1. The superior landlord granted certain lands to the defendant No. 1 partly as a patni and partly as a dar patni tenure. A portion of these lands was held by the defendant No. 4, the appellant before us, as an occupancy raiyat. The patni tenure was sold under Regulation VIII of 1819, for arrears of rent and the superior landlord having purchased it at the sale granted it to the plaintiffs. One-fourth of the dar patni tenure was also sold for arrears of rent, and this fractional share of the dar patni was also purchased by the superior landlord and granted to the plaintiffs.
2. The plaintiffs brought this suit claiming Khas possession of the land held by defendant No. 4 on the ground that, under the relevant statutory provisions, the landlord had purchased the land free from incumbrances. Both the Courts below have held that the defendant No. 4 not being a khud-khast raiyat or a resident and hereditary cultivator within the meaning of clause third of Section 11 of Regulation VIII of 1819, his interest is an incumbrance under that Regulation so far as the patni tenure is concerned. As regards the dar patni tenure only, a portion of which was sold, the lower Appellate Court has held that the plaintiffs are not entitled to khas possession.
3. It was contended in the first place that the defendant being an occupancy raiyat clause third of Section 11 should have been applied to his favour. This argument, however, cannot be supported in view of the decision of this Court in Jogeshwar Mazumdar v. Abed Mahomed Sirkar (1899) 3 C.W.N. 13. The lower Appellate Court states that the defendant No. 4 'is admittedly not a resident cultivator.'
4. The point taken that the tenure granted to defendant No. 1 was a single tenure consisting in part of patni right and in part of dar patni rights does not appear to have been taken in the Courts below. It was assumed throughout that the superior landlord was entitled to sell the patni tenure separately for its own arrears. The lease is not prima facie, incapable of this construction and, as the question may be in part a question of fact depending on the state of things in which the tenure was granted, in my opinion it ought not to be allowed to be raised for the first time at this stage.
5. A further point has been argued which is adverted to in the trial Court's judgment, but not in that of the lower Appellate Court. The suggestion is that inasmuch as the lease clothed the patnidar 'with all rights of sale, gift and transfer, of all kinds in respect of your patni, and dar patni rights and with all sorts of rights to make settlements in dar patni, se patni, etc.,' therefore, the right of making incumbrances binding on the superior landlord had been expressly vested in the patnidar by a stipulation to that effect in the lease within the meaning of clause first of Section 11 of the Regulation. The contention cannot be accepted in view of the decision of this Court in Kristo Das Laha v. Jatindra Nath Basu (1912) 16 C.W.N. 561. In the subsequent case of Bidhumukhi Ghowdhurani v. Asmatullah (1917) 24 C.L.J. 180 the Court had to construe not Section 11 of the Regulation, but Clause (g) of Section 160 of the Bengal Tenancy Act. That case, therefore, is to be distinguished. The learned Judges (Sanderson, C.J., and Mookerjee, J.) were careful to say that the case was not governed by Kristo Das Laha's case (1912) 16 C.W.N. 561.
6. The general words which I have read from the lease in the present case are only sufficient to carry the ordinary incidents of a patni grant under the Patni Regulation.
7. I am not, I may add, deciding now that a patnidar can only be expressly vested with the power of making incumbrances binding on the superior landlord by a written permission from the latter separate from the lease on each occasion of the exercise of the power. It is not necessary to say more for present purposes than this that, in my opinion, the terms of Section 11, clause first, are not satisfied unless at the least the right of transfer is expressly stated in the lease or other engagement to be a right to make transfers, which shall not be mere 'incumbrances'. That seems to be the natural meaning of the first paragraph of clause first, and that construction is borne out by the emphatic language of the second paragraph. 'No transfer by sale, gift, or otherwise, no mortgage or other limited assignment shall be permitted to bar the indefeasible right of the Zemindar to hold the tenure of his creation answerable in the state in which he created it, for the rent, which is in fact his reserved property in the tenure, except the transfer or assignment should have been made with a condition to that effect under express authority obtained from such Zemindar,' that is to say, no transfer is to bar the indefeasible right of the Zemindar unless it is made with the condition that it shall not amount merely to an incumbrance, and such condition can only be annexed where express authority for that purpose has been received from the Zemindar or superior landlord.
8. In the view I take this appeal must be dismissed with costs.