1. This is an appeal on behalf of the defendant against adecree in favour of the plaintiff-respondent in an action in ejectment. Theplaintiff sought to recover possession of the disputed land upon a fourfoldtitle, namely, a nimhowla, an osat nimhowla, a mirash karsha, and adversepossession for the statutory period. The foundation of the claim, however, asput forward in the Courts below, was placed substantially upon his title asnimhowladar. It is not disputed that the nimhowla interest, if it was evercreated, must be based on two kabulyats alleged to have been executed by thepredecessor-in-interest of the plaintiff on the 7th May 1874, and 13th June1874 in favour of the landlords interested in 11-annas and 5-annas sharerespectively in the zemindary. The defence substantially was that the plaintiffhad acquired no valid title, first, because these kabuliats were never acceptedby the landlord; and, secondly, because even if they were accepted by thelandlords, the interest of the nimhowladar was non-transferable under the termsof the contracts.

2. The Court of first instance dismissed, the suit. Uponappeal the learned Subordinate Judge has made a decree in favour of theplaintiff, except as regards 12 cottahs of the disputed land which he has foundis not included within the kabulyats which form the foundation of the title ofthe plaintiff.

3. The defendants have now appealed to the Court and on theirbehalf the decree of the Subordinate Judge has been assailed on two grounds,namely, first that there was no valid nimhowla created by these kabulyats, asno lease was granted by the landlords in favour of the tenants, and secondly,that as the interest of the nimhowladar was not transferable under thekabulyats, the plaintiff as purchaser has acquired no valid title to the landin dispute. In our opinion there is no foundation for either of thesecontentions.

4. In so far as the first argument is concerned, reliancehas been placed by the learned Vakil for the appellants upon the case of NilMamud Sarkar v. Bowl Das : 14 C.W.N. 73; 2 Ind. Cas. 994 [LQ/CalHC/1909/308] ; 10C.L.J. 555. It may be observed, however, that the kabulyats in the case beforeus were executed before the Transfer of Property Act, and it is impossible tomaintain the view that for the execution of a permanent lease before theTransfer of Property Act, it was necessary that the landlord should grant apattah. It was sufficient to create a valid tenancy if the tenant executed akabuliyat which was accepted by the landlords. We need not, therefore, decidewhether, under the Transfer of Property Act., the law is different but weobserve that a Full Bench of the Madras High Court [Alam Sahib v. Madura 21M.L.J. 202; 8 M.L.T. 437; 1 M.W.N. 766; 8 Ind. Cas. 668,] has assigned weightyreasons in support of the view contrary to that maintained in Nil Mamud v. BowlDas : 14 C.W.N. 73 : 2 Ind. Cas. 994 [LQ/CalHC/1909/308] : 10 C.L.J. 555.

5. The question next arises whether, in the case before us,the kabulyats were accepted by the landlords; upon this point, we have thefinding of the Subordinate Judge that the kabulyats were accepted and actedupon. The learned Vakil for the appellant has sought to assail this finding onthe ground that the reasons given by the Subordinate Judge in support of hisconclusion are erroneous in law. He has invited our attention to a passage inthe judgment in which the Subordinate Judge observes that there is no directevidence to show that the original kabulyats were accepted by the landlords. Itis not necessary, however, to prove by direct evidence that the kabulyats wereaccepted. It was open to the Subordinate Judge to find from the conduct of theparties and from the circumstances of the case that the kabulyats were acceptedand acted upon by the landlords. The Subordinate Judge has pointed out thatimmediately after the execution of these kabulyats rent receipts were grantedto the tenants by the Tahsildar. A question has been raised before us as towhether these receipts have been sufficiently proved, and it has been contendedthat as the signature of the Tahsildars upon the receipts have not been provedby direct evidence, the receipts ought not to have been received in evidence.In our opinion, this position is wholly unsustainable. It was ruled by thisCourt in the case of Kirteebash v. Ramdhun 7 W.R. 526, that if a tenantproduces dakhilas and swears that he received them from the landowner or hisagent or gives other prima facie evidence of their genuineness, they may betaken for the purpose of proving that the rent has been paid or that the renthas been paid at a fixed rent for a certain number of years, if the landlord orhis agent does not come forward to deny them. It cannot be expected that theryot should in every case summon all the agents of his landlord who gave himthe receipts. This view has been subsequently followed in numerous decisions ofthis Court amongst which reference may be made to Surja Kanta Acharjee v.Boneswar Shaha 24 C. 251. The receipts, therefore, in the case before us musthe taken to have been sufficiently proved. Hence, it must be taken to have beenestablished that for a number of years, rent was paid by the nimhowladar andaccepted by the Tahsildar, on behalf of the landlords. But it has beensuggested by the learned Vakil for the appellants that it is not proved by theplaintiff that the Tahsildar had authority to accept nimhowla kabulyats fromthe tenants. It must be remembered, however, that there is no denial on thepart of the landlords; indeed, there is no suggestion even that the Tahsildarsacted in excess of their authority. Whether the Tahsildars had or had not actedbeyond the scope of their authority was a matter peculiarly within theknowledge of the landlords, and they have made no attempt to discharge theburden that lay upon them to prove the precise limits of the authorityconferred by them on their own agents. In our opinion, the conclusion at whichthe Court below arrived cannot be assailed in second appeal. The first ground,therefore, must be overruled.

6. In so far as the second ground is concerned it has beencontended that as there was a covenant in the kabulyats against alienation, theplaintiff as transferee has acquired no enforceable title against the landlord.It must be pointed out, however, that no right of reentry was reserved in theleases. Consequently, upon the authority of the decision in Basarat Ali v. Manirulla: 36 C. 745; 2 Ind. Cas. 416; 10 C.L.J. 49, it is clear thatthe assignment was operative, not withstanding the covenant in question. It isobvious from the rule embodied in section 10 of the Transfer of Property Act,which in substance reproduces the pre-existing law on this point, that acovenant against alienation in a permanent lease, when no right of re-entry isreserved, is not operative. The principle is that the covenant is inconsistentwith the interest sought to be created by the instrument. Consequently, on thegrounds explained in the cases of Tagore v. Tagore 18 A. 359 at p. 365, andSonatun v. Juggusoondree : 8 M.I.A. 66 at p. 76, thecoven-ant in this case must be taken to be inoperative. The learned Vakil forthe appellant has finally suggested that the view taken by this Court inBasarat Ali v. Manirulla : 36 C. 745; 2 Ind. Cas. 416; 10C.L.J. 49 is inconsistent with that previously adopted in Dharani Kamala Laheriv. Siba Sundari Debi 35 C. 1069; 8 C.L.J. 188. In our opinion the latter caseis clearly distinguishable and the same remark applies to the case of KeshabLal v. Haralal 12 C.L.J. 129, 6 Ind. Cas. 685 [LQ/CalHC/1910/299] , where, as appears from thereport, there was a forfeiture clause in the lease. The view taken by thisCourt is, it may be pointed out, in accord with that adopted by all the otherIndian High Courts, as is shown by the decisions in Madar Saheb v. SannabawaGujranshah 21 B. 195 Parameshri v. Vittappa Shanbaga 26 M. 157 and NetrapalSingh v. Kalyan Das 28 A. 400, 3 A.L.J. 196; A.W.N. (1906) 60. The inference,therefore, follows that, notwithstanding the covenant against alienation in thenimhowla kabulyats, the plaintiff has acquired a valid title to the property.The second ground, therefore, fails.

7. The result is that the decree made by the Court below isaffirmed and this appeal dismissed with costs.

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Akram Ali vs. DurgaProsonna Roy Chowdhry (12.12.1910 -CALHC)