1. This is an appeal by the plaintiffs from the decision and decree passed by the Subordinate Judge of Birbhum, reversing those of the Munsif of Birbhum, in a suit for recovery of possession of the lands mentioned in the plaint, on declaration of the plaintiffs' title to the same. The lands in suit which appertain to an occupancy holding were owned by one Lal Behari Dawn, who died leaving the plaintiffs as his heirs him surviving; defendant 1 is in possession of the lands as a legatee under the will of Lal Behari Dawn. It was alleged in the plaint that there was no custom in the locality under which an occupancy holding could be transferred or bequeathed, and that defendant 1 could not therefore have any title to the lands in suit as a legatee under the will of Lal Behari Dawn, which could under the law prevail against the plaintiffs. The suit was contested, and the plaintiffs' claim in suit was resisted by defendant 1. The defendants' case so far as it is relevant for the purpose of this appeal was that occupancy holdings could be bequeathed in the locality in question.
2. The primary Court held, that the lands in suit, the occupancy holding, could not be bequeathed, as there was no such custom in the locality, and that the plaintiffs were therefore entitled to succeed in the suit, defendant 1 having derived no title under the will of Behari Lal Dawn. -The learned Subordinate Judge, in the Court of appeal below, has however reversed the decision of the Court of first instance, and has held that the right of occupancy being a special kind of property-as no transfer or bequest is valid as against the landlord, unless there be custom or his consent), it could be bequeathed. The legatee, defendant 1, therefore got a good title as against the heirs, the plaintiffs in the suit. The suit was accordingly dismissed. The ground urged in support of the appeal to this Court, directed against the decision of the Subordinate Judge, dismissing the plaintiffs' suit, is that inasmuch as there was no custom by which occupancy holdings could be disposed of by will, the Court of appeal has erred in law, in dismissing the plaintiffs' suit.
3. The case has been argued before us, with great thoroughness and ability, by Dr. Bijan Kumar Mukerji on behalf of the appellants, and by Mr. Cham Chandra Biswas, on the side of the respondent, and we have given our best consideration to the questions arising for consideration, regard being had to a divergence of opinion, so far as the decisions in reported cases of this Court are concerned, on the point whether an occupancy raiyat had, before the Bengal Tenancy (Amendment) Act, 1928 came into operation, the right to make a valid testamentary disposition of his non-transferable holding.
4. The question was considered, in the year 1908, by Lal Mohan Doss, J. in the case of Hari Das Bairagi v. Udoy Chandra Das  12 C.W.N. 1086. The learned Judge discussed the position as to whether the heir of an occupancy raiyat whose holding was not transferable by local custom or usage was bound by a bequest of the holding, made by the latter in favour of a stranger; and came to the conclusion, that the transfer of an occupancy holding was not a void transaction, that it was binding between the parties, namely the transferor and the transferee, and all persons claiming, through them; that the transfer was voidable only at the option of the landlord. According to the learned Judge, if such was the character of the transaction it seamed to follow that the heir of an occupancy raiyat ought to be held bound by a transfer of the holding' made by a will. If the heir was bound by a transfer for a valuable consideration or by a gift, there did not seem, according to the learned Judge, to be any reason why he ought not to be held bound by a transfer made by a will. It is therefore necessary to examine, under general principles and under the general law, apart from the provisions contained in the Bengal Tenancy Act, as they stood before the amendments introduced in 1928, and regard being had to the later decisions in this Court, whether the proposition laid down in Hari Das Bairagi's case is sound or not It has been strenuously argued before us that the law, on the point as laid down in the case of Amulya Ratan Sircar v. Tarini Nath Dey  42 Cal. 254 should be accepted as good law, and binding on this Court. In that case it was held that in the absence of local usage a non-transferable occupancy holding could not be the subject of a valid testamentary disposition. It would appear that the basis of the decision was that the rights could not be conferred by more implication from language used in a statute; there must be a clear and unequivocal enactment conferring a right, and it would appear further from the judgment in that case that; it was hold by the learned Judges that in the case of a testamentary devise of a non-transferable occupancy holding the heir-at-law was not debarred by the doctrine of estoppel from questioning its validity. It was on this last ground that; the view taken in Hari Das Bairagi's case was expressly dissented from. The criticism levelled against the decision in the latter case, and the reason for dissenting from the same, is far from convincing. If the right of an occupancy raiyat in his holding was property, the right to the soil having always been recognized, it could be the subject of disposition by will under the general law, and no question of conferment of a right by implication, and no question of application of the doctrine of estoppel could arise for consideration. The decision in Amulya Ratan Sircar's case was considered soon after it was given, by a Division Bench of this Court, in the case of Kunja Lal Roy v. Umes Chandra Boy  27 I.C. 352 in which one of the learned Judges deciding that case, Fletcher, J., quoted the provisions contained in Section 26, Jen. Ten. Act, and it was said that the section standing alone suggested that the holder of a right of occupancy would have the right to bequeath the same by his will Reference was made by the learned Judge to Section 46, Succession Act of 1865, incorported in the Hindu Wills Act, providing that every person of sound mind and not a minor may dispose of his property by will. The learned Judge expressed the opinion that Section 26, Ben. Ten. Act, must be taken to contemplate cases of a raiyat dying 'testate', in respect of a right of occupancy. The learned Judges deciding Kunja Lal Roy's case however felt bound by the decision of this Court in Amulya Ratan Sircar's case, as it was not affected by the decision of the Full Bench of this Court in the case of Dayamoyi v. Ananda Mohan Boy  42 Cal. 172, and accordingly held that the case befora them was concluded by the authority of the decision in Amulya Ratan Sircar's case.
