1. The only question to be decided in this appeal is whether the interest of a permanent lessee of agricultural land, declared to be transferable by the lease, is transferable.
2. The facts are given in the judgment of this Court and they need not be repeated, but briefly they are as follows: The zamindar of certain lands granted a perpetual lease to two persons and, by the terms of the lease, granted them a transferable right. The lessees made a mortgage of their interest in favour of the plaintiff appellant before us. The mortgagee brought the suit out of which this appeal has arisen to enforce this mortgage against the sons of the lessees. The sons having died during the pendency of the suit, the zamindar was brought on the record as, by escheat, the lands had gone back to him. The zamindar raised the plea that the transfer was void under Section 20(3) of the Tenancy Act and the mortgage was not enforceable. This plea has found favour with a learned Judge of this Court and it is contended that this view is not right.
3. It has been urged that the zamindar himself having granted a transferable right to the mortgagors it was not open to him to say that right did not exist. This would be correct if the law as enacted in Section 20(3) did not exist. It is not open to anybody to create an estate in the teeth of the law. The parties, when they contracted, knew that under the law, the rights of a lessee of agricultural land, whether he be called a thekadar or a non-occupancy tenant, were not transferable. In this view the suit was not maintainable and was rightly dismissed. The appeal fails and is hereby dismissed with costs including counsel's fees in this Court on the higher scale.