Francis W. Maclean, C.J.
1. I express my opinion upon the point submitted to us, namely, whether the right of a non-occupancy raiyat is heritable, with some diffidence, because I am conscious that many of my colleagues are much better acquainted with such a subject than I am.
2. I, however, do not propose to express any opinion upon the question whether or not such right was heritable before the passing of the Bengal Tenancy Act. No argument was addressed to us upon that point, and the argument rather proceeded upon the basis that it was not heritable, but that it had been made so by that Act.
3. Upon the question whether that Act created the right if it did not previously exist, I do not see how we can avoid the strong inference to be drawn from Section 26 of the Act. The legislature by that section has expressly enacted that, 'if a raiyat dies intestate in respect of a right of occupancy, it shall, subject to any custom to the contrary, descend in the same manner as other immoveable property;' but it says nothing about the right of a non-occupancy raiyat. On the principle of expressio unius est exclusio alterius the inference is strong that the legislature did not intend by that Act to make the right of a non-occupancy raiyat heritable: but if such right were heritable at the time of the passing of the Bengal Tenancy Act, it has not in my judgment, been taken away by the Act. In my opinion the Act neither created, nor destroyed any such right.
4. I therefore, can only answer the question by saying that, if the right existed before the Bengal Tenancy Act, it has not been destroyed by that Act, and if it did not so. exist, it has not been created by the Act.
5. I agree. The letter of reference in this case refers only to the Bengal Tenancy Act, and the arguments addressed to us relate solely to the effect of that Act.
6. The Bengal Tenancy Act does not in my opinion make the interest of a non-occupancy raiyat heritable nor does it, on the other hand, deprive a non-occupancy raiyat of any right of inheriting or transmitting to an heir which he has apart from the Act.
7. The Act deals with two classes of interests--those of an occupancy raiyat and those of a raiyat not having a right of occupancy By Section 26 it is enacted that when a raiyat having a right of occupancy dies intestate his right of occupancy shall descend like other immoveable property. This section is in terms limited to raiyats having a right of occupancy--there is no corresponding, section making such interests, as a non-occupancy raiyat has, heritable.
8. The answer to the question whether those interests pass by inheritance apart from the Act depends on material which is not before us.
9. If under the custom of the country they have been wont to descend to the heir then the case would fall under Section 183 of the Bengal Tenancy Act; and the right to inherit not being inconsistent with the Bengal Tenancy Act, nor expressly, nor by necessary implication, abolished by the Act, would be preserved.
10. I would reply to the question in the terms proposed by my Lord.
11. The question which has been referred for determination is the broad one, whether the rights of a non-occupany raiyat are heritable, It is not restricted to the point whether they are heritable by statute.
12. In the case of Karim Chowkidar v. Sundar Bewa (1896) I.L.R. 24 Cal. 207, it was held by a division Bench of this Court that 'the right of a non-occupancy raiyat (who does not hold under any express agreement) in his holding is not heritable.' The correctness of this decision has been questioned by the learned Judges who have made this reference, and was doubted by the referring Judges, of whom I was one, in the reference made to a Full Bench in the case of Arip Mamdal v. Ram Ratan Mandal (1904) I.L.R. 31 Cal. 757. On that reference the Full Bench held that, irrespective of custom or local usage, the heir of an under-raiyat under an annual holding is entitled on the death of the under-raiyat to remain in possession of the land until the end of the then agricultural, year for the purpose, if the land lias been sublet, of realizing the rent, or, if not sublet, for the purpose of tending and gathering the crops. It is not distinctly stated in the judgment whether the heir has that right by contract or by inheritance. It must however, be noted that the English Law relating to emblements is not in force in the Lower Provinces of Bengal.
13. The learned Judges who decided the case of Karim Chowkidar v. Sundar Bewa (1896) I.L.R. 24 Calc. 207 appear to have based their conclusion that the rights of a non-occupancy raiyat are not heritable on the fact 'that the absence of any provision relating to non-occupancy holdings similar to that embodied in Section 26 of the Bengal Tenancy Act with reference to the right of occupancy affords the strongest indication that the Legislature did not intend to make non-occupancy rights heritable.' Their decision, it is to be observed, deals with the broad question which has been referred to this Bench, and not with the restricted question whether such rights are heritable by statute only.
14. In arriving at their conclusion in that case the learned Judges appear first to have proceeded on the assumption that the rights of non-occupancy raiyats were not heritable prior to the passing of the Bengal Tenancy Act; and in the argument before us it has been suggested that they have supported it by applying the maxim 'Expressio unius esl exclusio alterius' to the interpretation of Section 26 of the Act. Lastly they refer to the sections of the Act which deal with non-occupancy raiyats, and hold that they do not give to the heir of a non-occupancy raiyat the right to succeed to the holding or rights of that raiyat on his death; or in other words that on the death of a non-occupancy raiyat the land-lord is entitled to take possession of the holding by ejecting the heirs of the raiyat.
15. The learned pleaders on both sides who have argued the present case have not, it is true, devoted their attention to the question whether the right of a non-occupancy raiyat was heritable prior to the passing of the Bengal Tenancy Act, but as the question is raised in the reference it must be decided without their assistance.
16. Prior to the passing of Act X of 1859 the relations between landlords and tenants were regulated by custom alone, or to use the words of Mr. Field in his introduction to the Bengal Regulations, page 25 'Under a Government of absolute discretion, destitute of the modem appliances for legislation, custom was really the sole legislative power.' The rules so formed, which governed the relations of landlords and tenants generally, must in my opinion be regarded as Customary Law, which can be ascertained only by a reference to authorities, and not as special or local custom which in each case must be proved by evidence.
17. On the relations between the landlords and tenants prior to the passing of Act X of 1859 Mr. Field's introduction, based as it is on carefully collated earlier authorities and opinions, is always regarded as good authority. Nowhere do we find in it the suggestion that under the old customary law a landlord had the right on the death of a raiyat to enter into the holding and to evict the heirs of the raiyat.
18. Mr. Field points out that at the time of the permanent settlement in 1793 there were only two classes of raiyats (i) the khoodkasht or resident raiyats cultivating lands attached o the village in which they lived, and (ii) pyekasht or non-resident raiyats cultivating lands adjoining the village in which they lived:--that no distinction based on length of residence was recognised among khoodkasht or resident raiyats, and that the only distinction made was between those of the higher (ashraf) and those of the lower castes. It is to be observed that the non-occupancy raiyat, or resident raiyat without rights of occupancy of the Bengal Tenancy Act, is the successor of the khoodkasht and not of the pyekasht raiyat.
19. Dealing with the question whether khoodkasht raiyats had hereditary rights, Mr. Field in his introduction to the Regulations remarks.--'Tenants once induced to settle in a village were fostered, and where the son was able to step into the father's place the arrangement suited both parties (i.e., the landlord and tenant) too well for any doubt to be raised to the course to be pursued on the death of a tenant.'
