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Judgment
Manohar Lall, J.—This is''an appeal by the plaintiff, the owner of Jharia Raj, an impartible estate, who is dissatisfied with the decision of the learned Subordinate Judge of Dhanbad by which he dismissed his suit for recovery of possession of pargana Joynagar. The principal question for determination is whether the plaintiff is entitled to resume the property granted to a member of the family by way of maintenance grant upon the ground that there has been a breach of a term of the grant. The undisputed facts are that on 27th February 1919, the plaintiff executed a registered patta in favour of Kumar Krishna Prasad Singh, defendant 20, hereinafter to be called the Kumar, by way of maintenance grant. The grantee was to enjoy and possess the income of pargana Joynagar in perpetuity in lieu of maintenance. But it was stipulated that
no one will be competent to get this '',property attached or sold "for your debts. If the said property is sold by auction for your debts, then this settlement will stand cancelled and the said property , shall come in my khas possession.
From the date of this document, the Kumar entered into possession and has been enjoying the usufruct of the property and also been making numerous settlements with the tenants and by way of mukarrari grants to various persons. The firm Lekhraj Sevakram, defendant 1, (and D 2 and D 3) obtained a money decree against the Kumar in the Calcutta High Court and in execution thereof attached the pargana and became the auction purchaser on 16th November 1929 (see the writ of attachment, Ex. 1, dated 29th July 1929, and the proclamation of sale, Ex. 19, pp. 41-42). After the execution sale that decree-holder auction-purchaser obtained delivery of possession on 14th September 1930 (Ex. 3, p. 44). The plain-tiff''s case thus is that pargana Joynagar having been sold by auction for the debts of the Kumar, the settlement of 27th February 1919, stood cancelled and he is entitled to recover possession. The plaintiff instituted the suit on 24th April 1939. He says that he came to know of the auction sale after August 1933 when he got possession of the Jharia Raj after a final settlement of the litigation "between himself and the widows of the previous Raja Durga Prasad. Having come to know'' on further enquiries that defendants 4 to 19 are in possession of various properties within pargana Joynagar under leases and transfers made by the Kumar, he sent a notice to all the defendants on 29th June 1936 (Ex. L) and again on 1st December 1936 through a pleader (Ex. 12 (e)) asking them to give up possession.
The main defence to the action was that pargana Joynagar was , wholly and permanently transferred to the Kumar and in any case the condition in restraint of the involuntary alienation was void and inoperative both under the provisions of the Transfer of Property Act and under the general law as being opposed to public policy. It was also pleaded that the forfeiture, if any, was waived by the Rajah on grounds which will have to be noticed hereafter. The learned Subordinate Judge held that the maintenance grant was not a lease but must be regarded as a family arrangement and, therefore, it operated as an absolute transfer in favour of the Kumar subject only to the repugnant provision contained in the restraining clause which was illegal and void both u/s 10, T. P. Act, and also as opposed to public policy. He negatived the contention of the defendants that the Rajah had waived his right of forfeiture. In the result he dismissed the suit. Hence the appeal by the plaintiff.
Mr. P. R. Das in support of the appeal contended that on a proper construction of the khorposh grant it ought to have been held that it was a lease within the meaning of the Transfer of Property Act and, therefore, the impugned condition of restraint was enforceable in law, the condition being for the benefit of the lessor. In the alternative he accepted the conclusion of the learned Subordinate Judge that the transfer was by way of a family arrangement and relying on the Privy Council case in AIR 1932 158 (Privy Council) argued that the impugned condition amounted to no more than a partial restraint and was not forbidden by any provision of the Transfer of Property Act. He challenged the view of the learned Subordinate Judge that the impugned condition was forbidden by any other law or was opposed to public policy. Mr. B. C. De, appearing on behalf of the respondents, vehemently contended that the transaction in question was not a lease and that even if it is held to be a family arrangement the impugned condition was void under the Transfer of Property Act and came in conflict with the provisions of Section 60, Civil P. C, violated the rule of perpetuity and was opposed to public policy. Both sides cited before us a large number of authorities in''support of their respective contentions. It is convenient to take up the different contentions raised separately.
Is the khorposh grant a lease? In Udai Pratap Nath v. Jagat Mohan Nath AIR 1928 Pat. 66 the question for consideration was whether a khorposh grant, similar to the one in the present case, entitled the grantee to the mineral rights under the surface. Sir Dawson Miller C. J., considered a large number of authorities which were cited before him some of which were also cited before us and came to the conclusion that the interest created by the khorposh grant, although not strictly a lease as denned in the Transfer of Property Act, bore most of the essential features of an interest created between a landlord and tenant and that minerals did not pass to the grantee, the main object of the maintenance grant simply being that the grantee was to enjoy the rents (p. 650). Kulwant Sahay J. also considered the contention at page 664 in these words:
It was contended that it was a lease in perpetuity subject to a condition of reversion in the case of failure of male issue. In my opinion, having regard to the terms of the document, it cannot be considered to be a lease in perpetuity. Reference may in this connexion be made to the decision of Sir Lawrence Jenkins in Municipal Corporation of Bombay v. Secretary of State (05) 29 Bom. 580. I would therefore hold that there is no substance in the contention of the appellant that the deed was really, a lease. It is a khorposh grant for a term which is not certain and not a grant in perpetuity.
Mr. P. R. Das contests the correctness of this decision, but sitting as a Division Bench we are bound by the decision in that case and must hold that the khorposh grant is not a lease within the meaning of the Transfer of Property Act. This decision was approved by their Lordships of the Judicial Committee in AIR 1931 302 (Privy Council) . It is but right, however, that I should deal more fully with the argument so strenuously put forth by Mr. Das. It will be useful to remember the observations of the Lord Chancellor in delivering the judgment of the Board in Shashi Bhusan v. Jyoti Prasad A. I. R. 1916 P. C. 191 where he pointed out that it was important to avoid giving words used in connexion with legal transactions in India the special and technical meaning which they possess in England, and added:
According to our law the word ''grant'' is strictly applicable to the conveyance at common law of remainders, reversions and incorporal hereditaments which do not lie in livery or of which livery could not be given. But in connexion with the present dispute the word has no such meaning and it is important at the outset to bear this in mind.
Now Mr. Das contends that all the requirements of a lease are to be found here, that is to say, there is a rent reserved and there is a reversion and the term is fixed. The rent which is said to have been reserved, says Mr. Das, is the obligation of the grantee to pay Government revenue and road cess. Reliance is also placed upon the entry in the survey record of rights, Exs. 23 and 24, where the yearly rent and cess as payable by the ''grantee are stated in Clauses 7 and 8. The learned Subordinate Judge points out that the Vernacular words in the clause in the deed are "dakhil karia" that is to say, after depositing, but it is not mentioned in whose favour the deposit was to be made-whether it was to be paid to the Raja or in the Government treasury, and therefore he holds:
In absence of clear word''s to this effect I cannot hold that the stipulation between the Eaja and the Kumar in Ex. 4 is that the Kumar was to pay Government demands to the Raja.
The true nature of the transaction must be looked at. To me it appears that the transaction was in its essence a provision for maintenance for the junior member. The document clearly starts by saying that the grantee was entitled to get khorposh grant according to the family custom and that he was not given khorposh previously like other members of the family because he did not pray for'' it. For these reasons khorposh was being settled with him and the grantee was to enjoy and possess the usufruct along with his sons and grandsons in succession in lieu of khorposh. The obligation which was imposed upon the grantee to pay Government revenue and road cess was not a consideration for the grant and therefore is not covered by the definition u/s 105, T. P. Act. The'' grantor was concerned solely with providing maintenance and was not making a lease. The eases relied on by Mr. Das do not support his contention. Reference under Stamp Act Section 46 (''84) 7 Mad. 155. This was a reference from the Board of Revenue under the Stamp Act. A mittadar had executed a perpetual lease of certain villages for Rs. 1954 per annum. Out of this Section 1554 represented the Government revenue which the lessor directed the lessee to pay to Government and the balance to himself. It will be noticed from the statement of the case that the perpetual lease of the villages was at an annual rent of Rs. 1954. It was irrelevant to consider how this annual sum was arrived at. The learned Judges held that it was true that the lessor mentioned his liability to pay a, large sum as Government revenue and directed the lessee to apply so much as was necessary of the rent to the liquidation of his obligation, but as between the lessor and the leasee the property was demised free of revenue and not subject to it, and the sum of Rs, 1954 was the sum received by the lessor for the use of his land, he remaining under the obligation to discharge the revenue, and if default was made by the lessee in applying the rent as directed, the whole sum he might fail to pay would be recovered from him as rent. The reality of the transaction was that the consideration of the transfer was the payment of an annual sum to the lessor by way of rent, a part of which was to be applied to pay the Government revenue as directed by the lessor.
