1. This appeal was heard and disposed of on 19th January last in the presrase of the minor respondent, but in the absence of the adults. The latter then made an application for vacating the judgment on the ground that their learned advocate had missed the case and had for that reason been unable to attend at the hearing. The application was allowed and the appeal has been reheard in the presence of all the parties.
2. The only question involved is one under Section 48C, Bengal Tenancy Act, which arises out of the following facts. There was a raiyati holding: held by one Abdul Rouf and under that raiyati there was an under-raiyati held by one Kali Krishna Dhar. The subject-matter of the present suit is a portion of a big his appertaining to that under-raiyati. On the death of Abdul Rouf, his interest devolved upon the widow Joygun Bibi. On 15th August 1924 when Joygun Bibi was holding the raiyati, the heirs of Kali Krishna sold the entire under-raiyati, including the jhil in suit, to one Gokuldas Bilani, father of two of the defendants and apparently grand father of the third. The transfer was recognised by Joygun Bibi in the sense that she accepted Gokuldas Bilani as her under-raiyai In 1928 the raiyati itself was brought to sale for arrears of rent and was purchased by the plaintiff. He too accepted the defendants as his under-raiyats and continued to treat them as such till 16th April 1935, when he served upon them a notice of ejectment under Section 48C, Bengal Tenancy Act, on the ground that be required the land for cultivation by himself. The defendants did not yet give up possession and thereupon the present suit was brought on 10th August 1937.
3. It will be seen that the plaintiff's suit was designed to meet three clauses of Section 48C. He purported to terminate the tenancy by giving a notice of ejectment under Clause (d); he treated the defendants as under raiyats not coming under any of the clauses of the second proviso to the section; and he brought himself under Clause (ii) of the proviso by claiming to require the land for cultivation by himself.
4. Quite a large number of defences were taken on behalf of the defendants, but all except one have been led to rest by the findings of the Courts below. It is not necessary to refer to defences which do; not survive. The one defence which is material to the present appeal was that the defendants were not liable to be ejected inasmuch as they had been in possession of the land for a continuous period of 12 years. The trial Court repelled this defence as well and decreed the plaintiff's suit. But on appeal the defence prevailed with the learned Subordinate Judge who held that the defendants had been in possession of the land for 12 continuous years and were therefore protected under the provisions of Clause (i)(2) of proviso 2 to Section 48C.
5. The learned Subordinate Judge reached his conclusion in the following way. The purchase by Gokuldas Bilani, it will be remembered, was made on 15th August 1924. The possession of the defendants and that of Gokuldas up to the date of the service of notice extended over a period of 10 years 7 months and 21 days, as the trial Court has found. Some question was raised as to whether the defendants were entitled to avail themselves of the possession of their predecessor Gokuldas, but the learned Judge has held, in my opinion rightly, that the possession of Gokuldas could not be excluded. He died on 23rd November 1929 when under-raiyati holdings had been made heritable by the Amending Act of 1928 and although the proviso speaks of 'the under-raiyat' and 'possession of his land' for a period of 12 years, it is clear that the possession of an under-raiyat for the time being and that of the person from whom he has got the holding by right of inheritance is one continuous possession. 'When a property is made heritable by law it passes to the successor and the continuity of possession is maintained. But even if the possession of Gokuldas Bilani could be taken into account, the possession of the defendants, together with the possession of Gokuldas, still fell short of the statutory period of 12 years. In order to make up the balance, the learned Subordinate Judge had therefore to draw upon the possession of Kali Krishna Dhar which he did on the footing that, by a successive recognition of transfers, the under-raiyati holding had acquired the incident of transferability. The learned Judge pointed out that Gokuldas had been recognised by Joygun Bibi and that, after Joygun Bibi, the plaintiff himself had recognised 'the defendants. He therefore held that since the transfer infavour of the defendants was recognised by both Joygun Bibi and the present plaintiff, 'the under-raiyati holding assumed to all intents and purposes the character of a transferable holding,' and that consequently the defendants were entitled to tack the possession of their vendor Kali Krishna Dhar. This conclusion, it is obvious, was based on the view that by recognition of the transfer the identity and continuity of the under-raiyati holding was preserved. In the result the learned Judge dismissed the plaintiff's suit.
6. In support of the present appeal it was urged by Mr. Roy Choudhury that the learned Judge was entirely wrong in holding that the defendants could rely upon proviso (i)(2) to Section 480, Bengal Tenancy Act, on the footing that they had been in possession of the land for a continuous period of 12 years. It was urged that before 1928 there could be no recognition of a transfer of an under-raiyati holding, with the effect of making the tenancy continuous. Reference was made to the decision of this Court in Jnanendra Nath v. Dukhiram Santrs : AIR1924Cal850 :
7. It was on the other hand contended by Mr. Ghose who appeared on behalf of the respondents that even before 1928 under-raiyati holdings were transferable with the consent of the landlord. When such consent was given, the effect was that the holding itself passed and the continuity of the tenancy was maintained, although the holder might change. He relied upon two decisions of this Court, the case in Abhoya Sankar v. Rajani Montisl 6 A.I.R. 1919 Cal. 811 and the case in Sm. Lilabati Dasi v. Chitpur Golabari Corporation Ltd. 0049/1938 : AIR1938Cal481 .
