BASARAT ALI KHAN Vs. MANIRULLA

JUDGEMENT

(1.) THIS appeal arises out of a suit for possession of property. On the 20 of October 1881, a permanent lease of the property in suit was executed by defendant No. 1 in favour of defendant No. 2, and in that lease was a covenant in these terms: "You (i.e., the lessee) shall not be able to dig pits and tanks or to transfer the land in any way without a letter from me to that effect." There was, however, no right of re-entry reserved. On the 7 of April 1901, the lessee purported to assign her interest under this lease to the plaintiff. Apart from the covenant, which I have read, there can be no question that the assignment was good, for all notices and formalities required by the Bengal Tenancy Act were given and observed. But it has been argued before us that the assignment was inoperative, at any rate as between the lessor and the lessee. The appeal in the, first instance came before a learned Judge of this Court sitting alone, and he decided against the appellant's contention on the ground that the covenant was void and, in support of that view, reliance was placed on a decision in the case of Nilmadhab Sikdar V/s. Narattam Sikdar (1890) I.L.R. 17 Calc. 826. We are not at present prepared to support the decision of the learned Judge on that ground; but we think the assignment was operative, notwithstanding the covenant. In support of this view may be cited the case of Williams V/s. Earle (1868) L.R. 3 Q.B. 739, where in reference to a similar covenant it was said by Mr. Justice Blackburn, as he then was, that "though there is a covenant binding on the defendant not to assign, the assignment is nevertheless operative;" and, on that footing, damages were awarded in that suit. It has been conceded in the course of this case, and it is the view that has been adopted by the Madras High Court in the case of Parameshri V/s. Vittappa Shanbaga (1902) I.L.R. 26 Mad. 157, that a suit for damages would lie, and that involves, the view that an assignment notwithstanding such a covenant would be operative. But if the assignment was operative, it necessarily follows that title did pass to the plaintiff and, if this be so, then the defendant No. 1 took nothing by his purchase in the execution proceedings. On this ground, we think the decision of the learned Judge was correct. We, therefore, dismiss the appeal with costs.