Watson & Co. v. Sri Kristo Bhumick (94) 21 Cal. 132 All that was decided in this case was that dak cesS which is payable under a contract between the landlord and the tenant must be regarded as rent because it is part of what is lawfully payable for use and occupation of the land held by the tenant. The relationship of the parties as landlord and tenant was admitted in this case.
Dwarkanath Bidyadhur v. Dambarudhar Mohapatra (11) 38 Cal. 278. In this case the question for decision was whether a maintenance holder in an impartible estate in Orissa who was holding a grant on condition of paying to the grantor ''light tribute'' as rent, the amount being a proportionate share of the Government revenue, was a tenant of the grantor within the meaning of the Tenancy Act. The learned Judges refer to the plaint in the suit where it was distinctly stated that the jagir in the suit was held for maintenance on condition of payment of an annual jama of so many rupees in proportion to the revenue of the killa, and they say that when they look at the rafanama they find similarly stated therein that the maintenance jagir was to be held year by year on payment of a certain sum as jama thereof to the proprietor and not through the proprietor who was to pay the revenue assessed on the land to the Crown. The facts of that case are, therefore, quite different. The annual sum was payable specifically as rent although the amount fixed was calculated at a certain proportion of the revenue which was assessed on the killa. On the other hand there is a case of the Privy Council in Durga Dutt Singh v. Rameshwar Singh (09) 36 Cal. 943 where the maintenance grant was a babuana grant to a junior member of the Darbhanga family and the grantee was to pay the Government revenue of the parganas granted to the grantor who was in his turn to pay into the Collectorate that amount together with the Government revenue of the Raj. It was never suggested that the grant was a lease, and at p. 183 their Lordships observed that
if the male descendant, in whom the property or interest granted was for the time being vested, failed to pay the stipulated Government revenue to the Maharaja for the time being, and the latter was himself obliged to discharge the claim of the Government, he might sue the former for the amount so paid and if necessary recover the amount decreed to him by sale of the interest granted for maintenance, since it never could be permitted that the subject of the grant should be enjoyed and the condition upon which it was made disregarded.
In AIR 1936 332 (Privy Council) their Lordships of the Judicial Committee observed at p. 447 that
a village granted to a junior member in lieu of maintenance is resumable on failure of his male line, but until that event takes place the grantor has no interest in the property. The grantee is the absolute owner thereof and has unrestricted power of transfer. If a transfer is made, the transferee holds the property as a full proprietor, and the grantor has no right to interfere with him until the extinction of the male line of the grantee. When that incident, takes place the tenure of the grantee comes to an end and the property reverts to the grantor.
This decision, in my opinion, completely destroys the argument that the grantor has any interest left in him so that he can be treated as a lessor. The grantor has no interest whatsoever left in the property and the grantee is the absolute owner thereof with an unrestricted power of transfer. In Rajah Nursing Deb v. Roy Koylasnath (1861) 9 M. I. A. 55 Knight Bruce L. J., in deciding the question whether land dedicated permanently to maintenance of a particular class is to remain inalienable in the hands of the person to whom the grant was made, and his descendants as long as there can be descendants of his, for ever, so as to prevent a sale and to render it perpetually inalienable, observed as follows at p. 65:
Their Lordships are of opinion that giving the land to a member of the family to whom it was given, had the same effect, and was an act of the same character as giving a sum of money to him absolutely, in lieu of any ''claim for maintenance burdened with the duty upon his part of maintaining those who ought to be maintained. If that had been done, their Lordships are of opinion, that the money would have been absolutely the property of the person to whom it was given, and that would have well discharged the duty incumbent upon the person who should have paid the same.
Neither do I find that the transfer of the right to enjoy the property was made for a certain time expressed or implied as required by Section 105. It is true that Section 108 (1) speaks of a lease of uncertain duration and the words �a certain time'' in Section 105 nay seem inconsistent with the phrase ''a lease of uncertain duration,'' but the latter phrase is apparently intended to apply to leases from year to year terminable by a notice to quit, or to leases granted by a tenant for life to be terminated on the death of the grantor (see sub-cls. (b), (c) and (h) of Section 111, T. P. Act). I cannot conclude from this document that the transfer must be taken for a certain time or for an uncertain duration till the involuntary sale which is said to terminate the right of the grantee and his descendants to enjoy. Lastly there is no reversion in the true sense of the word. The right to resume on failure of con-dition is not the right of reversion contemplated by Section 111(b). For these reasons I must overrule the first. pontention advanced by Mr. P. R. Das and bold, in agreement with the learned, Subordinate Judge, that the relationship between the grantor and the grantee in this case was not that of a lessor and a lessee. In that view a number of decisions which were relied on by Mr. Das which allowed the transferor to impose a condition by way of forfeiture have no application in this ease. It is provided clearly by a number of sections of the Transfer of Property Act, like Sections 10 and 12 that it is competent to the lessor to insert such conditions in a lease for his benefit.
Can the transfer be regarded as a family arrangement? The learned Subordinate Judge was of the opinion that the transaction may be regarded as a family arrangement and for this he relied on Arumugham Chetti v. Subramaniam Chetti AIR 1937 Mad. 882. The conclusion arrived at by Varadachariar J. Pandrang Row, J. agreeing, was that he was unable to hold that the transaction in question was intended by the parties to be a lease or was in substance a lease. He nowhere says that the transaction was a family arrangement. Burn J. arrives at the same conclusion that it was impossible to suppose that the transaction was a lease as it appeared to him to be in its essence of the nature of a grant of inam land and that the zemindar considered himself to be making an out and out grant rather than a lease. All that can be said is that the transaction is in accordance with the family custom of this Raj and has been made to a junior member by way of a maintenance grant. I fail to see how this can be called a family arrangement. Assuming however that this is a family arrangement, the restriction that no creditor of the grantee will be competent to get the property attached or sold for the debts of the grantee or that if it is actually sold the settlement will stand cancelled can be treated as a valid condition � if it is a partial restraint on alienation within the meaning of Section 10, T. P. Act, and of the Privy Council case in AIR 1932 158 (Privy Council) . It is useful to bear in mind the observation of Jessel M.R. in In re Macleay (1875) 20 Eq 186 when he was considering the devise of an estate to a. brother on condition that he should never sell it out of the family:
You may restrict alienation in many ways. You may restrict alienation by prohibiting a particular class of alienation, or you may restrict alienation by prohibiting it to a particular class of individuals, or'' you may restriot alienation by restricting it to a particular time. In all those ways you may limit it, and it appears to me that in two ways, at all events, this condition is limited. First, it is limited as to the mode of alienation, because the only prohibition is against selling. There are various modes of alienation besides sale; a person may lease, or he may mortgage, or he may settle; therefore it is a mere limited restriction on alienation in that way. Then, again, it is, limited as regards class; he is never to-sellitout of the family, but he may sell it to any one member of the family. It is not, therefore, limited in the sense of there being only one person to buy; the will shews there were a great many members of the-family when she made her will; a great many are named in it; therefore you have a class which probably was large, and was certainly not small. Then-it is not, strictly speaking, limited as to time, except in this way that it is limited to the life of the first tenant in tail; of course, if unlimited as to time, it would be void for remoteness under another rule. So that this is strictly a limited restraint on alienation-.