20. This then was the condition of affairs between landlords and tenants in the earliest times, and in a country where heritability governs the devolution of all rights it seems impossible to assume that the custom once in existence afterwards lapsed into disuse, nor is such a view supported by reference to the subsequent legislative enactments.
21. Regulation VIII of 1819, Section 11, Clause 3, to which Banerjee, J., refers in his judgment in the case of Karim Chowkidar v. Sundar Bewa (1896) I.L.R. 24 Calc. 207, so far from supporting the contrary view, expressly recognises the heritability of the fights of resident raiyats by referring to khoodkasht raiyats as 'resident and hereditary cultivators.'' At that time the division of resident raiyats into raiyats with rights of occupancy and raiyats without such rights was unknown.
22. Regulation I of 1793 which confirmed the permanent settlement in Article VI expressly enjoined on landlords the duty of 'conducting themselves with good faith and moderation towards their dependent taluqdars and raiyats.' Regulation VIII of 1893 forbad the landlords to impose new abwabs on raiyats (Section 55), required them to consolidate all previous impositions with the original rent into one specific sum (Section 54), gave the raiyats the right to demand pottas or leases from their landlords (Section 59), and forbad landlords from cancelling the leases of khoodkasht raiyats except in certain specific cases. Under the general law of contract the right under the lease would pass to the heir. There is no suggestion in the Regulation that the death of the tenant would terminate the lease.
23. In spite however of the injunction given in Article VI of Regulation I of 1793 and the protection afforded to the khoodkasht raiyats by Regulation VIII of 1793 the landlords appear to have taken advantage of and to have abused their position, and Act X of 1859 was passed, as the preamble shows, with the object of 're-enacting with certain modifications the provisions of the existing law relative to the rights of the raiyats, with respect to the delivery of pottas and occupancy of land, to the prevention of illegal exaction and extortion in connection with demands of rent, and to other questions connected with the same.' To secure the raiyats in the occupancy of their land Section VI provided that 'every raiyat who has cultivated or held land for a period of 12 years has a right of occupancy in the land so cultivated or held by him, whether it be held under a potta or not, so long as he pays the rent payable on account of the same.' Khamat or private lands of the proprietors leased to raiyats are then expressly excepted from the operation of the rule, and the section concludes with the following passage. 'The holding of the father or other person from whom a raiyat inherits shall be deemed to be the holding of the raiyat within the meaning of this section.' If this passage does not recognise the heritability of the rights of resident raiyats it is difficult to understand what it means, or with what object it was inserted. The suggestion seems to be offered by the learned Judges in the case of Karim Chowkidar v. Sundar Bewa (1896) I.L.R. 24 Calc. 207, in dealing with the corresponding passage in Section 20 of the Bengal Tenancy Act, that it means that if the landlord allowed the heir of a raiyat to remain in possession of the holding after the death of his father or other ascendant then alone he would reap the benefit of that provision in the law.
24. It is however difficult to understand what there is for the heir of a raiyat to inherit if it is not the holding. Beyond his land, his dwelling house, and the crops in the land, a raiyat has nothing but a few articles of clothing and a few cooking utensils, to leave to his heir, and when we find that from the earliest times of which we have any information the rule was for the son to succeed to the holding on the death of his father the only reasonable interpretation to place on that passage appears to me to be to hold that it recognised the heritability of the rights of resident tenants which previously had been sanctioned by custom alone. I have to repeat that a resident raiyat before he became a raiyat with rights of occupancy corresponded to the non-occupancy raiyat of Bengal Tenancy Act.
25. The effect of Act X of 1859 was to introduce a new distinction among resident raiyats namely those who had a right of occupancy and those who had not such a right, and in the passage in Mr. Field's introduction to the regulations, to which Banerjee J. refers in his judgment, the latter class are said to have been 'temporary tenants or tenants-at-will.' Tenants-at-will have, however, their rights limited though they may be. The description tenant-at-will does not necessarily imply that on his death his heir is liable to eviction. Act X of 1859 was admittedly framed for the protection of the tenants against illegal exaction and extortion. Mr. Field does not suggest that it deprived the raiyat of any right, much less that it took away the right to he succeeded in his holding by his heir, which right I Section 6 of the Act distinctly acknowledges. It is also to be noticed that it has been held by this Court that such tenants cannot be evicted except on notice termniating with the close of the agricultural year.
26. The view that prior to the passing of the Bengal Tenancy Act the rights of resident raiyats were heritable, which is thus supported by authority, receives further indirect support from the fact that the case law of the Criminal and Civil Courts as contained in the law reports contains no single instance in which on the death of a raiyat the landlord has evicted the heir and taken possession of the holding. Such an act, even if it were within his rights, would certainly not have been regarded as an act of 'moderation' toward the tenants, such as was enjoined by Article 6 of Regulation I of 1793, and equally certainly would not have been submitted to without protest. Yet even though it is well known that by illegal exactions and evictions the landlords in Eastern Bengal in 1874 drove their tenants to revolt, the reports contain no instance of a case in which a landlord on the death of a raiyat evicted his heir. If the landlord had then possessed the right there can be no doubt that he would not have been restrained by any feelings of moderation from exercising it. The reasonable inference is that he never had such a right.
27. To support the view that the right of the raiyat was not heritable there are the two cases decided in 1867 only to which Banerjee J., refers in his judgment, viz., Ajoodhia Persad v. Emambandee Begum (1867) B.L.R. Sup. 725 and Jatee Ram Surmah v. Mungloo Surmah (1867) 8 W.R. 60. In the former we have merely a doubt expressed by Peacock, C.J. whether the rights of occupancy raiyats were necessarily heritable, which doubt does net appear to have been shared by the four other Judges who were sitting with him; and in the latter it was held that the distant relation of a deceased occupant raiyat was not entitled to succeed by inheritance to the holding in place of another relative with whom the zemindar had made a settlement but that the landlord was entitled to let the holding to whom he pleased.
28. In this state of affairs the Bengal Tenancy Act was passed, and in it for the first time the rights of resident raiyats without rights of occupancy received attention. From the provisions of the Act dealing with this subject it seems clear that the intention of the Legislature was, by protecting that class of tenants from rack renting and eviction, to enable them to attain to the position of settled raiyats, and so to acquire rights of occupancy; and Section 20 Clause 3, in laying down how the status of a settled raiyat may be acquired, re-enacts in almost identical words the concluding passage of Section 6 of Act X of 1859. In my opinion that section recognises and confirms the heritable right of the resident tenant which had previously been sanctioned by custom and confirmed by Act X of 1859.
