KORAGALVA Vs. JAKRI BEARY

JUDGEMENT

(1.) The plaintiff's suit is for possession of property demised under a Mulgeni lease and for arrears of rent on account of the forfeiture of the Mulgeni chit. Both the Lower Courts have dismissed the plaintiff's suit for possession of the plaint property. The plaintiff has preferred this second appeal. The clause against alienation in the Mulgeni chit, Ex. A, is as follows: If we find that we do not require this mulgeni we should obtain from you only the consideration for the improvements that may justly be effected by us and surrender the said land to you and we are not entitled to alienate the said land to any one else by mortgage, arwar, sale, gift, mulgeni, owdigeni, kayamgeni or by injunction, attachment, auction in any decree that may be passed against us in any Court or in any other manner whatever.

(2.) The Mulgeni lease was in favour of three persons. One of the Mulgenidars alienated his share on 28 May, 1919 under Ex. I in favour of another Mulgenidar, that is his co-lessee. On 27 April, 1920, the Mulgenidar reconveyed the same interest to the former Mulgenidar under Ex. III. On 10 June, 1924, one of the Mulgenidars convened his right under Ex. II to his daughter. The daughter reconveyed the interest conveyed to her to her father on 19 July, 1921, by Ex. A.

(3.) Two questions arise for consideration with regard to these two alienations. First, whether the alienation by one lessee to another lessee of his interest in the lease is an alienation within the meaning of the clause, and second, whether the alienation in favour of the daughter though an heir under Muhammadan Law is an alienation within the meaning of the clause against alienation in Ex. A. The learned District Judge held that both the alienations did not come within the clause against alienations in Ex. A. As regards the question whether the alienation by a lessee of his right in favour of a joint lessee works a forfeiture or not is not covered by clear authority. In Farley V/s. Coppard (1872) 7 Com Pleas 505. the facts were as follows: A and B, partners in trade, were assignees of a lease which contained a covenant by the lessee, for himself and his assigns, that he would not, neither should his executors, administrators, etc., assign the demised premises without the consent in writing of the lessor. On the dissolution of the partnership, A assigned all his interest in the premises to B.