1. This is a second appeal against an order of the 2nd Additional Subordinate Judge of Jaunpur, reversing: the order of the executing Court. The-circumstances are briefly that the decree-holder, in execution of a simple money decree, had attached 3 plots of land in which the judgment-debtor, the present appellant, held an interest under what is described as a perpetual lease executed in his favour by the landlord on 23rd September 1927. The judgment-debtor objected to the sale of this property on the ground that his interest could not be sold: under the provisions of Section 23(1), Agra. Tenancy Act, 1926, for although the lease, purported to give him heritable and transferable rights in the plots, he was nevertheless under the provisions of the Act nothing more than a non-occupancy tenant. The executing Court and the Court of first appeal have considered the matter with reference to a number of decisions,, and in reversing the order of the executing Court the learned Additional Subordinate Judge relied chiefly on a decision by a Single Judge of this Court in the case of Ragthunath Tewari v. Buddhu Ram Tewari : AIR1930All315 . The learned Judge in that case remarked:
The power of transfer, if conferred by lease, is inoperative if it is opposed to some law so as to defeat its provisions, or is opposed to public policy, and so on this principle under the Agra Tenancy Act, or any law there is nothing which prevents a landlord from creating a tenancy, carrying heritable and transferable rights.
2. The general principles on which that decision is based were later approved) in a Bench decision in the case of Mahesh Narain Singh v. Bisheshar LOnia : AIR1931All534 . But in this latter case the Bench had to consider a lease which was created long before the Tenancy Act of 1926 or indeed that of 1901 came into force, and Sen, J., in approving the general principle expressed by Niamatullah, J., in the previous case, implied that if the lease had been created after the Act of 1926 had become law the decision might have been different.
3. It has been pointed out very clearly by Mr. Sastri on behalf of the appellants that Section 10, Agra Tenancy Act of 1926, enumerates seven classes of tenants in agricultural land which are recognised by the law in this Province. The judgment-debtor in the present case holds whatever interest he does hold under a lease, and in the capacity of a tenant and not of a full proprietor. He must therefore be regarded by the law as one of the seven classes of tenants which the Tenancy Act recognises. If this were not the case it is obvious that it would be open to any landlord to create any kind of lease which pleased his fancy, and to ignore the provisions of the Tenancy Act altogether. Of the seven classes of tenants enumerated in Section 10 of the Act only two permanent tenure holders and fixed rate tenants bold interests which are transferable in execution of a decree of a civil or Revenue Court; and it is admitted that the appellant does not hold either of these interests. His interest cannot therefore be transferred by sale in execution of a decree without violating the provisions of Section 23(1) read with Section 21 of the Act. In the case of Raghunath Teiuari v. Buddhu Ram Tewari : AIR1930All315 to which I have already referred, the learned Judges remarked that the power of transfer will be inoperative if it is opposed to some law so as to defeat its provisions, and it may not have been brought to his notice in that particular case that the powers of transfer conferred by the landlord did defeat the provisions of the law by bringing into existence a class of tenants not recognised by the law. In the case before me at present there can be no doubt that the power of transfer conferred on the appellants by their landlord was opposed to the law and must therefore be held to be inoperative. The result is that I allow the appeal with costs, set aside the order of the lower appellate Court and restore that of the original executing Court.