29. In the next place it is impossible to accept the suggestion that the maxim expressio unius, est exclusio alterius' can be applied to interpret Section 26 of the Bengal Tenancy Act, so as to deprive non-occupancy raiyats of the right of heritability. It is not a case to which the maxim would properly apply, where words or expressions have been coupled together in the section one of which generally includes the other so as to give rise to the conclusion that the more general term is used in a meaning excluding the specific one. It is rather a case to which, as has been pointed out in several cases in England, the maxim cannot be applied. The section deals only with the particular case of raiyats having rights of occupancy, and if the rights of raiyats outside that class were already heritable by custom, as seems to have been the case, the inference cannot be drawn from its provisions that its object was to alter the general law. The heritable character of a right of occupancy appears indeed never to have been questioned till the doubt on the point was expressed by Peacock, C.J., in the case of Ajoodhia Persad v. Emambandee Begum (1867) B.L.R. Sup. 725. The object of Section 26 appears to have been two-fold:--(i) to remove any doubt which may have arisen as to the heritability of that right, and (ii) to provide against escheat of the holding to the Crown in the event of a raiyat with a right of occupancy dying and leaving no heirs.It seems impossible to apply the maxim so as to extend the provisions of that section, which were framed for a definite and distinct purpose, to cover or in any way affect the rights of non-occupancy raiyats.
30. All that can possibly be said is that there is in the section a failure to include non-occupancy raiyats, not an intention to exclude them from the right which was confirmed in favour of the raiyats with the right of occupancy.
31. Lastly, it remains to consider whether the provisions of Section 26 read with the other sections of the Bengal Tenancy Act support the conclusion of the learned Judges in the case of Karim Chowkidar v. Sundar Bewa (1896) I.L.R. 24 Calc. 207 that the intention of the Legislature was not to make the rights of a non-occupancy raiyat heritable, and in dealing with this question it is perhaps hardly necessary to refer to the elementary rule that in construing a statute all the parts are to be taken together and not one part only by itself, and that the true meaning of any passage is that which best harmonises with the subject and with every other passage of the statute. It has already been noticed that one of the objects for which Act X of 1859 was enacted was to prevent illegal exaction and extortion in connection with the demands of rent, and that that object was not attained, certainly so far as non-occupancy raiyats were concerned. In enacting the Bengal Tenancy Act the Legislature dealt specially with this class of raiyats, giving them at the same time the new and possibly misleading name of non-occupancy raiyats. They are in fact resident raiyats who have not acquired the right of occupancy. Chapter VI Sections 41 to 47 of the Act deals with this class of raiyats and sets out their rights.
32. Section 42 declares the liability of a non-occupancy raiyat to pay the rent agreed on between him and his landlord at the time of his admission to the holding. Section 43 protects him from enhancement of rent except by a registered agreement or by an agreement under Section 46. Section 44 protects him from ejectment except for certain specified reasons and Section 45 saves him from ejectment without notice on the expiration of his lease Section 16 lays down the conditions under which his rent may been hanced, gives to the raiyat the option of accepting or refusing a settlement at an enhanced rental, and provides that in the event of his accepting the agreement he shall be entitled to remain in occupation of his holding at that rent for a period of five years from the date of the agreoment. Section 47 provides that the acceptance of such an agreement shall not be interpreted to mean that the raiyat is admitted to occupation from the date of such acceptance.
33. Then Section 20 which defines 'a settled raiyat' provides in Clause 3 that for the purpose of acquiring the status of a settled raiyat a person shall be deemed to have held as a raiyat any land held as a raiyat by the person whose heir he is. It is to be observed that the person referred to in this clause is a non-occupancy raiyat until he becomes a settled raiyat. Section 21 gives to all settled raiyats a right of occupancy.
34. Section 79 gives to a non-occupancy raiyat the right of making improvements in his holding and Section 82 entitles him to compensation for improvements made by him or by his predecessor in interest, in the event of his being ejected from his holding, thereby implying that the right is heritable.
35. Section 160 Clause (e) includes among 'protected interests' the right of a non-occupancy raiyat to hold for five years at a rent fixed under Chapter VI by a Court or under Chapter X by a Revenue officer.
36. There seems no doubt than in enacting these provisions of the law, the Legislature intended to recognise the status of a non-occupancy raiyat as higher than that of a mere tenant-at-will. Did the Legislature, when acknowledging or conferring those rights intend that they should be illusory, dependent merely on the life of the tenant, and liable to bo lost to the heir or representative of a non-occupancy raiyat on his death
37. The learned Judges who decided the case of Karim Chowkidar v. Sundar Bewa (1896) I.L.R. 24 Calc. 207 refer to these rights and recognise the hardship which would follow if they all lapsed at the death of the raiyat. In restricting that finding to a raiyat who does not hold under any express agreement they appear to have recognised that in the case of an agreement entered into by a raiyat with his landlord under Section 46 of the Bengal Tenancy Act the provisions of Section 37 of the Contract Act would apply, and that the rights of the raiyat under the contract would on his death devolve on his heir or representative, that is to say, that his right under such an agreement would be heritable. The same would appear to be the case with regard to a lease for a year, or from year to year. At least non-occupancy raiyats would have the same rights in respect of such a lease as under-raiyats have been held to have by the Full Bench in the case of Arip Mandal v. Ram Ratan Mandal (1901) I.L.R. 31 Calc. 757 to which reference is made at the opening of his judgment.
38. With all respect I am unable to agree with the view which Rampini J. has taken in his judgment in the case of Karim Chowkidar v. Sundar Bewa (1896) I.L.R. 24 Calc. 207 of the effect of Section 82 of the Bengal Tenancy Act. That section in my opinion clearly makes the right to compensation for improvements heritable and the words 'predecessor in interest' as used in that section, must certainly be taken to include the heir. Otherwise the result would follow that, after the ejectment of the heir of a raiyat and the introduction of a new raiyat on the holding, the latter would be entitled to the compensation for improvements and not the former: which can hardly be held to have been the intention of the Legislature.
39. Of the rights of the non-occupancy raiyats specified in the Act one then is made heritable, and another is heritable under the general law. The remaining rights are clearly given, and it is generally so admitted, with the ultimate object of enabling non-occupancy raiyat to attain in the course of years to the status of a settled raiyat, and so to acquire rights of occupancy. Section 20 lays down how the status of a settled raiyat may be acquired, and Clause 3 of that section in my opinion unmistakeably provides that for the purpose of attaining to that status the heir or representative of a non-occupancy raiyat is entitled to succeed by inheritance to the rights of the person whose heir he is, that is to say that the rights of a non-occupancy right are heritable. This view is in my opinion confirmed by implication by the provisions of Section 5 Clause 2 which includes in the definition of a raiyat the successor in interest of a person who has acquired land for the purpose of cultivating.
40. Section 26 standing, as it does in a chapter dealing with the rights of raiyats with lights of occupancy can hardly be interpreted as by itself sufficient, regardless of the other provisions of the Act, to indicate that the intention of the Legislature was not to make the rights of a non-occupancy raiyat heritable.
