KUMAR CHANDRA GAIN Vs. NARENDRA NATH MITTER

JUDGEMENT

(1.) This is an appeal by defendants 4 and 5 against the judgment and decree of the Additional District Judge of the 24-Parganas, partly decreeing the plaintiff's suit for the recovery of a sum of money under the following circumstances. The plaintiff created a mourashi mokarari tenure in favour of defendants 1, 2 and 3 in January 1906. Defendants 4 and 5 purchased that tenure from the other defendants for a sum of Rs. 8,675 on 13 December 1923. A dispute arose with reference to a provision in the patta granted by the plaintiff to his tenants which runs thus: If it be necessary to sell any portion of the potta land or the trees, one-fourth share of the proper value shall be deposited in my sherista as chauth selami; otherwise I shall not be bound by the said sale or purchase and the said sale shall not be valid. If you do not conform to the terms of this patta and by your negligence I suffer any loss, you will be liable to compensate the said loss. Observing all the aforesaid terms you do enjoy the pottai land with great felicity down to sons, grandsons and successors-in-interest being entitled to make a gift and sale of the pottai land on payment of rent etc., to me or my sons, grandsons etc and successors-in-interest.

(2.) The present suit was brought against all the defendants by the plaintiff for recovery of one-fourth of what he considered to be the proper value of the tenure at the time of the sale. His case was that the proper value was Rs. 12,000, and he claimed Rs. 3,000 plus interest making up Rs. 3,385. The learned Subordinate Judge made a decree in favour of the plaintiff only against defendants 1, 2, and 3 for one-fourth of the purchase money paid by defendants 4 and 5 (the appellants here) to the other defendants, with interest at the rate of 12 per cent from 13 December 1923 up to the date of the suit. The suit was dismissed against the appellants. There was a prayer for declaration of a charge on the property for the money due to the plaintiff. This declaration was disallowed by the trial Judge. Defendants 1, 2 and 3 did not appear in the trial Court, nor do they appear in this Court. The plaintiff appealed against the decree of the Subordinate Judge dismissing his suit against the appellants here. The learned District Judge has made a decree also against them for one-fourth of the purchase money with interest. He has also made a declaration that this money was a charge on the tenure. Against that decree defendants 4 and 5 have appealed, and their contention is that according to the terms of the lease the covenant contained in it was not enforceable against the appellants. The learned District Judge relied upon a case decided by the Allahabad High Court; Parlhu Narain Singh V/s. Bamzan [1919] 41 All. 417. There the agreement between the owner of the land and the lessee amongst other stipulations, was that if at any time the lessee were to vacate any land and to sell any house or houses which she had built thereon, she would, according to the custom of the locality pay to the plaintiff one-fourth of the purchase money. The heirs of the lessee sold two houses built by the original lessee to one of the defendants in the case. The plaintiff brought a suit against the surviving heir of the original lessee and the purchaser for recovery of one-fourth of the purchase money. In that case the trial Court gave a decree to the plaintiff jointly and severally against both the defendants. The purchaser appealed against the decree to the District Judge and the District Judge dismissed the suit as against him holding that under the agreement only the heir of the original lessee was liable for the plaintiff's claim. From that decree, the plaintiff appealed. One of the learned Judges, Piggot, J., decided the case, against the purchaser mainly basing his judgment on the pleadings. Walsh, J., while agreeing with that decision made the following observations in his judgment: There is an undertaking in the sarkhat under which the tenant enjoyed her holding binding her in the most absolute form (and alleging further that it was in accordance with a custom prevailing in that locality) not to part with her interest by transfer without the zamindar receiving his right of one-fourth of the purchase money, and it cannot be contended that there is any legal or equitable ground which would justify a purchaser who had read that document, in paying the tenant the purchase money without seeing that the zamindar received his one-fourth share; or in other words, that the restriction which the tenant had imposed upon herself was not broken, when the transfer took place. To my mind, if that is a correct view of the legal position, it is no more than the expression applied to this case of the old English rule in Tulk V/s. Moxhay [1849] 2 phillip 774.

(3.) The learned District Judge in this case relied upon those observations in decreeing the appeal as against defendants 4 and 5. The above case is said to have been followed in another case decided by a single Judge in this Court. The trial Court cited the case of Sarada Kripa Lala V/s. Bepin Chandra Pal A.I.R. 1923 Cal. 679 and it seems to have held on the strength of that case that the purchaser is not bound to pay the chauth in terms of the patta. In that case there was this covenant, that the tenant would, if he transferred the property, pay the landlord out of the purchase money in his hands one-fourth as nazar and would obtain registration in the name of the transferee. The covenant further provided that if this step was not taken the transfer would be invalid and the tenant would continue to be liable for the rent. The words in the present patta in question in this appeal, I have already quoted, are wider than the terms in the lease of the above case. What happened in that case was that defendant 1 had purchased the tenure in execution of his mortgage decree and then subsequently sold the property to defendant 2; the landlord brought his suit, against both the defendants for recovery of the fourth share of the purchase money. The learned Judges held that, that was a covenant running with the land and they cited some cases in support of the conclusion. Mr. Roy Chowdhury for the appellants argued that this decision is erroneous on the ground that the agreement did not directly affect the demised premises and that it was not something which was to be done on the land. He further seems to argue that the cases cited do not support the conclusion of the learned Judges. I do not think that that contention can be supported. The cases which were cited were apparently taken from the notes in Spencer's case [1853] 5 Rep. 16a in Smith's Leading Cases, and I find the cases noted at p. 76 of Smith's Leading Cases (12 Edn.) in the order in which they have been referred to in the judgment. The learned Editors gave a summary of what was the covenant in each case, that is, to repair, to renew and replace the tenant's fixtures etc; not to assign without the consent of the lessor, the assignee being named, and so forth. It is true that in order to hold that a covenant runs with the land, it must be a covenant which relates to or touches and concerns the land or to have reference to the subject matter of the lease. But as the learned Editors of Smith's Trading Cases say whether a particular express covenant sufficiently "touches and concerns the thing demised to be capable of running with the land is not unfrequently a question of difficulty. The learned advocate for the appellants argued relying upon 18 Halsbury, para. 1122, that such a covenant as this does not run with the land; and he particularly referred to two cases in the foot note. One of them is Lambert V/s. Norris [1837] 2 M. & W. 333, There the landlord gave a lease of certain premises. After the lease had been executed the lessee asked the landlord to enlarge the building. The landlord consented to do so on an agreement by the lessee to pay an additional rent of 10 per cent on the outlay. The lessee became bankrupt. The question was whether the assignees were bound to pay the additional rent. It was argued on behalf of the landlord that under the circumstances it should be held that there was in fact a surrender of the old lease and the grant of a new lease on an increased rent and so the assignees should be liable. This argument was repelled. It was apparently held, relying on an older case that the new agreement was to have the effect of a lease at will. It will be noticed that the Statute of Frauds was referred to in the course of the argument. This case to my mind, has no bearing upon the facts of the present case.