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1928 Supreme(SC) 45
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
VISCOUNT SUMNER, SIR JOHN WALLIS, AND SIR LANCELOT SANDERSON.
BEJOY SINGH DUDHORIA - Appellant
Versus
SURENDRA NARAYAN SINGH (DEFENDANTS) - Respondents
On Appeal from the High Court at Calcutta.
Decided On : June 12, 1928.
Solicitors for appellant:T. L. Wilson & Co. Solicitors for respondent No. 1: Watkins & Hunter.
A lease in perpetuity does not extinguish the lessor's interest. Unless expressly granted, the right to excavate soil for brickmaking, causing substantial damage, is not implied in a patni lease, especially when restrictive covenants regarding land excavation exist.
Headnote:(A) Regulation VIII of 1819 - Nature of putnee taluks - Lease in perpetuity - Right to excavate soil for brickmaking - A grant of a lease in perpetuity carves a subordinate interest out of the owner's own and does not annihilate the owner's interest - The word "lease" implies an interest remaining in the lessor - Where the grant does not expressly transfer the property in the soil, the grantee is a leaseholder only.
(B) Interpretation of Lease Terms - "Including all interests therein" - This expression does not increase the corpus of the subject of the lease but refers to rights appurtenant to the corpus once ascertained - Where a lease contains restrictive covenants, such as prohibitions on excavating tanks without permission, it is inconsistent with a grant of unlimited power to use the land in any way, including excavation for brickmaking that causes substantial damage.
Facts of the case:
A zamindar granted a patni taluk lease under a specific regulation. The lease included restrictions on cutting trees and excavating tanks without the zamindar's written permission. The lessee and sub-lessees excavated the soil for the purpose of making bricks, which caused substantial damage and deterioration to the property. The zamindar sought an injunction to restrain this activity.
Findings of Court:
The court found that the lease did not transfer the property in the soil and that the intention of the parties was for the grantee to be a leaseholder. The restrictive covenants regarding tanks and trees indicated that the grantee did not have an unrestricted right to use the land. The excavation for brickmaking caused substantial damage to the land.
Issues: Whether the grantee of a patni taluk lease has the right to use the lands for the purpose of making bricks, thereby causing substantial damage to the soil, in the absence of an express grant to that effect.
Ratio Decidendi: The court held that a lease in perpetuity does not extinguish the lessor's interest. The construction of the lease, particularly the presence of restrictive covenants against excavating tanks, demonstrates that the right to excavate soil for brickmaking was not intended to be granted. The phrase "including all interests therein" does not extend the subject of the lease to include the right to destroy the subsoil.
Result: Appeal allowed.
Legal Category Hierarchy
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property law
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leases
- patni leases
- restrictive covenants
- lessor and lessee rights
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land use
- mineral rights
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leases
Judgement
Appeal (No. 51 of 1927) from a decree of the High Court (February 26, 1925) reversing a decree of the Subordinate Judge of Murshidabad.
The appellant claimed in a suit to restrain the respondents, assignees of and sub-lessees from persons to whom his predecessor had granted a patni lease, from excavating the land for the purposes of making bricks.
21 Law Rep. 55 Ind. App. 320 ( 1927- 1928) Bejoy Singh Dudhoria V. Surendra Narayan Singh
122
The terms of the patni lease, dated July 18, 1853, appear from the judgment of the Judicial Committee.
The trial judge granted an injunction, but gave only Rs.10 damages.
Both parties appealed to the High Court, which allowed the appeal of the defendants and dismissed the suit.
Walmsley J. held, first, that the plaintiff could not complain unless the use made of the land either threatened the destruction of the property or endangered the rent, and in the present case neither of these risks was present. He referred to Barada Prasad Banerjee v. Bhupendra Nath Mukherjee . (( 1923) I. L. R. 50 C. 694.) The relation between a zamindar and patnidar was very different from that between an English owner and his lessee. Secondly, that in the absence of an express exemption from brickmaking, it was permissible. Thirdly, he held, on evidence rejected by the trial judge, that there had been acceptances of payments from the patnidar for brickmaking, and that thereby the plaintiff was estopped. Chakravarti J. concurred. He was of opinion that a patni taluk was really a grant of the zamindars interest without restrictions, unless they were specifically mentioned in the patta. Provisions of the Transfer of Property Act as to leases could not be applied by analogy to patnis. The appeal is reported at I. L. R. 52 C. 665.
1928. April 30; May 1. Dunne K.C. and E. B. Raikes for the appellant. The soil excavated was a mineral. It was held by the Board in Giridhari Singh v. Megh Lal Pandey (( 1917) L. R. 44. I. A. 246.), following previous decisions, that a mukarrari lease granted by a zamindar did not convey the minerals without special words. It is true that in Satya Niranjan Chakravarti v. Ram Lal Kaviraj (( 1925) L. R. 521. A. 109.), the question whether the previous decisions applied to a patni grant was expressly left open. There is however no difference material to this point between a mukarrari lease and a patni lease. The grantee of a mukarrari pottah is a leaseholder, a right being left in the grantor Abhiram Goswami v. Shyama Charan Nandi . (( 1909) L. R. 361. A. 148.) The position of a patnidar, as defined by Ben. Reg. VIII. of 1819 (preamble and cls. 2, 3, 8), is similar to that of a mukarraridar. Even if the nature of the tenure itself does not exclude the right claimed, unless given expressly or by clear implication, the language of the lease in this case shows that the intention was not to convey the soil. There was an express prohibition from excavating tanks ; excavating the soil for brickmaking was a fortiori a use in excess of the grant.
De Gruyther K.C. and Dube for respondent No. 1. The position of a patnidar differs materially from that of a mukarraridar. A patni is described in the regulation as a taluk, and a talukdar holds, as by substitution, all the zamindari rights; the method of realizing the revenue is the same as against a zamindar Tarini Churn Gangolly v. Watson & Co. (( 1869) 12 Suth. W. R. 413, 416.); Joykishen Mookerjee v. Collector of East Burdwan (( 1864) 10 Moo. I. A. 16.); AH Quader Hossein v. Jogendra Narain Roy (( 1889) 16 Cal. L. J. 7.); Ben. Reg. VIII. of 1819, preamble. The glossary to the Fifth Report refers to a talukdar as a " petty zamindar." Under cl. 3 (2.) of Ben. Reg. VIII. of 1819 patni talukdars are entitled to let " in any manner they may deem conducive to their interest” which includes a letting for the purpose of making bricks. Abhiram Goswamis case (L. R. 36 L A. 148.) does not apply to a patni talukdar. The only statutory restriction on a te
