1. The suit, out of which this appeal arises, was brought by the plaintiffs-respondents to recover possession of some land on the allegation that it constituted the jota of one Nilu Nasya; that the plaintiff's as his heirs are entitled to the same, and that the second defendant, their zemindar, has wrongfully dispossessed them and settled the land with defendant No. 1. The defence was a denial of the plaintiffs' right.
2. The first Court found that Nilu held the land as a non-occupancy raiyat, that he relinquished the holding in his life-time, and that a non-occupancy holding was not heritable; and it accordingly dismissed the suit.
3. On appeal, the Lower Appellate Court has reversed that decision and given the plaintiff's a decree on the ground that the land was not shewn to have been relinquished by Nilu, and that a non-occupancy holding is heritable under the law.
4. In second appeal the only question raised is, whether the right of a non-occupancy raiyat (who does not hold under any express engagement) in his holding is heritable, and the holding passes to his heirs so as to entitle them to claim it as against the landlord who has re-entered upon the land on his death.
5. The learned Vakil for the defendants-appellants contends that the question ought to be answered in the negative; that the absence of any provision in the chapter of the Bengal Tenancy Act relating to non-occupancy raiyats similar to Section 26, which enacts that the right of occupancy is heritable, clearly shows that it is not the intention of that Act to make non-occupancy holdings heritable; and that under the law as it stood before that enactment, not only were such holdings not heritable, but the heritability of the right of occupancy itself was open to question, as will appear from the cases of Ajoodhia Persad v, Emam Bandee Begum B. L. R., Sup. Vol., 725: 7 W. R., 528 and Jatee Ram, Surmah v. Mangloo Surmah 8 W. R. 60. On the other hand, it is argued for the respondents that Section 20, Sub-Section (3) of the Bengal Tenancy Act indicates that a non-occupancy holding is heritable, and that Sections 79, 82 and 160, Clauses (c) and (e) of the Act, go to support the same view.
6. After considering the arguments on both sides, we are of opinion that the appellants' contention should prevail. Sub-Section (3) of Section 20 of the Bengal Tenancy Act only shews that where the heir of a non-occupancy raiyat is allowed to hold on, he may add the period of his own occupation to that of his predecessor to make up the period of twelve years necessary for the acquisition of the right of occupancy; but the provision is expressly said to be limited to the purposes of Section 20, and it does not show that he can compel the landlord to give up possession after re-entry on the late tenant's death. And the utmost that can be inferred from the other provisions of the Act relied upon is that some of the rights possessed by a non-occupancy raiyat, such as his right to claim compensation for improvements, or to remain in occupation in certain cases notwithstanding a sale of the superior tenure for rent, may be claimable by his heir. But, on the other hand, the absence of any provision relating to non-occupancy holdings similar to that embodied in Section 26 of the Act with reference to the right of occupancy, affords in our opinion the strongest indication that the Legislature did not intend to make non-occupancy holdings heritable. Under the law as it stood before the Bengal Tenancy Act was passed, non-occupancy raiyats not holding under any express engagements were treated as tenants at will, or as tenants from year to year. See Act X of 1859, Section 25; see also the observations of Mr. Justice Field in his Introduction to the Bengal Regulations, p. 40, and those of Mr. Justice Trevor in Thakooranee Dossee v. Bisheshur Mookerjee 3 W. R. 29 (38): B. L. R. Sup. Vol. 202 (220).
7. Under the old law, non-occupancy raiyats were the lowest class of raiyats, and if the respondent's contention be correct, it would follow that all raiyati holdings were heritable. But this would be somewhat inconsistent with certain provisions of law, such as Regulation VIII of 1819, Section 11, Clause 3, which speak of hereditary raiyats as a distinct class.
8. For the foregoing reasons we think this appeal must be decreed, the decree of the Lower Appellate Court reversed, and that of the first Court restored with costs in this Court and the Court below.
