MOHAMMAD BEAJUDDIN AHMAD Vs. BASUDA SUNDARI DASI

JUDGEMENT

(1.) In my judgment this appeal should be dismissed. The question really depends upon the construction which is to be put upon the lease of the 19th of March 1879. The learned Vakil who has argued this case for the appellant admits that the tenure which was thereby created is a permanent and heritable tenure, and, therefore, it would come within the passage to which I drew his attention just now, in the case of Nil Madhab Sikdar v. Narattam Sikdar 17 C. 826 : 8 Ind. Dec. (N.S.) 1095. The passage is at page 828 and is as follows : Moreover, it seems doubtful whether, when a landlord grants a permanent and heritable tenure in land, he has any estate left in him, unless he reserves to himself a right of re-entry or reversion for it has been held in the case of Sonet Kooer v. Himmut Bahadoor 1 C. 391 : 25 W.R. 239 : 3 I.A. 92 : 3 Sar. P.C.J. 608 : 3 Suth. P.C.J. 257 : 1 Ind. Dec. (N.S.) 245 that in the case of the grant of an absolute hereditary mokurrari tenure it will, on failure of heirs of the lessee, escheat to the Crown, and will not revert to the original grantor or his heirs." It is said by the learned Vakil that in the present case the landlord reserved to himself a right of re-entry, because he says the passage if: "God forbid, if the said land and bari be not used for dwelling purposes the right under the pattah shall be void." I doubt very much whether that should be construed to be a reservation of the right of re entry by the landlord. It does not say so in so many words, and the form in which the right of re entry is usually inserted is well-known, and it might have been inserted if it was intended. But even assuming that it does amount to a right of re-entry, upon what does that right depend? The passage which, it is now clear, has been correctly and accurately translated is this: "if the said land and bari be not used for dwelling purposes the right under the pattah shall be void." The learned Vakil wants us to put a construction upon that sentence in this way: "if the said land and bari be not used for dwelling purposes by us," or I suppose by our eons, grandsons and so on," "then the right, etc." I do not think that that is the correct interpretation to be put upon that part of the lease, and I do not think that it should be limited in the way, which is contended. Therefore, even if it does amount to a reservation of the right of re-entry on the part of the landlord, the condition upon which it was based has not arisen. The tenure being a permanent one and also a heritable one was capable of assignment, unless there were words clearly and distinctly limiting that right of assignment, and clearly giving the landlord a right of re-entry on the alienation. I do not find that in the document.

(2.) For these reasons, I think that the judgment of Mr. Justice Mullick, based as it was upon the same reasons which I have just now enunciated, is correct and, therefore, this appeal must be dismissed with costs. Asutosh Mookerjee, J.

(3.) I agree.