Norman Macleod, Kt., C.J.
1. In this case the plaintiff sued for a declaration that the occupancy right respecting the plaint property was extinguished or forfeited, and that the property had become the absolute property of the Khots, and for possession and future mesne profits. The facts shortly are that defendants 2 to 6 were the occupancy tenants of the plaintiff-Khot. On the 12th January 1912 the second defendant for himself and defendants 3 and 4 purported to sell their occupancy rights to the first defendant giving him possession. It is claimed by the plaintiff that the defendants thereby forfeited their occupancy rights, and that therefore, he was entitled to possession of the plaint property. The trial Court dismissed the suit with costs. The lower appellate Court declared that the occupancy tenancy in the plaint as amended was determined, and the' appellants were entitled to recover possession. In our opinion the order of the lower appellate Court was wrong. The case is covered by authority. In Tesa bin Rama v. Sakharam Gopal I.L.R (1905) 30 Bom. 290 : 7 Bom. L.R. 941 the headnote runs:
There is no authority for saying that an occupancy tenants, whose tenancy is not determined, forfeits his tenancy by parting temporarily with the possession of his land to another without resigning the land as completely as would be necessary, in the case of privileged occupant of another sub-class, to place the land at the disposal of the Khot. And so long as his tenancy is not determined, the land is not at the disposal of the Khot. And the Khot Cannot claim to treat the person in possession, under a right derived from the occupancy tenant, either as a trespasser or even as a yearly tenant, so long as the privileged occupant's rights remain undetermined by resignation, lapse or duly certified forfeiture.
2. It is admitted that this case arose before the Khoti Settlement Act of 1880 was amended. Section 10 of that Act provides for the resignation, lapse or forfeiture of privileged occupants' lands, although the occupancy tenants' rights under Section 9 are said to be heritable, but not otherwise transferable. There was no provision in the Act before it was amended whereby the transfer by an occupancy tenant of all his rights to third parties brought about the termination of his rights. That was provided for in the amended Act. Under Section 2 of the amending Act VIII of 1912 Sections 9 and 10 of the Act of 1880 were repealed and new sections were enacted. Under new Section 10:
If any occupancy-tenant...does any act purporting to transfer such land of any portion thereof or any interest therein without the consent of the Khot... such land shall be at the disposal of the Khot as Khoti land free of all encum.
3. It is quite clear, therefore, that under the Act of 1880 as stated by Mr. Justice Batty in his judgment in Yesa bin Rama v. Salcharam Gopal I.L.R(1905) 30 Bom. 290 : 7 Bom. L.R. 941:
The Act attaches no consequence to a prohibited transfer but merely renders it abortive, null and void. It does not annihilate the occupancy-tenants' rights. And unless they are otherwise determined...the land is not at the disposal of the Khot, and he has no right under Sections 7, 9 and 10 to maintain any objection except this, that the transferee cannot claim for himself any permanent tenure on the fixed statutory rent.
4. The result must be, that although defendants 2 to 4 transferred their occupancy right, in 1912 to the first defendant, and that transfer is null and void as against the Khot, defendants 2 to 4 still remain his occupancy tenants. We are not concerned with what may have happened since the transfer, as all the rights of the Khot against his occupancy-tenants are preserved in spite of the transfer. In our opinion the decision of the lower appellate Court was wrong and the suit must be dismissed with costs throughout.