that the land in suit was settled with them in 1910 by Rani Parbati Kuar, in whose favour the late Raja Parasnath Singh had executed a khorposh mukarrari lease on 14th April, 1902 for 20 years and that the defendants took possession of the land and built a house on it. Rani Parbati Kuar was subsequently impleaded as defendant in the suit at the instance of the defendants, but she did not contest the suit. The Munsif dismissed the plaintiff's claim, holding that the plaintiff's right in the disputed land was not established and the Society's possession was not proved. The plaintiff appealed to the Judicial Commissioner of Chota Nagpur, who by his judgment, dated 27th June, 1912, reversed the decision of the Munsif and decreed the suit in favour of the plaintiff. The appellate Court below has found that the plaintiff took possession of the land for the purpose of erecting a dharmsala in 1907 and remained in possession of it until dispossessed by the defendants in 1910. The lower appellate Court has further held that the iqrarnamah operated as a limited transfer of the Raja's right in favour of the plaintiff and that he was entitled to take possession of the land in suit and as soon as he took possession of it, he acquired & perfect title to it.
8. It is contended on behalf of the appellant that the plaintiff has no right to the land in the suit and that the iqrarnamah in question is null and void. It is vague and uncertain in its terms and offends against the rule of perpetuities or remoteness applicable to Hindus. It is a suit in ejectment and in order to succeed the plaintiff must clearly establish his title to the land. The plaintiff has based his claim entirely upon the iqrarnamah, which among other things recites as follows:
“If the Sitambari Jain Society shall require any place on Parasnath Hill and below thereof at Madhuban for erecting mandir and dharamsala and for doing repairs and making bricks for the said purpose, in that case I and my heirs shall give for making mandir, dharamsala and bricks land etc., stones from the Hill, and timber free of cost, and if I and my heirs refuse to give, in that case the Sitambari Jain Society shall take the same of its own power.”
9. A translation of the clause is also to be found in Ex. 32, judgment in the Piggery case [Dhunput Singh v. Paresh Nath Singh]. The covenant in question gives to the Sitambari Society power to taks possession of any land on the whole of Parasnath Hill and at Madhuban without any limitation as to time, area or situation and upon the contingency of a dharamsala or temple being required to be built, which may or may not happen, and it is not known when the contingency would arise. The covenant is unlimited in point of time and was obviously intended to be so. It is not possible to insert a limit of time or to put in “within a reasonable time” as it would be contrary to the intention of the parties. If the covenant can in any way be construed to create an interest in the land and as running with the land, it is affected by the rule against remoteness, or perpetuity, inasmuch as it creates a future interest which may possibly vest after an indefinite period, and as by the existence of such interest the owner is prevented from alienating his estate, discharged of it, before the happening of the condition, and that event may possibly never occur. This view was adopted as early as in the case of Sreemutty Tripoora Soonduree v. Juggur Nath Dutt(11) and followed in a series of cases [Nobin Chandra Soot v. Nawab Ali Sarkar(12) and Anath Nath Maitra v. Kumar Keshab Narain Ray(13)].
10. In London South Western Rly. Co. v. Gomm it was held that the covenant to reconvey land whenever the Company required was invalid, as it gave to the Company an executory interest in land to arise on an event which might occur after the period allowed by the rules as to remoteness. In the Privy Council case Chandi Churn Barua v. Sideswari Debi, the Raja of Bijni had agreed that if ever descendants or the donees were not provided with means of maintenance by the Raja or his heirs, they would be entitled to take possession of the villages mentioned in the agreement. Their Lordships in the Privy Council held that the covenant, was void and ineffectual, observing that the covenant
“might be regarded as importing a present assignment to persons not in existence, subject to a suspensive condition which might prevent its ever taking effect; or it might be regarded as a covenant intended to run with the Raj estate, in favour of non-existing covenantees, to give the villages to them in the event specified,”
11. In either view the covenant was held to be equally ineffectual and to impose a restraint upon alienation which is contrary to the principles of Hindu law. If the covenant purports to give to the Sitambaris a right to take any land and at any time they like on the whole of the Parasnath Hill, which covers a very large area, it prevents the owner of the property or his successors from ever alienating the property, discharged of the estate created by the covenant. It is vague, indefinite and unreasonable in its terms and hence invalid and inoperative. Thus if the covenant in question be regarded as creating an interest in land in favour of the Sitambarisfor all time, it is void for remoteness both on general principles and under the Hindu law. It is further contended on behalf of the plaintiff-respondent that the Parasnath Hill was not the property of the Raja but it belonged to the Sitambari Jains and was dedicated to the deity, and that the agreement in question did not create a new interest in them but simply confirmed the pre-existing title of the Society. The Sitambaris, therefore, having taken possession of the land in suit in order to erect a dharamsala, could not be ousted by the Raja of Palganj or his transferees, the defendants. There is no evidence on the record to show that the hill ever belonged to the Sitambaris. On the other hand the recital in the agreement itself, the pleadings in the case and the judgment in the Piggery case, Dhunput Singh v. Paresh Nath Singh, clearly show that the hill is the property of the gaddi Palganj and the name of the Raja as proprietor thereof is registered in the record of earliest Settlement of the hill.
