PANCHAM SINGH Vs. RAI PROMOTHA NATH MITRA

JUDGEMENT

(1.) The plaintiff-respondents are the owners of an eight annas proprietary interest in Mauzas Labrikhud Par-sauna, Raghubar and Neura. In 1865 their predecessors granted a permanent mukarrari of 7 1/2 annas in these villages to a number of persons on an annual rent of Rs. 560. The lessees covenanted not to transfer the mukarrari property without the consent of the lessors, and the lease contained a clause entitling the lessors to re enter on breach of the covenant. In the present suit the plaintiffs-respondents claim to re enter by reason of the transfer of a 1 pie share on March 9, 1927, and the tranfers of a 15 karants share on August 27, 1927. It has been found by the Court below that previous to these transfers there had been frequent transfers by the lessees inter se and this finding was not challenged in this appeal. The transfers of 1927, however, were to strangers. The Court below decreed the suit and the defendants appealed. The material portions of the kabuliyat which was in Persian, evidencing the grant of the mukarrari are as follows: We have obtained the whole and entire 7 1/2 annas...together with all boundaries...at a uniform jama of Rs. 560 of the present currency with effect from 1276 Fasli on depositing Rs. 1,400 of the present currency. We have paid up the entire nazarana money and entered on possession of the mukarrari property We shall continue to pay up rent thereof year after year. The expenses relating to the village and Court affairs - boundary disputes in the Civil and Criminal Courts and the Collectorate concern us the mukarraridars. We shall continue to execute the orders of the Government and the landlords.

(2.) Here followed a number of other undertakings by the lessees, which are not material and then followed the following: In the event of default in payment of instalment we shall continue to pay interest thereon at 1 per cent. per mensem. If three consecutive instalments are defualted, or if we, without the permission of the landlords, give this mukarrari property (shai mukarrari) in darmukarrari or transfer it by sale, conditional sale, gift, rehan or otherwise, or allow a single bigha or biswa of the land (zamin) of the said Mauzas to go into the possession (ilaka) of others or commit atrocities of any sort upon the tenants of the villages, then when these (ye manihae lit; these matters) are brought to light, the landlord or their heirs are and shall be competent to bring the said Mauzas into their sir possession and settle them with others. In this case we, the executants, and our heirs, neither have nor shall have any claim to the mukarrari and refund of the said nazarana money.

(3.) Subsequent clauses stated that the annual rent was Rs. 560, that the mukarran property was 7 1/2 annas out of 16 annas asli mai dakhli, and that the interest of the several lessees was as follows : Fateh Singh 1 1/2 annas, Mahabal Singh 1 3/4 annas Harakh Singh 1 3/4 annas, Sheobarat Singh 1 3/4 annas and Thakur Prasad 1/2 anna. In the suit Fateh Singh's interest was represented by defendants l-4a, Mahabal Singh's by defendants Nos. 5 19, Harakh Singh's by defendants Nos. 20-37 and Thakur Prasad's by defendants Nos. 38-44. The entire interest of Sheobarat Singh has passed into the ownership of the representatives of these, four lessees. The transfers of the 1 pie share and the ,15 karants share, which the plaintiffs claim bring the forfeiture clause into operation were made by Harihar Prasad and Bhairo Prasad, respectively both of whom were interested in the share of Thakur Prasad. Defendants Nos. 45 to 52 represent the transferee of the 1 pie share and defendants Nos. 53-58 the transferee of the 15 karants share. The question for decision is whether these transfers entitle the lessors to re enter on the whole or any part of the demised property.