1. This appeal has arisen out of a suit for recovery of possession after declaration of plaintiffs' title to the lands in suit. The lands originally belonged to Amarchand Mandal, who died leaving a widow and two daughters. After the death of the widow and the two daughters, the' plaintiffs and the father of the pro forma defendants 30' and 33 became the reversionary heirs of Amarchand. Defendant 1 is Amarchand' sister's son. Defendant 2 is the husband of the daughter of Amarchand. Defendant 4 was substituted in place of the original defendant 3, who was the husband of the daughter's daughter of Amarchand. After the death of the widow of Amarchand, defendant 1 applied for probate of a will left by Amarchand, The plaintiffs entered a caveat and subsequently a compromise was entered into between the plaintiffs and defendant 1,. by which it was agreed that each party would take a moiety of the estate. It is alleged that defendant 1 did not comply with the terms of the compromise and kept the plaintiffs out of possession of the whole of the properties and that in subsequent litigations he renounced his rights based on the compromise. It is further alleged that the properties in suit, being non-transferable occupancy holdings, could not be validly devised by Amarchand. The main contention of the defendants is that the properties insult are mukarrari jotes and as such devisable. Both the Courts below decided that the occupancy right of Amarchand was not devisable and the suit was accordingly decreed against all the defendants except No. 9, against whom there was no causa of action. The defendants have appealed to this Court.
2. The only point raised in this appeal is whether an occupancy right is devisable-by a will or not. It is contended on behalf of the appellants, following the decisions in Dakshabala Dasi v. Raja Mandal : AIR1929Cal127 and Dhanapati Daw v. Ballav Daw : AIR1931Cal244 , that an occupancy right is devisable by will and therefore the plaintiffs are not entitled to a decree.
3. On the other hand, the respondents rely upon the decisions in Amulya Baian Sircar v. Tarini Nath Dey AIR 1915 Cal 43; Kunja Lal Roy v. Umesh Chandra Roy AIR 1915 Cal 320, Umesh Chandra Dutta v. Jop Nath Das AIR 1918 Cal 312 and Mohesh Chandra v. Mathura Chandra : AIR1928Cal360 . This question has been amply discussed in the two recent authorities, which were relied upon by the appellants. It is pointed out that the authority, on which the respondents mainly rely, namely, the decision in Amulya Ratari Sircar AIR 1915 Cal 43, proceeded on the ground that an occupancy right being a personal right, there was a difference between bequest and other transfers, inasmuch as the principle of estoppel or acquiescence could not be made applicable to a case of devise. But in the Special Bench case of Chandra, Binode Kundu v. Ala Bux Dewan AIR 1921 Cal 15, it was decided that an occupancy right is a right of property in the land. This can now be regarded as settled law, so that it is no longer necessary to refer to the principle of estoppel or acquiescence, where it is question of the transfer of an occupancy right. The decisions relied upon by the respondents are all previous to the decision in the Special Bench case with the exception of the decision in the case of Mohesh Chandra Deb Nath : AIR1928Cal360 . In that case the question wa9 not very fully discussed. The learned Judges merely say:
There is no provision in the Bengal Tenancy Act on the question whether a raiyat having a non-transferable right of occupancy can bequeath that right. Section 26 of that Act alludes to what happens when the raiyat dies intestate, but that is all. Consequently, the matter is one which has to bo determined according to custom and usage.
4. On the other hand, we must hold, since the decision in the Special Bench case, that an occupancy right is a right of property in the land, and is subject to bequest like any other right in immovable property. From the mere fact that Sections 11 and 18 provides for transfers of tenures and rights of mukarrari raiyats by bequest and succession and there is no similar provision in the case of occupancy rights, it can not necessarily be inferred that the Tenancy Act prohibits the ordinary right of bequest in the case of immovable property as applied to occupancy rights. The learned District Judge is not right in saying that the effect of Sections 11 and 18 was not considered in the case of Dakshabala Dasi : AIR1929Cal127 . Further, the learned Judge refers to Section 178 of the Act, as showing that the legislature looked upon transfer and bequest as different acts carrying, different results. But Section 178, 01. (3)(d), merely says that nothing in any contract between a landlord and a tenant after the passing of this Act shall take away the right of an occupancy raiyat to transfer of bequeath in accordance with local custom and usage. It cannot be inferred from this that, apart from local custom, a raiyat has no right to bequeath his property just as a raiyat may have a right to transfer his property apart from any local custom. The law on the subject has been fully discussed in the two authorities relied upon by the appellants and there is no need to discuss the previous rulings in detail.
5. The lower appellate Court relies upon the principle expressio unious'est exclusion alterius but the Bengal Tenancy Act is not exhaustive. Once it is held that the right of occupancy is a right of property in the land, the ordinary law as to powers of bequest becomes applicable. The plaintiffs' suit must therefore fail, as the defendants are entitled to the land by bequest. The result is that the decree of the Court below is set aside and the plaintiffs' suit dismissed with costs throughout.
6. I agree.