NABJAN SARDAR Vs. NEBURALI MOLLA

JUDGEMENT

(1.) Three odd bighas of land which form the subject-matter of this suit formed part of a holding consisting of 7 bighas odd which was held by one Bata Bibi under the Bhowanipore Zamindari Co. One of the terms of the lease by which Bata Bibi's tenancy which was a mourashi mukarrari one was created was as follows: If you transfer the lands of this jama to anybody then the purchaser would be bound to pay into my sarkar as mutation fee one-fourth of the amount which would be the fair price for the land at the time; if such fee is not paid the transfer will not be valid.

(2.) Bata Bibi sold the land in suit to the appellant in 1920. The appellant did not pay the chouth. In 1924 the landlords sued Bata Bibi for rent of the entire tenancy for 1327 to 1330 B, S., obtained a decree and in execution of that decree put up the holding to sale at which the respondent purchased it. In 1923 the respondent, as plaintiff, commenced this suit for ejecting the appellant. The suit was decreed by the trial Court and that decree has been affirmed by the Subordinate Judge on appeal. The respondent rested his case upon the clause in the lease referred to above, alleging that the chouth had not been paid by the appellant and so the appellant's purchase was invalid. A number of decisions have been cited before me on behalf of the appellant in support of a contention that the stipulation itself is invalid as a covenant in restraint of alienation and offending against the rule of perpetuity: Basaratali Khan v. Manerulla (1909) 36 Cal 745 was a case in which in a permanent lease the covenant was that the lessee shall not be able to dig pits or tanks or to transfer the land in any way without a letter (from the lessor) to that effect, and there was no right of re-entry reserved. It was held that the covenant was not void, but the assignment was operative notwithstanding the covenant. It was pointed out that in such a case damages might be awarded on that footing as was done in Williams V/s. Earle (1868) 3 QB 739, and that was the view taken in Parameshri V/s. Vettappa (1903) 26 Mad 157. Another case is Swarna Kumar V/s. Prahlad Chandra AIR 1922 Cal 474, in which in a permanent lease the stipulation was that the lessee would not be able to transfer in favour of a third party without the lessor's permission but that in the case of a transfer in favour of a cosharer of the lessor no such permission would be necessary. It was held that the stipulation was void as offending against the rule of perpetuity. A third case cited in Rajendra V/s. Moheslata A.I.R. 1926 Cal. 533, in which in a permanent lease there was an absolute restraint of transfer provided by a clause which run thus, you will have no right to sell your right in the land held under the lease, but there was no right of re-entry reserved. It was held that the restriction is inoperative. The cases referred to above are all distinguishable because in the case before me there is no restriction as to transfer, but the stipulation is that the transferee whoever he may be will have to pay a chouth and if he does not pay it the transfer would be invalid. Such a covenant in a lease is a valid covenant for the benefit of the lessor and is in my opinion operative, The covenant in this case is in its essence similar to that in the case of Dinobandhu Roy V/s. W.C. Banerjee (1892) 19 Cal 774. Such a restrictive covenant runs with the land and remains operative during the entire period of the lease: see Sarada Kripalala V/s. Bepin Chandra Pal AIR 1923 Cal 679 The lessor could treat the purchaser as a trespasser and in fact did so by ignoring the appellant and suing Bata Bibi for the rent of the tenancy notwithstanding the transfer. The only question that remains to consider is whether the respondent is entitled to treat the appellant in the same way.

(3.) It cannot be denied that Bata Bibi would have been estopped from questioning the validity of the transfer she had made in favour of the appellant. But the respondent as purchaser at the auction-sale has in no sense acquired a derivative title from the judgment-debtor to be bound by any such estoppel. His rights must be determined upon the terms of his own sale certificate. The sale certificate purported to convey to him: the right, title and interest of the judgment-debtor Bata Bibi in the entire holding in arrears.