1. This appeal arises out of a suit for recovery of bargah produce for the years 1324 to 1327 against the under-raiyat. The plaintiff's allegations are that the jama originally belonged to Alokemani Baishnabi who bequeathed it to the plaintiff's husband Shama Charan by a will of which probate was duly taken The plaintiff as successor of Shama Charan thereupon sued the defendant who is an under raiyat for lent The defendant denied the relation of landlord and tenant on the ground that neither the plaintiff nor her husband was ever in possession of the jarna He also took exception to the quantity and the price of the bargah produce claimed The learned Munsif who tried the suit overruled the defendant's objections except with regard to issue 2 and gave the plaintiff a partial decree. The defendant appealed and the learned Subordinate Judge in deciding the question as to whether the relation of landlord and tenant existed between the parties raised the point as to whether Alokemani as an occupancy raiyat had the right to make a will in favour of Shama Charan Relying upon certain cases which we shall refer to later the Subordinate Judge has held that an occupancy raiyat, as the law stands, is not competent to make a will and, therefore, the plaintiff has no right to the jama The plaintiff has appealed and it is argued on his behalf firstly that the view taken by the lower Court is incorrect and secondly that the point not having been raised in the trial Court an opportunity should have been given to the plaintiff to prove that by local usage and custom an occupancy raiyat has the right to make a will
2. With regard to the question whether an occupancy raiyat has the right to make a testamentary disposition the law seems to be in a fluid state. The point so far as the reports go was first seriously raised and discussed in Haridas v. Udoy Chandra  12 C.W.N. 1086 before Doss, J., sitting singly The learned Judge held that an occupancy raiyat has the right to make a testamentary disposition as much as he has the right to make a gift or a transfer There was a letters patent appeal from that decision, but the point now raised before us was not considered by the Bench hearing the letters patent appeal as the case was disposed of on a different point The question next came up for consideration in Amulya Ratan Sircar v. Tanni Nath De  42 Cal. 254 where it was held that a nontransferable occupancy holding could not be the subject of a valid testamentary disposition. This case was followed without further discussion in Kunja Lal Roy v. Umesh Chandra Roy  18 C.W.N. 1294 in which one of the learned Judges expressed the opinion that the law on the point was admittedly in unsatisfactory condition, but on the authorities as they then stood, an occupancy right was not capable of being made the subject of testamentary disposition. The case of Amulya Batan Sircar v. Tarini Nath De  42 Cal. 254 was again followed in Umesh Chandra Dutta v. Jeynath Das  22 C.W.N. 474. There it was held that the testamentary disposition of a part of a non-transferable holding like that of the whole holding was invalid though at the time the case was decided it was firmly established that a transfer of a portion of a non-transferable occupancy holding was valid even without the consent of the landlord.
3. The basis of all these decision is the ratio decidendi adopted in Amulya Batan Sircar's case and, therefore, we have to examine whether that decision cin be said to be good law at the present day. In Haridas Banerji's case Doss, J. held that gift and testamentary disposition stood on the same footing. In Amulya Batan Sircar's case Mookerjee, J., observes that the Bengal Tenancy Act does not invest a raiyat holding a non-transferable occupancy right with the power to transfer his holding. But such transaction by the raiyat must be held to be operative against him and the persons claiming through him on the application of the principle of estoppel. The principle of estoppel does not apply to the case of a simple gift where there is no consideration and no representation to work estoppel. There can be no estoppel as against the heir-at-law as his right to the properties and the operation of the bequest accrue at the same time, namely, on the death of the testator. On these considerations the learned Judge held in Amulya Batan s case that an occupancy raiyat has no right to make a testamentary disposition. It should be noted that this case was decided shortly before the Pull Bench case of Dayamoyi v. Annada Mohan Roy  42 Cal. 172. In Behari Lal Ghose v. Sindhu Bala Dassi  45 Cal 434 Mookerjee, J. held that Dayamoyi's case-has made such an alteration in the view of the law as to make gift of a non-transferable occupancy holding valid except as against the landlord. But in that case the learned Judge adhered to his view that the case of a gift must be distinguished from that of a testamentary disposition in that in the latter case bequest was revocable up to the last moment of the life of the testator and that the moment the bequest came into operation, if legal and valid, was the moment at which the right of the heir accrued by operation of law. In the Full Bench Case of Dayamoyi which dealt only with the question of transfer the deductions drawn by the learned Judges from the authorities were merely given in the form of propositions of law without discussion of the grounds of the decision. It was there laid down that the transfer of the whole or part is operative against the raiyat where it is voluntary and also where it is involuntary, if the raiyat with knowledge fails to have the sale set aside. As I have said, in the Full Bench case there is no discussion of law ; but it is evident that the rules laid down there were based on the application of the principle of estoppel and the doctrine of derogation of grant by the grantor ; and also in cases of involuntary transfer, on the application of the doctrine of waiver.
