- (1.) THE respondent brought the present suit for recovery of Rs. 2,500 paid by defendant No. 2 to defendant No. 1 as selami for the lease granted by defendant No. 1 to defendant No. 2. The claim was based on a stipulation in favour of the predecessor of the plaintiff at the time of the lease taken from him by the predecessor of defendant No. 1. The stipulation is in these words: ". . . . . . . . " the plaintiff's case was that this entitled him to the selami that was paid to defendant No. 1 by the sublessee, defendant No. 2. The defence contention was that the words should be considered as synonymous with the words and that this term in the lease did not entitle the superior landlord to obtain any part of the selami forming part of the consideration for which the lease was being given. It was also contended that, in any case, the stipulation is not enforceable in view of the provisions of section 178 (1) (g) of the Bengal Tenancy Act.
(2.) THE trial court accepted the plaintiff's construction of the stipulation and held further that the stipulation was enforceable and that section 178 (1) (g) of the Bengal Tenancy Act had no application and only section 178 (3) (d) of that Act applied. The appellate court agreed with the trial judge's construction of the stipulation and was of opinion that the stipulation was not hit by section 178 (3) (d) of the Bengal Tenancy Act. Though there is no clear finding that the provisions of section 178 (1) (g) do not apply, it seems that that was what the learned judge who decided the appeal thought. He accordingly dismissed the appeal
(3.) THREE points are raised before us on behalf of defendant No. 1. who has preferred the present appeal; first, that the courts below erred in the construction of the stipulation, secondly, that the stipulation, in any case, is not enforceable being hit by the provisions of section 178 (1) (g) and thirdly that the stipulation was a personal covenant and did not run with the land. On the question of construction of the stipulation, as set out above, I am of opinion that though the drafting is far from clear, it is not possible to accept the construction suggested by Mr. Sen Gupta on behalf of the appellant. The English translation of the stipulation suggested by Mr. Sen Gupta himself was in these words: "if I lease out or sell this land or any portion of it to another person, then you shall get the mutation fee or selami in respect of it. Any objection of me in that respect will not be maintainable. " In the case of a sale the question of a mutation fee arises but there the question of selami does not arise. Again, in the case of a lease of the land, there will be no question of mutation in the books of the superior landlord and so there will be no question of mutation fee. Payment of selami, however, usually forms part of the consideration of a lease. It is difficult, therefore, to make any sense out of the stipulation unless one accepts the construction suggested by the plaintiff, that the selami, that would be received by the lessee in respect of any sub-lease granted by him, would have to be paid to the superior landlord. The first point raised by Mr. Sen Gupta, therefore, fails.;