RAMBRIKSH PRASAD Vs. SHYAMSUNDAR PRASAD SAHU

JUDGEMENT

(1.) In the suit cut of which thus appeal arises the plaintiff claimed a sum of RS. 550/- together with interest from all the defendants. The case of the plaintiff was that he was the proprietor of 16 annas interest of the bakashi land in tauzi No. 11093 of village Mohammadpur Kazi, and on the 28th June 1926, and the 1st July, 1927, the plaintiff executed registered leases in favour of the ancestors of defendants 2 to 5 with regard to a portion of the bakasht land. The Kabuliats were executed by the lessee Basanto Kumar Chatterji for the respective leases. In the lease of the 28th June, 1926, there is an express covenant that in case the lessee wishes to assign the demised property to anyone else he should first take the consent in writing of the lessor, and if the lessor does not wish to purchase then the lease may be assigned to a third person, who would be liable to pay Rs. 350/- as chauth money in respect of salami etc. The relevant portion of the registered lease dated the 2am June, 1926, runs as follows :

(2.) Defendant No. 1 has presented this appeal Tinder the Letters Patent against the decision of the learned Single Judge, dated the 14th January,.. 1958.

(3.) The main argument put forward on behalf of the appellant is that the covenant entered into between the plaintiff and defendants 2 to 5 in the two pattas on the 28th June, 1926, and the 1st July, 1927, was a personal covenant and not a-covenant annexed to the ownership of any immoveable property, and so the plaintiff has no right to claim the amount in dispute from defendant No. 1. It was argued on behalf of the appellant that the case does not fall either within the first or the second paragraph of Section 40 of the Transfer of Property Act, which is to the following effect :