K.C.Das Gupta, J. - (1.) The subject-matter of this litigation. is holding No. 8 Rajballav Saha Lane within the Howrah Municipality. Admittedly defendants 2 to 5 held this land as tenants under the plaintiff. The tenancy was created in favour of predecessor-in-interest of defendants 2 to 5 by the plaintiff's predecessor-in-interest on 26-3-1865. The plaintiff has brought the present suit for khas possession of the property and mesne profits and in the alternative for damages on the allegation that none of the defendants 2 to 5 have any right and title whatsoever to sell the said property contrary to the terms of the Patta and Kabuliyat and that according to the terms of the Patta and Kabuliyat they were bound to sell the property to the plaintiff and that defendants 2 to 5 having sold the property contrary to the terms of the said Patta and Kabuliya't the plaintiff was entitled to get possession of the property in suit. The Kabuliyat is in these words: "This Kabuliyat is executed by (Sree Lakshimoni Khanki of Ramkrishnapur, Pargana Boro, District Howrah, to the effect following: "You grant unto me a Maurasi Patta in respect of 2 1/2 Cottahs (two and half Cottahs) more or less and land lying with the boundaries given below and comprised within the residential house purchased by you on fixing the annual rent therefor at Rs. 10/- and on receiving from me a Selami of Rs. 57. I shall go on possession and enjoying the aforesaid land down to my heirs in succession by erecting houses and brick built structures etc. thereon. I shall pay the amount of the rent year after year as per instalments stated below. If I make default in payment of the instalments, I shall pay interest according to the custom. The rent of this land shall never be enhanced or reduced. If I ever transfer my Maurasi interest I shall duly execute (in your favour) a Kobala in respect of the buildings and of the Jotedari (tenancy) interest along with the Mourashi Patta granted by you on accepting from you the amount of the consideration that would be fixed by some respectable persons assembled together as arbitrators, I shall not be competent to execute the same in favour of any one else except your Sircar (estate?). If I or my heirs do so, the same shall be void and be rejected. To the above effect, I execute this deed of Mokorari Kabuliyat on accepting a Patta of Mourashi Jama. Dated the 14th Chaitra, 1271, (Twelve Hundred and Seventy-one B. S.: 26 March 1865)."
(2.) The learned Subordinate Judge was of opinion that as the lease simply provides that the transfer made by the lessee would be void and there was no right of re-entry reserved, the clause of bar to the alienation of the property was void. He also held that the stipulation to transfer only to the lessor and its successors was hit by the Rule against perpetuity. Accordingly he dismissed the suit.
(3.) The main dispute in this Court has been on a point which was curiously enough not raised in the Court below. Before the Subordinate Judge both the parties appeared to have proceeded on the basis that except in so far as prevented by the terms of the contract the tenancy was transferable. If it was transferable, the bar against alienation would be void, as infringing the rule against perpetuities.;