In the present case there is no restriction, against any alienation by the grantee. The restriction is against the creditors attaching and purchasing the property-the validity of that restriction will have to be examined later on. It is enough to say here that there is no restriction complete or partial against any alienation by the grantee. Therefore the principle relied on by Mr. Das has no application. Is the restriction forbidden by the Transfer of Property Act? There is an illuminating judgment by Key J. in In re Dugdale (1888) 38 Ch. D. 176 where the learned Judge points out at p. 179 that
the difference between a condition, properly so called, and a conditional limitation or an executory devise is that, in the case of a oondition, the estate is to revert to the grantor or his heirs; in the other cases it is limited over to other person. But even in the case of a condition the power of alienation may be restricted, though it cannot be entirely taken away; For example, a condition not to alien ''to-such a one, naming his name, or to any of his heirs, or of the issues of such a one, &c. or the like, which conditions do not take away all powers of alienation from the feoffee, &c, then such condition is good.
He then refers to (In re Macleay (1875) 20 Eq. 186 already noticed, and draws a distinction between the case in In re Bosher (1884) 26 Ch. D. 801 where this decision was dissented from by Pearson J. At p. 181 the result of the examination of a number of authorities is given in these words:
The result is that a limitation, by way of use or is a will, to A until he attempt to alien, and on that event to B and his heirs, is valid, A taking an estate of free-hold which only endures by the terms of the limitation until the attempted alienation, and B taking a contingent remainder. But a limitation to A ''and his heirs,'' but if he attempt to alien, to B. in fee, is an invalid gift over. So also where the limitation is to A ''and his heirs'' until he attempt to alien, and thereupon to B and his heirs. This is as clearly a conditional limitation as the other, because a fee simple endures for ever, and any attempt to cut it down must be a defeasance.
The general law is that a defeasance, either by condition or by conditional limitation or executory devise, cannot be well limited to take fefiect in derogation, not merely of the right of alienation, but of any of the natural incidents of the estate which it is intended to divest. Instances of this are given in Sir Anthony Mildmay''s case 6 Rep. 41a, where the law is stated thus: ''If a man makes gift in tail on condition that the donee shall not commit waste, or that his wife shall not be endowed, or that the husband of a woman tenant in tail after issue shall not be tenant by the courtesy, or that tenant in tail shall not suffer a common recovery, these conditions are repugnant and against law, because by the gift in tail, be tacitly enables him to commit waste, that his wife shall be endowed and to suffer a common recovery. And, therefore, it is repugnant to restrain it by condition, for that would be to give a power, and to restrain the same power in one and the same deed.
At page 182 the learned Judge asked himself the question: Can a fee simple estate be divested by an executory devise on the event of bankruptcy or judgment and execution which effect an involuntary alienation? and he answers thus:
The liability of the estate to be attached by creditors on a bankruptcy or judgment is an incident of the estate, and no attempt to deprive it of that incident by direct prohibition would be valid. If a testator, after giving an estate in fee simple to A, were to declare that such estate should not be subject to the bankruptcy laws, that would clearly be inoperative. I apprehend that this is the test. An incident of the estate given which cannot be directly taken away or prevented by the donor cannot be taken away indirectly by a condition which would cause, the estate to revert to the donor, or by a conditional limitation or executory devise which would cause it to shift to another person.
It seems to me that the effect of this high authority is recognized by the Transfer of Property Act in Section 12 which provides clearly that where property is transferred subject to a condition or limitation making any interest therein given to any person-to cease on his becoming insolvent or endeavouring to transfer or dispose of the same, such condition or limitation is void. Sir Dinshaw Mulla in his commentary says that the object of the section is to protect the creditors of the'' transferee who would otherwise be prevented from having recourse to the property transferred for the satisfaction of their debts. This section invalidates the condition of defeasance on an attempted involuntary alienation and rests on the same principles as Sections 10 and 11, T. P. Act, which render such restriction repugnant to the interest transferred in the case of a voluntary alienation. As I have construed the khorposh grant to give an absolute right of transfer to the grantee, the grantor cannot be allowed to interfere with the natural incident of the estate which he has granted to the khorposh-dar. The restraint is repugnant because the grantee as an absolute owner for the time being has a full right of transfer and yet the grantor wants to restrain the same right in one and the same deed. It is true that the words of Section 12, T. P. Act, do not expressly mention the case of an involuntary sale to a creditor, but, I am of opinion that the condi tion of the cesser on the right of bankruptcy must involve on the principle of ejusdem generis the inclusion of the lesser part (of the involuntary sale to a creditor). Sir Charles Sargent in Vyankatraya v. Shivram (83) 7 Bom. 256 took a similar view, There the learned Judge had to consider this question in regard to a lease which contained the condition:
You are not to let it be sold, or attached and sold in satisfaction of judgment debts; if you do let it, I shall take away the land, and give it to others for cultivation.
The following observations at p. 261 are relevant:
In the present case, however, there has been no alienation on his part, and if the defendant is entitled to re-enter, it must be in virtue''of the words of the clause which forbid, ''the lessee letting it be sold, or attached and sold in satisfaction of judgment debts''; for otherwise, as appears from the cases, referred to in argument, in Doe d. Mitichinson v. Carter (1798) 8 T. B. 57 and Croft v. Lumley (1858) 6 H.L.C. 672, there would be no breach committed by the attachment of the property. It was contended however in argument that a clause to the above effect should be treated as void as against creditors, and ought not, to prevent the Court from issuing its process in exeoution. By English law a clause in a lease is valid which gives a right of reentry by the landlord in case the terms be taken in execution, or in the event of the lessee becoming insolvent, or judgment being entered up, or fieri facias being sued out against him : see the cases cited in the note at p. 177, Davidson''s Conveyancing, Vol. 5, and we may also remark that the above rule, as regards the insolvency of the lessee, is expressly adopted by the concluding words of Section 12, T. P. Act. To hold therefore that the clause in question, which is ejusdem generis with a clause which prevents the lease from passing to the creditors of an insolvent, is not valid against creditors, would, in our opinion, be to draw a distinction in form and not in substance. Now the words ''not to let the lands be attached and sold in satisfaction of judgment debts'' point, we think, as well to a passive attitude as to active assistance on the part of the lessee, whilst the process of execution is going on; and in this respect the present case is essentially different from those above cited. We think therefore that if the lessee allowed the land to be attached and sold by not taking measures to satisfy his judgment debt there would be a breach, both according to the letter and and spirit of the proviso in the lease.
These quotations would have been of assistance to Mr. Das if transaction in question was a lease. Mr. P. R. Das referred to the case in Mahanand Roy v. Saratmoni Debi (11)10 I.C. 374. That case, however, was between a lessor and a lessee. In the lease the lessor had covenanted that he will not be able to get the lease land sold by auction for any debt other than arrears of rent thereof, nor shall any other creditor be able to cause the same to be attached and sold by auction; and it was distinctly provided later, on that the lessors did not grant the lessees or their heirs any transferable interest in the property. Mookerjee J. pointed out that one of the questions for consideration was whether the landlord is boun''d by the restriction she placed upon herself, namely, that even she would not be able to have the land sold for any debt other than arrears of rent, and observed at page 588:
Such a covenant, if it stood alone, might not be inoperative, because it did not take away completely from the grantee the right of alienation; it cannot obviously be affirmed as an inflexible rule of law that every restriction, however limited in character, upon the right of alienation of the grantee, is invalid in law. But, it would plainly be not right to separate the covenant from the two others already mentioned. The whole object of the lessor was, as is indicated by the concluding sentence of the lease, that the lessees should not have, a transferable interest in the pro perty. This restriction was inserted in the instru ment, because the leasehold interest was permanent and would, in absence of any restriction, have been transferable u/s 11, Ben, Ten. Act. The other clauses, to which reference has been made, are all subsidiary to this, the primary object of the lessor. It would not be right to hold under these circum stances that although the covenant which restrains the lessee from transferring the property is void and unenforceable, and the restriction by which the cre ditors of the lessees are declared incapable of attach ing and selling the leasehold interest are equally inoperative, yet the landlord is fettered by the res triction she imposed upon herself Reading, therefore, the lease as a whole, we are of opinion that the provisions against alienation are entirely void, and, that it is open to the decree-holder to proceed with execution of her decree against the property.
