1. The facts which are important for the decision of this appeal are as follows: The holdings in suit belonged in 1310 to Raja Sundari and Sasi Mohan Saha. Sasi Mohan Saha with certain other persons purported to transfer them in that year to the Vitarbandh Zemindars to meet a claim made on them as sureties for one Behari Lal Mukhtar. It is found by both Courts that this was not a surrender but a transfer. Raja Sundari sold her interest to certain persons who sold it to the plaintiffs in 1312. The plaintiffs, however, were unable to get undisputed possession and hence have brought this suit. The defendant claims the holding as a tenant with whom the Vitarbandh Zemindars settled the lands after they had obtained the transfer from Sasi Mohan Saha and others.
2. The Munsif gave the plaintiff a decree for the 3rd and 4th holdings but not for the 1st and 2nd. The learned District Judge dismissed the suit with respect to all the holdings. The plaintiff appeals with respect to all. The only point for decision is whether the question of transferability arises.
3. As regards the 1st and 2nd holdings I think that plaintiffs have no case. The holdings were not transferable without the landlord's consent and the defendant is a tenant settled in the land by the landlord and undoubtedly entitled to take this plea.
4. The case is different with regard to the 3rd and 4th jotes. Here the Vitarbandh Zemindars are merely co-sharers, and it certainly appears to me that they cannot be regarded as 'the landlord' of the holding. If A.B. and C. are jointly interested in the proprietary interest of any given land then it cannot properly be said, in my opinion, that either A. or B. or C. is by himself 'the landlord'. Consequently, in this case the holdings were never transferred to the landlord by Sasi Mohan Saha and others nor settled by 'the landlord' with the defendant. Therefore, if the holdings are not transferable without the landlord's consent the defendant is in no better position than the plaintiff. Accordingly, the learned Pleader for the appellant contends that the question of transferability does not arise, relying on Basarat Mandal v. Sabulla Mandal 2 C.W.N. colxxix; Ambica Nath Acharjee v. Aditya Nath Moitra 6 C.W.N. 624; Ayen-ud-din Nasya v. Srish Chandra Banerji 11 C.W.N. 76; Samir-ud-din Munshi v. Benga Sheikh 1 Ind. Cas. 114 : 13 C.W.N. 630; Haro Chandra Podder v. Umesh Chandra Bhattacharjee 5 Ind. Cas. 39 : 11 C.L.J. 20 : 14 C.W.N. 71. It is argued by the learned Pleader for the respondent that these cases must rest on the doctrine of estoppel. But a perusal of them does not give me that impression. So far as I can understand them, the application of that doctrine was not considered at all. The fact seems to me to be that there has always been uncertainty, and some divergence of opinion, as to whether the sale of a holding without the landlord's consent was absolutely void, or only void as against the landlord, and many Judges have thought that the latter view was correct, and that when neither the tenant nor the landlord was concerned in the case, nor any body deriving title from the landlord, such as a tenant settled by him on the land, the question of transferability did not arise. This seems to be the very old plea' which Mr. Justice Rampini rejected in Peary Mohan Mukherjee v. Jote Kumar Mukherjee 11 C.W.N. 83 but that the very old plea' continued to have some vitality is clear from the case of Hari Das Bairagi v. Udoy Chandra Das Bairagi 12 C.W.N. 1086 : 8 C.L.J. 261. Indeed, if the opposite view is correct and such sales are absolutely void in law, I do not see clearly how the decisions I have quoted can be justified by the doctrine of estoppel.
5. It is not for me, sitting alone, to criticise these decisions. The view on which, in my opinion, they are based may be open to question, as Mr. Justice Sharf-ud-din and I pointed out in Samir-ud-din Munshi v. Benga Sheikh 1 Ind. Cas. 114 : 13 C.W.N. 630. But until they are overruled by a Full Bench I am bound to follow them and must hold in the present case, which is between two purchasers without the landlord's consent, that the question of transferability does not arise.
6. Reliance has been placed by the learned Pleader for the respondent on the case of Agarjan Bibee v. Panaullah 6 Ind. Cas. 452 : 14 C.W.N. 779 : 12 C.L.J. 169 : 37 C. 687. But in that case the question of transferability was raised by co-sharer tenants, who were certainly fully entitled to raise it. Each one of several tenants jointly interested in the holding is entitled to object to the intrusion of a stranger. And the decision certainly did not overrule the decisions I have quoted. Reference has also been made to Section 6 of the Transfer of Property Act but that section merely enacts that it does not make an untransferable holding transferable and has no bearing on the present case. Finally, the decision of the District Judge is supported on the ground of limitation and reference is made to Parameswar Nomosudra v. Kali Mohan Nomosudra 28 C. 127. But this contention is sufficiently awarded by a reference to Brojo Kishore Mahapatra v. Saraswati Dassi 6 C.W.N. 333.
7. Accordingly, I hold that the question of transferability does not arise in the case of the 3rd and 4th jotes. The result will be that the decision of the District Judge will be set aside and that of the Munsif restored. As the plaintiff's case fails with respect to the 1st and 2nd jotes I make no order as to costs.