1. This appeal is preferred by the principal defendant No. 1. It arises from a suit instituted for the purpose of recovering possession of a piece of land within the Municipal limits of Noakhali.
2. The plaintiff's case is that his predecessor in interest Mahommed Israil, as owner of the superior interest, described as raiyati interest, created an Osat raiyati in respect of the land in favour of Ramjan Ali and Asraf Ali in the year 1287; that defendants 2-6 are the descendants of Ramjan, and defendant 7 of Asraf Ali, that defendant 1 bought the rights of Ramjan's heirs and defendant 8 the rights of Asraf's heir, that defendants 2 to 8 have abandoned and that the first defendant, now the appellant, the purchaser from Ramjan's descendants is in possession. The plaintiff further alleges that the Osat raiyati was created for the purpose of habitation, and that the Kabuliat executed by the original lessees Ramjan Ali and Asraf Ali contained a stipulation to the effect that the lessees should not have the right of transfer. He also says that there is no local custom sanctioning transferability of such interests. On the double ground that the original lease forbade transfers, and that there is no local custom in defendant's favour, he seeks to recover khas possession. Both the Courts below have decreed the plaintiff's suit.
3. Their finding in regard to the plaintiff's interest has not been challenged before us. The only question for decision is whether the interest created in favour of Ramjan Ali and Asraf Ali could be transferred by sale.
4. It is conceded that the Kabuliat executed by Ramjan Ali and Asraf Ali was executed before either the Transfer of Property Act or the Bengal Tenancy Act came into force.
5. So far as the stipulation against transfer is concerned, defective drafting makes it impossible for the landlord to succeed merely on the basis of that stipulation, because the document did not go on to give the landlord the right of re-entry in the event of a transfer.
6. The position then is this. By the terms of the Kabuliyat the tenancy was meant to be heritable, and it has in fact passed from father to son. It was also created for the, purpose of habitation, and has, apparently, been used for that purpose. There is no suggestion, however, that any pucca buildings have been erected on the land. The document creating the tenancy did not confer upon the lessees the right of transfer, and the defendant has not proved any local custom in favour of the right to transfer. On the contrary such evidence as there is against the defendant, for a judgment of this Court, in Second Appeal No. 2192 of 1917 has bean put in to show that a custom against transfer has been recognised in regard to a tenancy just outside the municipal limits.
7. The question for our decision therefore is whether a permanent tenancy created before the passing of the Transfer of Property Act, for the purpose of habitation can be transferred, when pucca buildings have not been erected on the land leased, when the document creating the tenancy does not confer upon the lessee the right to transfer and when there is no evidence of a local custom in favour of such a transfer.
8. The Courts below have answered the question in the negative and I think rightly.
9. It is true that there is a far-reaching remark by Sir Barnes Peacock, C.J., in the case of Banee Madhub Banerjee v. Joy Kishen Mookerjee (1869) 12 W.R. 495 but it was really an obiter dictum, for the ratio decidendi of that case was the existence of a local custom in favour of transfer and there was the further fact that the landlord bad allowed pucca buildings to be erected. In the abortive reference to a Full Bench made by Rampini, J., in the case of Nabu Mondul v. Cholim Mullik (1898) 25 Cal. 896 (F.B.) the learned Judge gave a lengthy review of the authorities on the subject. The same Judge was a member of the Bench which decided the case of Hanuman Prasad Singh v. Deo Charan Singh  7 C.L.J. 309 and the finding was that tenancies created before the passing of the Transfer of Property Act for the purpose of habitation were not ordinarily transferable. The same view was taken by Maclean, C.J., and Mitra, J, in S.A. Nos. 339, 448 to 450 of 1903 decided on 3rd April, 1905. This view has also been taken by the Patna Court in the case of Ambica Prosad Singh v. Baldeolal (1916) 20 C.W.N. 1113 and it has been expressed still liioro recently by a Bench of this Court in the case of Sulin Mohan Banerjee v. Rajkrishna Ghose A.I.R. 1921 Cal. 582. It appears to me therefore that the principle to which the Courts below have given effect is well established.
10. Accordingly I hold that this appeal must be dismissed with costs.
11. There is unquestionably a certain amount of conflict of judicial opinion as to whether tenancies of non-agricultural or homestead lands created before the Transfer of Property Act are transferable or not, but this diversity is attributable to the differing circumstances of the particular cases in which such opinion has been pronounced. Cases in which the land was used for agricultural purposes, or in which the tenancy though for residential purposes, was a yearly one, or in which the tenant was a tenant-at-will afford us little help. The question however being as to what was the law as to transferability or otherwise of a tenancy in respect of homestead land as it stood before the Transfer of Property Act came into existence, the statement of the said law as contained in the decisions of learned Judges would help us in the investigation. An examination of the authorities would show that the tendency of these decisions has been to establish that with regard to tenancies of homestead land created before the Transfer of Property Act, in the absence of a custom to the contrary, these tenancies were non-transferable.