In the present case when I read the khor-posh grant as a whole I conclude that the whole object of the grant was that the grantee and his descendants should be given full right to enjoy the property which is being transferred. Their right of alienation could not be and has not been restrained in the least. That being so the condition that the creditors of the grantee are declared incapable of attaching and selling the pargana must be held to be inoperative. Another case relied on, which was noticed by the learned Subordinate Judge, is the case in Dwarikanath Roy v. Mathura Nath AIR 1917 Cal. 236 where Mukherji J. referred to a number of English authorities on the question of covenant for-re-entry by the landlord upon an involuntary sale and observed:
We have now the high opinion of Sir Charles Sargent in 7 Bom. 25618 that the same rule is applicable in India, although Section 12, T. P. Act, expressly mentions the cases of forfeiture for bankruptcy and does not specifically refer to the cases of forfeiture for involuntary alienation. Mahanand Roy v. Saratmoni Debi (11) 374 Cri.L.J. 585
and concludes that the analogy drawn from this case does not justify the view that the covenant for forfeiture for voluntary alienation includes by implication a covenant for forfeiture for involuntary alienation. This case, in my opinion, does not bear upon the question in the present case as it was a case between a lessor and a lessee. If the condition had been otherwise valid I would be prepared to hold that this was not opposed to public policy and the authority of the Allahabad High Court relied upon by Mr. B. C. De would have no application. In (Lala) Nand Kishore and Others Vs. Kunj Behari Lal and Others the agreement which was held to be contrary to public policy within the meaning of Section 23, Contract Act, was an agreement by which the parties had the avowed object of delaying the execution of the decree which had already been passed. Mr. De also contended that the impugned condition conflicts with the provision of Section 60, Civil P. C. I am unable to take that view. The provisions of Section 60 can only apply if we hold that the judgment-debtor had a disposing power over the property sought to be attached by the creditor. But this is the very question which We have to decide.
It was also argued that, the restriction violated the rule of perpetuity in the sense that it was open to the creditor of the grantee to obtain a decree against the judgment-debtor and proceed, to execute it but the execution may not finish in the life-time of, the grantee. The short answer to this contention is that the provision in the khorposh grant is that the settlement will stand cancelled only if the property was sold by auction for the debts of the grantee during the life-time of the grantor. The condition therefore must operate inter vivos and the rule of perpetuity is not offended: see Matura Subba Rao v. Surendranath Sahu AIR 1928 Pat. 637. From a consideration of the various authorities cited above and having regard to the true nature of the maintenance grants to junior members of the family in impartible estate, I must hold that the Kumar became the absolute owner since 27th February 1919, and had an unrestricted power to transfer, and the Raja had no interest therein left in the property. The attempted restriction to restrain the creditors from reaching the said properties was wholly void and cannot be enforced in law.
Mr. '' B. C. De attempted to raise a new question of fact. He wanted to argue that there was no breach at all even of this restriction because he would be able to show from the documents that the entire pargana was not sold to defendants 1 to 3. This question was neither raised in the pleadings nor was any evidence given specifically directed to this point; no issue was raised before the learned Subordinate Judge and no argument was advanced before him. In these circumstances we are bound to accept the serious objection which was taken on behalf of Mr. S., N. Bose, who appeared as junior to Mr. Das, that he strongly objects to this question being raised for the first time at the appellate stage, although he observed that as a matter of fact he will'' be able to show even on the documents as they exist that the sale was a sale of the entire pargana and not of a part only. Having regard to the attitude taken by the defendants in the Court below, I must decline to allow this question of fact to be raised for the first time in the appellate Court. If the question was raised in a proper form and an issue had been framed on this important question, the plaintiff would have been able to give sufficient and full evidence to answer this question.
Mr. R. S. Chatterji, who appeared for defendants 14 and 15, has made some submissions which must now be dealt with. His first contention is that village Barameshia appertaining to pargana Joynagar was held by Gopal Mahato and others in permanent mokarrari right from time immemorial long before the grant by the plaintiff to the Kumar, that these Mahatos sold certain share in the village to Kangal Charan Rewani on 10th April 1923, and after his death his son Probhas Chandra Rewani was in possession. These defendants having obtained a decree against Probhas Chandra executed it and became the auction-purchasers of 6 annas and 6 pies share and they are in possession thereof since 20th September 1930 (see para. 12 of the written statement). No issue has been framed with regard to the claim of these defendants to this portion of village Berameshia. This claim is apparently outside the scope of the present suit which relates to the resumption of the pargana on the involuntary sale to defendants 1 to 3 so that all the transfers by defendant 20 were not binding on the plaintiff. In these circumstances the parties are agreed before us that any claim of these defendants to village Barameshia cannot be gone into in this appeal. The question must be left open. It will be noticed that defendants 14 and 15 are not appellants before us nor have they filed any eross-objection.
Mr. Chatterji then argued that the claim of-the plaintiff was barred by the principles of waiver and acquiescence. Mr. B. C. De adopted this argument of Mr. Chatterji also as a part of his submission to defeat the claim of the plaintiff. The first ground of attack was that the Raja himself purchased village Joynagar appertaining to pargana Joynagar in execution of a decree against the Kumar in 1930 in the benami name of his manager, Benimadhab Tewari. It, is said that as this purchase was made after the alleged forfeiture of 16th November 1929, the Raja must be held in law to have waived his right to resume the tenure. The execution sale in favour of defendants 1 to 3 took place on 16th November 1929, but the delivery of possession was not made till 16th September 1930. The sale in the name of the manager Benimadhab Tewari, is dated 15th May 1930. It is therefore difficult to see how the sale, assuming that the sale in the name of the manager was a benami sale on behalf of the Raja, could have worked out any forfeiture. The Raja''s case further is that he did not know of the alienation in favour of defendants 1 to 3 until after 1933. There are no materials on the record from which it can be concluded that the sale took place when the Raja knew of the execution sale in favour of defendants 1 to 3. I must observe, however, that I am not satisfied that it has been established that Benimadhab was a benamidar of the Raja. The next ground taken was that the Raja waived the forfeiture because he purchased the pargana in the name of his wife, Mandakini, in execution of the decree of one Fulchand against the Kumar. But this purchase was on 20th June 1929, and even if the Raja is deemed to have waived the forfeiture on that date, the forfeiture which is the subject of this suit occurred on a later date.
It was also argued that two notices of ejectment, exhibits Land 12 (e) were served by the plaintiff on the Kumar, the first being dated Ashar 1343 and the second Agrahayan 1343, and, therefore, it must be held that the Raja acknowledged the tenancy of the Kumar up to these dates and hence there was a clear waiver of forfeiture. I do not agree with this contention. Exhibit L is the notice from Benimadhab Tewari, am mukhtar of the Raja dated 29th June 1936, and says that as the property specified in the schedule has been auctioned the plaintiff has become entitled to'' resume khas possession of the property and informs the persons named in the notice that he was cancelling the settlement made by the patta in favour of the Kumar and calls upon the persons to surrender possession of the properties to the plaintiffs on 1st sharaban 1343 B. S. We have seen the original. There is a full stop after 1325 B. S. in line 37. The last sentence is not one sentence but two sentences and it should not be taken to mean that he was cancelling the patta of 1325 B. s. with effect from 1st Sharaban 1343 B. S. The Raja is simply giving notices to the defendants that they may quit at once but not to stay beyond a fixed date-fixed for their convenience. He is nowhere accepting the continued existence of any tenancy rights in the Kumar. On 1st December 1936, the Raja gave another notice through a pleader in which he recites that he has recently come to know of the execution of the decree in favour of defendants l to 3 and says that he has also come to know that a number of persons are claiming to be in possession of other portions of the property by obtaining it by transfer from defendant 1. He then says that as the Raja has become entitled to get khas possession of the same he was cancelling the khorposb right and by this notice he was informing all the persons that they should give up possession of the property from 1st Magh, 1343 B. S. It will be noticed that the persons mentioned in this notice (Ex. 12-e) are different from the persons named in the notice, Ex. L. I cannot take these notices to mean that the Raja was acknowledging the tenancy of the Kumar up to the dates of the notice. Reliance was placed before us as before the learned Subordinate Judge on the case in Shiva Prasad Singh v. Mandira Kumari Debi A. I. R. 1940 Pat. 478. This case has no application whatsoever because what we held in that case was that the whole pleading there amounted to an acknowledgment of the continuance of the tenancy until 1st pous 1341 B. S. when the notices to quit had expired.
