Vittappa Kuda vs Durgamma alias Shithamma and Others

The suit was brought for a declaration that a gift deed executed by 1st defendant to 2nd defendant was not valid or binding on plaintiff and to

recover possession of the property on the ground that 1st defendant had forfeited her rights under the mulgeni lease by alienating the property. The

property originally belonged to the husband of the 1st defendant who sold it to the plaintiff. Plaintiff granted a Mulgeni lease to the 1st defendant in

1881 under Ex. A. A portion of the property was surrendered by the lessee in 1883 under Ex. B and the deed of surrender expressly stipulates for

the rest of the property being enjoyed under the conditions in Exhibit A. The condition with which we are concerned relates to the prohibition of

the alienation by the lessee of the property. The document recites that the property is granted to 1st defendant and to her vamshastas and provides

as follows. "" I and my descendants shall not alienate the said property, etc., on the strength of this mulgeni. If we alienate the same in contravention

to the above provision the said alienation and also this mulgeni shall become null and void, and the said property etc., shall revert to your

possession."" In 1916 1st defendant made a gift of the property under Ex. 1 to one of her sons-2nd defendant. It is not disputed that by the grant of

the mulgeni lease the property became the absolute property of the 1st defendant. Under the ordinary Hindu Law her daughters would be the

heirs; it is found that 1st defendant has daughters and another son. Ex. 1 states that as the 1st defendant is unable to manage and as the alienee had

agreed to maintain her, she made a gift of the property to one of her sons.

The question in these circumstances is whether this gift works a forfeiture of the rights of the 1st defendant. We are obliged to hold that it does.

But for the decision in Krishna Shetti v. Gilbert Pinto ILR 42 Mad 654 :36 M.L.J. 367 we would have imposed conditions and would have

relieved against the forfeiture. That decision is a direct authority that where a condition restraining alienation has been infringed, there can be no

relief against forfeiture. The Subordinate Judge has held that the gift under Exhibit 1 did not contravene the provision in Ex. A because it was made

to a member of the family. Although Mr. Adiga endeavoured to support the construction placed on the document by the Subordinate Judge, we

are clear that the conclusion of the lower appellate court cannot be sustained. The word Vamshastas in Ex. A means descendants, that is, persons

who would take the property in the usual course of law. It does not refer to the members of the family. The expression indicates an absolute gift of

the property like the words ""Prof generation to generation"". One other matter relating to the construction of the document may be disposed of

before dealing with the principal matters and that is Mr. Adiga''s suggestion that the property was given not only to the 1st defendant, the mother

but also to her children. We are unable to agree with this contention. The word Vamshasthas only means descendants in the ordinary course of

law. We must therefore hold that property was given absolutely to the 1st defendant; there can be no doubt that she did alienate the property. The

learned vakil for the respondents argued that it was not an alienation of the whole of the property and that consequently this case was covered by

the decision in Grove v. Portal (1902) 1 Ch.727. The property which was not surrendered by the lady was given to the son in its entirety. The fact

that it formed part of the property originally given to her under Ex. A would not make the alienation one of a part of the property. The decision in

Grove v. Portal (1902) 1 Ch.727 and the case which it follows Church v. Brown (1808) 15 Ves. 258 have no application to this case. Now, the

question is whether by the alienation to the son, forfeiture has been incurred. The rule of English Law seems to be very clear upon this point. In

McEacharan v. Colton (1902) App cas 104 where the property was leased to A who transferred it to B and B again re-transferred it to A, it was

held that forfeiture was incurred. Lord Macnaghten points out that by the breach of a covenant in the lease forfeiture was incurred and that the

covenant in question applied to a re-assignment to the original lessees. In Varley v. Coppard Common (1872) 7 Cp 505 to which Mr. Sitarama

Rao drew our attention, Mr. Justice Willes points out that where the grant was made to two persons and one of them transferred his right to the

other, forfeiture was incurred. That is an extreme case. In Corporation of Bristol v. Westcott (1878) 12 Ch. D. 46l. Jessel M. R. expressed

doubts as to the correctness of this decision. But in Langton v. Henson (1905) 92 L.T. 805 the court of appeal reaffirmed the decision in Varley v.

Coppard Common (1872) 7 Cp 505 and pointed out that the doubt thrown upon it in the dictum, in Coporation of Bristol v. Westcott (1878) 12

Ch. D. 46l was not good law. There is no Indian case upon the question. The case nearest to the present is the decision of the Calcutta High Court

in Dharani Kanta Lahiri v. Siba Sundari Debi I.L.R (1908) Cal. l069. In that case the property was given to a daughter to be held by her. She

gave it to her adopted son and the question was whether by the alienation her right was lost and whether the grantor could resume the property. It

was pointed out by the learned Judges that the right of resumption was expressly reserved by the grantor for the benefit of the grantee, and

therefore forfeiture should be enforced. Having regard to the English decisions we have referred to, it seems to us that if the English Law is to be

applied in this country, then the forfeiture clause must be enforced and the plaintiff should be given a decree. It was argued by Mr. Adiga that when

the legislature of this country in Section 16 of the Civil Courts Act and in other provisions of law speaks of the rule of equity justice, and good

conscience, it is not the letter of the English Law that should be imported but some deduction which the courts can make out of the rule of English

law. We are unable to agree with the learned vakil upon this point. If there is no provision in the legislature of this country and if we are to apply the

principles of justice, equity and good concience, we are not at liberty to whittle away the force of the rule of English law as proposed by eminent

judges and substitute for it something which in our opinion should be regarded as a rule of equity in this country. We think that if the rules of English

law afford any ground for the application of the principles of equity, justice and good conscience, that should be applied mutatis mutandis, without

presuming to deduce a new rule from it. In this view we are obliged to hold that by Ex. I 1st defendant has forfeited her right to the property and

that the plaintiff is entitled to recover it from her and from her alienee.

Plaintiff will get a decree for possession and for rent and for mesne profits at the rate provided in Ex. A read with Ex. B. He is not entitled to any

compensation. Compensation will be given to 3rd defendant at the rate agreed upon by the vakils in this Court, Rs. 126. Each party will bear his

own costs throughout.