Jenkins, C.J., Stephen, Woodrofee, Mookerjee and Holmwood JJ.
1. These several references have been heard consecutively, and as they involve many of the debatable points that relate to the transferability of occupancy holdings, apart from local usage, it will be convenient to state our conclusion in general terms. This conclusion rests largely on a recognition of the paramount importance of upholding decisions, on which I dealings with property have been extensively based. These decisions probably mark a departure from earlier judicial pronouncements and the opinions of those who have studied this question in the past. The life of the law, however, it has been said, is not logic but experience, and the modern departure is probably due to a change in economic conditions, which has brought into prominence problems that did not previously call for solution.
2. The weight of modern authority establishes the following propositions regarding the transfer for value of occupancy holdings apart from custom or local usage:
The transfer of the whole or a part is operative as against the raiyat,
(a) where it is made voluntarily,
(b) where it is made involuntarily and the raiyat with knowledge fails or omits to have the sale set aside.
3. A sale is made involuntarily where it is in execution of a money-decree, but not of a decree founded on a mortgage or charge voluntarily made.
The transfer is operative as against the landlord in all cases in which it is operative against the raiyat, provided the landlord has given his previous or subsequent consent. Where the transfer is a sale of the whole holding, the landlord, in the absence of his consent, is ordinarily entitled to enter on the holding; but where the transfer is of a part only of the holding, or not by way of sale, the landlord, though he has not consented, is not ordinarily entitled to recover possession of the holding, unless there has been (a) an abandonment within the meaning of Section 87 of the Bengal Tenancy Act, or (b) a relinquishment of the holding, or (c) a repudiation of the tenancy.
4. Whether there has been a relinquishment or repudiation or not depends on the substantial effect of what has been done in each case.
The transfer of the whole or a part is operative as against all other persons where it is operative against the raiyat.
5. Applying then these propositions to the questions propounded, we answer them as follows:
(i) The question in the Appeal from Order No. 455 k of 1907 is answered in the affirmative. We accordingly hold that the appellant is a person whose immoveable property has been sold and is a representative of the judgment--debtor under Section 24 4 of the Code of Civil Procedure of 1882. This appeal must therefore be allowed and an order made as prayed. Each party, however, will bear his own costs throughout.
(ii) The question in Appeal from Appellate Decree No. 2388 of 1908 is answered in the affirmative. The decree of the lower Appellate Court is set aside and a decree will be passed in favour of the plaintiff for possession, but each party will bear his own costs throughout.
(iii) The questions in Appeal from Appellate Decree No. 2379 of 1908 are answered as follows: (i) in the affirmative, (ii) in the negative, (iii) in accordance with the propositions above set out. The result will be that this appeal will be dismissed. There will be no order as to costs of the Letters Patent Appeal on this Reference.
6. We would only add that the uncertainty as to the transferability of holdings has been one of the most fruitful sources of litigation, and it is urgently necessary that it should be set at rest by the Legislature.