The last ground taken was that some of the defendants sued the Raja for rent due for village Ratanpur in 1937, that suit was decreed and the decree-money had been paid by the Raja. The learned Subordinate Judge has correctly answered this contention by pointing out that the Raja had no defence whatsoever to make in the rent suit of Tineouri because as a tenant he was bound to pay the rent due to him from his landlord and the claim of forfeiture could not be put forward in the rent suit so long as the Raja was in possession of a portion of the pargana as a tenant. In; these circumstances the Raja was advised by the legal advisers that he should not contest the suit and he must allow the decree for rent; to be passed against him. Such, an act cannot amount to a waiver of the forfeiture. .
All the contentions raised on behalf of Mr. Chatterji must, therefore, fail except with regard to the question as to the rights of the parties in village Barameshia which is left open by consent of the parties. For the reasons which I have given above, I must hold tha''t the learned Subordinate Judge was right in dismissing the suit of the plaintiff. The appeal must, therefore, be dismissed with costs. The costs will be paid to the defendants represented by Mr. B. C. De and Mr. R. S. Chatterji, but there will be only one hearing-fee which will be divided in the proportion of three to one between the clients of Mr. B.C. De and the clients of Mr. R. S. Chatterji.
Beevor, J.
The'' plaintiff-appellant is the proprietor of an estate known as the Jharia Estate and on 27th February 1919, equivalent to 15th of Phalgun 1325 B. S., he made a. khorposh grant to Kumar Krishna Prasad Singh, defendant 20, covering pargana Jai-nagar bearing tauzi No. 5 of the Manbhum Collectorate. This grant was made by the registered document (Ex. 4). The plaintiff''s case was that the whole pargana covered by Ex. 4 was sold in execution Case No. 331 of 1929 against defendant 20 and was purchased on 16th November 1929 by defendant l. The plaintiff alleged that this sale constituted a breach of a condition of the khorposh grant on which the plaintiff was entitled to re-enter and he, therefore, sued for possession impleading as defendants not only defendant l and defendant 20 but defendants 4 to 19 who had acquired various interests in the property from defendant 20 before the execution sale of 16th November 1929. Defendants 2 and 3 would appear to be impleaded as partners of the firm Messrs. Lekharaj Shewakaram and Company which is defendant 1 though I do not find this clearly stated in the plaint. The suit was contested by several out of the defendants 4 to 19 though the main contest appears to have been carried on by defendants 6 and 7, the holders of a permanent mokarrari lease granted by defendant 20 on 20th July 1929. The contesting defendants raised various pleas and on the issues raised in the suit the learned Subordinate Judge made the following findings. He first held that the entire proprietary right of the plaintiff in pargana Jainagar was not transferred to defendant 20 though that document did create a permanent heritable interest in his favour. He then considered the clause in Ex. 4 which embodies the condition for breach of which the plaintiff claimed possession. This clause runs as follows:
Be it noted that no one will be entitled to attach or sell this property for your debts. If the said property be sold in auction for your debts then this grant will be forfeited and the property will revert to my khas possession.
The learned Subordinate Judge held that this clause was not void under the'' rule against perpetuity and remoteness, that is, u/s 14, T. P. Act. He held that Ex. 4 was not a lease. He held that the clause in question was void u/s 10 though not u/s 11 or 12, T. P. Act. He further held that the clause was bad u/s 23, Contract Act. He held that the execution proceedings'' started by the firm of defendant 1 were not fraudulent or collusive. He overruled a plea of limitation and also a plea that the suit was not maintainable in, the civil Court. He held that there had been no waiver by the plaintiff of any right of forfeiture and he held that the plaintiff was not entitled to cancel the leases granted by defendant 20, holding in this connexion that the grant to defendant 20 by Ex. 4 was not a resumable tenure, and on these findings he dismissed the suit.
On appeal before us the plea that the execution proceeding started by the firm of defendant 1 was fraudulent or collusive was not pressed nor were the pleas regarding limitation and the jurisdiction of the civil Court. The main questions argued before us were, first, whether the clause in Ex. 4, quoted above, providing for the cancellation of the grant and re-entry by the plaintiff in case the property was sold by auction for the debts of defendant 20 is valid, secondly, whether there has in fact been a breach of that condition, and thirdly, whether the defendants are now entitled to raise the second of these questions. Certain subsidiary questions were also argued, but it will be convenient to deal with them later. I will deal first with the second and the third of these main points. It was pointed out correctly ''on behalf of the defendant-respondents that forfeiture clauses must be construed strictly, and the forfeiture clause in Ex. 4 starts with the words "if the said property is sold by auction for your debts." It does not state "if the said property or any portion thereof is sold etc." This forfeiture clause will, therefore, only apply if the whole property is sold by auction for the debts of defendant 20. It was contended that certain portions of the property covered by Ex. 4 viz. pargana Jainagar, had already been sold by voluntary transfers and not by auction prior to the sale in execution dated 16th November 1929 in execution Case No. 331 of 1929 and that, therefore, the execution sale did not cover the whole property included in Ex. 4 and so that execution sale did not amount to a breach of the condition of the forfeiture clause. In order to prove these previous transfers the defendants rely on certain documents already on the record. On behalf of the plaintiff-appellant it was urged that this plea had not been raised in the written statements. When this matter was raised in argument, we enquired whether in the event of our permitting the defendants to raise the question whether a portion of the property covered by Ex. 4 had already been sold by voluntary alienations prior to 16th November 1929 the plaintiff would claim an opportunity of giving further evidence. Mr. 8. N. Bose for the plaintiff then stated that although he would contend that this plea was not open to the defendants, he was prepared to meet it on the evidence already on record.
Now I cannot find that in the written statements there was any clear allegation that by reason of prior sales the execution sale of 16th November 1929 did not cover the entire property included in Ex. 4. In more than one of the written statements, however, it was pleaded that the facts alleged in para. 7 of the plaint were not admitted. It was in para. 7 that the plaintiff alleged that defendant 1 purchased pargana Jainagar on 16th November 1929. Certainly the defendants should have specifically pleaded the facts on which they now wish to rely, but it seems that they were by their defence intending to raise the question whether pargana Jainagar had really been sold in the execution sale of 16th November 1929 and I do not think that they should be debarred altogether from raising the point which they now wish to make by reason of the vagueness of their written statements. Had the plaintiff desired an opportunity of giving further evidence, I should have been prepared to direct the defendants to amend their written statements by giving particulars of the transactions on which they wish to rely aa showing that by reason of previous sales the execution sale of 16th November 1929 did not cover the whole of pargana Jainagar, the property included in Ex. 4. In view, however, of the fact that the plaintiff did not wish for any opportunity to give further evidence on this point, I consider that it is unnecessary to force the defendants to amend their written statements before raising this plea in appeal.