41. I would, therefore, answer the question referred in the affirmative.
42. The decision in Karim Chowkidar v. Sundar Bewa (1896) I.L.R. 24 Calc. 207, is based mainly on the principle of interpretation--expressio unius est exclusio alterius. The argument adopted in that case is that, because Section 26 of the Bengal Tenancy Act declares that the interest of an occupancy raiyat is heritable and the Act is silent in this respect as regards the interest of a non-occupancy raiyat, the inference by implication is that the framers of the Act intended that heritability should not be an incident of the right of the latter. But it is well settled that great caution is necessary in dealing with the maxim expressio unius est exclusio alterius. The maxim is not of universal application as was observed by Lord Campbell in Saunders v. Evans (1861) 8 H.L. Cas. 721, 729. There are many exceptions to it. In London Joint-Stock Bank v. Mayor of London (1875) 1. C.P.D. 1, Lord Coleridge, C.J., observed--' The general principle that expressio unius est exclusio alterius cannot indeed be questioned; but it applies with a force differing in different cases.' Its application depends to great extent on the way in which a deed or statute is drawn. In Bosteck v. North Staffordshire Railway Co. (1855) 4, E. & B. 832 ; 24 L.J., Q.B. 225, Lord Campbell said with reference to statutes relating to a canal company: 'In construing instruments so loosely drawn as these local Acts, we can hardly apply such maxim as that, 'the expression of one thing is the exclusion of another or that 'the exception proves the rule.' Chitty L.J. made a similar observation in Thames Conservators v. Smeed, Dean and Co. (1897) 2 Q.B. 334. At page 351 the following observation is reported with reference to the Thames Conservancy Act 1894:--'To an Act drawn as this is, I think it would be dangero is to apply the rule of expressum facit cessare tacitum. I decline to draw the inference that because shores are mentioned in (d) they are excluded from (a), (b) and (c).'
43. The provision as to heritability in Section 26 of the Bengal Tenancy Act as to occupancy rights owes it origin, it seems to me, not to an intention to confer or create a right but either to an imperfect knowledge of existing rights or to meet unfounded objections and doubts such as were thrown in Ajoodhia Persad v. Emambandee Begum (1867) B.L.R. Sup. 725; 7 W.R. 528. Peacock, C.J., said in that case--'Speaking for myself, I am not at all sure that a right of occupancy gained under Section 6, Act X of 1859, is necessarily heritable.' His colleagues Trevor, Loch, Kemp and Macpherson J.J., did not share in the doubt. The right of an occupancy raiyat has in fact been always supposed to be heritable, and, Section 6 of Act X of 1859 as well as the Bengal Tenancy Act clearly contemplate heritability. The provision in Section 26 was superfluous and might have been inserted by way of abundant caution, as is very frequently the case with the Acts of our Legislatures. It might also be that the first part of the section was supposed to be necessary to be inserted in order to bring in the second part for the benefit of landlords i.e., to prevent succession to the King as the ultimate heir, the right to occupation being limited to raiyats or cultivators. If this be so, the implication arising from the provision in Section 26 can scarcely be held to operate as a negation of the existence of the right as regards the interests of other classes of raiyats dealt with by the Act.
44. The Bengal Tenancy Act, as indeed every statute, must, if possible, be so construed as to give sense and meaning to every part. We must be guided by the intention of the Legislature, which in many cases must be taken according to the necessity of the matter and according to that which is consonant to reason and justice. If it can be fairly inferred from other parts of the Act, from a consideration of the substantial rights conferred by other Sections of it, the known history as to heritability of raiyati, interests and the rights recognized before the passing of the Act, that the right of a non-occupancy raiyat should he considered to be heritable, a negative inference merely from the insertion of Section 26 would be highly anomalous and unjust.
45. The customary law, the history of legislation in British India and judicial decisions as to the rights of the different classes of raiyats in Bengal before the passing of Act VIII of 1885 tend to show that Section 26 merely declared an existing right and did not confer any right on occupancy raiyats who mostly belonged to the class which in the pre-British period and in the Bengal Regulations was called khudkasht or chhapparband. They had heritable interest. A very large majority of raiyats, now called non-occupancy raiyats, had also heritable interest irrespective of legislation. The incident of heritability was common to all classes of raiyats, and I cannot suppose that Section 26 of the Bengal Tenancy Act intended to recognise the right in one class, and at the same time took away by implication a similar right of another class. The maxim expressio unius est exclusio alterius has seldom been so applied as to take away a recognised existing valuable right.
46. The Bengal Regulations following the classification, as it obtained in the pre-British period, contemplated only two classes of raiyats, the Khudkasht and the Paikast. The nomenclature and classification of raiyats adopted in the Rent Act (X of 1859) and Act VIII (B.C.) of 1869, which reproduced the substantive provisions of Act X of 1859, i.e., into raiyats at fixed rates, occupancy raiyats and raiyats who did not come under either of the above classes, was unknown to the framers of the Bengal Regulations and the people. The classification made by the legislation of 1850 crossed the classification which had found place for centuries before, but the Act of 1859 did not attempt to take away any existing right either expressly or by implication. The Bengal Tenancy Act followed the classification given in Act X of 1859 but added two other names,--non-occupaney raiyats and under-raiyats. The Act did not create any new classes of raiyats--it only classified and gave names to raiyats who were neither raiyats at fixed rates or occupancy raiyats. The connotation of occupancy raiyats under the name of 'settled raiyats' was made more extensive, but the new classification and nomenclature of the third class of raiyats recognised by Act X could not have been intended to take away and did not, it seems to me, take away any existing rights. It added rights, and rights, which the older legislative enactments did not expressly recognise, were also recognised by it. None appear to have been subtracted. The clear intention of the Bengal Tenancy Act is to give fixity and substantial rights, as far as possible, to all cultivators--a class justly the object of special favour of every civilised administration. Substantial rights were also conferred by the statute to the class it cabled non-occupancy raiyats. Under Section 7 of Act X of 1859 they were only entitled to have pottas. They were considered to be tenants from year to year and could be ejected on reasonable notices to quit, if they had not pottas for terms of years. Tenancies from year to year as well as tenancies for a term were heritable under the general law of the country or contractual relation created by pottas. It was never thought that a tenancy from year to year ceased at any time, even during the course of a year of the tenancy on the death of the tenant. The tenancy was never considered to be one 'at will' strictly so called.
