1. This appeal is preferred by the defendant. He is the eldest son of Mucharu who died leaving five sons, including the appellant and a widow. One of the sons, namely Dhirandra, died childless after his father and his interest passed to his mother Soudamini. The other three sons and the mother brought the suit out of which this appeal arises against the defendant Mohesh for partition of the properties left by Mucharu claiming a share of 4/5ths for themselves and admitting the defendant's share to be 1/5th. Mohesh in defence set up a will executed by Muoharu in January 1918, about three weeks before his death, and, after the institution of the present suit, he applied for probate of that will and succeeded in obtaining probate, after a struggle, on 13th January 1922. In this case, Mohesh contends that the will of which he has obtained probate gives him a one-fourth share in the money-lending business and a share of six-annas odd in the jote properties left by Muoharu and that a decree for partition must not override the provisions of the will.
2. So far as the money-lending business is concerned, the learned Judge of the Court below has accepted the defendant's proposition that he is entitled to the share allotted to him by the will. The appeal relates to the jote properties only. In regard to them, the learned Judge has held that the will did not operate to disturb the ordinary mode of devolution. It is contended before us on behalf of the defendant-appellant, that the learned Judge was wrong in taking this view and that the defendant ought to be allowed the share mentioned in the will. There is no provision in the Bengal Tenancy Act on the question whether a raiyat having a non transferable right of occupancy can bequeath that right. Section 26 of the Act alludes to what happens, when the raiyat dies intestate, but that is all. Consequently the matter is one which has to be determined by custom and usage. In regard to that, there is no evidence in this case. The learned Subordinate Judge has referred to three decisions of this Court upon the question whether such a raiyat ordinarily has a right to bequeath his occupancy jote. One of the cases is the case of Amulya Ratan Sarkar v. Tarininath De  42 Cal. 254, which was followed shortly afterwards by the case of Kunja Lal Roy v. Umesh Chandra Roy  18 C.W.N. 1294. In bath these case3 it was held that such a raiyat had not the right to bequeath his jote interest. The same view was adopted in the case of Umesh Chandra Dutt v. Joynath Das  22 C.W.N. 474, where Mr. Justice Chatterji, in delivering his judgment, referred to the argument that the Pull Bench decision in the case of Dayamayee v. Ananda Mohun  42 Cal. 172 had effected the question and expressed his view that it had not done so. I refer to that case because it has been contended before us that the principle of the rulings I have mentioned has been changed, first by the decision, in Dayamayee's case  42 Cal. 172 and then by the decision of the Special Bench in the case of Chandra Binode Kunda v. Alia Bux Dewan  24 C.W.N. 818.
3. I fully agree with what Mr. Justice Chatterji said with reference to the argument based on Dayamayee's case  42 Cal. 172. With regard to Chandra Binode's case  24 C.W.N. 818 our attention has been drawn to the judgment delivered by Mukherji, J., in that case, and it is urged that he himself cast a doubt on his own decision in Amulya Ratan's case  42 Cal. 254. To my mind, that is a complete misreading of the learned Judge's judgment. He said that it was not necessary to refer to Amulya Satan's case  42 Cal. 254. He did not say why but I think it is clear that he regarded the question involved in Amulya Ratan's case  42 Cal. 254 as lying outside the question then under consideration. The conclusion in Chandra Binode's case  24 C.W.N. 818 was that the case of Bhiram Ali v. Gopi Kanta  24 Cal. 355 was erroneously decided and that the decision of the Full Bench in Dayamayee v. Ananda Mohan  24 Cal. 35 could not be supported in so far as it affirmed the principle enunciated therein. An examination of Bhiram Ali's case  24 Cal. 355 shows that the question raised by it had not the remotest connexion with a raiyat's power of bequeast. I am, therefore, of opinion that the decision of the Special Bench has not weakened the authority of the decision which I have mentioned and I hold that in this cases the learned Judge of the Court below has taken a correct view of the matter and that his decision must be affirmed. The appeal is accordingly dismissed with costs. Hearing fee, ten gold mohurs.
B.B. Ghosh, J.
4. I agree.