JUDGMENT Jagmohan Lal, J.
1. This appeal arises out of a suit filed by the plaintiff-appellant in the Court of Civil Judge, Pratapgarh praying for the cancellation of a sale-deed dated 5-1-1960 executed by respondents Nos. 9 to 11 in favour of one Abdul Rahman who was predecessor of the defendants-respondents Nos. 1 to 8, and for possession over the said house after their ejectment.
2. This house admittedly belonged to Raja Jagatpal Bahadur Singh, a Taluqdar of Kaithola Estate. He executed a deed dated 29-5-1935 in favour of his wife Rani Dharam Raj Kuer respondent No. 9 in respect of this house and some other property. According to the plaintiff under this deed Rani Dharam Raj Kuer was granted a heritable but non-transferable lease so far as the house in dispute is concerned and as such under the terms of this grant she could only remain in possession of the house but could not make any temporary or permanent transfer thereof. The Raja died on 9-9-1949. Before that he had adopted the plaintiff-appellant Raja Jagat Ranvir Mahesh Prasad Singh as his son and had also executed a will in his favour. Hence both as an adopted son and as a legatee he was owner of the interest reserved by the Raja in the said house under the deed dated 29-5-1935. Smt. Bimlawati Kumari Devi respondent No. 10 is the daughter of Rani Dharam Raj Kuer and the Raja while respondent No. 11 is their daughter's son. After the death of Rani Dharam Raj Kuer, Smt. Bimlawati Kumari Devi would inherit her property if she survives her. The respondents Nos. 10 and 11 had also joined respondent No. 9 in execution of the impugned sale deed. The plaintiff's contention was that by making this unauthorised transfer the lessee lost her leasehold rights and the plaintiff became entitled to get immediate possession over the property which he had sought as an alternative relief in his plaint besides claiming a decree for adjudging the sale-deed as void.
3. The suit was contested by the defendants. It was denied that the plaintiff was the adopted son of the Raja. It was pleaded that the will executed in his favour by the Raja did not cover the house in suit. It was further pleaded that under the deed dated 29-5-1935 Rani Dharam Raj Kuer got the house in suit as an absolute owned and not as a lessee and as such the restriction imposed on her that she could not transfer the property was void under Section 10 of the Transfer of Property Act Even if the transaction is held to be a perpetual lease this condition was void because the lessor not having reserved any right of re-entry on breach of this condition, it cannot be said that this restriction was for his benefit. Lastly, it was contended that in any case the plaintiff was not entitled to possession over the property without determining the lease by means of a notice under Section 111(g) of the Transfer of Property Act.
4. The trial Court repelled these pleas of the defendants. It found that the plaintiff had been adopted by the Raja and the will executed in his favour by the Raja covered this house also. The transaction evidenced by the document dated 29-5-1935 was a lease and not an absolute gift and that the condition prohibiting the lessee from transferring this property was a valid condition which was for the benefit of the lessor. As such the sale-deed executed by the lessee in favour of Abdul Rahman was void. The trial Court therefore granted a decree to the plaintiff for a declaration that the aforesaid sale-deed was void against him and also for possession after ejectment of the defendants.
5. On appeal by the defendants against that decree the lower appellate Court affirmed the findings of the trial Court. It further held that the adoption was not invalid under Section 29A of the Oudh Estates Act. But that Court was of the opinion that since there was no right of re-entry reserved in the lease and no notice under Section 111(g) of the Transfer of Property Act had been served on the lessees the plaintiff was not entitled to any relief. On this ground the appeals of the defendants were allowed and the plaintiff's suit was dismissed.