47. 'Tenancies at will' strictly so called are in fact very rare in this country, though they are not unknown. There are many cases in the books in which raiyats who came under Section 7 of Act X of 1859 were taken to be raiyats holding from year to year and their tenancies could be terminated only by service of reasonable notices to quit. I may refer to Jubraj Roy v. Mackenzie (1879) 5 C.L.R. 231, Rajendro Nath Mookhopadhya v. Bassider Ruhman Khondkhar (1876) I.L.R. 2 Calc. 146 and Ram Rotton Mundul v. Netro Kally Dassee (1878) I.L.R. 4 Calc. 339. These raiyats were supposed to have the same sort of interest as ordinary tenants from year to year. Under the law of England it is well settled 'that the death of either party does not determine such a tenancy' 'unless, indeed, the lessor be tenant for life only and the lease is not made pursuant to any statute or power' and that in all cases of yearly tenancies half a year's notice expiring at that period of the year at which the tenancy commenced was reasonable notice to quit. But as regards agricultural tenancies from year to year the period was extended to one year by Section 51 of statute Victoria 38 and 89, c. 92 (the Agricultural Holdings (England) Act 1875), and the provision has been retained in the Agricultural Holdings Act of 1883 which repealed the Act of 1875. This rule of English law has been adopted in Bengal as regards under-raiyats under Section 49 of the Bengal Tenancy Act, the right of the landlord to eject non-occupancy raiyats having practically been taken away by the Act. The yearly tenancies coming under Section 7 of Act X of 1859 were, as similar tenancies are in England and other civilised countries, always considered to be heritable, the law of England as to heritability having been applied ever since 1859 in the same way as the law as to notices to quit, and, as I shall presently show, the customary law in India distinctly favoured heritability.
48. Before the year 1835, the question of the heritability of the interest of a raiyat who came under Section 7 of Act X of 1859 had passed beyond the domain of custom or local usage. It became settled law, based on ancient custom and equitable principles, that his right was heritable. In my opinion, the question raised in Karim Chowkidar v. Sundar Bewa (1896) I.L.R. 24 Calc. 207 was due merely to the insertion of Section 26 in the Bengal Tenancy Act.
49. The non-occupancy raiyats have now under the Bengal Tenancy Act the privilege of making improvements (Section 79) and the right to compensation on ejectment (Section 82)--a right transmissible to heirs, non-liability to enhancement for five years (Section 46, Sub-section (7) and Section 113), and protection against a purchaser free of encumbrances of the superior interest (Section 160 Clause (6) and it would be idle and unreasonable to contend that an important existing right was taken away, a right without which the other rights conferred by the Act would be delusive.
50. The incidents of non-occupancy rights are statutory in some respects just as those of occupancy rights; but in other respects the rights and incidents are either customary or are merely incidents of the contractual relation between the landlord and his raiyat, or are legal incidents as settled by judicial decisions, consensus of legal opinions and adaptability to principles of equity and justice. As regards ejectment, the right of a non-occupancy raiyat has practically ceased to be contractual, and even the true landlord has not now right to eject him though he might have entered the land on a contract bond-fide made with a trespasser against the true landlord: Binad Lal Pakrashi v. Kalu Pramanik (1893) I.L.R. 20 Calc. 708. Continued occupation for more than twelve years, the occupation of a man and his heir being taken together, creates the superior status of an occupancy raiyat. Even as regards enhancement of rent of the raiyats contemplated by Section 7 of the Rent Act of 1859, the Courts of law could and did interfere. The relation between landlord and tenant, though in one sense contractual included rights which could be regulated by the Courts as to enhancement and ejectment. In Bakranath Mandal v. Binodram Sen (1868) 1 B.L.R.F.B., 25, a Full Bench of the Calcutta High Court held: 'A landlord cannot recover rent at an enhanced rate from a raiyat who has not a right of occupancy unless he proves the existence and the reasonableness of the grounds stated in his notice under Section 13 of Act X of 1859. Section 13 is applicable not merely to raiyats having a right of occupancy, but to all under-tenants and raiyats.' The Bengal Tenancy Act codified the case law and enlarged the rights of raiyats whom it called 'non-occupancy raiyats' and gave them practical freedom from ejectment. We are now told that the interest of a non-occupancy raiyat is not heritable or, to borrow the language of an English lawyer, the interest which is chattel personal does not descend to the executor or administrator of the tenant.
51. Section 82 of the Bengal Tenancy Act has been drawn from similar provisions in the Agricultural Holdings Act of 1883 (46 & 47 Vict. C. 61). The general principle recognised by the Act is one conferring upon the tenant the right on quitting his holding to obtain from the landlord compensation for improvements of a specified kind. The word 'tenant' as defined in the Act includes 'his executors, administrators and assigns, &c.;' Section 82 includes the case of a non-occupancy raiyat and makes the right to compensation heritable. The implication from Section 82 read with the corresponding provisions in the Agricultural Holdings (England) Act of 1883 seems to he irresistible that heritability is a necessary incident of all classes of raiyati interests dealt with by the Bengal Tenancy Act.
52. There is no law of emblements in this country; neither does the Bengal Tenancy Act make any provision for the heir, executor or administrator taking away crops or the benefit of improvements made by a non-occupancy raiyat in case of his death before the crops are taken away or before he gets compensation for improvements made by him. The reason of the omission seems to me to be that the right is heritable independently of the Bengal Tenancy Act. The heritability of the interest of raiyats who came under Section 7 of Act X of 1859 was never denied, and the unavoidable implication from the various provisions of the Bengal Tenancy Act seems to me to be also in favour of heritability. Rules of law embodying the English law of emblements were evidently thought to be unnecessary as the tenant's heir succeeded on his death, in the same way as the executor, administrator or assignee in England or Ireland would succeed to tenancies for terms or from year to year as to chattels personal. The law of England as to such tenancies, has been adopted in the Transfer of Property Act and was, as I have shown, applied, irrespective of the customary law recognised by the old authorities and the Regulation laws, by Courts in Bengal, to raiyats holding land from year to year.
53. I now come to the old authorities dealing with the question of heritability of the interests of raiyats. If the old classification and nomenclature--khudkasht and paikasht--had been retained, a large majority of the present non-occupancy raiyats would have come within the khudkasht class. Paikasht raiyats have always been smaller in number. The landlords as well as cultivators always preferred and still prefer residence in the village in which the lands let out for cultivation lie. Mr. Shore (afterwards successively Sir John Shore and Lord Teignmouth) says in his minute of June 1789 (para. 225): 'There are two other distinctions of importance also, with respect to the right of the raiyats. Those who cultivate the lands of the village to which they belong either from length of occupancy or other cause, have a stronger right than others, and may be considered as hereditary tenants. The other class cultivate lands belonging to a village where they do not reside; they are considered as tenants at will (Fifth Report, p. 140). Mr. Elphinstone in his History of India (p. 73, 9th Ed.) says, speaking of the two classes of raiyats:--'The permanent raiyats are those who cultivate the lands of the village where they reside, retain them during their lives and transmit them to their children.' At page 268, the learned Editor, Mr. E.B. Cowell, says 'This class is called in the territory under Bengal, khudkasht raiyats' Speaking of this class of raiyats, Mr. Carnegy says (Notes p. 40) that prescription or length of occupation has nothing to do with their right. Mr. Baden Powell in his Land-system of British India refers to the same classification--khudkasht and paikasht. Speaking of the former class he says that they were privileged and were not liable to eviction. He adds 'Law has given privileges, after a lapse of years, to the pahi cultivators and as well as the khudkasht. The distinction found in the Regulations and in the older reports has ceased to be of practical import, and has given place to the legal distinction of 'occupancy' raiyat and non-occupancy raiyat. I should note that khudkasht and poikasht are not synonymous to occupancy raiyats and non-occupancy raiyats. The classifications are based on altogether different principles.' Vol. I. pp. 599-600. Mr. Field (afterwards a Judge of this Court) in his introduction to the Regulations of the Bengal Code says (page 25) that hereditary rights of occupancy have always been claimed for khudkasht raiyats but not for the other class. There can be no doubt, therefore that khudkasht raiyats were not liable to eviction as long as they paid rent, and they had heritable rights. Length of occupation was not the criterion for determining the status of a khudkasht raiyat under the old system or customary law as pointed out by eminent writers on the Land Law of Bengal. Residence was the only criterion.
