SARADA KRIPALALA Vs. AKHIL CHANDRA BISWAS

JUDGEMENT

(1.) This is an appeal under Clause 15 of the Letters Patent from a judgment of Mr. Justice Newbould in an action in ejectment. The suit was decreed in part in the Court of first instance. On appeal the Subordinate Judge decreed the claim in full and that decree has been affirmed in second appeal to this Court, The rights of the parties are regulated by a contract of tenancy executed on the 23rd April 1649 by Madan Mohan Ghose in favour of Abdul in respect of the first plot of land now in dispute. The lease, which is called taluka patta, recites that the tenant had executed a kabuliyat in favour of the grantor and that the taluka patta was granted on a rent of Re. 1 from year to year. Then follows an important covenant in these terms: "You shall erect houses upon the land and live there. If I have a personal necessity, you shall relinquish the land, and you will not be entitled to make any objection." The plaintiff is the successor-in- interest of the original grantor; the first defendant is the son of the original grantee; the third defendant who really contested the suit is a transferee of the tenure through the second defendant. The second plot in suit is not covered by the lease but was annexed to the first plot by the tenant by way of encroachment. The plaintiff has treated the third defendant as a tenant in respect of both the plots, and, after service of notice to quit on him, has instituted this suit for recovery of possession. The defendant contends that he cannot be ejected as the tenancy is of a permanent character. In these circumstances, the plaintiff, in order to succeed, must establish first, that the tenancy was of a terminable nature, and, secondly, that it has been terminated in accordance with law.

(2.) The fundamental question in the case relates to the nature of the tenancy created by the taluka patta of the 23rd April 1849. The appellant contends that the expression taluka prima facie implies permanence and relies upon the decision in Krishano Chunder Goopto v. Meer Sufdur Ali 22 W. R. 326. which was recently followed in Budyar Rahman v. Matiar Rahman 21 Ind. Can. 47 : 18 C. L. J. 271. It must now be treated as well settled that if there be nothing, either in the surrounding circumstances or in the instrument which creates the interest, to show that it was intended to be otherwise, the inference is that a tenancy called "taluka" constitutes a permanent tenure. We thus start with the presumption that the tenancy created by this lease was a permanent tenure. Are there, then, any indications in the instrument itself or in the surrounding circumstances which point to a contrary conclusion? On behalf of the respondent reliance is placed upon the fact that appropriate words of heritability or transferability do not occur in the instrument. This may be conceded and the deed is silent upon the questions of heritability and transferability. But the significant fact remains that during the period of sixty years, which have elapsed since the lease was granted, the tenancy has passed by inheritance from father to son and has formed the subject of successive transfers; moreover, the succession and transfers have been recognised by the landlord. Consequently, the inference legitimately follows that the parties intended the leasehold interest to be heritable and transferable. We have the additional fact that the grant was for residential purposes; and as might have been expected, structures have been erected on the land, indeed, the decree entitles the plaintiff in accordance with the prayer in the plaint to remove the houses erected by the defendant on the disputed land. Finally it is noteworthy that the rent fixed in 1849 has never varied. Consequently, the indications furnished by the instrument all tend to confirm the conclusion that the lease described as taluka patta was intended to be permanent. Reliance, however, has been placed on the clause which entitles the grantor to re-enter and prevents the grantee from raising objection to such a course. On behalf of the appellant it is contended that this is a purely personal covenant in favour of the grantor himself. The respondent argues, on the other hand, that this is a covenant running with the land. Now as observed by Holmes in his Common Law (page 406), it is impossible to tell by general reasoning what rights will be held to belong to the class of personal covenants or where the line would be drawn between the two classes, that is, personal covenants and covenants running with the land. The proper course is to construe the terms of the instrument and thus ascertain the true intention of the grantor and grantee. Now, upon a plain reading of this lease, it is clear that the covenant was in favour of the grantor personally, for the words used are: "If I have personal necessity (* * * * * * * *) you shall relinquish the land." In a case of this description the well known Rule applies that the covenant is to be construed most strongly against the grantor and most beneficially in favour of the grantee (see the observations of Wilde, C. J., in In re Stroud (1849 8 C. B. 502 at p. 529 : 19 L. J. O. P. 117 : 137 E. R. 604 : 79 R. R. 608., of Romilly, M. R., in Warde v. Warde (1852) 16 Beav 103 at p. 105 : 51 E. R. 716 : 96 R. R. 49. and of Selborne, L. C., in Neill v. Devonshire (Duke) (1883) 8 A. C. 135 at p. 149 : 31 W. R. 622. We do not affirm the proposition that if the meaning of the covenant is perfectly clear, if it is expressed in absolutely unambiguous language, the language should be strained to obtain a conclusion in favour of the grantee and against the grantor. Such a course was condemned by Jassel, M. R. in Taylor v. St. Helens Corporation (1877) 6 Ch. D. 264 : 46 L. J. Ch. 857 : 37 L. T 253 : 25 W. R. 885. It is equally clear that where the terms of the grant show plainly that the covenant was intended to be personally in favour of the grantor, the Court should not stretch the language and interpret the covenant to the detriment of the grantee. The covenant in this case is of very stringent character and we should not accept the construction proposed by the grantor, which is not only more extensive than is justified by the actual words used but really destroys the permanency of the lease and places the grantee entirely at the mercy of the grantor. The position then is that the instrument, which is described as a taluka patta and consequently prima facie is a permanent grant, furnishes no indication that the intention of the parties was to create a terminable tenancy except that during the lifetime of the grantor, if he had personal necessity, the tenant would be bound to relinquish the land in his favour. That contingency has not happened. The tenancy has continued for 60 years and the successor-in-interest of the grantor now seeks to eject from the land a derivative holder from the grantee. In our opinion his claim cannot succeed.

(3.) We have finally to consider whether this conclusion is applicable, not merely to the first plot which is covered by the grant, but also to the second plot which has been annexed by the tenant to the land of his tenancy. No distinction can, in such circumstances, be made, we think, between the two parcels. The plaintiff has not treated the defendant as a trespasser in respect of the second plot. If within the statutory period from the date of encroachment, he had instituted a suit to eject the defendant on the ground that he could not, without his consent, acquire the status of a tenant in the second plot, he might have succeeded in his claim Ishan Chandra Mitter v. Raja Ramranjan Chakarbutty (7) 2 C. L. J. 125.; Whitmore v. Humphries (8) (1872) 7 C. P. 1 : 41 L. J. C. P. 43 : 25 L. T. 496 : 20 W. R. 79.; Hastings (Lord) v. Saddler (9) (1898) 79 L. T. 355.; Attorney-General v. Tomline (10) (1877) 5 Ch. D. 750 : 46 L. J. Ch. 654 : 36 L. T. 684 : 25 W. R. 802. Instead of this, be has treated the third defendant as tenant in respect of the encroached land, while the latter has professed to hold it as part and parcel of his tenancy. We need not decide whether the plaintiff may not claim additional rent from the defendant; it is sufficient to hold, for the purposes of the present claim in ejectment, that the two plots constitute one tenancy and stand on the same footing. The result is that this appeal is allowed, the decrees of the Courts below discharged and the suit dismissed with costs in all the Courts.