SHULACHANA MAZUMDAR Vs. KALI BIBI

JUDGEMENT

(1.) This is an appeal by the plaintiffs in a suit for ejectment. There is no dispute about the fact that the defendants father and predecessor Munshi Gazi was an under-raiyat under the plaintiffs by virtue of a kabuliyat executed in their favour. The kabuliyat was executed in 1317 for a term of nine years which expired in Chait 1325. It is admitted on all hands that Munshi Gazi died one month before Chait 1325. The substantial question before the Courts below was what construction was to be placed upon the kabuliyat. We have not had the advantage of examining the document for ourselves as it has not been placed before us and we are, therefore, bound to accept the interpretation which has been given to it by the learned Subordinate Judge. It contains a stipulation for a lease for a fresh term upon the expiry of the term already settled. It also contains the expression: "I and my heirs will happily enjoy the land," and it is further stated that in the event of their refusal to execute a fresh lease on fair rent they will not be able to raise any objection to khas possession being taken by the lessor.

(2.) The learned Munsif was of opinion that the contract was a personal one limited to Munshi Gazi and that the defendants as his heirs, were not entitled to avail themselves of it because an under-raiyati was not heritable. He, therefore, held that as the term of the kabuliyat had expired the defendants were liable to be ejected.

(3.) The learned Subordinate Judge has reversed that finding on the ground that the words used in the kabuliyat would not only not have the effect of debarring the heirs of Munshi Gazi from the benefit of the lease, but were clear indications of a contrary intention. The heirs would, in fact, be competent to enforce specific performance of the contract under Section 23 of the Specific Relief Act. He further observed that the defendants had all along expressed their readiness to execute a fresh kabuliyat, but that the plaintiffs refused to accept it. In his opinion the question of heritability did not arise. The decision turned upon the contractual relation between the parties.