6. Feeling aggrieved by this decision the plaintiff has filed this second appeal.
7. On behalf of the appellant it was contended that on the findings recorded by the lower appellate Court the plaintiff's suit should not have been dismissed and he should have been granted a decree at least for adjudging the sale-deed as void against him though he was also entitled to possession over the property against the transferees who were in unauthorised possession on the basis of the said sale-deed. On behalf of the defendants, while supporting the decree of the lower appellate Court, the findings recorded on other points against the defendants were traversed. Thus the entire case was laid open by the parties in this second appeal and it becomes necessary to consider all the points involved in this case except the points which are concluded by the findings of fact
8. So far as the question of adoption of the plaintiff is concerned both the courts below have held that the factum of adoption by the Raja has been proved. This is a finding of fact which is not open to challenge in this second appeal. The learned counsel for the defendants-respondents, however, pointed out that in the case of a Taluqdar mere factum of adoption according to the requirements of Hindu Law is not enough but under Section 29-A of Oudh Estates Act, 1869 it is further necessary that the fact of such adoption should be declared by the adopter in a writing executed and attested in manner required in the case of a will and registered. According to the defendants, this requirement has not been complied with in this case.
9. The lower appellate Court where this plea was raised for the first time, it not having been raised in the trial Court, was of the opinion that a statement made by the Raja in his will dated 27-12-1945 which is a registered document of which execution has been duly proved, sufficiently complies with the requirement of Section 29-A. This statement as translated in English is as follows:
"Kunwar Jagat Ranvir Mahesh Prasad Singh who is getting education at present and whose age at this time is 14 years and whom I have considered as my family member (Ahal) and so I adopt him (Main Usko Apni Farzandgi men Leta Hun.)"
On behalf of the defendants it was contended that though according to the plaintiff's version his adoption in accordance with the requirements of Hindu Law had taken place a few days prior to the execution of this will, there is no mention in this will that the plaintiff had already been adopted by him and as such this declaration does not fulfil the requirements of Section 29-A. I am unable to accept this contention. Section 29-A does not prescribe any set formula in which such a declaration should be made. Under Section 29 of this Act even Mohammedan Taluqdars were permitted to adopt a son and obviously in their case no religious ceremony is required and all that they had to do was to make a declaration in a registered document as required by Section 29-A. This declaration could be in the form that the executant was adopting a certain person as his son. In the present case the words "Main Usko Apni Farzandgi Men Leta Him" used by the Raja in his will substantially comply with this requirement. I, therefore, agree with the lower appellate Court that the adoption is not invalid.
10. Besides being an adopted son of the Raja, the plaintiff is also Ms legatee. From a perusal of this will it is dear that whatever interest had been retained by the Raja under the document dated 29-5-1935 in respect of the house in suit was covered by this will and it had not been excluded therefrom. In fact the Raja tried even to whittle down the extent of the grant made under that document which he could not do. That is not an issue before us. The point worth noticing is that whatever interest was retained by the Raja in the house in suit under the document dated 29-5-1935 was not excluded from the purview of the will in favour of the plaintiff. So the plaintiff on both these grounds is entitled to step into the shoes of the Raja and safeguard his interest, if any, in the house in suit reserved under the deed dated 29-5-1935.
11. It was next contended by the learned counsel for the defendants-respondents that the Raja made a gift of the house in suit in favour of his wife (respondent No. 9) under the deed dated 29-5-1935 and it cannot be construed as a lease. In this connection he laid emphasis on Clause 1 of this document which reads as follows:
"Rani Sahiba mausufa jaydad patta shuda mazkoor bajmiya haqooq malkana misla qurqi wa sarsari wa bedakhli waghaira waghaira qabiz wa dakhell rahen."
