Bejoy Krishna Roy vs Sree Sree Iswar Damodar Jew

Renupada Mukherjee, J.—This is an appeal by the Defendant and it arises out of a suit instituted by one Ram Rakhal Ghosh as shebait of three deities for a declaration that the two items of properties described in schs. ka and kha of the plaint are debuttar properties and are not liable to be attached or sold in execution of a personal decree against the above shebait.

The trial court decreed the Plaintiffs'' suit in so far as it related to the property of kha sch. of the plaint, but dismissed the claim in respect of the property of sch. ka. The Defendant has preferred this appeal from the above judgment and decree of the trial court. No cross-objection has been filed by the Plaintiffs in respect of the portion of the claim dismissed by the trial court.

The facts which have given rise to the present suit are almost undisputed and the decision of the suit turns mainly on a question of law. ''The Defendant-Appellant obtained a personal decree against Ram Rakhal Ghose, the shebdit of the Respondent-deities in Title Suit No. 45 of 1935 of the third court of the Subordinate Judge of Alipore. The decree was put to execution, and the interest of Ram Rakhal Ghose in a property described in sen. kha of the plaint was attached. This property goes by the name of "Barabagan" and it comprises a homestead with a pucca building, a tank and adjoining lands. A claim case which was registered as Claim Case No. 43 of 1946 was filed on behalf of the deities but it was disallowed on December 20, 1947. Upon it the present title suit was instituted on behalf of the deities according to the provisions of Order XXI, Rule 63, of the Code of Civil Procedure.

The contention of the Defendant-Appellant in the trial court was that the Plaintiff-deities and their shebdit Ram Rakhal Ghose held two separate and distinct interests in the property in question, and what was attached in execution of the decree against the shebdit was not the superior interest of the deities but a subordinate lease-hold interest, which Ram Rakhal Ghose held under the deities. This contention of the Appellant was negatived in the trial court on the ground that this lease-hold interest was not created by any registered document, and as such, it had no existence in the eye of law which might make it liable to attachment or sale. This finding of the trial court is however, a result of confusion between ka and kha sch. properties of the plaint. The existence of a subordinate lease-hold interest of Ram Rakhal Ghose under the deities was also a matter for consideration with regard to the ka sch. property. Admittedly there is no registered document evidencing such an interest of the shebdit under the ka sch. property. The claim of the Plaintiffs has been disallowed in respect of that property. In the absence of any cross-objection on the part of the Plaintiffs, ii would not be necessary for the purpose of this appeal to find out on what exact ground or grounds this dismissal is based. But it it certain that so far as the kha sch. propety is concerned there does exist a registered document purporting to show that Ram Rakhal Ghose took a subordinate jama interest under the deities and so the trial court''s finding that there was no registered document with regard to the alleged interest of Ram Rakhal Ghose in the kha sch. property must be held to be incorrect on the face of it. The document in respect of the kha sch. property is a registered deed of conveyance executed by Ram Rakhal Ghose in favour of the deities on July 30, 1930 (Ex. 1).

I shall have to consider the nature, import and validity of the above kabala in some detail. It will appear from this document as also from certain collateral evidence to which reference need not be made here, that some properties of the deities were acquired by Government in land acquisition proceedings, and a sum of Rs. 1,843-4-3 pies was awarded as compensation in favour of the debuttar estate. The question of investment of this sum in a manner profitable to the deities came up before the Land Acquisition Judge, and with his permission Ram Rakhal Ghose sold his personal property known as "Barabagan" to the deities, reserving for himself a subordinate jama interest bearing an annual rent of Rs. 576. The subordinate jama interest was attached by the Appellant in execution of the personal decree against Ram Rakhal Ghose.

On behalf of the Respondents it was contended that such a reservation amounts to a restriction of proper enjoyment of the property within the meaning of Section 11 of the Transfer of Property Act, and so it must be held that what was conveyed by the kobdla of 1930 was the entire interest of Ram Rakhal Ghose in Barabagan property unrestricted by any right of Raw Rakhal Ghose to possess or enjoy the same.

The relevant portion of Section 11 of the Transfer of Property Act may be quoted here:

Where, on a transfer of property, an interest therein is created absolutely in favour of any person, but the terms of the transfer direct that such interest shall be applied or enjoyed by him in a particular manner, he shall be entitled to receive and dispose of such interest as if there was no such direction.

In support of the contention put forth on behalf of the Respondents reliance was placed on some cases which I shall discuss here. The first case cited by Mr. Bhattacharjyya on behalf of the Respondents is Mahram Das v. Ajudhia ILR (1886) All. 452. In this case the restriction put upon the alienee to whom a share in a property was conveyed by a co-sharer by-L an ekrarnamah contemporaneous with the deed of sale was that he would not collect the rents of the share of the property transferred to him, and he would never demand partition or alienate or mortgage it or otherwise exercise proprietary rights over it. It was held on a construction of the deed of conveyance and the ekrarnamah that the conditions imposed upon the vendee were repugnant to the provisions of Section 10 and 11 of the Transfer of Property Act. It is to be noticed that in the above case full proprietary rights in the property purported to have been conveyed by the kabala, but by a simultaneous agreement conditions were imposed upon the transferee which would substantially interfere with and restrict the enjoyment of such proprietary rights.