54. The Rent Act of 1859 introduced an arbitrary rule--a rule of twelve years' occupation, for its classification of raiyats. The Act of 1859, however, did not sufficiently guard the interest of such khudkasht raiyats as could not get the privileges derivable under the statute from occupation for twelve years, while on the other, hand it conferred privileges on paikasht raiyats which they had not under the customary law of the land; but it is curious that notwithstanding that the rules laid down in the Act had operation for more than a quarter of a century, no reported case is to be found in the books showing the eviction of the heir of any raiyats of any class, merely on account of the death of the original raiyat. Such eviction was practically unknown. Our attention has been drawn to Jateeram Surmah v. Mungloo Surmah (1867) 8. W.R. 60, as a case of ejectment of the heir of a raiyat, but the report does not give sufficient facts and we cannot rely merely on a dictum.
55. The anomaly created by the Rent Act of 1859 as to the rights of khudkasht raiyats and evident injustice done to a large section of the class, were attempted to be remedied by the Bengal Tenancy Act in Chapter VI, the Chapter on non-occupancy raiyats. They were declared to have fixity of holding as long as they paid fair and equitable rents and the rights which the inferior class of khudkasht raiyats had before 1859 were thus restored to them. The paikasht raiyats were also gainers with their brethren of the other class. It seems to me plain that it was never the intention of the framers of the Bengal Tenancy Act to lay down by implication that the right of a non-occupancy raiyat is not heritable. The implication from the provisions of the Act other than Section 26 is clearly in favour of heritability and the counter-implication from Section 26 has, in my opinion, no weight.
56. The words 'and includes also the successors in interest of persons who have acquired the right' in the definition of raiyat in Section 5, Sub-section (2) of the Bengal Tenancy Act also lend considerable weight to the argument in favour of heritability. A non-occupancy raiyat is a raiyat within the meaning of that word (Section 4) and 'succession' includes intestate succession (Section 3, Clause 13). If we read the expression 'non-occupancy raiyat' wherever it occurs and consistently with the text in the light of the definition given in the Act there cannot be much difficulty in coming to the conclusion that the right is heritable. A definition, it is true, cannot confer a right, but it helps in ascertaining whether a right already existed or has been given by the statute.
57. Section 20, Sub-section (4), of the Act which corresponds with the last clause in Section 6 of Act X of 1859 also tends to show that the heir of a non-occupancy raiyat acquires an interest in the holding by virtue of his heirship. He may tack his own period of Occupation to that of his predecessor and thus acquire the status of a settled raiyat. For the purpose of the acquisition of the status of a raiyat with a right of occupancy, his heirship must be taken into consideration. If the tenancy ceased with the death of the tenant, his heir must be supposed to hold under a new tenancy if permitted by the landlord to do so. The tacking of his predecessor's period of occupation would be inconsistent with the creation of a new tenancy.
58. Again looking to the different provisions in Ch. VI of the Act relating to non-occupancy raiyats, the conclusion seems to me to be unavoidable that so far as the right of such a raiyat is contractual i.e. when he holds under a registered lease, the contract must be binding on the parties to it and their representatives in case of death according to the provisions of the general law of contracts. The same rule must apply when he holds over after the expiry of the lease, but under the statute he cannot be ejected except under the provisions of Section 45. Even when he is admitted to occupation under a registered lease for a term of years the landlord's right of re-entry can be exercised only in the mode prescribed by Section 45. If the lease is for a term of years not below twelve, the right of re-entry cannot be exercised at all, the raiyat being entitled to the status of a settled raiyat by occupation for the period, and the contractual right being undoubtedly heritable during the term, the heir takes the benefit. If the raiyat is admitted to occupation otherwise than by a registered lease for a term of years less than twelve or if he is once permitted to hold over and if the right to eject, if any, is not exercised, the raiyat acquires, without anything more, permanency as to occupation except as provided in Section 44, Section 20, Sub-section (3) read with Section 46, Sub-section (7) entitling the heir to add his period or occupation to that of his predecessor.
59. For these reasons, I agree with Brett J., that we should answer the question referred to the Full Bench in the affirmative.
60. I regret the answer I have given to the question put to us is not in full accord with the opinion of the majority of my colleagues, including the learned Chief Justice, but I have at the same time the satisfaction to find that it is not inconsistent with their opinion.
61. The appellant, who is the defendant in this suit for ejectment claims to hold certain lands as the successor in interest of one Mohant Dewa Dass who acquired by purchase the rights of a non-occupancy tenant. The District Judge on the authority of the decision in Karim Chowkidar v, Sundar Bewa (1896) I.L.R. 24 Cal. 207 has held that such a tenancy is not heritable, and he has also found that the defendant has failed to prove that such tenancies are heritable, by which I understand the District Judge to mean that the defendant has failed to prove any custom or usage by which such tenancies are heritable. The learned Judges who heard this appeal were doubtful of the correctness of the ruling on which the District Judge has relied, and they have accordingly referred for the decision of a Full Bench the question whether the right of a non-occupancy raiyat is heritable.
62. The question referred is one of law, and of law only, and it is important in discussing the question to keep this in mind, and to realise that in our decision we are not concerned with any custom or usage however widely spread. We are not in the position once occupied by Judges in England who as the depositaries of the Common law, would take judicial cognisance of a custom as part of that Common law. It has not been contended nor could it be contended in view of the past history of the matter, that the right of inheritance in a non-occupancy holding is a right which we must affirm under the rules of justice, equity and good conscience. Nor is the right regulated by any personal law such as that of Hindoos and Mahomedans. The issue therefore is narrowed down to this. Has the right been conferred expressly or by necessary implication in any enactment of the Legislature? The only Act to which our attention has been drawn as having any such effect is the Bengal Tenancy Act of 1885. That Act by Section 26 has expressly conferred the right of inheritance in occupancy holdings, subject to the existence of any custom to the contrary, but there is no such enactment in the case of non-occupancy holdings, The learned pleader for the appellant, however, points to other provisions of the Act which confers substantial benefits on non-occupancy raiyats, as showing that the right of inheritance exists in this class also. To test the validity of this argument it is necessary to review the previous history of the subject for the purpose of ascertaining the true aim and scope of the provisions on which reliance is placed.