8. The question is by no means free from difficulty but considering the incidents of an under-raiyati holding before the Amending Act of 1928 and the actual language of Section 48C, Bengal Tenancy Act, I am of opinion that the contention of the appellant is to be preferred to that of the respondents.
9. The transfer took place in 1924 when under the law, then prevailing under-raiyati holdings were absolutely non-transferable. Where an under-raiyati holding was held otherwise than under a written lease, as in the present case, the under-raiyat was virtually in the position of a tenant-at-will and his maximum right was to be able to occupy the land up to the end of the current agricultural year. There could be no question of his having any right to transfer his holding. In Hiramati Dassayya v. Annoda Prosad ('08) 7 C.L.J. 553, it was pointed out that where apart from the Transfer of Property Act, tenure or holding was not transferable it could not become so unless it was expressly made so by some statute. It was added that under-raiyati holdings were not transferable under the previous law and had not been made transferable by the Benal Tenancy Act, and were accordingly non-transferable. In the case in Sm. Aminunnessa v. Jinnat Ali 2 A.I.R. 1915 Cal. 182. Holmwood and Chapman JJ. observed that it must be held as a matter of law that under-raiyati holdings were not transferable. Reference is generally made in this connection to the old decision in Bonomali Bajadur v. Koylash Chunder (79) 4 Cal. 135, but when that case is closely examined, it will be found that while Garth C.J. said that an under-raiyati was not transferable without the consent of the landlord, Jackson J. observed that he had never heard before that a question as to a karfa raiyat selling his raiyati could be raised and it appeared to him contrary to the nature of things that such a thing could happen, The question was discussed at great length by Suhrawardy and Graham JJ. in the case in Jnanendra Nath v. Dukhiram Santrs : AIR1924Cal850 where their Lordships examined the accuracy of the phrase 'transferable with the consent of the landlord.' They pointed out that all that one of the Judges had said in Bonomali Bajadur v. Koylash Chunder (79) 4 Cal. 135, was that an under-raiyati was not transferable except with the consent of the landlord and they observed that the converse was not necessarily true and the proposition did not involve that an under-raiyati holding was transferable with consent. They concluded by saying that when the landlord accepted the transferee as his tenant in lieu of the old tenant, there was practically a case of a fresh settlement. It is true that in the end their Lordships held that no consent had been proved in the case and having regard to the convention as to the use of precedents, it might be possible for me to say that the observations made in the earlier part of the judgment were mere obiter dicta. I do not however consider it proper or possible to disregard the observations, since in my opinion they constitute a distinct and independent ground of the decision.
10. In my opinion, there is a distinction between a case where under the provisions of a statute itself a holding is said to be transferable with the consent of the landlord and a case where transfers, not being objected to by the landlord who is entitled to object, are allowed to stand. In the former case, there is no inherent non-transferability and the statute, while recognising the basic transferability, only imposes a condition. In the latter case, the incident of transferability is totally lacking and although an actual transfer may not be repudiated, it is only an instance of loose use of language to say that, in such cases too, the holding is transferable with the consent of the landlord.
11. As is well known, in fact, even previous to 1928, transferees of under-raiyati holdings were often recognised by the landlord. But the legal basis on which this, was done is not that the transfer as such was recognised but that a new tenancy was conferred on the transferee. When an under-raiyati holding was transferred, the landlord, who was entitled to deal with his property in any way he liked, was not bound to treat the transferee as a trespasser and might prefer to leave him on the land and to treat him as an under-raiyat. That, however, is something very different from recognising the transfer itself as a valid transaction. What happened in such a case was, in my view, that a new tenancy was created in favour of the transferee. A recognition of a transfer might effect a continuance of the tenancy under the present Act, because Section 48F expressly says that an under-raiyati 'shall not be transferable except with the consent of the landlord.' Now the statute recognises the transferability of under-raiyati holdings, but such was not the position in 1924.
12. If that be so, it is quite clear that on the transfer of a non-transferable holding at a time when such holdings were wholly non-transferable in law, no interest passed from the vendor to the vendee and accordingly the possession of the vendor could not possibly be carried over to the vendee for his benefit. Applying this principle to the present case what happened in 1924 was simply that Joygun Bibi conferred the status of an under-raiyat on the predecessor of the defendants. It is true that the plaintiff, on purchasing the superior raiyati holding, himself treated the defendants as his under-raiyats, but that does not mean that he in any way admitted that their under-raiyati originated at any date prior to 1924. The life of the present under raiyati could not, in my view, be extended in any way beyond the date when the defendants' predecessor first acquired it and was accepted by the then landlord as an under-raiyat.
