RAMBRIKSH PRASAD Vs. SHYAMSUNDER PRASAD SAHU

JUDGEMENT

(1.) In this appeal the only question raised is how far a covenant by a lessee in a registered document of lease to pay zare chaharam to the lessor in case of any sale or transfer by him of that leasehold interest is binding on and enforceable against his assigns and transferees.

(2.) The facts giving rise to this case are now practically admitted and they are as follows. There was one Kanhaiya Prasad Sahu, who, on the records of this case, is represented after his demise by his son, the plaintiff respondent first party. He was the sixteen annas proprietor and landlord of village Mohammadpur Kazi in the town of Muzaffarpur hearing tauzi No. 11093. Therein he owned and possessed certain zirat and bakasht lands. Out of them, about 9 kathas of zirat and bakasht lands were settled by him with one Basanto Kumar Chatterji, the father of the defendants respondents second party, under two sets of registered pattas and kabuliats dated 28-6-26 and 1-7-27. The patta and kabuliat corresponding to 28-8-26 have been marked on the record as exhibits 1 and 1/a while those corresponding to 1-7-27 have been marked as exhibits A and A/1 respectively. Under the former the area given in lease was 7 kathas and that was for a recompense of Rs. 24/8/- as rental and Rs. 1,400/- as nazarana while in the latter area covered was 2 kathas and it was for a consideration of Rs. 800/- as nazarana and Rs. 8/- as rent. The common term with which we are concerned in this case under these documents is that in case of sale or transfer by the lessee of the leasehold interest to a person other than the lessor, the lessor was to get from the transferee a sum of Rs. 350/-under the first lease and a sum of Rs. 200/- under the second lease; and as these amounts work out exactly to oner-fourth of the aforementioned nazarana amounts, they are described in the plaint as zare chauth. Further, it appears that; though the lands given under the aforesaid demises were zirat and bakasht, the purpose for which they had been let out was not agricultural but non-agricultural, namely, the construction of residential quarters on them; and it is not denied that the lessee on his entry thereon did construct a house there and lived therein so long as he had not parted with his lease interest. Thereafter in 1946 the lessee assigned his interest in those lands to the defendant appellant along with the structures erected thereon who is now in possession of it. On these facts, the two courts below have concurrently found -- and I think rightly -- that the lease having been given for a purpose non-agricultural is governed by the Transfer of Property Act and not by the Bihar Tenancy Act; and, as this part of the case is not any more in controversy, I need not go into it any further. Here the only grievance made on behalf of the transferee is that he being not a party to the original contracts of lease dated 28-6-26 and 1-7-27 is not liable for any covenant made thereunder for the payment of zare chaharam and therefore the finding given by the courts below contrary to it is wrong in law. In other words, his contention is that

(3.) Now, at common law a covenant is said to run with the land where the benefit or burden of it passes to the successors-in-title of the covenantee or the covenantor, as the case may be; yet, as a rule, what has been recognised in common law to run with the land is only the benefit of a covenant and not its burden. For example, if A was the covenantee and B, the covenantor, and the covenant related to the land of A, the benefit of the covenant ran with the land of A in the sense that A's assigns could enforce it against B provided that :-- 1. the covenant was one 'touching and concerning' the land of A and 2. the covenant wag intended by the parties to be annexed to the land of A. And in Rogers v. Hosegood, (1900) 2 Ch. 388 (E) a covenant was said to 'touch and concern' the land when it was one which affected the nature or value of the land, or benefited the land, or affected the rent issuing out of the land. If, therefore, the covenant did not relate to land of A at all (Renals v. Cowlishaw (1878) 9 Ch. D. 125 (F)) or if A had no land to the advantage of which the covenant might be said to have been entered into (Torbay Hotel Ltd v. Jenkins, (1937) 2 Ch. 225 (G)) the benefit of the covenant could not be said to run with the land of A. That means, so long as the benefit of a covenant affected the nature or value of the land or benefited the land or affected the rent issuing out of the land and was intended by the parties to be annexed to the land, it as a rule ran with it. But as to the burden of a covenant, the general rule was that it did not run with the land. "Thus if A was the covenantee and B the covenantor and the covenant affected the land of B, then the burden of the covenant did not run with the land of B and was not enforceable against the assigns and sucoessors-in-title of B : Austerberry v. Corporation of Oldham, (1885) 29 Ch. D. 750 (H)'. That, however, was subject to one exception and that was in the case of lease, where not only the benefit of the covenant but also its burden ran with the land (Dennett v. Atherton, (1872) 7 Q. B. 316 (I)).