63. The classification of raiyats into occupancy and non-occupancy raiyats is comparatively modern. In former times the division was into khudkasht and paikasht raiyats. The former cultivated land in their own villages while the latter cultivated lands' outside their own villages. From the account given by Mr. Field in his Introduction to the Bengal Regulations, it appears that by custom khudkasht raiyats had two important privileges: they were not liable to be ousted except on failure to pay rent, and their holdings descended to their sons. Paikasht raiyats on the other hand 'had no rights and were mere tenants at will' or, as Mr. Justice Mitter describes them in his Land Laws of Bengal (Tagore Law Lectures 1895, p. 283), 'these poor holders of land were at the mercy of the landlords.'
64. The first attempt by the Legislature to regulate the relationship between landlords and tenants was embodied in the Rent Act X of 1859. That Act dealt with raiyats on a new system. There were first of all raiyats whose rates of rent had not been changed since the time of the permanent settlement. Their position has not altered, and they need not be separately considered any further. All other raiyats were classified according as they possessed occupancy rights or not. Every raiyat, who had either by himself or through a predecessor cultivated or held land lor a period of 12 years, was declared to have a right of occupancy in the land so cultivated or held by him, so long as he paid the rent payable on account of the same. The rent of these raiyats could not be enhanced except for certain specified reasons. For raiyats net having rights of occupancy no special provision was made except that they were declared to be 'entitled to pottas only at such rates as may be agreed on between them and the persons to whom the rent is payable.' These raiyats were liable to ejectment, if holding on a potta, at the end of the term, and if holding otherwise at any time. Apparently too no notice determining the tenancy was required and no suit was necessary. Under Section 25 'if any zemindar or other person in receipt of the rent of land requires assistance to eject any cultivator not having a right of occupancy he shall make application to the Collector and the Collector shall proceed thereupon to enquire into the case, and pass orders in the manner provided for suits under this Act.'
65. The effect of the Act was, as described by Mr. Field (Section 38 Of the Introduction), to divide cultivators 'into those having a right of occupancy, and those having no such rights, and who are merely temporary tenants or tenants at will.' A new classification of raiyats was introduced. But although the distinction between khudkasht and paikasht was ignored, and although that, distinction at the present day has no significance, the immediate result of the new classification at the time was, broadly speaking, to include within the class of occupancy raiyats all khudkasht raiyats as well as a large number of paikasht raiyats. There were still a privileged, and an unprivileged class, only the line of demarcation was changed, the numbers of the privileged class being increased, and of the unprivileged class diminished. The point, however, to which I desire especially to draw attention is that of the two important privileges which belonged by custom to khudkasht raiyats, one, that of freedom from eviction on condition of payment of rent, was bestowed by legislative enactment on all occupancy raiyats while of the second privilege, the right of inheritance, no mention was made. The unprivileged class, now reduced in numbers and comprising all those who had not held land continuously for twelve years were left without any right at all except the right to receive a potta--a boon of doubtful utility and ineffective in the absence of any special provision for enforcing it.
66. The condition imposed by Act X of 1859 as necessary for the acquisition of occupancy rights in any land, namely, that the raiyat must have held or cultivated it for twelve years, afforded landlords. a loophole by which the accrual of occupancy rights could be hindered. The land held by the raiyat had only to be changed before the twelve years expired, and the condition was not fulfilled. Accordingly the Legislature when dealing again with the subject in the Bengal Tenancy Act of 1885, defeated this device by altering the conditions under which the rights of occupancy might be acquired in the future. This right was henceforth to inhere in all land in any village held by a 'settled raiyat' of that village, a name which recalls the khudkasht raiyat of the older system. A settled raiyat of a village is every person who for a period of 12 years has held land within that village, whether the land be the same or different, and whether the land be held by the raiyat himself or by the person whose heir he is. The effect of these provisions was still further to increase the numbers of the privileged class with a corresponding diminution in the numbers of the unprivileged class. The privileges of the former were moreover materially enhanced. The freedom from eviction was maintained and extended. An occupancy raiyat cannot now be directly evicted for non-payment of rent. The landlord's remedy is to sell the holding in execution of a decree for arrears, the raiyat having the benefit of any surplus. As regards the other privilege, the right of inheritance, which as we have seen, had generally belonged by custom to the khudkasht raiyats but which the Act of 1859 had not mentioned, that was expressly conferred by Section 26 on all occupancy raiyats.
67. On the other class, the non-occupancy raiyats whom it would now be more fitting to designate rather as the less privileged than the unprivileged class, substantial benefits were also conferred. Their position has in many respects been advanced almost to that, held by occupancy raiyats under the Rent Act of 1859, for they can only be ejected on certain definite grounds specified in Section 44. Moreover, where the rent of a non-occupancy raiyat has been enhanced, as it may be enhanced under Section 46, the raiyat is entitled to remain in occupation of his holding at the enhanced rent for five years after the date of the enhancement. Again, a non-occupancy raiyat is entitled under certain conditions to make improvements on his holding and in case of eviction by a landlord to receive compensation for those improvements (Section 82).
68. It is on the provisions of the Act conferring these considerable benefits that reliance is placed by the appellants as showing that the Legislature intended to attach to the holding of a non-occupancy raiyat the incident of heritability. He contends that these benefits are shorn of much of their value and may indeed be illusory if they do not descend by inheritance, and from this he asks us to infer that the Legislature must have intended that they should descend by inheritance. I have given careful Consideration to this argument but find myself unable to accept the conclusion sought to be drawn. It is by no means inconceivable or improbable that the Legislature, when it for the first time attached these benefits to a non-occupancy holding should have restricted them to the life time of the raiyat for the time being in possession of the holding. The benefits even thus restricted constitute a considerable advance on his previous position, when he was at the mercy of his landlord. But, it must further be borne in mind that the right of inheritance may be attached to a non-occupancy holding either by custom or by contract. Mr. Field in his 'Introduction' points to certain causes that would tend to create a custom of inheritance among khudkasht raiyats. These causes must also have been all along in operation though perhaps in lesser degree, and must still be in operation, to give rise to such a custom among non-occupancy raiyats. Any such custom that may have arisen is preserved by an express provision (Section 183) of the Act. There is also nothing in the Act which militates against a contract by which the holding is descendible to the heir of the tenant. The improvement effected by the Legislature in the status of non-occupancy raiyats would thus inure in full and unrestricted degree to the benefit of all those who by custom or contract had acquired the right of inheritance, while for those who had not so acquired this right, it would constitute as I have said a considerable advance on their previous position.