Turning now to the particular transactions on which the defendant-respondents relied in this connexion, there is first the sale deed (Ex. C-3) dated 26th February 1927 by which defendant 20 transferred to defendant 6 a mokarrari jama of Rs. 90 out of the jama of Rs. 100 which was payable to defendant 20 under permanent settlements of two villages Chehenria and Manaidih, previously made with the father of this defendant 6. That previous permanent settlement is Ex. B-3. It was contended fori the plaintiff-appellant that Ex. 0-3 did not transfer the title of defendant 20 as lessor of the permanent mokarrari settlement made by Ex. B-3 but merely transferred a portion of the mokarrari jama or rental. In my opinion this contention is correct and, therefore, Ex. 0-3 did not transfer any portion of the khorposh interest in pargana Jainagar created by Ex. 4. The next property on which the defendant-respondents relied in this connexion is village Barahmasia. They urged that this was transferred by a deed of gift (Ex.B-8) dated 13th December 1927 by defendant 20 to one Krishna Priya Devi. This document has not been printed although it is mentioned in the list of documents. As against this, the plaintiff points out that Ex. P-2 shows that defendant 1 purchased a tenure right, in -village Barahmasia and that it was this tenure right of the previous lessees which was transferred by Ex. B-8. Therefore, the Khorposh right in this village remained with defendant 20. In this case also, I think the contention of the plaintiff is correct. The third property on which the (defendants relied in this connexion is village Hariharpur. They relied on the document Ex. C-2 which is a sale deed executed by defendant 20 on 15th November 1928, in favour of defendant 6. This document recites that by a registered patta dated 20th Jesth 1338 B. S. defendant 20 had settled the entire village Hariharpur with Thakur Pran Krishna Singh on a fixed annual mokarrari rental of Rs. 99 and that it had become necessary to sell the said fixed annual mokarrari jama and cess (which amounted to Rs. 10-13-6). The executive portion of the document states that for a consideration of Rs. 800 defendant 20 executed the kebala or sale deed (Ex. C-2) and the wording continues:
I execute this khas kebala in your favour and stipulate that whatever right, title and interest I had in the rent and cess, etc., of the said entire mauza Hariharpur becomes extinguished and devolves entirely on you. I as well as my heirs and suc-cessors-in-interest shall permanently cease to have all right and title to the entire mauza Hariharpur. From this day you shall step into my shoes and entering into possession and with the same right like me shall amicably realise the fixed aimual jama and cess of the entire mouza Hariharpur aforesaid, if it is not amicably paid you shall realise by legal means on the strength of this khas kebala deed and continue to possess and enjoy permanently in great felicity or continue to possess and enjoy in great felicity for ever with your heirs, sons and grandsons, etc., and successors-in-interest possessing the right to make all sorts of transfers by sale, gift or otherwise and settlement.
It is clear that the settlement with. Thakur Pran Krishna Singh was a permanent lease. It is contended on behalf of the plaintiff that the mention in Ex. C-2 of the sale of the annual mokarrari jama and the words "stipulate that whatever right, title and interest I had in the rent and cess, etc.," show that this document covered merely the right to receive the rent and cess and did not dispose of the entire interest of defendant 20 in village Hariharpur. It was suggested that defendant 20 even after executing Ex. C-2 still held, the reversion of the permanent lease granted to Thakur Pran Krishna Singh. I must confess that I have a difficulty in understanding the nature of any reversion of a permanent lease, but in any case I do not think that reliance can be placed on particular words and phrases in Ex. C-2 without reference to the rest of the document, and when the document is considered as a whole and due attention is paid to sentence "I as well as my heirs and successors-in-interest shall permanently cease to have all right and title to the entire mauza Hariharpur" I think it is clear that the previous clauses of the document are not to be read in any narrow sense and that the document transferred to defendant 6 the entire rights of defendant 20 in mauza Hariharpur. From this it follows that after Ex. C-2 the whole property covered by Ex. 4 no longer belonged to defendant 20, and, therefore, the whole of that property could not be sold in execution for his debts. It was contended on behalf of the plaintiff that Ex. B-2 dated 20th July 1929, whereby defendant 6 was granted by defendant 20 a permanent maurusi mokarrari lease of the entire pargana Jainagar, shows that Ex. c-2 did not convey all the rights of defendant 20 in village Hariharpur which is situated within pargana Jainagar. I do not think this contention is valid. Even on the plaintiff''s own view of Ex. C2, defendant 20 had, after the execution of Ex. 0-2, no right in village Hariharpur except a right''of reversion after the expiry of a permanent lease. Such a right of reversion could obviously not itself form the subject-matter of a permanent lease granted by the owner of such a right. It is true that in a suit between defendant 6 and defendant 20 or any person claiming through defendant 20 Ex. B-2 might estop defendant 6 from denying that on 20th July 1929, the date of EX. B-2, defendant 20 had a title to the entire pargana Jainagar by reason of Section 116, Evidence Act. The present plaintiff-appellant however claims that the interest of defendant 20 in pargana Jainagar ceased by reason of a breach of a condition included in Ex. 4; and the plaintiff-appellant contends that the tenancy of defendant 6 created by Ex. B-2 has ceased with the interest of defendant 20. Section 116, Evidence Act, will therefore not estop defendant 6 in the present suit from denying that defendant 20 had a title to the whole of pargana Jainagar at the date of Ex. B-2.
I come therefore to the conclusion that the sale in execution dated 16th November 1929, did not cover the whole of pargana Jainagar because what could be sold in that execution case was the right, title and interest of the judgment-debtor, defendant 20, and he had no right, title or interest in village Hariharpur after the execution of Ex. C-2 on 15th November 1928, village Hariharpur being within pargana Jainagar. I, therefore, come to the conclusion that the execution sale of 16th November 1929, did not cover the entire property specified in Ex. 4 and that sale therefore did not amount to a breach of the condition set out in Ex. 4.
This finding would be sufficient to dispose of this appeal, but it is desirable that I should give my decisions also on the other questions raised; the most important being the question whether the clause in Ex. 4 providing for forfeiture of the grant if the property were sold at auction for the debts of defendant 20 is valid. This clause has been challenged on behalf of the respondents on various grounds. It was first argued that it is void u/s 14, T. P. Act. It was urged that the learned Subordinate Judge was wrong in thinking that this clause was limited to the life-time of defendant 20. It was pointed out that defendant 20 might die leaving debts and a suit for recovery of such debts might take several years before a final decree was passed in the suit and thereafter several more years might elapse before the property was brought to sale in execution of such a decree with the result that a sale in execution of such a decree might take place long years after the death of defendant 20 and even beyond the minority of any person in existence at the date of death of defendant 20. As against this it was urged on behalf of the plaintiff-appellant that the words in the forfeiture clause "then this grant will be forfeited and the property will revert to my khas possession" show that the clause must take effect, if at all, during the life-time of the grantor, the present plaintiff-appellant. I think this contention on behalf of the appellant is correct and therefore S.14, T.P. Act, does not invalidate the clause now in question. In this connexion we were referred to the decision of this Court in 8 pat. 24321 on behalf of the appellant. The facts of that case were very different from thase now before us but the same principle seems to have been applied.
It was next contended for the respondents that the clause in question is invalid u/s 10, T. P. Act. This section provides that where property is transferred subject to a condition or limitation absolutely restraining the transferee or any person claiming under him from parting with or disposing of his interest in the property the condition or limitation is void except in the case of, a lease where the condition is for the benefit of the lessor or those claiming under him. There is also a further proviso with which we are not now concerned. To this contention theplaintiff-appellant offers two answers : first, that the grant created by Ex. 4 is a lease and the forfeiture clause, which, is the condition in Ex. 4, is for the benefit of the lessor because it provides for re-entry by the plaintiff, and, secondly, that the condition in''Ex. 4 provides only a partial and not an absolute restraint on alienation. The respondents contend that Ex. 4 is not a lease. In my opinion Ex. 4 is not a lease. In 6 Pat, 6382 this Court had to consider whether in the case of a khorposh maintenance grant mineral rights passed without words of express grant or by clear implication. It was held that they did not. The respondents rely on this decision as an authority showing that a khorposh grant is not a lease. For the appellant it is urgedi that the question was not directly decided. Dawson-Miller C. J. in his judgment at p. 642 of the report stated:
If the grant were merely a lease either for a term or in perpetuity or a maintenance grant for the life of the grantee I consider that the question would be concluded by a series of authorities binding on this Court notwithstanding that there are words of general import in the grant itself which, taken in their widest significance, would be sufficient to pass all rights in the property to the grantee and the heirs male of his body.