as translated in English it would mean that the said Rani Sahiba shall remain in possession and occupation over the said leased property together with all its proprietary rights such as, attachment, distress and ejectment etc. Immediately after that Clause 2 lays down that the said Rani shall remain in possession and dominion over the leased property generation after generation without any right of transfer. It concludes that besides any right of transfer whether temporary or permanent the Rani will have all sorts of proprietary powers with respect to the property. The nature of the document was described to be a perpetual heritable and non-transferable lease (Patta istemerar qabil wisarat wa na-qabilul-intaqal"). In my opinion, not only the document has been specifically classified as a permanent heritable and non-transferable lease but the incidents of the transfer as mentioned in the document also make out a clear case of lease and not an absolute gift. The grantor had reserved a right to receive Rs. 5/- per year from the grantee as Malikana in respect of the house in suit. This periodical payment described as Malikana is nothing but an amount of money to be paid periodically to the transferor by the transferee within the meaning of Section 105 of the Transfer of Property Act. The use of the word 'Malikana' is not conclusive to lead to an inference that it was an absolute transfer of the entire proprietary rights. At one place the grantor had also stated that the object of this grant was to provide maintenance to the grantee who was his own wife. I agree with the courts below that the transaction evidenced by this document dated 29-5-1935 so far as the house in suit is concerned is only a perpetual heritable but a non-transferable lease.
12. The next point that arises fop our consideration is whether the condition restraining alienation contained in the above lease is void under Section 10 of the Transfer of Property Act or it is a valid condition under the proviso to that section. This section itself clearly provides that a condition or limitation absolutely restraining the transferee from disposing of his interest in the property shall not be void in the case of a lease where the condition is for the benefit of the lessor or those claiming under him. It was held by a Bench of this Court in Bhairo Singh v. Ambika Baksh Singh, AIR 1942 Oudh 374 that a right of transfer is not a necessary incident of the legal status of a perpetual lessee, and therefore a condition making the rights of the perpetual lessee of a village non-transferable but heritable is not illegal. So the only question that arises for our consideration is whether this condition is for the benefit of the lessor or those claiming under him.
13. On behalf of the respondents ft is contended that unless the lessor reserves a right of re-entry on breach of such condition prohibiting alienation of his interest by the lessee, the condition shall not be deemed to be for the benefit of the lessor and it shall be treated as a surplusage which cannot be defended under Section 10. In support of his contention the learned counsel for the respondents relies on the following decisions:
1. Kunwar Man Singh v. Bindeshwar Baksh Singh, 1937 Oudh WN 959 = (AIR 1937 Oudh 473).
2. Sri Nath v. Ram Narain, 1942 Oudh WN 504 = (AIR 1943 Oudh 125).
3. Khetra Nath v. Baharali, AIR 1929 Cal 228.
4. Sachindra v. Dist. Magistrate, AIR 1956 Tripura 9.
5. S. K. Roy Choudhury v. A. L. Khan, (1961) 65 Cal WN 1050.
14. No doubt some observations made in these cases do support the respondents' contention. But those observations have to be read in the context of the facts of those cases.
15. In 1937 Oudh WN 959 = (AIR 1937 Oudh 473) the grant made through a compromise, of zamindari property conferred heritable but non-transferable rights on the transferee. The transferor had also reserved a right to resume the grant and eject the transferee. But on a consideration of all the antecedents of the transaction and the dealing of the parties with respect to the property it was construed to be a grant of under-proprietary rights which by virtue of those rights was held to confer transferable rights. It was therefore held that where a person gets heritable but non-transferable under-proprietary rights under a compromise, the deed of compromise or agreement can only be interpreted as conferring upon such person absolute under-proprietary rights and the condition in restraint of alienation, even though contained in a settlement decree, is null and void and in spite of insertion of such condition such a decree conveys an absolute right of transfer. Since the transaction was not construed as a lease there was no occasion to consider if the condition was for the benefit of the lessor and as such valid under Section 10 of the Transfer of Property Act
16. In 1942 Oudh WN 504 = (AIR 1943 Oudh 125) (supra) the question that arose for consideration was whether the transaction relating to the transfer of a zamindari property was a sale so as to be subject to law of pre-emption or it was only a perpetual lease on the basis of which a right of pre-emption cannot be claimed by a co-sharer in the village. It was held that it was only a perpetual lease and not a sale. On this finding the appeal was allowed and the suit for pre-emption was dismissed. After that there was no necessity to consider the terms of the lease and to decide if the restriction against alienation imposed on the lessee under that lease was valid or not. All the same, this matter was also considered and it was observed:
"Where under a deed purporting to be a perpetual lease executed by an under-proprietor the transferee is to enjoy heritable rights and pay fixed malikana and rent, the lessor does not reserve any rights of any kind to himself, and the transferee has the right to eject tenants and manage the property in any way he chooses, and the transferor has no right of enhancement of rent or malikana and has not reserved the right of re-entry to himself under any conditions, but has stated that the transferee has no right of transfer, the deed must be deemed to give full powers to the transferee, and the restraint on alienation is illegal under Section 10, Transfer of Property Act."