12. The contention of the respondent that the grant creates a religious endowment and hence the rule as to perpetuities does not apply, must fail. The iqrarnamah creates only a secular estate, if at all, though the motive may be a religious one. There is no dedication to any deity in the iqrarnamah and it cannot stand on the same footing as a religions endowment and is not exempt from the rule against perpetuities as held in Anantha Tirtha Chariar v. Nagamuthu Ambatagaren(14). The covenant in question does not, to my mind, in any way create any interest in land in favour of the plaintiff. It is not a transfer of any right in the property and, therefore, does not give to she plaintiff aright, vested or conditional, in the land. Under Section 54 of the Transfer of Property Act, a contract for the sale of immovable property does not itself create any interest in the property. It is nothing more than a, personal contract by the late Raja Parasnath, the executant of the agreement in favour of the Sitambaris. If it is morally a personal covenant to convey land, it is of course not obnoxious to the rule of remoteness, as held in the South Eastern Ry. Co. v. Associated Portland Cement Manufacturers and Avula Charamudi v. Marriboyina Raghavulu. The respondent, however, contends that if it is a personal covenant, it is binding upon the Raja who executed the agreement of 1872 and his heir, the present Raja of Palganj, as well as upon his assignees including the appellants. Counsel for the respondent has relied upon Section 40 of the Transfer of Property Act, and upon the decision in Talk v. Moxhay. Section 40 of the Transfer of Property Act, does not apply to the covenant in question. Section 2 of the Transfer of Property Act, makes Oh. 11, in which S. 40 occurs, subject to the rules of Hindu law.
13. The principle of the decision in Tulk v. Moxhay, only applies to restrictive covenants and does not apply to the covenant in question, which is clearly an affirmative one and I cannot agree with the learned counsel for the respondent when he asks us to read into the covenant a restrictive clause by implication. Our attention has been drawn to Section 27(b) of the Specific Relief Act, to show that the agreement is binding upon the assignees of the covenantor including the present appellants. The question is whether the covenant is a contract of which specific performance could be obtained. I doubt whether it would be a sound exercise of discretion under Section 27 of the Specific Relief Act to grant specific performance of the covenant in question, regard being had to the vague, indefinite and uncertain terms of the covenant. The agreement was executed in 1872 and in 1902 the Raja granted the estate in which the land in suit is situate to the khorposhdar. No attempt was made to enforce the rights given to Sitambaris under the covenant in question until 1907. The Raja is dead and his present heir is not made a party to the suit. In Bibi Jawahir Kumari v. Chaiterput Singh and Singheeram Poddar v. Bhagbat Chander, the agreements for lease were complete in every respect and were acted upon by the delivery of possession of the premises and the payment of rent. Similarly in Puchha Lal v. Kunj Behari Lal, the purchase-money was paid and the possession of the property sold was obtained under the kabala. In the case, following the principle of Walsh v. Lonsdale, it was held that the requisite formalities of the execution of documents and the registration thereof did not bar the accrual of the legal rights and liabilities as between the parties to the agreement and that specific performance of such a contract could be given effect to.
14. There was no question in these cases of the covenant being vague or indefinite or being affected by the rules as to remoteness or perpetuity.
15. These authorities, therefore, have no application to the present case. Assuming that the plaintiff could have maintained a suit for specific performance, he is not entitled to any relief in the suit as framed and he cannot be allowed to amend the plaint at this stage so as to materially alter the character of the suit. The plaintiff has failed to prove his title to the land and cannot maintain the suit for ejectment. The result is that the suit must be dismissed and the appeal allowed with costs.
16. By the Court.— The order of this Court is that this Appeal (No. 2336 of 1912) is allowed and the suit is dismissed. The appellants will get their cost from the respondent in all three Courts.
V.S/R.K
17. Appeal allowed.