1. We are invited in this Rule to set aside an order tinder Section 170, Sub-section (3), of the Bengal Tenancy Act. The petitioner in execution of a decree for arrears of rent, obtained against his registered tenant, was about to bring the holding to sale when the present opposite party applied to the Court for leave to make a deposit under Sub-section (3) of Section 170 on the allegation that he had taken a mortgage of a portion of the holding on the 13th May 1907 and that if the sale took place his interest, as mortgagee, would be voidable thereupon. The Court below has granted the application and has permitted the opposite party to make the deposit. The Court has further declared that the present petitioner decree-holder would not, by acceptance of the money deposited by the opposite party, be bound hereafter to treat him as a tenant of the holding. In so far as this latter declaration is concerned, the applicant under Section 170 has taken no exception and the landlord decree-holder does not complain of it. Consequently we are called upon to consider only that portion of the order which allows the alleged mortgagee to make the deposit.
2. On behalf of the landlord it has been contended with reference to the terms of the contract of tenancy, dated the 7th April 1885, that the holding was non-transferable, that the mortgage set up by the opposite party was invalid and that consequently the latter had acquired no interest voidable on the sale within the meaning of Sub-section (3) of Section 170. In support of this view reference has been made to the cases of Thomas Barclay y. Syed Hossein Ali Khan 6 C.L.J. 001. and Jotindra Mohan Togore v. Durga Dube 10 C.W.N. 438. We are of opinion that this contention is fallacious and must be overruled.
3. It is well settled that even if a holding is non-transferable, the transfer of only a portion thereof does not operate as a forfeiture of the tenancy : Durga Prasad Sen v. Doula Gazee 1 C.W.N. 160., Sheikh Gozaffur Hossein v. Dablish 1 C.W.N. 162. Consequently, even if we assume for a moment that this holding is non-transferable, notwithstanding the mortgage set up by the opposite party the tenancy still subsists and the landlord is not entitled to eject the mortgagee as a trespasser, Indeed the mortgagee is not in possession at all : the mortgagor still occupies the land, and is responsible to the landlord for payment of rent. It cannot reasonably be argued that the mortgagee has no interest in the holding. As between the mortgagor and the mortgagee no question of the authority of the mortgagor to execute the mortgage could possibly arise by reason of the doctrine of estoppel. In so far as the landlord is concerned he is not entitled to treat the tenancy as forfeited : he cannot come into direct contact with the mortgagee so long as the tenancy subsists. We are, consequently, of opinion that the mortgagee has an interest in the holding which if the intended sale takes place would be voidable within the meaning of Section 170, Sub-section (3), of the Bengal Tenancy Act. The view we take is supported by the cases of Jugal Mohini Dasi v. Sri Nath Chatterjee 7 Ind. Cas. 477 : 12 C.L.J. 609, and Chowdhury Mahadeo Pershad v. Sheikh Pachkari 13 Ind. Cas. 941 : 16 C.W.N. 322. But reliance has been placed on behalf of the petitioner upon the terms of the contract between the parties and it has been argued that under that contract not only is the holding non-transferable, but even an attempt by the tenant to transfer his interest in the tenancy in whole or in part operates as a forfeiture and the landlord becomes entitled to re-enter upon the property. In our opinion it is not necessary to examine the legal effect of the contract of tenancy because as it was executed on the 17th July 1885, under Section 178, Sub-section (3), Clause (d), of the Bengal Tenancy Act, it cannot be treated, as operative in so far as it takes away the right of the raiyat to transfer his holding in accordance with local usage. It was argued, however, on behalf of the petitioner that as the Bengal Tenancy Act, though passed on the 14th March 1885, came into force on the 1st November 1885, the terms of this contract, made on the 17th July 1885, are not affected by the provisions of Section 178. This contention is obviously fallacious. Sub-Section 3 of Section 178 refers to contracts made after the passing of the Act, that is after the 14th March 1885. A reference to Section 1, Sub-Section 2, indicates the distinction between the passing of the Act and the commencement of the Act. The date of the commencement of the Act is the date in which it comes into force by reason of .notification issued on the authority of the Local Government. The contract in this case is consequently within the meaning of the rule laid down in Section 178.
4. We are of opinion that the Court below has correctly held that the mortgagee was entitled to apply Under Section 170, subsection (3), of the Bengal Tenancy Act. The result is that this Rule is discharged with costs. We assess the hearing fee at one gold mohur.