1. Defendant No. 4 was a raiyat with a non-transferable right of occupancy. In 1902 he executed a hat kabala in respect of a part of his holding in favour of defendant No. 1. The term of this hat kabala expired in 1905 and a fresh hat kabala by a registered deed was given for a term of three years up to Agran 1315.
2. The landlord detained a decree for arrears of rent against defendant No. 4 in 1908 and on the 5th of April 1908 defendant No. 4 gave an istafa of his holding to the landlord by a registered deed stating that he would not be liable for the arrears due. The landlord settled the land with the plaintiff on the 16th April 1898 for five years. The land lord, however, executed his rent-decree and defendant No. 1 paid up the amount in order to save the holding from sale. The plaintiff then entered into possession, but was evicted in execution of decree under Section 9 of the Specific Relief Act. The plaintiff now brings this suit for recovery of possession and the Courts below have given him a decree holding that although the plaintiff may have induced defendant No. 4 to make the surrender, the landlord was no party to any fraud and the plaintiff obtained a valid title by his settlement. It is contended in second appeal before us that the lower Courts are wrong and that in any case no decree for recovery of possession could be passed without charging the property with the just dues of defendant No. 1, who died pending suit and is now represented by his heirs.
3. Reliance is placed in support of this contention on the provisions of Section 86(6). It is contended by the learned Vakil for the respondent that the encumbrance spoken of in Sub-section (6) must be an encumbrance which is binding on the landlord, and this is the view taken by the Court below. The learned Vakil for the appellant on the other hand contends, that the section makes no such restriction and it is quite sufficient if there is an encumbrance which is binding as between the tenant and the encumbrancer. In the case of Tamizuddin Khan v. Khoda Nawaz Khan 5 Ind. Cas. 116 : 14 C.W.N. 229 : 11 C.L.J. 16 there is a. dictum of the learned Judges which favours this latter contention. The question was whether the purchasers of a portion of a non-transferable jote were entitled to claim the protection of Section 86(6). The learned Judges said: ' To enable defendants Nos. 1 to 4 to follow Sub-section (6) it must be shown that the sale to them was a valid sale; and further the discussion as to the validity of that sale and the resultant interest arising thereform must be limited, to the position of the transferor and the transferees and not to the position of the superior landlord'. In the result the learned Judges held that the transfer being a sale was an extinction and not a limitation of the interest of the transferor and was, therefore, not an encumbrance. The correctness of this decision on the latter point has been doubted in the case of Asgar Ali v. Gouri Mohan Roy 21 Ind. Cas. 58 : 18 C.W.N. 601 : 18 C.L.J. 257 but so far as the point in issue is concerned the learned Judges do not seem to have thought that the encumbrance under Section 86(6) must be one that the landlord was bound to accept. Apart from authority if we read the word encumbrance in Sub-section 6 as encumbrance which is binding upon the landlord,' here is no necessity for insisting on the consent of the encumbrancer for the validity of the surrender, for he does not run any risk, his rights are ex hypothesi binding on the landlord.
4. We, think, therefore, that the validity of the encumbrance 'must be limited to the position of the transferor and the transferee' i.e., the tenant and the encumbrancer. It has been held by the Full Bench that a transfer of a portion of non-transferable holding of an occupancy raiyat is so far valid against the landlord as not to entitle him to enter upon the portion transferred. Dayamoyi v. Ananda Mohan Roy Chowdhury 27 Ind. Cas. 61 : 18 C.W.N. 971 : 20 C.L.J. 52 : 42 C. 172.
5. We, therefore, think that the surrender in this case made without the consent of defendant No. 1 was not valid and had not the effect of entitling the landlord to khas possession in disregard of his rights.
6. Then again the landlord went on with the execution of her decree for arrears notwithstanding the surrender and defendant No. 1, who had according to the above view of his rights a subsisting encumbrance on the holding, deposited the decretal amount to prevent the sale and thereby acquired a statutory charge under Section 171, Bengal Tenancy Act.
7. We may further observe that in any view of the case defendant No. 4 owed a duty to defendant No. 1 and upon the findings the plaintiff maliciously induced defendant No. 4 to make the surrender. He was, therefore, an abettor of the fraud of defendant No. 4. All persons concerned in the commission of a fraud are to be treated as principals and it would have been the height of injustice to allow him to reap the fruits of his fraud to the detriment of an innocent party.
8. We have hesitation, therefore, in setting aside the decree of the lower Appellate Court and we do set it aside and dismiss the suit of the plaintiff with costs in all Courts.