Judgement

Appeal (No. 13 of 1919) by special leave from a judgment and decree of the High Court (May 5, 1916) reversing a decree of the Judicial Commissioner of Chota Nagpur (June 27, 1912) on appeal from the Munsif of Giridh.

The suit was brought in the Munsifs Court in 1910 by the appellant as representing the Sitambri Society of Jains for possession of a small parcel of land between two and three cottahs in extent situate on a hill called Parasnath Hill. The plaintiff claimed under an agreement made on May 16, 1872, between the society and the Raja of Palgunga, the defendants being in possession under a lease from the Rani to whom the Raja had granted the hill after the date of the agreement. The agreement had been made in compromise of litigation as to the possession of .the hill, and the material passage relied on is set out in the judgment of the Judicial Committee.

The plaintiff by his plaint alleged that on September 20, 1907, the Society had given a written notice to

59 Law. Rep. 48 Ind. App. 376 ( 1920- 1921)

Maharaj Bahadur Singh V. Balchand 160

the Raja to the effect that a site on the hill, defined in the notice, was required by them for the purpose of building a temple. They also alleged that they had taken possession of the land shortly after giving the notice.

The Munsif dismissed the suit. He held that the agreement conferred no title upon the Society. He also found that delivery of the alleged notice was not proved, and that it was not proved that the Society had obtained possession.

On appeal the Court of the Judicial Commissioner reversed the decision of the Munsif and made a decree in the plaintiffs favour. The learned Judicial Commissioner held that the Society was entitled under the agreement to take possession of the site for the purpose of building a temple, and that they had done so ; that accordingly the plaintiff was entitled to the relief sought, whether or not the notice was sufficient.

Upon a second appeal to the High Court (Chamier C.J. and Jwala Prasad J.) the decision of the Munsif was restored and the suit dismissed.

Chamier C.J., referring to the provision in the agreement set out in the judgment of the Judicial Committee, said " If that provision should be regarded as an attempt to create an interest in favour of future generations of Sitambris it is void for remoteness, whether the case is governed by general principles, or by s. 14 of the Transfer of Property Act, 1882, or by Hindu law (if the operation of s. 14 is excluded by s. 2 (d) of the Act). If however the provision was no more than a personal contract to convey land to the Sitambris it is not affected by the rule against perpetuities. In my opinion the provision was not intended to create an interest in favour of the Sitambris, and, further, such a provision cannot in India be regarded as creating an interest in favour of the other party to the transaction. Sect. 54 of the Transfer of Property Act, 1882, which, as I understand, reproduced the previously existing law on the subject, provides that a contract for the sale of immovable property does not of itself create any interest in the property, and it would seem to follow that a contract to give immovable property does not itself create any interest in the property. The plaintiff, however, contends that the contract is binding upon the Raja and his assignees, including the appellants, under s. 40 of the Transfer of Property Act, 1882. It was pointed out that Act was passed before the decision in South-Western By. Co. v. Gomm (( 1882) 20 Ch. D. 562.), and urged that s. 40 was intended to reproduce the existing English law and accordingly is not confined to restrictive covenants, but applies to every obligation arising out of a contract and annexed to the ownership of immovable property. .... Assuming that that contention was correct we have to consider next whether the plaintiff is entitled to maintain the suit. The principle of Walsh v. Lonsdale (( 1882) 21 Ch. D. 9.) has been appl