1. This is an appeal by the defendants in a suit for confirmation of possession of land on declaration of title, or, in the alternative, for assessment of fair and equitable rent thereon. The subject-matter of the litigation is a large tract of land in Mauza Brahmandia in Parganah Sildah. The plaintiffs claim to have acquired proprietary interest as well as several subordinate rights in the village, and their case is that the defendants, though they are their tenants only in respect of the lands comprised in Schedule 'ka' to the plaint, have set up an unfounded claim to the other lands of the village, on the basis of a lease granted in their favour by one Natabar Datta on the 27th July 1901. The Subordinate Judge has held that this lease was fraudulent, illegal and invalid, and, that, independently thereof, the defendants had no title to the lands of the village other than those included in Schedule 'ka'. The defendants have appealed to this Court against the decree of the Subordinate Judge.
2. The suit was tried in the Court below along with 395 other suits which related to various lands situated in one or other of 165 Mouzas included in Parganah Sildah. The evidence, oral and documentary, is extremely voluminous, and the paper-book which has been placed before us, has been prepared apparently on the assumption that an appeal had been preferred to this Court in each of the 398 suits. As a matter of fact, the appeal before us relates to only one of these suits, and we are informed that the appeals in the other suits are pending before the District Judge, as the value of the subject-matter in each of those cases does not exceed Rs. 5,000. The evidence relevant for the determination of the matters substantially in controversy in this appeal is comprised in a relatively small compass; and the questions at issue are by no means complex or difficult of solution.
3. The defendants set up a two-fold title to the lands in dispute, namely, first, a title under the lease granted by Natabar Datta on the 27th July 1901, and secondly, a pre-existing tenancy right, called Mandali right, independent of the lease. It will be convenient to investigate separately the validity of the two titles just mentioned.
4. As regards the title on the basis of the lease of 1901, the material facts are not disputed. In 1901, the sons of one Ganga Ram Dutt were Dar putnidars of the disputed lands under a lease granted to them on the 6th September 1886 by Chaudhuri Janmejay Mullick, who was himself Putnidar of a half share. Natabar Dutt, one of the sons of Ganga Ram Dutt, had been appointed common manager of the estate of the Dutts under the provisions of the Bengal Tenancy Act, On the 27th July 1901, Natabar Dutt, as common manager, granted to the father of the defendants a permanent under-tenure, which, if still operative in law, entitles them to possession of the lands in suit. The Dutts defaulted to pay rent regularly to the Mullicks, with the result that on the 21st September 1804, the latter, in execution of a decree for arrears of rent due from the former under the Dar-putni, purchased the Dar-putni interest, and the sale was confirmed in due course on the 20th March 1905. The plaintiffs claim under a derivative title from the Mullicks, and their contention is that the effect of the rent sale was to extinguish whatever interest the defendants might have acquired under the lease from the Dutts. To test the validity of this contention, we have to examine the terms of the Dar-putni lease granted by the Mullicks to the Dutts on the 6th September 1886. The thirteenth paragraph of the Dar-putni Kabuliyat executed by the Dutts in favour of the Mullicks was in these terms:
Like yourself, we shall have full rights to grant leases or make settlements of lands in the Muffassil; but if these Dar-putni Mahals be sold at auction for arrears of Malikana (rent) due to you, then all agreements entered into by us shall be extinct (stand annulled).
5. There is really no room for controversy as to the exact meaning of this provision in the lease. The parties clearly intended that the Dar-putnidar should have full rights to grant leases or create incumbrances, subject only to the restriction that if the Dar-putni was sold for arrears of rent, the subordinate titles created by the Dar-putnidar should at the same time come to an end. The defendants have consequently been constrained to argue that the stipulation was void in law, because it contravened the provisions of Section 159 of the Bengal Tenancy Act and Section 10 of the Transfer of Property Act. In our opinion, there is no force in this contention.
6. Section 159 of the Bengal Tenancy Act, no doubt, provides that the purchaser of a tenure, sold in execution of a decree for arrears due in respect thereof, shall take with power to annul incumbrances, and that the power to annul is exercisable only in the manner provided in Section 167. But Section 179, which is applicable to the case before us, provides that nothing in the Bengal Tenancy Act shall be deemed to prevent a holder of a permanent tenure in a permanently settled area from granting a permanent Mokurrari lease on any terms agreed on between him and his tenant. It is clear that Section 179 controls Clause (b) of the proviso to Section 159. It was, consequently, competent to the Mullicks and Dutts to enter into a contract of permanent tenancy, subject to the restriction actually imposed, namely, that subordinate interests carved out by the Dutts would be extinguished on a sale of their under-tenure for arrears of rent. This was one of the incidents of the under-tenure created in favour of the Dutts by the Mullicks, and it ran with the laud so as to be operative, not merely between the grantors and grantees, but also between their representatives-in-interest and the holders of derivative titles from them. Section 159 is consequently of no assistance to the defendants.
7. Section 10 of the Transfer of Property Act is equally of no avail. That section provides that where property is transferred, subject to a condition or limitation absolutely restraining the transferee or any person claiming under him from parting with or disposing of his interest in the property, the condition or limitation is void, except in the case of a lease where the condition is for the benefit of the lessor or those claiming under him. In the first place, there was here no absolute restraint on alienation by the Dutts; the only restriction imposed was that the holder of a derivative title from them would be in peril in the event of a sale of the under-tenure for arrears of rent. In the second place, the transaction was a lease and the condition was obviously for the benefit of the lessor. The under-tenure was the security for the rent charged thereon, and the grantors were competent to impose a restriction of this character to ensure that the property might fetch full value in the event of a sale for arrears of rent. In our opinion, there is no possible escape from the position that the effect of the sale held at the instance of the Mullicks on the 21st September 1904 for realisation of arrears of rent was to extinguish the subordinate interest created by the Dutts in favour of the predecessor of the defendants.