69. But the intention of the Legislature in this matter may, I think, be best gauged by a consideration of the successive steps by which the Legislature pari passu raised the position of both classes of raiyats. In the case of occupancy raiyats, the Act of 1859 conferred that freedom from eviction which had generally existed for khudkasht but not for paikusht raiyats. The Act of 1885 maintained and extended that freedom from eviction and added legislative sanction to a further privilege, the right of inheritance which had also existed by custom in the case of khudkasht raiyats, but the existence of which in the case of those who had gained occupancy right under Section 6 of the Act of 1859 was doubted by Peacock C.J., in Ajoodhia Persad v. Emambandee Begum (1867) B.L.R. Sup. 725 ; 7 W.R. 528. As regards the other, the less privileged class, which previously comprised the entire body of paikasht raiyats, the Act of 1859 though it shifted the line of demarcation so as to include a considerable number within the more privileged class did for those left outside the line nothing beyond declaring them entitled to pottas, a provision which perhaps added little or nothing to their security. But the next Act, that of 1885, not only further shifted the line of demarcation and included a still larger number within the class of occupancy raiyats, but also improved the position of those who were still left outside the line by protecting them from eviction except for certain clearly defined reasons, and by conferring other benefits which I have previously noticed. Is it possible that the Legislature while giving legislative sanction in that statute by express words to the right of inheritance in the case of occupancy raiyats, and while improving the position of non-occupancy raiyats by clear and definite provisions, should have left it to be inferred by mere implication that it intended to give legislative sanction to the right of inheritance as regards this latter class also? The Legislature was not dealing with the subject piecemeal. If it had, there might perhaps be ground for supposing that through carelessness it had omitted to express what might be implied from other provisions. The Legislature had under consideration in the Acts of 1859 and 1885 the whole subject of the relations between landlord and tenant, and I find it difficult to suppose that while making clear and definite provisions in all other matters for both classes of raiyats, it has, in this important matter of inheritance, through carelessness, left to be inferred in the case of non-occupancy raiyats what it has definitely expressed in the case of occupancy raiyats. The question is not whether the effect of Section 26 is to take away from non-occupancy raiyats a right that previously existed. No right that previously existed has been taken away--on the contrary it is expressly preserved unless inconsistent with the Act. The question is whether legislative sanction can be inferred for a right which may or may not have previously existed by custom, and for the reasons I have given I would answer that question in the negative.
70. An argument has also been founded by the appellant on the definition of the word raiyat contained in Section 5(2) of the Bengal Tenancy Act. Under that definition the word 'raiyat' includes successors in interest and from this it is contended that the Legislature contemplated that raiyats should be succeeded in their holdings by their heirs. The inference is legitimate, so long as it is not extended into a universal rule to cover all raiyats. Undoubtedly the Legislature contemplated that some raiyats would be succeeded by their heirs but the inference cannot be drawn further than this. The words 'successors in interest' only mean 'those who succeed in interest' and read in this way the definition would run--'Raiyat includes those who succeed him in interest as regards his holding.' It leaves undefined what, raiyats have successors in interest in respect of their holding. The heirs of an occupancy raiyat are now expressly entitled by law to succeed to the holdings of their predecessor, and this circumstance alone would account for the use of the words even if the heirs of non-occupancy raiyats were debarred by law from the same rule of succession. But they are not so debarred; they may succeed either by force of custom or on the strength of a contract. The fact that the heirs of all occupancy raiyats and the heirs of some non-occupancy raiyats succeed to the holding is sufficient to satisfy the requirements of the definition,
71. The foregoing considerations are also applicable to the argument based on the third clause of Section 20, which deals with the settled raiyats. The clause provides that a person shall be deemed for the purposes of 'this section to have held as a raiyat any land held as a raiyat by a person whose heir he is.' This clause cannot be construed into an enactment that the heirs of all raiyats shall succeed to the holdings of their predecessors. It deals with the cases of those who do so succeed, whether the succession takes place by force of law, or of custom, or of contract, or even as a matter of convenience. The heir of a non-occupancy raiyat who even apart from any custom or contract has as a matter of fact succeeded to the holding, would be covered by the clause. Definitions such as these which I am noticing are not enactments, but guides to the meaning of words used in enactments.
72. Reference was made during the hearing of this case to the decision of a Full Bench in Arip Mandal v. Ram Ratan Mandal (1904) I.L.R. 31 Calc. 757 showing that the holding of an, under-raiyat was heritable, and it was contended that a fortiori must the holding be heritable of a non-occupancy raiyat who has a higher status than an under-raiyat and who may even sublet to under-raiyats. I am unable however to regard the decision of the Full Bench as having the effect attributed to it. The suit was brought by the sons of an under-raiyat to recover the;r father's holding, which had been, on the father's death, settled by the landlord with a stranger. Neither of the circumstances specified in Section 49 as justifying the eviction of a under-raiyat existed in the case. If the holding of an under-raiyat descends from father to son, the suit must have been decreed, whereas the Full Bench dismissed it. The case therefore cannot be invoked as authority for the proposition that the holding of an under-raiyat is heritable. It is true that the Full Bench expressed an opinion that the heirs were entitled to remain in possession till the end of the agricultural year for the purpose of gathering the crops cultivated by the deceased. This is a ruling in accordance with the dictates of justice, equity and good conscience, and I have no doubt that the heirs of a non-occupancy raiyat would on similar grounds be held entitled to remain on the holding till the end of the year for the purpose of gathering the crops sown by their predecessor.
73. The question submitted to us, was argued as being governed entirely by the Bengal Tenancy Act. Neither in the order of reference nor in the discussion at the Bar was any argument advanced, any authority cited, or any suggestion made that previous to the passing of the Bengal Tenancy Act the holding of a non-occupancy raiyat was heritable by law. For the reason I have stated, I am of opinion that the Legislature has not by any enactment expressed or implied conferred the right of inheritance on non-occupancy raiyats. It may be that by custom or even as a matter of convenience their holdings are, as is asserted, ordinarily heritable and it is possible that when the relations between landlord and tenant again come up for review, the Legislature may take a further step in the direction in which it has already advanced, and on grounds of public policy give by express enactment sanction to that which exists by custom. Such a step would be in accordance with the tendency of modern times by which law is being gradually substituted for custom. Mean while under the law, as it stands at present, I am constrained to answer the question referred to us by saying that apart from custom or contract the right of a non-occupancy raiyat is not. heritable.
74. As the appellant thinks it possible--that was his expression--that he may be able to make out, by custom or in some other way, that the holding in suit is heritable, we remand the case, at his instance, to the District Judge to go into that matter and to dispose of the case accordingly. But as the appellant failed both in the Court of Appeal and here, he must pay the costs of the respondent up to and including this hearing. The subsequent costs will be dealt with by the Subordinates Judge.