- (1.) This is an appeal against an appellate decree of the District Judge of Hooghly affirming the decree of the Subordinate Judge, 2nd Court of the same place.
(2.) The facts are very simple. The appellant is a successor-in-interest of one Prannath Choudhury of Satkhira. The defendants are the successors-in-interest of one Raj Krishna, Mukherjee. Both parties are assignees. Prannath Choudhury gave a putni lease of his share of touzi No. 37 of the Hooghly Collectorate to Raj Krishna Mukherjee, one of the terms of which was You shall submit duly year after year in my office the Jamawasil baki papers etc., and the Lowazima papers." On 1st May 1942, the plaintiff, the Hooghly Bank Ltd., purchased also the putni interest and took delivery of possession on 30th June 1942. They found an utter absence of papers and as the assignees of the original creators of the putni they have now called upon the defendants, the assignees of the putni holder, for the lowazima and collection papers not submitted prior to the purchase by the plaintiff and within the period of limitation. Both Courts have held that the covenant is not which runs with the land but is only a personal covenant. The learned District Judge's judgment is not very satisfactory as it deals with questions as to restraint on alienation etc., which really do not arise. The only question which has been urged is whether the covenant, we have mentioned before, is one which runs with the land and is therefore binding on the assignees of the original contracting parties. The case stood over for a long time as no decision actually covering the point could be shown, except an observation in a case by this Court in which the Divisional Bench assumed that such a covenant may run with the land. It did not decide the point. Some decisions were cited regarding covenants to pay chout or 1/4th share of the purchase money on sale of occupancy tenancies. Those are clearly distinguishable as they are creating a new right which as tenants the occupancy tenants did not possess and so conditions on the exercise of the right could be imposed.
(3.) It is clear that in order to be a covenant running with the laud the covenant must touch and concern the land, that is, it must affect the nature, quality or the value of it. If it runs with the land then the covenant will bind not merely the original contracting parties, but even assignees provided privity is proved. In the present case, there is no question that there was privity between the assignees of the landlord's interest and the assignees of the tenant's interest. Land also means interests in land.;