Holmwood and Chapman, JJ.
1. This appeal arises out of a suit brought by the plaintiff for declaration of her raiyati right in the land in suit and khas possession thereof. It appears that the plaintiff became 16 annas tenant of an ocenpaney holding by purchase from her husband in the year 1314 and that she then found that the under-raiyat on the land who is defendant 2 had sold the under-raiyati to defendant No. 1 eight years before in 1306.
2. It is admitted that the lease was only for a term and it appears that now that lease must have expired, since move than 9 years have elapsed from the time when it was sold to defendant No. 1. Be that as it may, it is conceded that the learned Judge's finding that all leasehold property is saleable and that there is nothing in the Bengal Tenancy Act to prevent the sale of an under-raiyati is not a correct view of the law. That is a rule of English law and it is incorporated in the Transfer of Property Act. But the Transfer of Property Act by Section 117 clearly excludes all agricultural lands from that rule, and the true rule is. as was laid down by the late Sir Francis Maclean in the case of Hira Moth Dassya v. Annoda Prasad Ghose (1908) 7 C L J. 553, 555 that when a tenure or holding, apart from the Transfer of Property Act, is not transferable it cannot become so unless it is expressly made so by some other statute. The learned Chief Justice pointed out, if it had been intended to make holdings transferable which were before non-transferable we might have expected the Legislature in framing the Bengal Tenancy Act to have said so. It was clearly laid down in 1878 by Chief Justice Garth and Jackson. J., that jummaie rights of a korpha under-tenant are not, transferable without the consent of the raiyat landlord. Mr. Justice Jackson goes so far as to say, I would only add that I never heard before that the question as to the possibility of selling a korpha tenant's right could be raised, and it appears to me to be contrary to the nature of things that such a thing could happen.' The Tenancy Act has not made any change in the law as laid down there; and it must be held as a matter of law contrary to what has been said by the learned Judge in the Court below that an under-raiyati is not transferable.
3. That being so and the plaintiff being the landlord of the entire 16 annas and the defendant having transferred the whole holding to defendant No. 1, the case falls within the second heading of the recent Full Bench ruling,-where the transfer of the whole holding has been made the landlord is ordinarily entitled to enter on the holding, and such a relinquishment as the relinquishment of the whole 16 annas without any proof of payment of runt or any arrangement made to pay the rent is certainly a relinquishment in fact which would entitle the plaintiff to eject the defendant.
4. It is sought lo be argued that an under-raiyat cannot be ejected except under Section 49 of Bengal Tenancy Act. But the answer to that is that the defendant No. 2 has by his own acts ceased to be an under-raiyat, and defendant No. 1 has never obtained the status of an under-raiyat, therefore Section 49 does not apply. It has further been contended that every transfer does not operate as an abandonment or as forfeiture. But the transfer which is found as a fact by the Munsif in the first Court and has not been set aside by the Judge in this case is certainly such a transfer as would, in our opinion, constitute a complete abandonment in fact, and what is reliquishment or abandonment has been held by the full Bench to depend on the substantial effect of what has been, done in each case. The substantial, effect of what has been done in this case appears to be that the recent purchaser has deprived the plaintiff of the tenant to whom alone she could look for her rent and to whom alone she could look for the proper cultivation of her holding; and we do not know who the defendant No. 1 may be or whether he is in any way a proper person to cultivate her land. It does not appear that any rent has been paid since the year 1306, at any rate, that it has been paid to the plaintiff.
5. The appeal must, therefore, be decreed. The judgment and decree of the lower Appellate Court are set aside and those of the Munsif restored with costs in all Courts to the plaintiff.