MT KSHIRODAMOYI DASI Vs. KASHI LAL SEAL

JUDGEMENT

(1.) In this case, the plaintiffs bring their suit upon a personal covenant of indemnity contained in an instrument being a dead of patta executed by one Hira Lal Seal and others on 5 Pous 1268 B. S. It appears that certain persons of the name of Sett and certain persons of the name of Seal had each a holding paying revenue to Government and by the deed which is now before us, the Seals gave a lease of their holding to the predecessor of the plaintiffs for a period of 99 years. As part of the same transaction, the plaintiffs predecessor gave a lease to the Seals on the same terms. The areas were about equal and the yearly rent was in each case Rs. 16. This rent was never actually paid so far as one can discover but was set off one against the other. It turns out that in 1906, the Seals appear to have ceased to be entered in the Collectorate as the holders of this revenue-paying property and, in their place, one Biswas was recorded as the proprietor and it seems that he defaulted in payment of the Government revenue with the result that there was a revenue sale in 1919, and in 1920, the revenue purchaser took possession and dispossessed the plaintiffs from the land which had been leased to them by the document before us.

(2.) Now, the plaintiffs say that this was the first that they heard of there being any change in the ownership of the superior right in this land and they say that, when one goes through the terms of the lease, one will find that the original lessors gave a personal covenant by way of warranty that the Government revenue would never fail to be paid so as to produce a loss of the property by revenue sale. When I come to the terms of the document, it appears to me that the plaintiffs construction of the covenant in question is correct. The covenant is not merely a covenant that the lessors would pay the Government revenue in their time or as long as they would retain the property without assigning it, but the covenant is intended to be very reasonably intended to be much beyond that: it is intended to be a covenant that, at no time during the currency of this lease, shall such an event happen as is therein set forth, and, if that does happen, the lessors would indemnify the plaintiffs. There is no evidence and indeed, so far as I know, there is no case of a bargain between the plaintiffs or their predecessor and the lessors or any of their successors according to which it can be said that the plaintiffs have released the original lessors from this covenant and have agreed to the substitution of a similar promise by Biswas in place thereof. No such case has been made and I see no reason whatever to send this case back to the Court below in order that such a case may be investigated. A covenant of this sort is very often of small value to the covenantee because it may be difficult in after years to find successors who can be made to pay. But, in this case, there is no such question.

(3.) The only remaining question is the question of the amount of damages. That has been discussed hypothetically in the trial Court. The trial Court coming to the conclusion that an annual profit accrued to the plaintiffs of some Rs. 82 and that the lease had some 40 years more to run assessed the damages at Rs. 1,645 by taking 20 years purchase of Rs. 82. It appears to me that 20 years purchase is too high a number of years when you are assessing something that will come to an end in 40 years. The value of an annuity of 40 years is not 20 times the annual income. It has been suggested by Mr. S. N. Banerji, that a reasonable figure cannot be accurate but it cannot be far wrong if it be assessed at Rs. 1,000. I accept that as a very good figure and it seems to ma that, under the provisions of the Civil Procedure Code, it is open to us to deal with this small question of fact so as to avoid a remand.