1. I concur in the judgment of my learned brother. There is no doubt a very general impression in Bengal that there is now no great difference between occupancy and non-occupancy rights, and that both are heritable. There would seem to be some justification for the former view, for a non-occupancy raiyat admitted to occupation of land otherwise than under a registered lease can apparently not be ejected except on one of the grounds specified in Section 44; so that as long as he does not come within the provisions of that Section, he is as secure in the occupation of his land as if he had been an occupancy raiyat. Then, from the provisions of Section 20, Clause 3, of the Bengal Tenancy Act, it would at first sight appear as if the rights of a non-occupancy raiyat were heritable in the same way as are those of an occupancy raiyat, for its terms apply to all raiyats; but on closer consideration it is clear that the terms of this Clause are limited by the words ' for the purposes of this Section; ' so that, after all, the Clause only comes to this, that a person whose father or predecessor in interest had an occupancy right becomes on the death of his father or predecessor in interest a settled raiyat, and that an heir to a raiyat, if allowed by the landlord to occupy the land of his predecessor, can add to the period of his occupation that of his predecessor's occupation for the purpose of the acquisition of the status of a settled raiyat. The old law would seem to have gone no further; for the words '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,' which occur in Section 6 of both Act X of 1859 and Bengal Act VIII of 1869, are also limited by the concluding words of the Clause, and would seem to mean merely that when the heir of a raiyat is allowed, or in any way manages, to occupy his predecessor's land as a raiyat, the time of his occupation as such shall be added to that of his predecessor, when computing the period of twelve years necessary for the accrual of an occupancy right.
2. This interpretation of the law, apparently the only one that can be put upon the stri(sic)gt terms of the Bengal Tenancy Act, may in some cases cause hardship. Thus, if a non-occupancy raiyat dies while his crop is on the ground, then, unless the rule of English law as to emblements [see Woodfall's Law of Landlord and Tenant, chapter XX, Section 3 (a)] applies to Bengal, and I know of no instance of its having been held applicable, the crop will be lost to his heirs; for death determines the tenancy of the raiyat if his interest is not a heritable one, and his heirs cannot enter on the land and reap the crop after the tenancy has been determined. Again, Section 79 of the Bengal Tenancy Act actually encourages a non-occupancy raiyat to erect a suitable dwelling house on his land for the occupation of himself and his family,---also to sink wells and effect other improvements on his land even against his landlord's will. If ejected during his life-time he can recover compensation from his landlord (Section 82), but the moment he dies, if his rights be not heritable, the benefit of, and the money sunk in, these improvements are lost to his heirs, who would seem to be liable to ejectment from the land and dwelling-house at the pleasure of the landlord.
3. Then, the law may also work hardly in the case of under-raiyats. The provisions of Section 85 are certainly not clear. They provide that a sub-lease shall not be valid against a raiyat's landlord unless registered, and that a sub-lease shall not be admitted to registration if it purports to create a term exceeding nine years. This would seem to imply, though it is nowhere expressly provided, that a sub-lease, if registered and for a term not exceeding nine years, will be valid against the raiyat's landlord, whether he consents to it or not. But if the sub-lease is executed by a non-occupancy raiyat, whose rights are not heritable, it will certainly be rendered void by his death; for a person cannot assign an interest in land exceeding that which be himself possesses, and if his rights are determined by his death, then so must also be the rights of his sub-lessee, though apparently protected by a lease executed and registered with the sanction of the law.
4. The non-heritability of non-occupancy raiyats' rights may cause loss to the landlord, as well as to the non-occupancy raiyats' heirs; for it has been held that occupancy rights being heritable the heirs of an occupancy raiyat are liable for the rent of their predecessor's land, whether they occupy it or not Peary Mohun Mookerjee v. Kumaris Chunder Sirkar I.L.R. 19 Cal. 790. But if non-occupancy raiyat's rights are not heritable, their heirs who do not enter on occupation cannot be held liable by the landlords for the rent of the lands, and the landlords may consequently lose money.