13. In the special Bench case in Ohandra Binode Kundu v. Ala Bux Dewan 8 A.I.R. 1921 Cal 15 their Lordships had occasion to consider the true meaning of the phrase 'an occupancy holding is not transferable except by legal custom or usage.' They pointed out that the expression did not mean that occupancy holdings were absolutely inalienable by their nature, nor that they could not be transferred unless both the landlord and the tenant consented, but it meant that the transfer could not be made effective except with the consent of the landlord. The view taken there certainly upholds the inherent transferability of occupancy holdings, although the consent of the landlord was required. But, as will appear from a close examination of the judgment and as was pointed out in Jnanendra Nath v. Dukhiram Santrs : AIR1924Cal850 the Court found on an examination of several other sections of the Act that occupancy holdings were not inherently non-transferable. Reference was particularly made to one of the illustrations to Section 183. The inherent transferability of occupancy holdings which was otherwise apparent from indications to be found in several other sections of the Act was really the basis of the meaning attributed to the phrase which the Special Bench construed. Far different in my opinion, is the case of an under-raiyati holding before 1928. In the case of such holdings, as I have endeavoured to point out, there was no inherent transferability. It is true that the phrase that such holdings were 'transferable with the consent of the landlord' has somehow come into currency, but we must not be misled by a 'phrase and the true position in such a case was, as I have tried to explain, that the transferee was accepted as an under-raiyat off his own account.
14. I do not think that the two cases cited by Mr. Ghose assist his argument in any way. They are cases where it was held that where a transfer of an occupancy holding was recognised by the landlord, the transferor became a predeccessor-in-interest of the transferee within the meaning of Section 50, Bengal Tenancy Act, and that in computing the period of 20 years under Clause (2) of the section, the occupation of both the transferee and the transferor might be taken into account. These decisions relate to occupancy holdings which were not basically non-transferable and, secondly, Section 50, itself speaks of the raiyat 'and his predecessor-in-interest,' whereas Section 48C speaks of only 'the under-raiyat,'.
15. In so far as the present question is concerned, I am of opinion that the conclusion which I have reached also follows from the language of Section 48C itself. The proviso runs thus:
provided that an under-raiyat shall not be liable to ejectment on the ground specified in Clause (c) or Clause(d)-(i) if the under-raiyat has (1) been admitted in a document by the landlord to have a permanent and heritable right to his land or (2) been in possesion of his land for a continuous period of 12 years whether before or after or partly before and partly after the commencement of the Bengal Tenancy (Amendment) Act, 1928, or has his homestead thereon,
Clause (c), it may be mentioned, deals with the ground that the term of the lease has expired. Clause (d) deals with the ground that the landlord, requiring the land for cultivation for his own purposes, has served a year's notice.
16. From the language used in the proviso it seems to me clear that Clause (i)(2), only confers a personal protection on the under-raiyat for the time being on the basis of his own possession and the possession of persons from whom the may have got the holding by inheritance. The section speaks of 'the under-raiyat,' but that [ would concede, is not conclusive and may include predeeessor-in-interest whether ancestors or transferors; but the section proceeds to speak of the under-raiyat who 'has been in possession of his land.' It is to be noticed that the section does not speak of possession of his 'holding' but speaks of possession of 'land' and it qualifies the word 'land' by the adjective 'his.' To my mind, it is abundantly clear that what the section has in contemplation is the personal possession of the under-raiyat himself and not the possession of any transferor. The object of the clause seems to me to be that if an under-raiyat has himself been in possession for a period of 12 years or he, together with his ancestors, has been in such possession and has, as it were, taken root in the soil, he will not be uprooted. The possession of a total stranger, and as a transferor, seems to me to be quite irrelevant to the object which the section apparently has in mind. It has also to be pointed out that any interpretation put upon the section must fit in with all its clauses. The proviso also applies to a case where the ground of ejectment is that stated in Clause (c). That clause deals with the ground that the term of the lease has expired. It seems to me altogether impossible to hold that where a transferee under-raiyat is in possession for a term specified and that term has expired the Legislature could have contemplated that he too would not be liable to ejectment, if his possession, together with the possession of a transferor, made up the total period of 12 years. In my opinion possession of a transferor is not contemplated by the proviso.
17. Mr. Ghose contended that if the possession of an ancestor could be taken into account, by the same process of reasoning the possession of a transferor would also be available to the under-raiyat who is under threat of ejectment. I am unable to agree. Heritability is now recognised by the statute and therefore, on a succession opening, the holding passes by the force of a statute itself. The other provision, namely, the holding is not transferable without the consent of the landlord was not present in 1924. Although the provision of the heritability was also introduced by the Amending Act of 1928, it obviously cannot be excluded since the succession has taken place after that date, but as regards the other incident, the case must be decided by the law as it stood before the amendment.
18. I am accordingly of opinion that the learned Judge failed to perceive the distinction between the validity of a transfer as such and mere acceptance of the transferee by the landlord. Bacause of the above error he hold, in my opinion wrongly, that the defendants were entitled to tack the possession of their vendor Krishna Chandra Dhar.
19. For the reasons given above this appeal is allowed. The judgment and the decree of the lower appellate Court are set aside and those of the trial Court restored. The appellant will have his costs of the present appeal. Leave to appeal under Clause 15 of the Letters Patent, asked for, is refused.