5. That the Full Bench decision in Dayamoyi's case did not affect the decision of the question as to the right of an occupancy raiyat to dispose of his holding by a will, was also mentioned in the decision of this Court, in the case of Umesh, Chandra Dittta v. Joynath Das  43 I.C. 779, where the learned Judges, held upon the authorities binding on them, that the testamentary disposition of a part of a non-transferable occupancy holding, like that of the whole holding, was invalid. There is no doubt that the decision of the Full Bench of this Court in Dayamoyi's case did not touch the questions that arose for consideration, in any of the later cases, to which reference has been made above, and the question that has to be decided in the present case, the vital point involved in the question being whether a right of occupancy is merely a personal right or personal privilege, or immovable property, which could be disposed of by will, as Section 26, Ben. Ten. Act, seemed clearly to suggest. This point was discussed in this Court before a Special Bench in the case of Chandra Binode Kundu v. Ala Bux Dewan A.I.R. 1921 Cal. 15. After an exhaustive review of all the relevant provisions contained in the Bengal Tenancy Act, and those contained in the earlier enactments on the subject of landlord and tenant, applicable to Bengal, the seven learned Judges who constituted the Bench expressed their unanimous opinion, that whatever might have been the law earlier, the occupancy raiyat enjoyed under the Bengal Tenancy Act, substantial rights in the land, and that his interest could not appropriately be described, as a merely personal right or personal privilege. With reference to the provisions contained in Section 26, Ben. Ten. Act, the learned Judges also concurrently held that the right of occupancy was for the purpose of descent placed on the same footing as 'other immovable property,' which was hardly consistent with the theory that the right of occupancy was a merely personal right. The decision of the Special Bench in Chandra Binode Kundu's case came up for consideration of this Court in the case of Daksha Bala Dasi v. Raja Mondal : AIR1929Cal127 in connexion with the question that is now before us; and it was held that a raiyat having a non-transferable occupancy holding had a right to make a valid testamentary disposition, just in the same way as he has the right to transfer it, subject to the limitations contained in the Bengal Tenancy Act. The learned Judges indicated in their judgment the effect of the decision of the Special Bench on the decision of this Court in Amulya Ratan Sircar's case. It may be observed that the view taken by this Court in Daksha Bala Dasi's case : AIR1929Cal127 is in consonance with the view expressed in Hari Das Bairagi's case to which reference has been made already, which is the earliest decision, so far as reported cases go, of this Court on the question under consideration. It would also appear that the decision in Daksha Bala Dasi's case : AIR1929Cal127 is in agreement with the trend of the opinion indicated by Fletcher, J., in Kunja Lal Roy's case, mentioned above.
6. In the present state of the authorities in this Court, regard being had to the decision of the Special Bench in Chandra Binode Kundus case the law as laid down in Amulya Ratan Sircar's case could no longer be accepted as sound; nor could the decision of the learned Judges in that case, be considered to be an authority binding on this Court, as it was when Kunja Lal Roy's case and Umes Chandra Dutta's case, were decided. The position clearly indicated in Hari Das Bairagi's case, so far as the question involved in the case before us is concerned, is the correct position in law relating to the right of a raiyat to make a valid testamentary disposition of a non- transferable 'holding. In the light and on the basis of the decision of the Special Bench of this Court, in Chandra Binode Kundu's case, (6) the correct legal position, in this behalf, as indicated in Hari Das Bairagi's case, could be stated in this way: The right of a raiyat having a non-transferable holding was immovable property not a mere personal right or personal privilege; and as such' the right could be disposed of by will The heir of an occupancy raiyat was bound by a transfer of the holding made by a will, and such transfer was voidable only at the option of the landlord.
7. In the view we have taken of the law applicable to the case before us, the questions raised in this appeal must be decided against the appellants. The appeal must accordingly be dismissed and the plaintiff's suit dismissed with costs in all the Courts.
M.C. Ghose, J.
8. I agree.