1. This is a decree-holder's appeal arising out of an execution matter. On the 18th February 1875 one Sitaram granted a permanent lease of an entire village in favour of one Kalka Prasad Singh. The heirs of Kalika Prasad Singh, in the years 1915 and 1916, made two mortgages of the whole of this village in favour of Seth Ballabha Das. The mortgagee brought a suit for sale on the basis of the mortgage-deeds. No written statement was put in and the mortgagors did not contest the claim on the ground that the property mortgaged was not transferable. As ex-parte decree was passed which has been put in execution. The judgment-debtors have now raised the objection that their interest in the property is not transferable inasmuch as they are thekadars and therefore not occupancy tenants within the meaning of the Agra Tenancy Act. This objection has found favour with the Courts below and the application for execution has been disallowed. The decree-holder has come up in appeal and several contentions are put forward on his behalf.
2. First of all it is contended that Section 20(3) which make the interest of a thekadar subject to the terms of the lease not transferable does not apply to execution sales. The argument is that wherever the Legislature intends that the word 'transferable' should cover execution sales also, it expressly has said so. Our attention is drawn to Sub-clause (2) where it is expressly provided that the interest of other tenants is not transferable in execution of a decree of a civil or revenue Court of otherwise. This contention cannot be accepted. The word 'transferable' is used at two places in the same Section 20. In Sub-clause (2) it is used in its general sense no matter whether the transfer is voluntary or involuntary. Although the whole clause is not repeated in Sub-clause (3), there is no reason to suppose that the word ''transferable' is not used in the same sense in that clause also and that it is confined to private transfers only. In my opinion this contention therefore must be rejected.
3. The next argument advanced before us is that the lease in question was executed in the year 1875, long before the present Agra Tenancy Act was passed, and that inasmuch as at that time there was no prohibition against transfers of an interest by a thekadar, the interest remained transferable. This argument also has no force. Assuming that the interest was transferable prior to 1901, it can be made non-transferable by an express enactment. The law governing the transfer must be that one which was in force on the dates when the transfers in dispute took place.
4. Thirdly, it is contended that it was the duty of the mortgagors to raise the plea of non-transferability now disputed before us and their failure to raise it prevents them from raising this point in the execution department. The contention is that the plea is barred by the principle of res judicata. There would appear to be some force in this contention, specially in cases where the nature of the tenancy is not quite clear and where it may be disputed whether the right is or is not transferable. But in view of the pronouncement of the Full Bench in the case of Mubarak Hussain v. Ahmad : AIR1924All328 , where stress was laid on the want of jurisdiction in the Court itself for selling properties which were declared by law to be non-transferable, I feel precluded from allowing this point to be raised.
5. Before I come to the main point which really arises in this case, I must note an objection that has been raised on behalf of the respondent. The contention is that the language of Sub-clause (3) in Section 20 makes the interest of a thekadar always non-transferable and that it is only heritable when the terms of the lease expressly provide for it. If the language of Sub-clause (3) were to be interpreted strictly and literally, there may at first sight appear to be some force in this contention. It must be admitted that the language is not happy. But if he were permitted to examine the report of the Select Committee, it would appear that the intention was not to alter the law so far as a thekadar was concerned. In the Act of 1881 there was no absolute prohibition against the transfer of an interest by a thekadar, the transferability depending on the terms of the contract. It seems to me that although the language is not happy the meaning of Sub-clause (3) is that the interest of a thekadar is heritable but not transferable provided there is no provision to the contrary in lease,
6. The main question to consider is whether the present lease is really a lease for agricultural purposes or not. No doubt the word 'thekadar' which was not defined in the Act of 1873 and was defined to include a tenant in 1881 and now includes every farmer or other lessee of proprietary rights under Section 4(6), is of a wide scope. But it does not follow that every theka is governed by the Agra Tenancy Act. The preamble of the Act indicates that the object of the Legislature was to consolidate and amend the law relating to agricultural tenancies and certain other matters in these provinces. Under Section 108(f) of the Transfer of Property Act a lessee is entitled to transfer absolutely or by way of mortgage or sub-lease the whole or any part of his interest in property unless the right is clearly not transferable. Section 117 of the Act however makes the provision of that section inapplicable to leases for agricultural purposes unless notified by Government. It is therefore important to consider whether the lease in question was or was not a lease for agricultural purposes; if it was not a lease for a lease for agricultural purposes then it would be governed by the Transfer of Property Act and not by the Agra Tenancy Act. 'Land' is defined in Section 4(2) as land which is let or held for agricultural purposes. Sub-Cl. (6) defines 'thekadar' as farmer or other lessee of proprietary rights which must mean rights in land, otherwise a lessee of proprietary rights in house properties would come within the definition of a thekadar in the Agra Tenancy Act. That obviously could not have been the intention. The expression 'agricultural purposes' has not been defined anywhere but a lease cannot be called a lease for agricultural purposes unless the primary object of the lease is cultivation or agriculture. It is therefore necessary to examine the terms of the lease.