These observations are in the nature of obiter dicta.
17. In AIR 1929 Cal 228 (supra) the original lessee was granted a permanent heritable but non-transferable lease. The lessor had not however reserved a right of re-entry in the case of breach of the condition prohibiting alienation. The heir of the original lessee made a transfer in breach of this condition. The transferee was however recognized by the lessor by accepting rent from him. Thereafter the transferee or his heir made another transfer which was sought to be avoided by the lessor who brought a suit for ejectment. It was held:
"Where a lessor does not reserve to himself the right of re-entry on breach of a covenant against alienation, the lessor cannot sue the holder of the leasehold for recovery of possession on the breach of the condition."
The question whether such restriction is or is not for the benefit of the lessor was not considered in this case. All that was held was that in such a situation the lessor cannot eject the lessee or his transferee under Section 111(g) of the Transfer of Property Act.
18. The facts of the case AIR 1956 Tripura 9 (supra) were somewhat complicated. In the original sale-deed creating a dar-taluq tenure there was a condition against alienation in favour of an outsider. But no right of re-entry was reserved by the transferor. Subsequently the lessor and the lessee rights came to be owned by the Government. Some time after that, another dartaluq lease was granted to the wife of the original owner. In this lease there was no restriction against alienation. The new lessee sold her dartaluq rights to Sachindra petitioner who remained in possession of the property till the District Magistrate passed an order that he had no title in the property and in pursuance of that order the petitioner was dispossessed and certain other action was taken against him when he filed a writ petition under Article 226 of the Constitution. As the new dar-taluq lease granted by the Government to the wife of the original owner contained no restriction against alienation, the transfer made by her to the petitioner Sachindra could not be said to be void. The original lease had obviously come to an end when the lessor and lessee rights were both owned by the Government. The learned Judicial Commissioner however considered the alternative case also on the assumption that the original sale deed or the lease deed creating the first dar-taluq tenure which contained the restriction against alienation was still operative and held as follows as is evident from head note (e) of the report:
"Where dar-taluq patta executed in Tripura State contained a condition against alienation in favour of an outsider but reserved no right of re-entry to the lessor, and the interest is sold to an outsider, even if the deed be deemed to be operative, the mere fact that in the term it has been laid down that any such action without permission shall be void will not make the sale deed absolutely void.
Further, as the lessor has not reserved to himself the right of re-entry on breach of the covenant against alienation, the lessor cannot sue the holder of the leasehold for recovery of possession on breach of the condition.
Where the lessor has not brought forward any suit against alienee on the ground of forfeiture under Section 111(g), T. P. Act, it cannot be urged with any force that the sale deed in favour of the alienee which is for valuable consideration is void, as this right will be deemed to have been Waived under Section 112, T. P. Act."
So it is evident that it was not a case between the original lessor and the lessee ob persons claiming through them.
