(RAJA) SATYA, NIRANJAN CHAKRAVARTY Vs. SURAJUBALA DEBI

JUDGEMENT

(1.) This is an appeal by defendants 1, 2 and 3 against a judgment and decree of the Subordinate Judge of Birbhum allowing the plaintiff's claim for rent for four years from the Ashar kist of 1327 to the Ashar kist of 1330 B. S. The plaintiff is a member of the same family as defendants 1, 2 and 3 she being the widow of a son of one of the predeceased brothers of the said defendants. She inherited a certain share of the property to which her husband was entitled as a descendant of Maharaja Ram Ranjan Chakravarty. It is needless to say that these parties are people of considerable property and respectability. It seems that there was a very unfortunate dissension between the plaintiff and defendants 1, 2 and 3. This was apparently settled by the plaintiff executing a lease by way of Ijara of her share of the property by a deed dated 8 January 1916. It is unnecessary just now to refer to any of the terms of the lease; but it may be mentioned that, under that lease, a sum of Rs. 20,000 per year was payable to the plaintiff by defendants 1,2 and 3 who will henceforth be called the lessees, in certain installments. Since, however, the execution of the document the plaintiff, it appears, had always to bring suits to recover the money which became due to her under the lease. It also appears from the evidence on the record that she has never been able to recover her dues on any occasion without a suit being fought up to the High Court. The defence of defendants 1, 2 and 3 the lessees mainly was that they had transferred the leasehold by way of gift to defendant 4 who is their sister by a deed dated 7th July 1920 and they said that the plaintiff was informed of the fact of this gift by service of notice by the lessees as well as by defendant 4 in October 1920. It was also stated that defendant 4 was willing and she actually offered to give security to the satisfaction of the plaintiff under the terms of the lease. On these grounds, the lessees alleged that they were not bound to pay the rent reserved under the lease but the liability was that of defendant 4. Defendant 4 also disputed the plaintiff's title to recover rent mainly on the ground that the suit having been brought against the lessees as well as herself was not maintainable in the present form. It is not necessary to state the other facts alleged by her. Three issues were raised in the Court below: "(1) Is the deed of gift in favour of defendant 4 colourable and fraudulent one?" (2) Is the ijara interest transferable ? and (3) "Are defendants 1, 2 and 3 absolved from their liability to pay rents by making the gift to defendant 4?" All these three issues were found by the Subordinate Judge against the lessees and he passed a decree in favour of the plaintiff for the amount claimed against defendants 1, 2 and 3. Defendants 1, 2 and 3 have appealed against that judgment and their contention is that the Subordinate Judge's decision with regard to all the three issues is erroneous.

(2.) The Subordinate Judge found on various grounds that the deed of gift was a colourable transaction and that it was not intended to effect an actual transfer of the interest of the lessees in favour of defendant 4. He held that the actual possession of the property and the dominion over it was retained by the lessees and that it was with some ulterior motive that the lessees had executed the deed of gift in favour of their sister, defendant 4. The main facts on which we think that the findings of the Subordinate Judge may be supported are these. This lady, defendant 4, is an inhabitant of a different village in another district and the properties on the evidence on the record, are being managed in the same way as they were used to be before the deed of gift was executed that is, by the servants of the lessees and from their office. It is true that there is evidence that some leases have been executed in the name of defendant 4 and that suits have also been brought against the subordinate tenants in the name of defendant 4. But, as the Subordinate Judge points out that is almost always done in every case where a colourable transaction has been entered into by the real owners for some purpose of their own. The most important fact is, that, although the deed of gift was executed four years prior to the date of the hearing of the suit, the evidence of the manager of the lessees who was managing the property is that defendant 4 had not received any of the profits of the ijara property. There is one other fact which may also be alluded to and it is this: The case of the appellants is that this gift was made for the purpose of benefiting defendant 4 because she was not in very affluent circumstances. But it would appear from the evidence on the side of the defendants that it is the case of the lessees that the ijara is a losing concern and it is hardly necessary to add that the object of the document certainly was not to confer any benefit on the lady. It is unnecessary for us to deal in detail with this point because in our opinion, as we shall state later on, the plaintiff is entitled to succeed in her claim against defendants 1, 2 and 3 on ground 3.

(3.) With regard to issue 2, it is contended on behalf of the appellants that the Subordinate Judge is wrong in holding that the ijara interest was not transferable. It may be conceded that every leasehold interest is transferable under the law except certain rights created by statute under the Bengal Tenancy Act. What the Subordinate Judge has really decided is that, having regard to the restrictive covenant in the lease itself, the transfer is not binding upon the lessor. The Subordinate Judge deals with the provisions of S.10, T. P. Act and, in his opinion, this covenant although there was no clause for re-entry on its breach, prevented the lessees from alienating the property. The Subordinate Judge finds that, in a house a portion of which has been included in the lease, the lessor, reserved two rooms for her own use where she intended to live under the terms of the lease with her female relatives and maid servants. The learned Judge holds that this reservation was made in view of the fact that the lessees being her near relations there could possibly be no objections to her living in the same house with them; but, if there was a transfer to a stranger it would be impossible for her to use the portion of the house reserved for herself. With regard to this point, the contention made by the learned advocate on behalf of the appellants is that the condition restraining the alienation of the property would be void under S. 10, T. P. Act if the benefit reserved to the lessor was not with reference to the property leased and as in this case the benefit to the lessor, according to the finding of the Subordinate Judge would be with reference to some other property, the matter would not come within the exception of 8. 10, T. P. Act. Mo authority has been cited before us for this proposition and we are not prepared in this case to express a definite opinion on the question. It is unnecessary for us to decide whether the transfer is void or whether it confers any interest on defendant 4 because it is not a suit for ejectment on the ground of forfeiture, that the real question in the case is whether defendants 1, 2 and 3 can exonerate themselves from the liability on their personal covenant under the lease to pay the rent by reason of this transfer, and this brings us to issue 3 raised in the Court below.