The next case referred to by the learned advocate for the Respondents is Chamru Sahu and Ors. v. Sona Koer (1911) 14 C.L.J. 303. In that case it was held that a clause for restraint upon alienation by the reversioners in a deed of family settlement between two Hindu widows and the reversionary heirs, who were two brothers of their husbands, was bad in view of the principle recognised in Section 11 of the Transfer of Property Act. The following passage may be usefully quoted from p. 308 of the report:

We have next to examine the provisions of Section 11 of the Transfer of Property Act. This section recognises the elementary principle that a transferee of property who takes an absolute interest, as for instance a donee or purchaser, cannot be restrained in his enjoyment or disposition of it by any condition inserted in the transfer. Such a condition deprives the property of its legal incidents and is inconsistent with or repugnant to the main purpose of the transfer. It is consequently arbitrary and not enforceable in a court of law.

The learned advocate for the Respondents also cited the case of Sarajubala Debi and Ors. v. Jyotirmoyee Debi and Ors. (1931) 35 C.W.N. 903 (P.C.) in support of his contention that once an. absolute interest in property is conveyed in favour of a transferee conditions restricting the enjoyment of such property in a manner repugnant to the main object of the transfer cannot be imposed upon the transferee, and if imposed they would be void and inoperative in the eye of law.

Coming now to the kabala of 1930 let me see how far the principles laid down in the above cases are applicable to that document. Reliance was placed by the learned advocate for the Respondents on the following operative part of the document (Ex. 1):

Now, on receipt of the said money to my satisfaction from the said Land Acquisition Collector, I have sold the property known as "Barabagan" as per schedule and boundaries mentioned below, owned and held by me in 16 annas to the debuttar estate of the aforesaid Thakurs, and by writing and executing this deed of sale divesting my right, title and interest, I agree and promise that by selling this day the rent-free property known as "Barabagan" described in the schedule below to debuttar estate I have become completely divested therefrom. The proprietary interest which I had to the same having been extinguished has instead vested in the said debuttar estate and it has been included within the debuttar estate. Except as a shebait I shall not be entitled to exercise any proprietary right in respect thereof in my own personal right.

From the above recitals in the kabala it is patent that Ram Rakhal Ghose sold his entire proprietary interest in "Barabagan'''' property without any limitation or reservation. But the following passage in the kabala...and for this reason I shall retain subordinate jama interest for the said jama of Rs. 576 under the said debuttar estate. Besides the same I shall not be entitled to claim any other interest in respect thereof...makes it clear that a subordinate jama interest bearing an annual rent of Rs. 576 was created and retained for himself by Ram Rakhal Ghose. This interest was kept distinct from the proprietary right which was conveyed to the deities. The right virtually sold to the deities was the right to receive rent at Rs. 576 per annum from Ram Rakhal Ghose, the executant of the kabala. That right was not made subject to any such restriction or limitation as would contravene the terms of Section 11 of the Transfer of Property Act.

In my judgment, where a person owning a property conveys such property to another person, and at the same time reserves or himself a subordinate or tenancy right under the transferee, he reservation should not be regarded as a restriction repugnant of the interest transferred by the document. Such a transfer should be regarded not as a transfer of the entire interest of the owner, but only of a portion-actual possession of the property remaining with the transferor on his undertaking to pay rent to the transferee. The right which is transferred, namely, the eight to receive rent not being fettered by any condition or limitation, there is no infringement of the provisions of Section 11 of the Transfer of Property Act. In my judgment, there is nothing a that section or in any other law which would invalidate such observation in favour of the transferor.

Next it was urged on behalf of the Respondents that the observation of the subordinate interest being repugnant to the earlier clauses of the kabala by which the entire and absolute interest in "Barabagan" property was conveyed to the deities, the earlier clauses would prevail and the subsequent clauses to the entreaty should be rejected. In support of this contention reliance was placed by Mr. Bhattcherjyya on some observations Mookerjee, J., in Midnapore Zamindari Company, Ltd. v. Jogendra Kumar Bhaumik and Ors. (1920) 33 C.L.J. 186. The short answer to the above argument is that the reservation of a subordinate interest in favour of the vendor of a property is in no way inconsistent with repugnant to the transfer of the proprietary interest entitling vendee to receive rent only from the vendor. Reading the document as a whole there is no escape from the conclusion that Ram Rakhal Ghose sold his superior interest in "Barabagan" property to the deities reserving for himself a subordinate jama interest under them which was more or less of the nature of a tenancy interest. Such a reservation being effected by a registered document is valid and operative. The Defendant-Appellant admittedly attached only the subordinate jama interest Ram Rakhal Ghose which was somewhat loosely described as leasehold interest and not the superior interest of the deities. the interest of the deities being unaffected by such attachment, obey have no right to maintain this suit and in my judgment the suit should have been dismissed with regard to the kha sch. property as well.

In the result, the appeal must succeed. It is allowed and the judgment and decree of the trial court are set aside and the entire suit of the Plaintiffs in the trial court stands dismissed. The Defendant-Appellant will get his costs of this appeal as well as of the trial court from Ram Rakhal Ghose personally. Hearing fee is assessed at ten gold mohurs.

Mookerjee, J.

I agree.