8. The next question which requires consideration is, whether the plaintiffs are competent to contend that the legal effect of the rent sale was to sweep out the subordinate interest created by the Dutts in favour of the defendants. The possession of the plaintiffs has been assailed by the defendants on the ground that the special title acquired by the Mullicks at the sale for arrears of rent has not legally vested in them. In our opinion, there is no foundation for this contention. On the 17th March 1906 the plaintiffs obtained a Dar-putni lease from the Mullicks in respect of a half share of Parganah Sildah inclusive of the lands in suit. There can be no question that if this lease is valid and operative, the plaintiffs can successfully contend, precisely to the same extent and in the same manner as their grantors, the Mullicks, that the effect of the rent sale was to terminate the interest created in favour of the defendants by the Dutts on the 27th July 1901. The defendants have, however, argued that the Dar-putni granted to the plaintiffs by the Mullicks on the 17th March 1906 was invalid and inoperative, inasmuch as it was granted by a Receiver to the estate of the Mullicks, who, it is alleged, had been appointed by the Subordinate Judge in excess of the authority conferred on him by law. It appears that in 1890 a suit was instituted for the administration of the estate of the Mullicks. On the 5th September 1890 the Subordinate Judge made the usual administration decree and appointed a Receiver to that estate. The decree was in conformity with the form prescribed in the Civil Procedure Code of 1882 (Form No. 130). The Receiver first appointed was subsequently replaced by another gentleman, who, in his turn, was replaced by a third. The contention of the defendants is that the gentleman who was Receiver in 1906 was appointed as such without the sanction of the District Judge, and, that consequently his appointment was ultra vires, as under the Civil Procedure Code of 1882 the appointment of a Receiver under Section 503 could have been made only with the sanction of the District Judge under Section 505. There is no substance in this argument. The Receiver was appointed, not under Section 503 of the Code, but by the decree in the administration suit. The administration suit had been instituted for the purpose of satisfaction of the debts due to the creditors of the Mullicks. It was thus incumbent upon the Court to take steps to raise money by sale or lease or any other suitable mode of alienation of the properties comprised in the estate; to effectuate the object in view, the Court, by its decree, appointed a Receiver. The parties to the litigation acquiesced in this decree, and its propriety is unquestionable. The terms of the Dar-putni lease were settled by the Court, the premium fixed was paid into Court and applied in discharge of the debts due from the estate; and the Subordinate Judge himself attested the document granted to the plaintiffs. In our opinion, the Dar-putni is valid and unassailable, and the significant fact remains unchallenged that the Mullicks have not only never questioned its propriety, but have actually affirmed it, as is clear from the terms of the conveyance executed by them in favour of the plaintiffs on the 11th January 1908. We hold accordingly that, at the date of the institution of this suit, the lease granted by the Dutts in favour of the defendants on the 27th July 1901 was not in operation and did not furnish an answer to the claim.
9. As regards the question, whether the defendants have a tenancy right in respect of the disputed lands, independently of the lease granted by the Dutts on the 27th July 1901, it is important to observe that there is no documentary evidence to support the contention of the defendants. There is no initial grant, no confirmatory lease, indeed, no documents whatever which recite even the existence of such a lease. The defendants urge, however, that the rent receipts describe the lease-hold property as Mauza Brahmandia, which indicates that they were tenants of the entire village, although they used to pay rent in proportion to the cultivated lands alone, exclusive of the waste and forest. The rent receipts, in our opinion, do not furnish a reliable guide in this matter, and they do not prove that the defendants had a tenancy right over all the lands in the village. There is also no foundation for the assertion that because the defendants claim a Mandali right, such right extends over the whole village; in fact the extent of the right is in controversy in each of the 396 suits, and it would not be a legitimate method of reasoning to hold, in an individual case, that the extent of the Mandali right was as alleged by the defendants, merely because a similar claim had been put forward and was still the subject of controversy in the other pending litigations. In our opinion, the answer to the question, whether the defendants have their alleged tenancy right in the entire village must depend upon the evidence of possession adduced in the case. Tested from this point of view, their case has completely broken down. There are really only three witnesses on the side of the defendants who assert their exclusive possession of the disputed lands, namely, Madhu Sudan Mahato, Krishna Mahato and Gangadhar Mahato. There is, on the other hand, reliable evidence to show that the plaintiffs have been in possession of considerable tracts of land within the disputed area, where indigo has been grown by them or by their predecessors. Indeed, the defendant Madhu Sudan Mahato was obliged to concede this in cross-examination. This is plain, moreover, from the map prepared by the Commissioner on the 12th October 1909 and from the report submitted by him. Besides this, there is evidence to show that the Watsons, the predecessors of the plaintiffs, successfully sued the Dutts in respect of indigo grown on large tracts of land in Brahmandia within the disputed area. The evidence makes it clear that the defendants have not been in exclusive occupation of the disputed lands as comprised within their alleged tenancy of the lands of the entire village.
10. The result is that the decree of the Subordinate Judge must be affirmed and this appeal dismissed with costs. Each party, however, will pay his own costs of the preparation of the paper-book.