Iqbal Ahmad, J.
1. This is an appeal by two plaintiffs, and arises out of a suit brought by them for a declaration that the surrender of certain ex-proprietary holdings belonging to them effected by their certificated guardian Badlu Singh, was not binding on them, and was ineffectual to terminate their rights as tenants in those holdings.
2. There is no controversy about the facts and they are shortly these: Badlu Singh was appointed guardian of the minor plaintiffs by the District Judge. With the permission of the District Judge Badlu Singh transferred certain zemindari properties belonging to the plaintiffs to the defendant-respondents in February and March 1920. On the sale being effected, the minors acquired ex-proprietary rights in the sir lands that appertained to the share sold. On the 9th of July 1920, an application for surrender of the ex-proprietary holdings, that came into existence on the sale of a zemindari share, was filed by Badlu Singh, the guardian of the plaintiffs in the Court of the Tahsildar, and the proposed surrender was accepted by the defendants-respondents on the 6th of October 1920. It has been found by the lower appellate Court that the defendants-respondents have been in possession of the holdings not from the date of the surrender but from the date of the sale in their favour.
3. Two years after the surrender one Phul Singh applied for the removal of Badlu Singh from guardianship.
4. That application, not having been contested by Badlu Singh, was granted and Phul Singh was appointed guardian of the plaintiffs, and the present suit was filed by Phul Singh as the next friend of the minors. The trial Court has found that the proceedings for the removal of Badlu Singh and for the appointment of Phul Singh as guardian were collusive and were initiated possibly with a view to launch the suit that has given rise to the present litigation, and the circumstances do point to this conclusion.
5. The plaintiffs' case was that the defendants-respondents had managed to secure the surrender in collusion with Badlu Singh, and the surrender having been made without the permission of the District Judge was not binding on them.
6. The defendants denied the allegation of collusion, and maintained that the surrender was valid and binding on the plaintiffs and that the suit was barred by Section 79 of the Tenancy Act The trial Court held that, inasmuch a the zemindari share with all the rights of sir and khudkasht and other rights appertaining to that share was sold to the defendants, it was not at all necessary for the guardian to obtain the sanction of the District Judge before making a surrender of the ex-proprietary rights. It further held that:
the surrender was therefore, in no way a fraudulent or collusive one and is therefore binding on the plaintiffs.
7. On these findings that Court dismissed the plaintiffs' suit.
8. On appeal by the plaintiffs the lower appellate Court has affirmed the decree of the trial Court. The lower appellate Court has held that
there is also no evidence of fraud or collusion between the respondents and Badlu Singh,
9. and that the suit was barred by Section 79 of the Tenancy Act (2 of 1901). In my judgment the decrees of the Courts below are perfectly correct and must be affirmed. But I prefer to base my decision on grounds other than those assigned by the Courts below.
10. It is to be noted at the outset that the case about the collusion between Badlu Singh and the defendant-respondents set up by the plaintiffs has broken down, and therefore, it has to be taken that the surrender cannot be avoided on the ground that it was brought about surreptitiously at the instance of the defendants. It remains to consider whether on any other ground the plaintiffs can successfully impugn the validity of the surrender. The plaintiffs maintained that the surrender having been made without the sanction of the District Judge was invalid. Presumably the advisors of the plaintiffs had Section 29 of the Guardians and Wards Act in contemplation when attacking the surrender on the ground mentioned above. By Section 29 of the Guardians and Wards Act (8 of 1890) a guardian of a minor's property, other than a Collector, appointed by a Court is prohibited from mortgaging or charging or transferring 'by sale, gift, exchange or otherwise any part of the immovable property of his ward' without the previous permission of the District Judge. Obviously the transaction in controversy in the present case was not a mortgage or a charge. Therefore, Section 29 can only apply if the surrender of the exproprietary rights can be regarded as a transfer of immovable property. It may be conceded that the right of a tenant in his holding is immovable property, but I am unable to hold that the surrender of a holding is a transfer within the meaning of Section 29 of the Guardians and Wards Act.
11. A transfer predicates the divesting of certain rights from the transferrer and vesting of corresponding right in the transfer. By Section 5 of the Transfer of Property Act the phrase 'transfer of property' has been defined as:
an act by which a living person conveys property, in present or in future to one or more other living persons or to himself or to one or more other living persons.
12. By surrender of a holding the cultivatory rights vested in the tenant do not pass from him to the landholder but drop and are extinguished. By surrender those rights do not vest in the landholder. Further, it is to be remembered that an ex-proprietary tenant has not the right to transfer his ex-proprietary holding, and, therefore, it is impossible to hold that, though the right of transfer is denied to an ex-proprietary tenant by the Tenancy Act, still by Section 83 of the same Act the same right is conceded to him. In this connexion reference may be made to Section 6 of the Transfer of Property Act which provides that:
property of any kind may be transferred, except as otherwise provided by this Act or by any other law for the time being in force.
13. That section shows that only such property, the transfer of which is not prohibited by any law for the time being in force, can be made the subject of transfer. As an ex-proprietary tenant cannot transfer his ex-proprietary holding the surrender by him cannot be held to be a transfer within the meaning of Section 29 of the Guardians and Wards Act. It follows, therefore, that previous permission of the District Judge was not necessary to authorize Badlu Singh to surrender the holdings.
14. It may further be pointed out that by Section 83 of the Tenancy Act a tenant, who is not bound by a lease or other agreement for a fixed period, is given an absolute right to surrender his holding. This right cannot be controlled by the landholder. If, therefore, the guardian of a minor tenant surrenders the holding the zemindar cannot but accept the surrender. It is not open to the zemindar, when an application for surrender is made under Section 85 of the Act, to contest it on the ground that the proposed surrender by the guardian of the minor is not for the benefit of the minor. Such a plea cannot be entertained by the revenue Court.
15. Apart from this it appears to me that the suit was barred by Section 42 of the Specific Relief Act. If the surrender was invalid, the plaintiffs were, undoubtedly, entitled to a decree for possession and, therefore, they were able to seek a further relief than a mere declaration of title, and not having done so, the suit was barred by Section 42 of the Specific Relief Act.
16. There is much to be said in favour of the view of the lower appellate Court that the suit was also barred by Section 79 of the Tenancy Act, though I refrain from basing my decision on that ground. Either the surrender by Badlu Singh was a valid surrender or it was not. If it was a valid surrender the plaintiffs' rights as ex-proprietary tenants have been extinguished and the present suit was not maintainable. On the other hand, if the surrender was not good it has to be ignored, and the case must be approached on the assumption that the defendants had ejected the plaintiffs otherwise than in accordance with the provisions of the Tenancy Act. The plaintiffs cannot be allowed in one breath to say that the transfer was invalid, and in the other to maintain that the possession of the defendants must be attributed to a surrender which must be assumed to be a good surrender.
17. For the reasons given above, I affirm the decisions of the Courts below and dismiss the appeal with costs.