NARENDRA BHUSHAN ROY Vs. BANKU BEHARI GHOSE

JUDGEMENT

(1.) This is a suit to establish title, and the decision now under appeal is in the plaintiff s favour. Though there are many circumstances in the case which call for consideration, its true determination turns upon the real meaning and effect of what has been termed a covenant against transfer and a Clause for re-entry contained in the kabuliat of 1882, for if the landlord was entitled to enter under those provisions by virtue of what has happened in this case, then admittedly the plaintiffs must succeed. In my opinion, the plaintiffs have somewhat overstated their argument in so far as they contend that the Clause against transfer by sale or gift would cover a simple mortgage, so that, had the matter rested there, I should have felt unable to support the plaintiffs claim. But that simple mortgage resulted in a sale, so that the broad result that we get is that there has been a transfer, and the only question is whether that transfer, in all the circumstances of the case, is not attributable to the lessees. Recognizing to the full the binding force of those decisions which, lay down that a transfer in invitum does not come within the operation of such a clause, still I think, in the circumstances of this case, that the proper and practical result is that the voluntary act of the lessees in executing the simple mortgage which, by reason of their default resulted in the transfer, brings the transaction within the operation of that clause.

(2.) On these grounds, the judgment of Mr. Justice Caspersz must be affirmed and this appeal dismissed with costs. N. Chatteerjea, J.

(3.) I agree.