1. This is an appeal under Clause 15 of the Letters Patent from the judgment of Mr. Justice Beachcroft in a suit for ejectment.
2. The controversy between the parties is limited to one question, namely, whether the disputed tenancy was or was not transferable. On the 2nd January 1872, the lands in suit were included in a mourasi mukarrari lease granted by one Digamber Pandit to Rap Chandra Das. It is not disputed that the tenancy so created was intended to be transferable. The tenancy was also permanent; in other words, heritable and not, held for a limited terra. The rent was fixed in perpetuity at Rs. 11. It appears that one Amar Nath Roy purchased the interest of Digamber Pandit at a sale for arrears of rent held at the instance of the superior landlords. The purchaser there after brought a suit for arrears of rent against the representatives of Rup Chandra Das on the allegation that by agreement of parties the rent had been fixed at Rs. 16 annually. On the 7th September 1876 a decree for rant was obtained by contend on this basis, The plaintiffs are the successors-in-interest of Amarnath Roy: and the defendants have acquired the interest of the representatives of Rap Chandra Das by successive transfers, The plaintiffs contend that the tenancy purchased by the defendants was not transferable and that they are consequently liable to be ejected as trespassers. The Trial Court negatived this contention and dismissed the suit. The view so taken has been affirmed by the Court of Appeal below as also by Mr. Justice Beachcroft.
3. The appellants Lave not disputed and can-not dispute that the tenancy granted to Rup Chandra Das by Digamber Pundit was transferable. But they have argued that the tenancy ceased to exist when the representatives of Rup Chandra Das agreed to pay rent at an enhanced rate. They have also contended that if this position is not maintainable, the effect of the agreement to pay enhanced rent was to destroy the character of the tenancy as* a tenancy at a fixed rate of rent and consequently to destory its character as a transferable tenancy. In our opinion, there is no foundation for either branch of this contention.
4. The tenancy granted to Rup Chandra Das was heritable, was held not for a limited term, was subject to the payment of a fixed rent and was unquestionably transferable. The circumstance that one of there elements was altered by agreement of parties, namely, that the rent originally fixed was increased did not destroy the tenancy. No principle has been invoked which can support the view that there was a suppression of the original tenancy or that there was a novation of contract. Such a position is not supported either by the actual intention of the parties or by any recognized principle of law. We are, therefore, unable to accept the argument that when the dereren for rent was by consent of parties made at an enhanced rate, there was a fresh start in all respects; nor are we able to uphold the contention that the alteration of rent necessarily destroyed the transferable character of the tenancy. It is not necessary for us to decide whether the tenancy has lost its character as a tenancy held at a fixed rate of rent. Mush may, indeed, be urged against such a view on the basis of the decision in Ramanuj Mahanta v. Midnapore Zemindary Co. Ld. 14 Ind. Cas 729 : 16 C.W.N. 725, In that case there was a tenancy held at a fixed rate of rent. By consent of parties the rent was enhanced. Notwithstanding this circumstance, it was ruled that the enhancement must be deemed to have been made subject to the original agreement that the rent was not enhanseable. That distinguished the case from the decision in Bamapada Boy v. Midnapur Zemindary Co. Ld. 16 Ind. Cas. 76 : 16 C.L.J. 322. Where the original nature of the tenancy was not known and it was consequently held that the fact that the rent bad been altered once negatived the theory that the rent had been fixed in perpetuity. But even if it be assumed that as a result of the compromise decree, the tenancy has, in this case, lost its character as a tenancy held at a fixed rate of rent, it does not follow that the other incidents have been thereby affected. As already stated, the tenancy was heritable, was transferable, and was not held for a limited term, It is difficult to appreciate how these elements can be affected merely because by a compromise between the parties the rent has been increased. We hold accordingly that the tenancy was transferable and that the defendants are not trespassers.
5. The judgment of Mr. Justice Beachcroft is affirmed and this appeal dismissed with costs.