UDIPI SESHAGIRI Vs. SESHAMMA SHETTATI

JUDGEMENT

(1.) In 1876 the plaintiff s predecessors-in-title granted a mulgeni lease containing a covenant against alienation to the predecessors of defendants 4 and 5 who in 1907 in breach of their covenant alienated the holding to defendants 1 to 3. The plaintiff having obtained a decree for rent against defendants 4 and 5 in O.S. No. 490 of 1916, attached the holding in execution of the decree, when defendants 1 to 3 put in a claim petition and succeeded in getting the attachment raised. The plaintiff then filed this suit to establish his right which was dismissed by both the Lower Courts. In second Appeal Bakewell and Phillips, JJ. differed and this is an appeal from the prevailing Judgment of Bakewell, J. dismissing the suit. It is well settled in England that an assignment by a lessee in breach of his covenant not to assign is perfectly valid to pass the term; and we have been asked to apply the same rule here as it was applied by Sargent, C.J. in Tamayya v. Timappa Ganpaya (1881) I.L.R. 7 Bom. 262 in Basarat Alikhan v. Manirulla (1909) I.L.R. 36 Cal. 745. Promode Ranjan Ghosh v. Aswini Kumara Nag (1914) 18 C.W.N. 1138 and by Bakewell, J. in the present case. On the other hand it was contended that the rule was inapplicable on the authority of an observation of Bhashyam Ayyangar, J. in Parameshri v. Vittappa Shanbaga (1902) I.L.R. 26 Mad. 156 :12 M.L.J. 189 which was followed by a Bench of this Court in another case. All that Bhashyam Ayyangar, J. said was that a transfer by the lessee in breach of a covenant not to alienate might be void against the lessor and in that view the transfer would be inoperative to secure to the transferee as against the lessor the benefit of the lessor s contract under Section 108(c) Transfer of Property Act. I have no doubt the learned Judge was well aware that such transfers are valid in England and having regard to his express mention of Section 108, Transfer of Property Act, I think that his suggestion that they may be void was made with reference to the fact that in Section 108, Transfer of Property Act, the lessee s power of transfer in Clause (j) and the provision as to the transferee s rights under the transfer in Clause (c) are made subject to the words "in the absence of a contract or local usage to the contrary" at the beginning of the section. It may be argued on the strength of these words, and this I think was the view Bhashyam Ayyangar, J. was disposed to take, that whatever be the law in England, the Transfer of Property Act only recognises transfers by the lessee in the absence of a contract by him not to alienate, which of course means a valid contract. It has however been expressly decided and may now be considered settled, that covenants not to alienate are valid under the Transfer of Property Act, as being for the benefit of the lessor, and it was so held by him in that case. It would, also, seem that the learned Judge was disposed to apply the same rule to agricultural leases not governed by Chapter V, even when they were executed before the coming into force of the Act. As regards the last point the English rule was applied in 1883 in Tamayya v. Timappa Ganpaya (1881) I.L.R. 7 Bom. 262 by Sargent, C.J. and Melvill, J. in the case of one of these mulgeni leases in North Kanara executed before the enactment of the Transfer of Property Act, after a very careful examination of the history of this tenure in the previous case, Bin Ram-krishnappa v. S. Bai Nagabhat (1883) I.L.R. 7 Bom, 256 judgment in which was given on the same day. It was there pointed out that in ancient times the interest of the permanent lessee or mulgenidar was freely transferred and that restrictions against alienations by mulgenidars though not invalid were of comparatively recent origin. In these circumstances I have come to the conclusion that the decision in Tamayya v. Timappa Ganpaya (1881) I.L.R. 7 Bom. 262 is sufficient authority for the application of the English rule in the case of mulgeni leases in Kanara executed prior to the Transfer of Properly Act, and that it is unnecessary to consider the effect of Section 108 of that Act on transfers by lessees in breach of covenants in leases subsequent to the Act more especially as the view of the section apparently taken by Bhashyam Ayyangar, J. has not yet been expressly adopted in any case, and, on the other hand, the English rule has been applied in Calcutta even after the passing of the Act, though without advertance to the terms of Section 108. In the result I agree with Bakewell, J. and would dismiss the appeal with costs. Oldfield, J.

(2.) I agree with the Judgment just delivered. Seshagiri Aiyar, J.

(3.) The plaintiff s predecessor granted to the ancestor of defendants 4 and 5 a Mulgeni lease of the property in dispute in 1876. On the. 16th January 1907, defendants 4 and 5 transferred that lease to defendants 1 to 3. The plaintiff obtained a decree for rent against the former and attached the properties ignoring the transfer and treating them as if they still belonged to the judgment-debtor. The question is whether the plaintiffs are entitled to do that.