SHIBA PROSAD SINGHA Vs. LEKHRAJ SHEWAKARAM AND CO

JUDGEMENT

(1.) This is an appeal by the plaintiff, the owner of Jharia Raj, an impartible estate, who is dissatisfied with the decision of the learned Subordinate Judge of Dhanbad by which he dismissed his suit for recovery of possession of pargana Joynagar. The principal question for determination is whether the plaintiff is entitled to resume the property granted to a member of the family by way of maintenance grant upon the ground that there has been a breach of a term of the grant. The undisputed facts are that on 27 February 1919, the plaintiff executed a registered patta in favour of Kumar Krishna Prasad Singh, defendant 20, hereinafter to be called the Kumar, by way of maintenance grant. The grantee was to enjoy and possess the income of pargana Joynagar in perpetuity in lieu of maintenance. But it was stipulated that no one will be competent to get this ,property attached or sold "for your debts. If the said property is sold by auction for your debts, then this settlement will stand cancelled and the said property , shall come in my khas possession.

(2.) From the date of this document, the Kumar entered into possession and has been enjoying the usufruct of the property and also been making numerous settlements with the tenants and by way of mukarrari grants to various persons. The firm Lekhraj Sevakram, defendant 1, (and D 2 and D 3) obtained a money decree against the Kumar in the Calcutta High Court and in execution thereof attached the pargana and became the auction purchaser on 16 November 1929 (see the writ of attachment, Ex. 1, dated 29 July 1929, and the proclamation of sale, Ex. 19, pp. 41-42). After the execution sale that decree-holder auction- purchaser obtained delivery of possession on 14 September 1930 (Ex. 3, p. 44). The plain-tiff's case thus is that pargana Joynagar having been sold by auction for the debts of the Kumar, the settlement of 27 February 1919, stood cancelled and he is entitled to recover possession. The plaintiff instituted the suit on 24th April 1939. He says that he came to know of the auction sale after August 1933 when he got possession of the Jharia Raj after a final settlement of the litigation "between himself and the widows of the previous Raja Durga Prasad. Having come to know on further enquiries that defendants 4 to 19 are in possession of various properties within pargana Joynagar under leases and transfers made by the Kumar, he sent a notice to all the defendants on 29 June 1936 (Ex. L) and again on 1 December 1936 through a pleader (Ex. 12 (e)) asking them to give up possession.

(3.) The main defence to the action was that pargana Joynagar was , wholly and permanently transferred to the Kumar and in any case the condition in restraint of the involuntary alienation was void and inoperative both under the provisions of the Transfer of Property Act and under the general law as being opposed to public policy. It was also pleaded that the forfeiture, if any, was waived by the Rajah on grounds which will have to be noticed hereafter. The learned Subordinate Judge held that the maintenance grant was not a lease but must be regarded as a family arrangement and, therefore, it operated as an absolute transfer in favour of the Kumar subject only to the repugnant provision contained in the restraining clause which was illegal and void both under Section 10, T. P. Act, and also as opposed to public policy. He negatived the contention of the defendants that the Rajah had waived his right of forfeiture. In the result he dismissed the suit. Hence the appeal by the plaintiff.