19. Lastly the case of (1961) 65 Cal WN 1050 (supra) relates to an ordinary lease from month to month and not to a perpetual lease. There was a restriction imposed on the tenant under the terms of the lease that he will not sublet the premises. In spite of that he sublet the premises. Normally the tenant and the sub-tenant both could be ejected after determining the lease by a notice under Section 106 but for the provisions of the West Bengal Premises Tenancy Act, 1956 which was on the same lines as the U. P. (Temporary) Control of Rent and Eviction Act, 1947. Sub-section (2) of Section 16 of this Act gave protection from ejectment even to those sub-tenants to whom sub-letting had been done with or without the consent of the landlord prior to this Act. In view of this protection the subtenant was not liable to ejectment. The landlord, however, wanted to eject the lessee and his sub-tenant on account of the breach of the condition which prohibited sub-letting though there was no right of re-entry reserved by the lessor on breach of this condition. In these circumstances it was held:
"A stipulation in a lease restraining alienation unaccompanied by a proviso for re-entry on its breach is not an effective restraint or bridle on the lessee's interest in the property and is not really a condition for the benefit of the lessor. Such a stipulation is ineffective as a condition or restraint against alienation. The lease remains operative, notwithstanding the breach of the stipulation. Consequently the sub-lease in the instant case made in breach of the stipulation is valid and operative."
20. Where a right of re-entry on breach of such condition is reserved by the lessor, the condition is immediately and demonstrably for the benefit of the lessor. But even in the absence of such condition, facts and circumstances might be brought out to show that the condition was for the benefit of the grantor though that benefit may not be immediate. It has been pointed out by the learned counsel for the appellant in this case that the grantor and the grantee were not strangers but they were husband and wife. In the contingency of the grantee dying without leaving any issue, the grantor himself would have inherited the grantee's interest. It may be stated that the Raja had previously transferred this very property under a similar document and subject to the same terms to his former wife. She died issueless and her interest in the property was inherited by the Raja himself. Subsequently he transferred this property to his second wife, respondent No. 9, under the deed dated 29-5-1935 in which these facts about the previous transfer had also been narrated. The grantee's heirs who could inherit the property in preference to the grantor were the grantor's own issues. So, on the facts and circumstances of this case and the close relationship existing between the grantor and the grantee, it cannot be said that the restriction against alienation was only a surplusage or a redundant condition which in the absence of a right of re-entry could not confer any benefit on the lessor in any event. In my opinion, the benefit of this restriction could under certain circumstances be available to the lessor or his own heirs. As such, this condition will be deemed to be valid under Section 10. That being so, the lessee (respondent No. 9) had no authority to make the transfer in favour of the predecessor of respondents Nos. 1 to 8 under the impugned sale deed dated 5-1-1960, and this sale deed shall be deemed to be void against the appellant who is successor-in-interest of the lessor.
21. Lastly we have to see what relief, if any, can be granted to the plaintiff-appellant as a result of the above findings. So long as the lease in favour of respondent No. 9 is not determined by a notice under Section 111(g) of the Transfer of Property Act the plaintiff is not entitled to immediate possession. A lease under this provision can be determined on account of the breach of a condition which provides a right of re-entry for such breach. This condition is not available to the plaintiff-appellant. It also provides that if the lessee renounces his character as lessee and denies the title of the lessor, the lease may be forfeited. Whether or not this condition is available to the plaintiff-appellant, does not arise for our consideration at this stage. All that can be said is that the plaintiff is not in this suit entitled to eject respondent No. 9 so long as her lessee rights are not determined.
22. It was contended on behalf of the appellant that he is atleast entitled to seek possession against respondents Nos. I to 8 who are in unauthorised possession of the land. These respondents are not in possession of the land as independent trespassers but are claiming through respondent No. 9 and unless the lease in her favour is determined, these transferees also cannot be ejected by the plaintiff-appellant. At the same time, the sale deed in question executed by the lessee in contravention of the non-alienability clause, is an invasion on the proprietary right of the lessor. He is therefore entitled to get that sale deed adjudged void.
23. I accordingly allow this appeal to this extent that the plaintiff's suit for adjudging the sale deed dated 5-1-1960 executed by respondents Nos. 9 to 11 in favour of Abdul Rahman, predecessor of respondents Nos. 1 to 8 as void against the plaintiff, is decreed. In the circumstances of the case, the plaintiff shall get half his costs throughout from the respondents who shall bear their own costs.