7. The lease itself is called a zeripeshgi lease in perpetuity. The entire village is leased to the lessee who is put in possession thereof and authorized to let out land to tenants and make collections. Clause (3) of the lease provides that the lessee will be entitled to all the income produce mal and profit arising from mal, sair items, sir land, high and low lands, water and forest produce, tanks and ponds, groves, markets, Baras (enclosures), land on the banks of the Ganges, which may appear or disappear by fluvial action of the river. Although the power of the lessee is described in detail there is no express mention that he is to cultivate the lands himself. No doubt such power would be implied but the point is that there is no express mention of any intention on the part of the lessee to cultivate the lands himself. Furthermore the amounts which are to be paid to the lessor are called instalments of profits and in case of default of payment interest at the rate of eight annas per cent per mensem is to run on the amount which could be deducted from the premium (zeripeshgi) advanced to the lessor. The lessee is not entitled to plant groves on the land. The lessee is also to be responsible for payment of Government revenue and cesses.
8. Reading the lease as a whole therefore it is impossible to say that the primary object of this transaction was agriculture; that is to say, that the entire village was let out to Kalka Prasad Singh for the purposes of cultivation or other agricultural purposes. Part of the village consists of waste and abadi lands and it was not likely that all the area could be brought under cultivation. Having regard to all these circumstances it is impossible to hold that the lease in dispute in this case was a lease for agricultural purposes so as to be exempted from the operation of Section 108 of the Transfer of Property Act and to be governed by the Agra Tenancy Act. The lease is therefore not governed by the Agra Tenancy Act and the rights under it are not non-transferable. I would allow the appeals and setting aside the order of the Courts below dismiss the judgment-debtors' objections with costs in all Courts.
9. I agree with my learned brother that the judgment-debtor's objection to the execution of the decree must be disallowed.
10. The facts of the case are briefly these; A permanent lease of an entire village was granted by a landlord to the predecessor-in-title of the judgment-debtor. The judgment-debtor made a mortgage of his interest in favour of the appellant decree-holder. On foot of the mortgage a decree was passed which was made final later on. It is this decree which is in execution. The judgment-debtor has come up and urges that his interest In the property mortgaged is not saleable. The decree-holder raised the plea in the Courts below that it was not open to the mortgagor, the transferrer himself to raise the plea after the decree and it was not open to the Court to entertain the objection after a decree has been passed for the sale of the property. This plea has been overruled by the Courts below and has been repeated in this Court. A further this Court. A further question has been raised as to whether the lease on a proper construction of it is such a lease the transfer of which is prohibited by Section 20 of the Tenancy Act.
