1. In this case it appears that in the year 1677, in execution of a money-decree against the owner or recorded tenant of a certain holding, a half share therein was purchased by the plaintiff's mother. The mother's interest has since passed to the plaintiff. It then appears that in 1909 the defendant, landlord sued his registered tenant one Bhubaneswari for rent and in execution of his decree sold the tenure or Bhubaneswari's interest therein. At the sale which was held on the 12th January 1910, the landlord himself became the purchaser. The plaintiff then brought the present suit in order to have this sale set aside or an order at least to have it declared that the sale in no way affected his interest in the tenure or holding.
2. It was found by both the Courts below that the tenure or holding was a permanent tenure, that the land had been let out for homestead purposes and that in fact there were existing thereon very substantial pucca structures and that it was, therefore, transferable. It was also found that the plaintiff had given notice of his purchase to the landlord and that notwithstanding her having full notice of his interest in the holding she brought a suit against his co-sharer in the tenancy and had the tenure or the co-sharer's interest therein put to sale without notice to the plaintiff. On these findings both the Courts below have set aside the decree in the rent suit and also the sale held in execution of that decree.
3. The defendant-landlord now appeals, and the only question that has been argued before us is the question whether this permanent tenancy created before the passing of the Transfer of Property Act is transferable. A number of cases have been pressed upon our attention, for instance, the cases reported as Madhab Chandra Pal v. Rejoy Chand Mahatab 4 C.W.N. 574, Hari Nath Karmakar v. Raj Chandra Karmakar 2 C.W.N. 122 and Ram Charan Naskar v. Hari Charan Guha 7 C.L.J. 107; and on the authority of these cases it is urged that the provisions of the Transfer of Property Act not being applicable by their own force, this holding should be held to be a non-transferable holding. But on examining the cases that have been cited we find that they all refer to tenancies from year to year or at least of a non-permanent nature. No case in which it has been directly held that a permanent tenancy, created before the passing of the Transfer of Property Act and to which if created after the passing of the Transfer of Property Act the provisions of that Act would be applicable, is transferable, has been cited before us. But we may observe that in the cases reported as Madhu Sudan Sen v. Kamini Kanta Sen 32 C. 1023 : 9 C.W.N. 895 and Hiramoti Dassya v. Annoda Prosad Ghosh 7 C.L.J. 553 it is suggested or implied that such a tenancy would be transferable. It would seem also that it is only on the principle that, permanent tenancies are transferable that in deciding the question that often arises where the origin of the tenancy is unknown, namely, the question whether it is permanent or not, so much stress is laid upon a succession of transfers made to the landlord's knowledge and without his consent. We may further in support of this contention refer to the case reported as Beni Madhab Banerjee v. Jai Krishna Mookerjee 7 B.L.R. 152 : 12 W.B. 496 and more particularly to the judgment of the learned Chief Justice in that case.
4. For these reasons we hold that the tenancy now in question is transferable and that the plaintiff's interest in the holding has not been affected by the sale now in question. Strictly speaking, the plaintiff was entitled only to have it declared that his interest had not been affected by the sale. But the learned Vakil for the appellant informs us that he desires that if we are against him on the question which he has argued the decree as it 1ms been made in the Courts below should remain unmodified. We may also mention that the learned Vakil for the appellant attempted to argue that even if the holding be transferable, still his decree and sale having been against the recorded or registered tenant the whole tenure passed. This argument is, of course, based on the doctrine of representation, and here there can be no representation where the plaintiff from the year 1877 has made applications to his landlord that his name should be registered and has refused to be represented by his co-sharer tenant.
5. For these reasons this appeal is dismissed with costs.