Prinsep and Beverley, JJ.
1. The plaintiff's, landlords, contracted with the defendants, tenants, that they were at liberty to make a transfer of the under-tenure given to them, but that, unless the transferee furnished security, they (defendants) were not to be absolved from liability; in other words, the sale would not be valid, and the plaintiffs would not be bound to recognize the transferee.
2. It seems that, notwithstanding this contract, the defendants have sold the tenure to one Ram Jibun by a registered document, and that the formalities prescribed by Section 12 of the Bengal Tenancy Act have been observed; that is to say, the Registration Officer has received and sent the 'landlord's fee' as prescribed by that section. Notwithstanding this, the transferee, Ram Jibun, has not furnished security, and the plaintiffs, landlords, therefore, in accordance with the terms of the kabuliyat executed by their under-tenants, the transferor-defendants, have refused to recognize the transfer.
3. It is contended, in appeal, that all the preliminaries required by the Bengal Tenancy Act having been observed, the transfer became valid notwithstanding any contract made with the landlords to the contrary.
4. We do not find that the Bengal Tenancy Act contains any provision to this effect. It merely provides that a permanent tenure shall, subject to the provisions of that Act, be capable of being transferred in the same manner and to the same extent as other immoveable property. It then provides that no such transfer shall be made, except by a registered instrument, and next it provides that the Registering Officer shall not register any document of transfer unless the landlord's fee is deposited with him, and that, on such deposit being made, he shall send it to the landlord. But it nowhere provides that such a transfer between the parties shall be valid and binding on the landlord if he should have made a contract with the transferor requiring certain other conditions such as there are in the present case. Section 178 does not deal with this matter, and therefore it must be dealt with under the ordinary law of contract. The appeal must, therefore, be dismissed with costs.