HUNSRAJ Vs. BEJOY LAL SEAL

JUDGEMENT

(1.) This is an appeal from a decree of the High Court of Calcutta, reversing the decree of Page J. in a suit tried before him under the ordinary original jurisdiction of the Court.

(2.) The suit was brought to enforce a forfeiture of an alleged breach of a covenant against assignment contained in a lease fur a term of 61 years of premises in Halliday Street Calcutta, made on 23 August 1910. On 7 May 1923, defendants 1 and 2 who are the owners of the leasehold interest, executed a mortgage by way of sublease of the leasehold premises, subletting them for the unexpired residue of the term, and on 25 January 1924, the plaintiffs, who are the representatives of the original lessor, instituted the present suit to enforce a forfeiture.

(3.) Both the Courts below held, following the English decisions, that an absolute demise by sublease for the un-expired residue of the term would operate as an assignment of the term and be a breach of a covenant against assignment, but the trial Judge held that, under the terms of the mortgage of 7 May 1923, there was not such an absolute demise, whereas the appellate Bench held that there was, and consequently that the plaintiffs were entitled to enforce the forfeiture. They accordingly allowed the appeal and gave the plaintiff a decree.