Bai Sona v. Bai Hiragavri

Norman Macleod, C J

[1] We think the judgment of the First Class Subordinate Judge was right. The question in dispute is whether a tenancy created by the lease, dated August 1,1913, was permanent so as to ensure for the benefit of the defendant as heir of the deceased lessee Gulabram.

[2] The lease was constituted by a rent-note by which the lessee said:-

This rent is duly to be paid by me to you month by month on the 1st day of English month. And as long as I go on paying rent to you according to this so long you will not be entitled to get this Makan or shop vacated, but if I fail to pay the rent in arrears and if the rent for six months remains in arrears (due) from me you are Malik Mukhtiar (entitled) to get the said Makan or shop vacated.

[3] To my mind it is clear that a document of lease couched in these words creates a permanent lease, that is to say, the lessee is entitled to remain in possession as long as he pays the agreed rent, and the lease must ensure for the benefit of his heirs under Section 108(j) of the Transfer 6f Property Act.

[4] We have been referred to Vaman Shripad v. Maki (1879) I.L.R 4 Bom. 244 where it was held that a lease of land, whereby the lessee is given the power of holding the land as long as he pleases, is determined by the death of the lessee. The learned Judges in that case appear to have followed a series of decisions of this Court, two of which are Gopalrav v. Bhavanrav (1874) P.J. 279 and Suleman v. Asmed (1877) P.J. 177. The argument is that if a lease is granted to A as long as he pleases, the lease is dependent upon as will. When a dies, his will is necessarily determined. Considering how loosely legal documents conveying interests in land are drawn in this country, I doubt very much whether those decisions are not founded on rather fanciful grounds. There is very little difference between a saying "I take this property on rent and shall remain in possession as long as I please", and "I take this property on rent and as long as I pay rent I shall remain in possession." It is always open to a permanent tenant to stop paying rent.

[5] However that may be, the appeal must be dismissed with costs.