1. Defendant No. 1 and the predecessor in interest of defendants Nos. 6 and 7 owned an under-raiyati holding in equal shares. Defendant No. 1 granted a permanent sub-lease to the plaintiffs in respect of his half share on the 24th March 1908, and defendant No. 6 granted a permanent sublease of his other half, to the same party on the 13th of August 1908. The plaintiffs had, therefore, a permanent sub-lease of the entire under-raiyalt holding under the said lessors. The plaintiffs paid the salami and obtained possession. There was then a dispute and a case under Section 145 of the Criminal Procedure Code was decided in favour of defendant No. 1 and defendant No. 2, in whose favour defendant No. 1 sold his interest in the under-raiyat holding. The plaintiffs, therefore, brought this suit for declaration of title and recovery of possession. The Court of first instance dismissed the suit holding that the permanent sub-leases of the plaintiffs were void under Section 85 of the Bengal Tenancy Act. The lower Appellate Court has set aside the decree of the first Court and given a decree in respect of 9 annas of the property, holding that although the leases were invalid, the plaintiffs could prove their tenancy otherwise and had done so by proving the payment of upland and holding of possession.
2. Defendant No. 1 and his co-sharers were dealt with in the Courts below as occupancy raiyats and the appeal before us was originally argued on the same footing. On looking into the record, however, we found that the interest of defendant No. 1 and his co-sharers was that of under-raiyats and we have had the case re-argued on the basis of the said state of things. The argument based on Section 85 of the Bengal Tenancy Act has no application to a sub-raiyat granting an under-lease and if authority were necessary for that proposition, we may refer to the case of Guru Das Das v. Kuli Das Changa 24 Ind. Cas. 287 : 18 C.W.N. 882. It is contended, however, that there is no provision in the Bengal Tenancy Act which authorises an under-raiyat to create a further under-lease and, therefore, the plaintiffs have acquired no title. It is argued that Section 11 provides for the transfer of permanent tenures find Section 18 for the transfer of raiyat interest at fixed rent: there is no provision for the transfer of uuduv-raiyat interests and it has been held that they are not transferable. See Amirunnissa v. Jinnat Ali 24 Ind. Cas. 287 : 18 C.W.N. 882. A transfer according to the Transfer of Property Act includes a. lease and, therefore, the grant of a sub-lease by an under-raiyat is void. We think that this argument is fallacious; in the first place, because the Transfer of Property Act has no application and in the next place the transfer contemplated in Sections 11 and 18 are transfers out and out and not partial transfers by way of sub-lease. There is no provision in the Bengal Tenancy Act which expressly authorities the grant of sub-leases. Even Section 85 does not authorise a sub-lease, it only limits the period of the grant. There is no provision for the grant of leases by tenure-holders, but such leases are recognised by the Act in the definition of a tenure-holder. In the same way the grants of under-leases of any degree are recognised by the definition of the word 'under-raiyat' as tenants holding immediately or immediately under a raiyat.
3. Then it is contended that when Section 85 of the Bengal Tenancy Act allows the raiyat to grant a sub-lease for nine years only, the under-raiyat cannot be allowed to grant a permanent right. That may be so and the permanency granted may be limited to the existence of the right of the grantor; but there is no provision in the law which prohibits such grants, none that such grants shall not be registered, and the prohibition under Section 85 cannot be expanded by analogy Guru Das Das v. Kali Das Changa 24 Ind. Cas. 287 : 18 C.W.N. 882. The sub-leases granted to the plaintiffs are, therefore, valid documents between the grantors and the grantees, and the defendant No. 1 having granted the lease cannot be allowed to derogate from the same; nor can defendant No. 2, who derives his title from defendant No. 1, do so.
4. In this view of the case we think the plaintiffs are entitled to a decree and we dismiss the appeal and affirm the decree of the lower Appellate Court. The plaintiffs are entitled to costs against defendants Nos. 1 and 2.