11. I will consider these two points. There is a divergence of opinion as to whether the fact that a particular law prohibits a transfer of a particular class of property enables or not a judgment-debtor to raise in execution of the decree the question of non-transferability of the property where the execution proceeds under a mortgage decree. Some of the cases on either side will be found cited in a case recently decided by the Patna High Court in Amrit Lal Seal v. Jagal Chandra Thakur AIR 1926 Pat 202. In the case before the Patna Court it was held that although the transfer of the property sought to be sold was prohibited by law, it was not open to the judgment-debtor to a decree for sale to come forward and to prevent the sale of the property in execution of the decree. I have no hesitation in accepting this view of the law to be the correct view, I gave expression to in it my judgment in Mubarak Hussain v. Ahmad : AIR1924All328 .
12. Now the question is whether in spite of my view I am not bound by the ruling of our own High Court in the case of Katwari v. Sita Ram Tewari AIR 1921 All 118. There can be no doubt that the ruling is binding on me so far as it would go. In that case it was held that where a mortgage decree ordered the sale of an occupancy holding it was open to the judgment-debtor to come forward and tell the Court that the property to be sold is an occupancy holding and the Court should not sell it. It may be noted that in that case the mortgage-deed itself declared that the property mortgaged was an occupancy holding. The judgment was based on the express words of Clause 2 of Section 20 of the Tenancy Act. That clause in express terms does not apply to the present case. The present case is said to be that of the interest of a thekadar and is therefore governed by Clause 3. There is a substantial difference between the two clauses in the language and I am not quite sure if the difference is intentional. In Clause (2) as much stress as it was possible by use of the language to lay, was laid to express the rule that an occupancy right and a non-occupancy right could not be transferred by the agency of any Court whatsoever. But so far as the case of a thekadar went no such stress was laid. I should not therefore be at all surprised if it was beyond the intention of the Legislature to put the interest of a thekadar in the same category as the interest of an occupancy tenant or non-occupancy tenant. If this be the case, the ruling in Katwari v. Sita Ram Tewari AIR 1921 All 118 will not be applicable. It is not however necessary to finally decide the point, as in this case the lease itself shows that a transferable property was created by it.
13. As pointed out by my learned brother, the main law on the question of transferability of leases is contained in the Transfer of Property Act which is an All India Act. By that law all leases, except where the terms prohibit, are transferable. Such being the case, the present lease should also be transferable. If there be a prohibition in law, we must see where that prohibition is. In Section 117 of the Transfer of Property Act an exception has been made in the case of agricultural leases and it has been laid down that those shall be governed by the local laws where there are any. Such a local law is the Tenancy Act of Agra. Now we have to see whether the lease before us is governed by the Agra Tenancy Act. We must remember that a lease which is to be exempted from the general provisions of the Transfer of Property Act must be essentially an agricultural lease. If it be not an agricultural lease in its essence it will not be exempted. My learned brother has already pointed out, and I need not repeat it, that the Tenancy Act is directed to govern agricultural tenancies and not tenancies the object of which is not the promotion of agriculture.
14. The lease in this case nowhere states that the lessee has taken the land for the purpose of cultivating it himself. There is not a word to that effect. The lease, read as a whole, shows that the zamindar put the lessee in the same position as he himself occupied, except in a few minor matters, in consideration of a small sum of money to be paid to him year by year. The primary object of the lease was to secure the proprietary rights of the lessor and not to utilize ady land for the purpose of agriculture. Of course it would be open to the lessee to cultivate any particular land if he so desired. But that is a secondary object and not the primary object ln this view we cannot treat this lease as a lease of a farm. The word 'thekadar' has been defined in the Agra Tenancy Act as including a farmer or other lessee of proprietary rights. The language employed is too wide and it must be conceded that, a lessee of a house, although he would be a lessee of proprietary rights, would not be a thekadar within the meaning of the Agra Tenancy Act. Where the primary object of the lease, as in this case, is not agriculture, the lease must be treated as not an agricultural lease. In this view the interest of the lessee is transferable and saleable in execution of the mortgage decree passed for the purpose.
15. The appeal is allowed. The decrees of the Courts below are set aside and the objection of the judgment-debtor is dismissed with costs in all Courts. The execution will proceed.