He then went on to consider the question before him at some length clearly on the assumption that the khorposh grant was not a lease and at p. 650 of the report he stated:
Under the present grant it appears to me that the interest created, although hot strictly a lease as defined in the Transfer bf Property Act, bears most of the essential features of an interest created between landlord and tenant a rent being reserved and the reversion in the event of failure of lineal male heirs remaining in the landlord.
That decision came before the Privy Council on appeal and the decision of the Judicial Committee is reported in 10 Pat. 877. therein they stated:
As regards the construction of this particular grant, they find themselves completely in agreement with the views expressed in the High Court which held that the deed is incompetent upon its construction to pass the mines and minerals.
Although their Lordships of the Judicial Committee did not expressly state that a khorposh grant is not a lease, I hardly think that they would have expressed themselves in the way they did in the passage just quoted, if there were any doubt regarding the correctness of the statement in the judgment of Dawson Miller C. J. to the effect that the interest created by the khorposh grant was not a lease as defined in the Transfer of Property Act. I, therefore, consider that that decision, which is binding on us, lays down that a khorposh grant is not a lease. This also appears to me to be supported by certain passages in the judgment of the Judicial Committee in AIR 1936 332 (Privy Council) . In that case two villages had been granted to two cadets of the family as khorposh or maintenance. Those villages were subsequently sold in execution of decrees against the khorposhdar and were purchased on behalf of the owner of the estate by the then manager. In the course of the judgment at p. 447 of the report their Lordships stated:
It is common ground that a village granted to a junior member in lieu of maintenance is resumable on failure of his male line but until that event takes place the grantor has no interest in the property. The grantee is the absolute owner thereof and has an unrestricted power of transfer. If a transfer is made, the transferee holds the property as a full proprietor and the grantor has no right to interfere with him until the extinction of the male line of the grantee. When that incident takes place the tenure of the grantee comes to an end and the property reverts to the grantor,
This passage cannot, I think, be reconciled with the suggestion that a khorposh grant was a lease. It was contended that in this case the terms of the khorposh grant required the khorposhdar to pay revenue and Cess, but the learned Subordinate Judge has pointed out that there was no provision requiring that these sums should be paid to the grantor, and I, therefore, do not think that these sums can be regarded as rent, and I hold that the khorposh grant to defendant 20 was not a lease. As regards the respondents'' contention that the condition against alienation in Ex. 4 is void u/s 10, T. P. Act, the plaintiff-appellant contends that the restriction against alienation therein contained is not absolute but only partial and is therefore valid. The Judicial Committee of the Privy Council in 59 I. A. 2361 held that a restriction which forbade only alienations to strangers leaving the transferee free to''make any transfer she pleased, within'' the ambit of the family was valid. In the ppesent case the restriction in Ex. 4 is a restriction against sale or attachment for debts and the particular clause which provides for forfeiture of the grant applies only if the property is sold at auction for the debts of defendant 20. This left defendant 20 free to make any alienation he wished and I do not think that this clause can be construed as an absolute restraint on alienation and I, therefore, consider that Section 10, T. P. Act, does not invalidate this condition. I come next to the contention of the respondents that the condition against alienation in Ex. 4 is void u/s 12, T. P. Act. This section runs as follows:
Where property ia transferred subject to a condition or limitation making any interest therein, reserved or given to or for the benefit of any person, to cease on his becoming insolvent or endeavouring to transfer or dispose of the same, such condition or limitation is void.
Nothing in this section applies to a condition in a lease for the benefit of the lessor or those claiming under him.
We are not now concerned with the words , "endeavouring to transfer or dispose of tho same." The respondents'' contention is that the condition in Ex. 4 makes the interest of defendant 20 to cease on his becoming insolvent. u/s 6, heading (e) of the Provincial Insolvency Act a debtor commits an act of insolvency
if any of his property has been sold in execution of the decree of any Court for the payment of money.
It is contended that the condition in Ex. 4 provides for forfeiture of the interest of defendant 20 if he commits a particular act of insolvency and that such a condition is void u/s 12, T. P. Act. We have to consider, therefore, the meaning of Section 12. Before considering the wording of this section in detail, I note that the exclusion of leases from the main provisions of Sections 10 and 12, T. P. Act, would at first sight appear remarkable. When the matter is considered more closely, however, I think it is clear that this exception of leases is based on a very definite principle. The definition of leases in Section 105, T. P. Act, begins with the words "a lease of immovable property is a transfer of a right to enjoy such property". It is thus not a transfer of the property itself which remains the property of the lessor. Clearly the Legislature has recognised as a fundamental principle that the owner of immovable property should be able to transfer by way of leases a right to enjoy such property without necessarily rendering himself liable to accept as a tenant some per. son who may on various grounds be obnoxious to him. The Legislature has clearly recognised this principle as of such importance as to override the general principle embodied in Section 10, T. P. Act, that the owner of an interest in property should not be absolutely restrained from disposing of his interest. Similarly leases have been exempted from the general principles embodied in Section 12, T. P. Act. What then are the general principles embodied in this section? It seems to me that the general principle regarding insolvency, which is embodied in that section, is that whatever interest a man has in property should be available for his creditors. This is in accordance with Section 28 (2), Provincial Insolvency Act. I think, therefore, that Section 12 is designed to provide that except in the case of certain leases (an exception based on the principle already mentioned) a man''s creditors should be entitled to enforce their rights against all property or interest in proper which the debtor himself enjoyed. Turning now to the actual wording of Section 12, T. P. Act, I do not think that this section should be read in any narrow sense. The English law on the subject is not exactly the same as that in India. Eut I think that the dictum of Kay J. in (1888) 38 ch. D. 17615 has a force Which is not restricted to the particular provisions of the English law. That dictum runs as follows:
The liability of the estate to be attached by creditors on a bankruptcy or judgment is an incident of the estate and no attempt to deprive it of that incident by direct prohibition would be valid.
Section 12, T. P. Act, refers to the transferee "becoming insolvent", not "being adjudicated an insolvent". I do not think that this section can be restricted to conditions which would take effect only on adjudication. Before any man can be, adjudicated insolvent, he must commit an act of insolvency. If property were transferred subject to a condition that in the event of the transferee committing an act of insolvency his interest should cease, it might be possible to argue that such a condition must take effect, if at all, before the transferee is adjudicated insolvent. If therefore, the words "on his becoming insolvent" in Section 12 were to be construed as equivalent to "on his being adjudicated insolvent", it might be urged that such a condition did not make the transferee''s interest cease "on his becoming insolvent" because the condition would take effect before he so became insolvent. Such a construction of Section 12, T. P. Act, would obviously produce ludicrous results and I do not think that the Courts should lightly accept any such construction. Again if property were transferred subject to a condition that the transferee''s interest should cease on his presenting a peti-tion to be adjudicated insolvent, I think it would be ludicrous if such a condition were held to be outside the purview of Section 12, T. P. Act. The act of the debtor in filing a petition to be adjudicated insolvent is itself an act of insolvency u/s 6, heading (f), Provincial Insolvency Act. Clearly''if a condition providing that a debtor''s interest in property shall cease on his committing one kind of act of insolvency is invalid there can be no logical reason why a condition providing that his interest shall cease on his committing an act of insolvency of a different kind should be valid. The conditions covered by Section 12, T. P. Act, are thereby declared to be void. They are not merely voidable in certain circumstances. The validity or invalidity of conditions u/s 12 cannot, therefore, be determined by consideration of the question whether the transferee has or has not become insolvent. With these considerations in mind I think that the true mean-ling of Section 12, T. P. Act, is that any condition on transfer whereby the interest transferred would cease on the happening of an event on which the transferee is liable to be adjudicated insolvent is void. I have already pointed out that the condition for forfeiture in Ex. 4 is to take effect if the property covered by that document be sold in auction for the debts of defendant 20 and such a sale would be an act of insolvency on the part of defendant 20 u/s 6 (e), Provincial Insolvency Act, and on such an act of insolvency defendant 20 would be liable to be adjudicated insolvent. I think that in the words of Section 12 such a condition would make the transferee''s interest cease on his becoming insolvent.
