1. A deceased occupancy raiyat named Becharam Gossain mortgaged his holding of 7 1/2 bighas to the plaintiff in Asar 1309. He subsequently died leaving one brother Bonomali who has also died without leaving any heir and the landlord has taken over the holding. The plaintiff sued the landlord, defendant No. 2, and two other persons Nobin Chundra Gossain, defendant No. 1, and his wife defendant No. 3 who, he alleges, are in occupation of the land. It is not contended that they are in any way the heirs of Becharam but defendant No. 1 who appeared said that his wife defendant No. 3 got the land as a gift from Becharam. The Munsif in the first Court disbelieved the story of gift and found there was cause of action against defendant No. 1 as he was in possession. He also found that the vesting of a jote in the landlord on failure of the heirs of a deceased tenant cannot destroy a subsisting mortgage lien. He accordingly gave the plaintiff a mortgage decree.
2. In appeal the learned Subordinate Judge found that defendants Nos. I and 3 had no subsisting interest in the land and against this finding nothing has been urged before us. As regards the vesting of the holding in the landlord, defendant No. 2, ho held that under Section 26, Bengal Tenancy Act, there is no saving clause respecting the right of third persons as sub-lessees or mortgagees and the landlord, defendant No. 2, therefore did not take the holding subject to plaintiff's mortgage.
3. As regards the question of transferability he rightly held that it does not arise in his view of the case though he decided in fact against the custom as regards the jote in suit.
4. It is urged before us in second appeal that the words of Section 22 of the Bengal Tenancy Act 'by transfer, succession or otherwise,' embrace all cases of devolution or vesting from whatever cause arising or that in any case they embrace the case of vesting by death of the tenant without heirs under Section 26. But in construing words like or otherwise 'it has always been held that the matters reserved must be ejusdem generis' and this is very clearly brought out in the case Badan Chandra Das v. Rajeswari Debya 2 C.L.J. 570, to which one of us was a party, in the case of surrenders. The proposition stated in the placitum to that case' the terms, transfer, succession 'or otherwise' in Section 22, Bengal Tenancy Act, do not mean and include a surrender; the expression or otherwise' as used in the section means 'or in a similar way '' does not, it is true, find a place in these exact words in the judgment, but the latter part of the proposition is treated as settled and requiring no exposition and it is then said that had there been any surrender of an occupancy holding the landlord could not be said to have acquired the land by transfer, succession or otherwise within the meaning of the section.
5. This way of stating the proposition was enough for the purposes of that case, but we wish to fully adopt the rule as it is laid down in the head-note of the case as we are of opinion that this is a correct statement of the law.
6. It is clear from the special provision in Section 86, Clause (b) of the Bengal Tenancy Act that Section 22 does not govern a surrender, since special provision had to be made in that clause for the saving of an incumbrance secured by a registered instrument and no other rights of third parties are recognised. It is also clear that the class of cases inferred to in Section 22 where the interests of the landlord and the tenant in the holding become united by transfer, succession or other devolution in a representative capacity is wholly distinct from the class of cases where the landlord reenters a vacant holding by virtue of his original proprietary right and not as the representative of any one.
7. It is ingeniously argued that the landlord in this case is a reversioner and as such has a representative capacity but this is a mere playing with words as the sense in which the land reverts to the landlord when vacant has nothing to do with the legal sense of the word reversioner in its limited and representative meaning.
8. It is finally argued that in the case of escheat rights of maintenance have been held to survive and that the mortgage lien of the plaintiff in this case is an analogous right.
9. Obviously there is no substance in this contention. Rights of maintenance are saved by the personal law of the person having them and the superior landlord under whatever title he takes cannot avoid them. But here it is sought to limit the proprietary right of the zemindar by a statutory disability imposed by Section 22 of the Bengal Tenancy Act. If that limitation does not apply to a case under Section 26 as we hold that it does not it cannot be imported by any analogy or fanciful interpretation.
10. We are therefore, of opinion that the defendant No. 2 in this case is in possession of the land solely in virtue of his original proprietary right, that he does not represent the mortgagor tenant in any way and that there is not and never was any privity of contract between him and the mortgagee. When the tenant died without heirs all his interest in the holding ceased and became extent and with it the security of the mortgage held by the plaintiff.
11. For these reasons we dismiss this appeal with costs.