12. The correctness of the dictum of Sir Barnes Peacock, C.J., in the case of Banee Madhub v. Joy Kishen (1869) 12 W.R. 495, a dictum which was quoted with approval by Ainslie, J., in the case of Doorga Pershad Misser v. Brindabun Sookul (1871) 15 W.R. 274 has been doubted in later decisions. See the reference and judgment of Rampini, J., in Nabu Mondul v. Cholim Mullik  25 Cal. 896 (F.B.) where the previous authorities were fully reviewed. That learned Judge at p. 907 of the report observed as follows : 'Anyhow, there was no law before the passing of the Transfer of Property Act which made a lease of homestead land transferable otherwise than by custom.' In the case of Hari Nath Karmakar v. Raj Chandra Karmakar (1897) 2 C.W.N. 122, Rampini, J., observed, in spite of the broad proposition of Sir Barnes Peacock, G. J., referred to above that the effect of the decision in the case of Banee Madhub v. Joy Kishen (1869) 12 W.R. 495 was to lay down that previous to the passing of Transfer of Property Act non-agricultural lands might or might not have been assignable. In the case of Madhab Chandra Pal v. Bejoy Chand Mahatab Bahadur (1901) 4 C.W.N. 574 in which the tenancy was in respect of a tank and a small piece of Bastu land, Rampini and Wilkins, JJ., observed as follows : On the contrary we think that before theTrans-fer of Property Act was passed there was no distinction between agricultural and non-agricultural tenancies.' The cases of Madhu Sudan Sen v. Kamini Kanta Sen (1905) 32 Cal. 1023; Ram Charan Naskar v. Han Charan (1906) 7 C.L.J. 107 need not be discussed as they related to yearly tenancies, nor the case of Hiramoti Dassaya v. Annoda Prosad Ghosh (1908) 7 Cc.L.J. 107 in which the finding of fact was that the tenancy was of a non-permanent character. In the case of Hanuman Prasad v. Deo Charan Singh  7 C.L.J. 309 Rampini and Pargiter, JJ., observed at p. 311 of the report as follows : 'As for the second plea, the learned pleader for the respondent relies upon the cases of Banee Mahub Banerjee v, Joy Kishen Mookerjee  12 W.R. 495 and Doorga Pershad Misser v. Brindabun Sookul (1871) 15 W.R. 274. It is unnecessary to say much with regard to those cases because they have been considered and discussed and distinguished in the case of Nabu Mondul v. Cholim Mullik  25 Cal. 896 (F.B.), It is pointed out in this case that the ratio decidendi of the two former cases was that in them there was proof of a custom of transferability. This case of Nabu Mondul v. Cholim Mullik  25 Cal. 896 (F.B.), has been followed in another case, namely that of Hari Nith Karmakar v. Raj Chandra Karmakar (1897) 2 C.W.N. 122, and the learned pleader for the respondent has not shown us any reason why we should not follow it as has frequently been done.' In S.A. Nos. 339, 448, 449 and 450 of 1903 decided on the 3rd April, 1905 Mitra, J. observed 'it,is well known that in this country before that Act, (meaning the Transfer of Property Act) came into operation no tenancy, whether of homestead or agricultural lands, was transferable except by custom or usage.' In Ambica Prosad Singh v. Baldeolal (1916) 20 C.W.N. 1113 Mullick and Kingsford, JJ., held that 'With regard to tenancies of homestead land created before the Transfer of Property Act, the tendency of judicial decision has been to establish that in the absence of evidence to the contrary, the burden of proof being upon the tenant, these tenancies are not-transferable, and that the only exception to the above rule is when there has been an erection of pucca buildings or a standing by on the part of the landlord while the tenant spends a large sum of money upon the land.' The same view is emphasised in the case of Sulin Mohan Banerji v. Rajkrishna Ghose A.I.R. 1921 Cal. 582, and a distinction is made between tenancies of homestead land and those for the purpose of residence, in the sense of living upon the land - tenancies for which purpose may be assignable if there is evidence of pucca buildings or substantial structures having been erected or large sums of money having been spent with the landlord standing by as was the case in some of the cases referred to above.
13. In the present case none of the exceptional circumstances having been found or proved, the view taken by the learned Subordinate Judge seems to be right and I therefore agree that the appeal must be dismissed with costs. Appeal dismissed.