4. The Full Bench case came up for consideration by a Special Bench the decision of which must now be taken to have settled all points in controversy with regard to the right of on occupancy raiyat to transfer or make a gift or bequest. Up to the time of the Special Bench case of Chandra Benode Kundu v. Ala Bux A.I.R. 1921 Cal. 15, the question in controversy was as to whether the right of a raiyat in a non-transferable occupancy holding was a personal right or an interest in land. If it was a personal right it could not be transferred under the law and, therefore, there could not be any question of estoppel but strangely enough it is in the cases which held that the right of an occupancy raiyat in his holding was not much distinguishable from a personal right that the doctrine of estoppel was employed. In the Special Bench case the same learned Judge who had decided Amulyaratan's case and who was then the Acting Chief Justice in his elaborate judgment, the result of a scholarly research in the history and nature of the right of a raiyat apparently went back on his view which he had expressed in his previous decisions- On the question as to whether the right of an occupancy raiyat is a personal right or a right in immovable property the learned Acting Chief Justice held that whatever might have been the law earlier the occupancy raiyat enjoys under the Bengal Tenancy Act substantial right in the land and his interest cannot be appropriately described as merely a personal right or personal privilege. With regard to the application of the principles of estoppel and waiver the learned Chief Justice observed:
There ware manifest difficulties in the application of all such doctrines because if the right of occupancy was purely personal right or personal privilege it is not easy to appreciate how it could in fact be made transferable by invoking the aid of one or other of those principles of law.
5. The result of that decision is that the right of an occupancy raiyat in a non-transferable holding is a right in immovable property ; that if it was a personal right the application of the doctrine of estoppel and waiver would be inconsistent with the nature of the right and that if it is an interest in land the applications of those principles would be superfluous. The Special Bench case was considered by a Pull Bench of the Patna High Court in Jugeshar Misra v. Nath Keeri A.I.R. 1972 Pat. 114 in which the learned Chief Justice of the Patna High Court following the Special Bench case of this Court negatived the application of the principles of estoppel and waiver to transfers by an occupancy raiyat and held that the right of an occupancy raiyat in a holding was an interest in land and carried with it all the incidents of an immovable property. The foundation of the decision of Amulya Ratan's case has accordingly, by subsequent decisions, been entirely cut away.
6. Looking at the rules as laid down in the Bengal Tenancy Act it appears that the statute does not pretend to lay down all the incidents of an occupancy right as was pointed out in Kripa Sindhu Mulcherjee v. Annada Sundari Debi  35 Cal. 34 approved by the Special Bench. The preamble of the Act shows that it presumes to amend and consolidate the law relating to landlord and tenant. It was therefore beyond its scope to deal with the law as between the tenant and a third party. The Bengal Tenancy Act does not invest the occupancy raiyat with any particular right as against a third party nor does it take away any right which he may have under the general law. It was at one time argued that an occupancy raiyat has no right of transfer because the Bengal Tenancy Act though itexpressly mentions such right as existing in tenure-holders and raiyats at fixed rates does not refer to such right (right of transfer or testamentary disposition) in occupancy raiyats ; and reliance was also placed on Section 178(3)(d) which prohibits a contract likely to take away the right of the raiyat to transfer or bequeath his holding in accordance with local usage, as showing that the right of transfer or testation does not exist in a raiyat except in accordance with local usage. This argument does not seem to be effective as it can be explained on the general principles of law. As in an ordinary lease there may be enforceable terms relating to restraint against alienation so in the case of an occupancy holding a raiyat may contract with his landlord not to transfer his holding to any one except the landlord. But the law invalidates a contract where the right to transfer or bequeath is acquired by the raiyat in accordance with local custom or usage.
7. The right of a raiyat in his holding has gradually improved according to the decisions of this Court and it must now be taken to be co-extensive with the right to any other immovable property. At one time his interest was supposed to be not heritable, subsequently it was held to be so. It was then again held to be non-transferable. It has subsequently been held that it is transferable except in so far as it is prohibited by the Bengal Tenancy Act namely, that it should not affect the interest of the landlord. Under the Bengal Tenancy Act the right to transfer and the right to bequeath are placed on the same footing as was admitted by Mookerjee, J., in Amulya Ratan's case. If the right of transfer is available to the raiyat by virtue of his interest being an interest in the land there can be no doubt that the right to bequeath must also be held available to him. The right to bequeath is one of the incidents of ownership and it cannot be taken away or restricted except by express enactment. The distinction that was originally made between the right of transfer and the right to bequeath was based on the application of the principle of estoppel. Since that has disappeared there is nothing to support the distinction as has been fairly conceded before us by the learned advocate for the respondent. The absence of mention of a right in any enactment which does not deal completely with the law of immovable property as the Bengal Tenancy Act does not necessarily prove that the right does not exist. In the Special Bench case of Chandra Binode Kundu v. Ala Bux A.I.R. 1922 Pat. 114 at p. 244 the learned Chief Justice remarked:
the fact that Section 26 makes that occupancy-right heritable and does not refer to the question of transferability does not consequently justify the inference that the legislature did not intend to make the occupancy right transferable.
8. We adopt this passage verbatim by only altering the word ' transferable ' into 'bequeathable.' It is worthy of note that on the conclusions arrived at by the learned Chief Justice in the Special Bench case he expressly stated that it was not necessary to examine the cases which dealt with voluntary transfer for value by an occupancy raiyat or with the power to make testamentary devise. There can be no doubt that if the cases with regard to bequest had come under scrutiny the Special Bench would have held that they were wrongly decided.
9. I have given full consideration to the point raised before us and to the authorities bearing on it and have come to the conclusion that as the law now stands a raiyat holding a non-transferable holding has as much right to make a testamentary disposition of the holding as he has to transfer it subject of course to the limitation mentioned in the Bengal Tenancy Act. In this case we should not lose sight of the fact that the objection with regard to the validity of the bequest is not taken by the heir-at-law but by an under-tenant. It is in evidence as remarked by the Munsif that Alakmani left two nephews as heirs one of whom was Shama Charan in whose favour the will was and the other was a witness to the will. In the view that we have taken of the matter it is not necessary to consider the second point raised on behalf of the appellant. The result is that this appeal is allowed that the decree of the lower appellate Court is set aside and that of the Munsif restored with costs in all the Courts.
10. I agree.