NAWAB OF MURSHIDABAD Vs. BILAS ROY CHOUDHURI

JUDGEMENT

(1.) This case involves the construction of the Murshidabad Act (15 of 1891). On 25 July 1920, the Nawab Bahadur of Murshidabad and his eldest son, defendant 3, executed an indenture, whereby the Nawab let to defendants 1 and 2 certain lands and premises to which the Murshidabad Act applied for a term of 21 years in consideration of: the sum of rupees five laces as advance of the total rent payable for and during the said term of 21 years, the annual rent being one equal 21 part of the said total rent, and the said lessees do hereby covenant with the said lesser in manner following (that is to say) that the said lessees shall pay to the said lesser at or immediately before the execution of those presents the said sum of rupees finales as advance of the total rent payable during the said term of 21 years.

(2.) In the same indenture defendant 3 covenanted with the lessees that in the event of his succeeding to the estate within the period of the term he would allow the lessees to continue in occupation of the demised property "without paying any rent therefor pursuant to the terms of this lease." An acknowledgment of the payment of the five lacs was endorsed upon the indenture by the Nawab. Thereafter defendants 1 and 2 went into, and at all material times have remained in, possession of the demised property. The present suit has been brought by the Nawab to recover possession of the demised property and mesne profits, upon the ground that the indenture of lease of 25 July 1920 is null and void by reason of the provisions of condition (1) of the Murshidabad Act. Condition (1) is to the following effect: <JGN>Page</JGN> 2 of 7 The said Nawab Bahadur shall not nor shall any of his successors in the said titles sell mortgage devise or alienate the said properties respectively or any of them otherwise than by lease or demise for a term not exceeding 21 years, and under a rent without bonus or selami.

(3.) Three issues fall for determination: (1) Is the lease in suit a "lease or demise for a term not exceeding 21 years and under a rent without bonus or selami" within condition (1) of the Murshidabad Act ? (2) If nay, is the lease void, or voidable only at the instance of the Secretary of State for India ? (3) If the lease is void, is the Nawab estopped from denying its validity ?