1. This appeal has arisen out of a suit for arrears of rent at the rate of Rs. 18-0-2 for the years 1336 to 1339 on a jama held originally by the father of defendant 1 and alleged by him to have been transferred to defendants 2 to 4 before the year in suit. There is no evidence that the plaintiff landlord consented to the transfer and the question is whether in those circumstances the defendant 1 is liable for the rent. Defendants 2 to 4 were added at their request but the plaintiff does not claim any rent from them. The Courts below have held that the jama originated before 1836 and is therefore governed by the general law and not by the Bengal Tenancy Act, or Transfer of Property Act, and that it is a permanent homestead transferable tenancy. Consequently the original tenant, that is, the father of defendant 1, having transferred the tenancy to defendants 2 to 4, he and his successors are no longer liable for the rent. The suit was therefore dismissed against defendant 1 and against defendants 2 to 4 since the plaintiff does not claim any rent from them.
2. The first point urged in this appeal is that the learned Subordinate Judge's finding that the tenancy was a permanent one is based on insufficient data. The finding is based on the facts (1) that the rent has remained unchanged though the value of the land comprised in the tenancy has increased: (2) there are substantial pucca structures on the land without objection by the landlord, (3) long user of the land for residential purposes; and (4) the origin of the tenancy is unknown. It is claimed that these facts are not sufficient to show that the tenancy is permanent in the absence of evidence that transfers were recognized by the landlords. It is clear however from the past history of the tenancy that transfers have been recognized by the landlords for the jama was originally named Hiru Andi Ram Pal mudafat and the tenants whose interests were auction purchased by Ashutosh Ghose, the father of defendant 1, were Banerjis. In the circumstances and when we find that masonry structures have been in the land for 125 years there can be no doubt at all that this was a permanent transferable holding. But it is urged that in coming to the finding that the holding was for residential purposes and that there were permanent structures on the land for many years the Court has wrongly admitted into evidence two judgments Exs. Y and V of suits in which the plaintiff was not a party and which are not admissible against him.
3. Exhibit Y is the judgment in a title suit brought in 1925 by the receiver of the estate of one Balai Datta against Ashutosh Ghose in which it was held that the sub-tenants on the land under Ashutosh were dar maurusidars as they have permanent structures on their land. This judgment is admissible in evidence, I think, under Section 13, Evidence Act, in so far as it is evidence of a transaction in which permanent rights were claimed but it is not very important, since it does not seem to be disputed that the under tenants have had permanent structures in the lands for many years, and it seems to me certain that the superior landlords could not have allowed this, had the tenancy been other than permanent. Ex. V was the judgment in an ejectment suit brought by Ashutosh Ghose against a sub-lessee. This was dismissed on the ground that the sub-lessee was a 'permanent tenant. This again was admissible under Section 13, Evidence Act, as evidence of a transaction in which permanent tenancy rights in the land were previously claimed and it was claimed that it was a residential holding.
4. The third point raised for the appellant is that under the general law as laid down in Section 108(i), Transfer of Property Act, the holding being non-transferable liability of the original tenant would remain after the transfer. In Section 108(i) it is laid down that the lessee shall not by reason only of a transfer of his interest in the property cease to be subject to any of the liabilities attaching to the lease. This merely comes back to the question of transferability. If the holding is transferable without the consent of the landlord and the landlord has notice of the transfer obviously the transferor tenant can no longer be held liable for the rent. The finding that the tenancy is a permanent tenancy and that there have been one or two transfers in the past is not ordinarily sufficient to show that the holding is transferable without the consent of the landlord in the case of a holding created before the passing of the Transfer of Property Act. There are long series of rulings to the effect that tenancies of homestead land in Bengal created before the passing of the Transfer of Property Act are not transferable except by custom: vide Saroda Kanta v. Nabin Chandra : AIR1927Cal39 . In this case there is no proof of a custom of transferability and it is true (as pointed out by the learned Munsif) that though the Record of Rights shows the jama to be permanent homestead tenancy it has recorded the holding in the name of the former tenant. However the authorities make it clear that, even in cases of holdings created before the Transfer of Property Act, where there are structures on the land with the acquiescence of the landlords, the holdings are transferable. As authorities for this proposition we have the cases in Nabu Mondul v. Cholim Mullik (1898) 25 Cal 896, Ambica Prasad Singh v. Baldeo Lal AIR 1916 Pat 194 and Sm. Kamala Mayee Dasi v. Nibaran Chandra : AIR1932Cal431 . It is clear that in the present case, although there is no proof of custom or transferability, permanent structures have been made on the land many years ago. On the authority of these cases it must be held that the holding is a permanent one and is transferable. It is permanent and transferable for the reasons that there are pucca structures on the land, that there have been transfers in the past, and that the rent has throughout remained unchanged. Since the holding is transferable, by the assignment of the holding privity of estate is created between the landlord and the assignee by the transfer itself of which the landlord had due notice as found by the Courts below. The appeal must accordingly be dismissed with costs.