1. The defendants in this suit are the heirs of an under-raiyat to whom the plaintiffs, as raiyats of the holding in which the land in suit is situated, granted by a written and registered instrument a lease for a term of nine years. The under-raiyat died some years ago and it has been found that the defendants have since been in possession of the land leased to them and have been paying rent therefor to the plaintiffs. The term of nine years has now expired and the suit was brought by the plaintiffs for the purpose of ejecting the defendants from the land comprised in the sublease. In the first Court the plaintiffs obtained a decree, that decree was reversed by the learned Subordinate Judge in the Court of Appeal below and the suit was dismissed. The learned Subordinate Judge held that the subtenancy granted to the original under-raiyat came to an end with his death, that the payment by and acceptance of rent from his heirs, the defendants, created a new tenancy as between them and the plaintiffs and that the defendants cannot be ejected unless and until notice to quit has been served upon them in accordance with Clause (b) of Section 49 of the Bengal Tenancy Act.
2. The question before us in this second appeal, which is preferred by the plaintiffs, is whether the learned Subordinate Judge was right in the view which he took of the case and of the respective rights of the parties. For the appellants it has been urged that a raiyat is empowered by Section 85 of the Bengal Tenancy Act, if not expressly at any rate by necessary implication, to grant an under raiyat by means of a bitten and registered instrument a sub-lease for a term not exceeding nine years. It is further argued that there is nothing in the Act which has the effect of cutting down a sub-lease for such a term to a sub-lease for the term of the under-raiyat's life if he should die before the expiry of the nine years. This reasoning is in some respects analogous to the reasoning adopted by the Full Bench in deciding the case of the Midnapore Zemindari Co. Ld. v. Hrishikesh Ghosh 25 Ind. Cas. 564 : C. 1108 : 18 C.W.N. 828 : 19 C.L.J. 505 where the question was whether the holding of a non-occupancy raiyat was or was not heritable. It may fairly be said that there is nothing in the Bengal Tenancy Act which expressly takes away the right of the heirs of an under-raiyat to succeed to the remainder of a term granted by the raiyat within the powers conferred on the latter by Section 85 and apart from custom or express enactment, there is no doubt that a lease for a term devolves upon the heirs of the original lessee. On behalf of the defendants, the respondents before us, our attention has been directed to the Full Bench case of Arip Mandal v. Ram Ratan Mandal 31 C. 757 : 8 C.W.N. 979 and also to the decision of Mr. Justice Mookerjee in Jamini Sundari Dasi V. Rajendra Nath Chukrabutty 11 C.W.N. 519. Those cases, however, deal with the position which arises upon the death of an under-raiyat who holds under an annual holding or a tenancy from year to year. In such a case, no doubt the only right which the Full Bench recognises as belonging to the heirs of the under-raiyat upon his death is a right to remain in possession of the land until the end of the then agricultural year for the purpose, if the land has been sub-let, of realising the rent which might accrue during the year or, if not sub-let, for the purpose of tending and gathering in the crops. The decision of the Full Bench seems, therefore, to deny to the heirs of the under-raiyat under an annual holding any right of succession properly so called to the tenancy and so the decision was understood by Mr. Justice Mookerjee, who observes: It follows, therefore, that the Full Bench held that the heirs of an under-raiyat under an annual holding do not acquire any interest in his holding by inheritance.' That being so, it is contended for the defendants that there is no real difference between the case of a tenancy for a term of years and the case of a tenancy from year to year and that if a tenancy of the latter sort is not heritable, a tenancy for a term should also be held to be not heritable. In my opinion, weighing the arguments of both sides the balance inclines in favour of the view propounded on behalf of the plaintiffs. It seems to me that inasmuch as under the Act a raiyat is clearly at liberty to grant a sub-lease for a term not exceeding nine years, the lease so granted, in the absence of anything to the contrary in the Act, carries with it the ordinary incidents of a lease for a term of years. One of the incidents of such a lease is that if the lessee dies before the end of the term his heirs are entitled to succeed him in the tenancy. I do not say that there is no force in the arguments pressed upon us on behalf of the defendants but as I have said, on the whole it seems to me that the view suggested on the other side should prevail.
3. I am, therefore, of opinion that this appeal should be allowed, the decree of the Subordinate Judge should be set aside and the decree of the Munsif should be restored.
4. The plaintiffs will be entitled to their costs throughout.
5. I agree.