So far I have dealt with this questibn without reference to any Indian decisions. There appears to be no Indian case in which the question now before us was directly in issue, but I think that the view which I have taken on this question and on the meaning of Section 12, T. P. Act, is really supported by authorities in India. In Vyankatraya v. Shivram (83) 7 Bom. 256 a stipulation in a lease that the tenant was not to let the property be sold, or attached and sold in satisfaction of judgment debts and that if he did, the landlord might take away the land and give it to others for cultivation, was held valid. Sir Charles Sargent in the course of his judgment referred to the English law by which, in the case of leases, such clauses and clauses for re-entry by the-landlord in the event of the lessee becoming insolvent are valid, He then continued;
And we may remark that the above rule, as regards the insolvency of the lessee, is expressly adopted by the concluding words of Section 12, T. P. Act. To hold therefore that the clause in question, which is ejusdem generis with a clause which prevents the lease from, passing to the creditors of an insolvent, is not valid as against creditors, would in our opinion, be to draw a distinction in form and hot in substance.
Sir Charles Sargent would hardly have used these words had he thought that the Indian Legislature in Section 12, T. P. Act, had adopted part of the English rule mentioned by him but not the rest. The words must, therefore, mean that whereas part of the English rule is "expressly adopted" by Section 12, T. P. Act, the rest of that rule is adopted by implication. It follows that by implication the words of Section 12, T. P. Act, apply to conditions in transfer deeds which provide for forfeiture in the event of the property being sold in execution. In Mahanand Roy v. Saratmoni Debi (11)10 I.C. 374 Mookerjee J, of the Calcutta High Court clearly accepted this interpretation of Sir Charles Sargent''s judgment when he stated at page 587:
Again, as pointed out by Sir Charles Sargent in 7 Bom. 256,18 although a restriction upon the right of the lessee to have the property sold in exeoution of a decree against him may be valid, if there is a covenant for re-entry, such a covenant is invalid in the absence of any provision for forfeiture.
This passage is followed by a reference to three cases, Tamaya v. Timapa (83) 7 Bom. 262; Subbaraya v. Krishna (83) 6 Mad. 159 and In re West Hopetown Co. (90) 12 All. 192 but Mookerjee J. made no comment on those three decisions. A reference to the report shows that in each of those three cases the restrictive covenants in the leases in question were held not to apply to sales in execution of judgment debts. The reference made by Mookerjee J. to these three cases seems, therefore, to have no bearing on the dictum quoted above which Mookerjee J. attributed to Sir Charles Sargent. On a reference to the judgment of Sir Charles Sargent in 7 Bom. 25618 I cannot find that he has in express words stated that in India a restrictive covenant in a lease restricting the right of the lessee to have the property sold in execution of a decree against him would be invalid in the absence of any provision for forfeiture or re-entry by the lessor. Sir Charles Sargent did, however, while referring to the English law, mention that in such cases
a clause in a lease is valid which gives a right of re-entry by the landlord in case the term be taken in execution
and later at page 262 of the report while dealing with the facts of the case before him he stated:
In the present case it is true that there would not, strictly speaking, be a breach of the clause and a right of re-entry until the land was both attached and sold.
I think, therefore, that Sir Charles Sargent clearly contemplated that a provision for forfeiture or a right of re-entry by the lessor was essential in India, as in England, to the validity of such a clause and this justifies the dictum quoted above from the judgment of Mookerjee J. In a later case of the Calcutta High Court, Dwarikanath Roy v. Mathura Nath AIR 1917 Cal. 236, Sir Lancelot Sanderson C. J. and Sir Asutosh Mookerjee sitting in a Letters Patent appeal from a decision of Chapman J. again had to consider the Validity of a covenant in a lease which provided for re-entry by the landlords if the land was sold by auction for debts of the lessees. In the course of his judgment at the foot of page 46 of the report Mookerjee J. stated:
It is equally plain that a covenant for re-entry by the landlord upon an involuntary sale is valid under the law of England. This is conclusively established by the decisions in R. v. Topping (1825) McClel. & You. 544 and Davis v. Eyton (1830) 7 Bing. 154.
He then stated:
We have also the high opinion of Sir Charles Sargent C. J. in 7 Bom. 25618 that the same rule is applicable in India, although Section 12, T. P. Act, expressly mentions the case of forfeiture for bankruptcy and deos not specifically refer to thecaseoPforfeiture for involuntary alienation
and he referred to the case in 14 cri. L. J. 5852l This shows that Mookerjee J. in 1916 no reason to change the opinion which he had expressed in 1911 regarding the real meaning o$ Sir Charles Sargent''s decision in 7 Bom. 256 It is quite clear, therefore, that Mookerjee J. was clearly of the opinion that a provision for forfeiture or re-entry by the lessor is essential in India, as in England, to the validity of a clause in a lease restricting the right of the lessee to have the property sold in execution of a decree against him and he understood Sir Charles Sargent as having laid down the same rule. I would respectfully agree with the opinion of Mookerjee J. and his interpretation of the judgment of Sir Charles Sargent. Now in India the necessity for a provision for forfeiture and re-entry by the landlord in order that a breach of a restrictive covenant in a lease may have the effect of terminating the lease is secured by the last sentence of Section 12, T. P. Act: "Nothing in this section applies to a condition in & lease for the benefit of the lessor or those claiming under him." Section 31, T. P. Act, lays down that:
Subject to the provisions of Section 12, on a transfer oi property an interest therein may be created with the condition superadded that it shall cease to exist in case a specified uncertain event shall happen, or in case a specified uncertain event shall not happen.
If, therefore, a condition or restrictive covenant in a lease providing that the interest of the lessee should cease on the property being sold in execution of a decree for the debts of the lessee were not covered by the provisions of Section 12, it would be valid u/s 31, T. P. Act, even in the absence of any provision for forfeiture or re-entry by the landlord on breach of the condition or covenant. Tha decision that a provision for forfeiture or re entry by the landlord is essential in India to the validity of a covenant in a lease providing that the lessee''s interest shall terminate on the property being sold in execution of his debts implies, therefore, that such a covenant is covered by the provisions of Section 12, T. P Act. Section 12 applies not only to leases and must, therefore, cover "such covenants or con ditions in all transfer deeds whether leases or not.
Referring again to the judgment of Sir Charles Sargent in Vyankatraya v. Shivram (83) 7 Bom. 256 where he held, that a clause in a lease providing for forfeiture and re-entry by the landlord in the event of the term being taken in execution is ejusdem generis with a clause which prevents the lease from passing to creditors of an insolvent, I would point out that it would be anomalous if the former clause were held valid in the absence of a provision for re-entry [while the latter is not. For these reasons I hold that the clause in Ex. 4 now before us, which provides that if the property be sold in auction for the debts of defendant 20 the grant will be forfeited and the property will revert to the possession of the grantor, is covered by Section 12, T. P. Act, and is, therefore, invalid. It was also urged for the respondents that if there had been any forfeiture of the grant the plaintiff-appellant had waived his right to enforce that forfeiture. As I have held that the condition providing for forfeiture in Ex. 4 is invalid, I do not think it necessary to deal with this matter at length and it is sufficient to remark that I agree with the learned Subordinate Judge in his findings on this point under issue 3 in his judgment where he held that the acts of the plaintiff, which were relied on in this connexion, did not amount to a waiver of any right of forfeiture. I also agree to the order regarding costs of this Court.