MOHINI MOHAN ROY Vs. RAMDAS PARAMHANSA

JUDGEMENT

(1.) In this case, the defendant appeals from a decision of the District Judge of Nadia reversing a decision of the Munsif of Ranaghat. The plaintiff brought the suit for a sum of money as due to him by the terms of a document called ekrarnama. That document is dated the 28 March 1891 and contemporaneously with it on the same day there was a conveyance of certain land by the predecessor-in-title of the plaintiff to the predecessor of the defendant. The terms of the ekrarnama have been discussed in the judgments of the Courts below and the first question is the question of construction. It is to be observed that the conveyance contains no reference whatever to any such covenant as I am now about to read from the ekrarnama. The ekrarnama which was executed by the defendant's predecessor-in-title was as follows: "When you expressed your desire to sell your share of the putni and jamai right in mouza Goid, village Salua Parga Ukhara, I had promised before you that, if the above share was sold to me by you, I and my heirs and legal representatives shall pay you and your legal representatives for the sheba of the Jugal Kishore Thakur the sum of rupees twenty yearly, year after year." Later on, these words occur: "Therefore, I make this ekrar that, by the grace of Jugal Kishore Thakur as long as there shall be any member in my family and as long as I shall have zemindari right in the above mouza, I and my heirs and legal representatives shall pay you and your legal representatives for the sheba of the Thakur the sum of rupees twenty per year." The conveyance of the same date contains no covenant to an equivalent effect and there is no recital whatever in it of this ekrarnama. Now, what has happened is this: The purchaser of the property who made the promise contained in the ekrarnama conveyed this land to the present defendant. The present defendant is a purchaser from him. The plaintiff accordingly brought the suit against the defendant and he brought it upon the ground that the present defendant was bound by the promise of the man who had sold the land to him. Tee plaintiff says that the promise of the predeessor-in-title of the defendant was intended to bind everybody who would come to own that land and that the covenant runs with the land.

(2.) Now, in this case, it will be simplest to begin by stating the legal position of the parties. The position of the defendant in the face of a claim of that sort is that he is a person who is sued upon a claim which is unfounded in law. There is no such thing as between a vendor and a purchaser as a covenant to pay money running with the land. In the case of assingment of lease as between any one who may become interested in the term and any one who becomes interested in the reversion it is possible to talk of a covenant running with the land. At common law no covenant ever ran with the reversion. By the Statute law, some covenants may run with the term and some with the reversion and the nature of the covenants that can be said in loose language to run with the land has been described in the case-law and in the Conveyancing Acts and made more or less precise. The present covenant is not one which can run with the land as it is in no way a covenant to pay rent. There is no lessor or lessee, there is no term and there is no reversion. There is no charge on the land. The postion of a purchaser of land whose predecessor became bound by a restrictive covenant is dealt with upon the principle of Tulk V/s. Moxhay (1848) 2 Ph. 774 : 18 L.J. On. 83 : 13. Jur. (O.S.) 89 : 12 L.T. 469 : 41 E.R. 1143 : 78 R.R. 289. If there is a restrictive covenant and the purchaser takes with notice of it, then the person in whose favour the covenant is made can restrain the purchaser from acting contrary thereto. The present case is far removed from anything of that sort. When one looks at the terms of the ekrarnama, and at the way in which these two documents of the same date were kept separate, it is abundantly plain that the vendor had a mind to sell the land with a clean title and that, as a part of the consideration, he took a personal covenant from the purchaser which was intended to bind the latter and his family and then only so long as they held the land. There is, therefore, upon the merits, no substance in the case against the defendant and there never was.

(3.) Now, the position in this case is only half dealt with when the merits are dealt with. It appears that, in the protracted series of suits--mostly but not all brought in the Small Cause Court, these parties have litigated upon this matter and the defendant has had very poor success. The present appeal is complicated by the further consideration that this suit was not brought in the Small Cause Court.