GANESH SONAR Vs. PURNENDU NARAYAN SINGHA

JUDGEMENT

(1.) In the suit out of which this appeal arises the plaintiffs alleged that on the 81st July, 1921, there was a registered lease granted by the father of plaintiff No. 1 in favour of the defendant for the purpose of homestead. Both the patta and the kabuliyat were registered and one of the terms and conditions of the lease was that the lessor would re-enter on the land it it was required for the purpose of hat and the lessee would vacate the same, and in that case the lessee would he entitled to money value of any construction that might be existing thereon. The relevant clause of the kabuliyat is to the following effect: -

(2.) It was submitted by learned Counsel for the appellant in the first place that Clause 10 of the kabuliyat by which an option was given to the lessor to determine the lease and take possession of the leasehold land was a covenant between the parties creating interest in land and offended the rule against perpetuities and must, therefore, be treated as null and void. In support of this proposition learned Counsel referred to Woodall v. Cliftan, (1905) 2 Ch 257, where it was held by the Court of Appeal that a proviso in a lease giving an option to the lessor to purchase the fee simple of the land at a certain rate was held to be invalid on the ground of remoteness. In our opinion the principle laid down in this case has no application, to Indian law. The reason is that in India an Ordinary contract of purchase of land does not by itself create an interest in land and there is no distinction in Indian law as compared to English law between legal estates and equitable estates. In English law a contract for purchase of land creates immediately an equitable interest in the land, but the position in India under section 54 of the Transfer of Property Act is different Section 54 of the statute expressly provides that a contract for the sale of immoveable property does not of itself create any interest in or charge on such property. In view of this vital distinction between the English and the Indian law the principle laid down in (1905) 2 Ch 257 cannot be applied to the present case. Learned Counsel for the appellant then referred to the decision of the Privy Council in Maharaj Bahadur Singh v. Balchand, AIR 1922, PC 165 where Lord Buckmaster observed in the course of his Judgment as follows :--

(3.) It was then submitted on behalf of the appellant that in any case the kabuliyat should be construed as if the lessee had given an option to the lessor for rclinquishment of the land and not to the heirs of the lessor, and the present plaintiffs have, therefore, no right to enforce ihe contract against the defendant. We do not think there is any substance in this argument. It is true that, Clause 10 of the kabuliyat states that the lessee and his heirs shall, without any objection, relinquish the whole land "should the lessor require the said land". In our opinion Clause 10 of the kabuliyat should be construed in the language and context of the other clauses of this document, and, if so construed, we are of opinion that the option givenby the lessee was not merely to the lessor torhis lifetime but also to his heirs should they in future require the demised land for a hat. We, therefore reject the argument of learned Counselon this point.