1. This matter cornea before us on a second appeal and on a Rule. The appellant who is also the petitioner in the Rule is a landlord who is seeking to sell a tenant's holding in execution of a rent-decree. The respondent purchased the holding from an occupancy raiyat and seeks to defeat the landlord's right by depositing the decretal money in Court under Section 170(3) of the Bengal Tenancy Act. The appellant contests his right to do this on the ground that the holding is not transferable, as it has now been found it is not, and that the respondent has not, therefore, any interest in the holding voidable on the sale. Both the lower Courts have found in the respondent's favour, and have allowed the deposit to be made. The appellants now appeals from the decision in the lower Appellate Court, and in case it should be held that no appeal lies has also obtained a Rule calling on the respondent to show cause why the order accepting the deposit should not be set aside.
2. Leaving aside for the moment the question whether any appeal lies, we have to consider whether the respondent, that is, the applicant, has any interest in the land, and if he has, whether that interest is voidable on the sale.
3. On the authorities before us, I hold that the complainant has no interest in the land. This result, in my opinion, follows from the decisions of this Court in Srimati Nissa Bibi v. Radha Kishore Mnnikya 11 C.W.N. 312 and Prosunno Kumar Middar v. Bama Charan Mondal 13 C.W.N. 652 : 3 Ind. Cas. 461. The two cases together are certainly an authority for the statement that the transferee of a non-transferable holding is not a representative of the transferor under Section 244 of the old Code or the owner of immoveabls property under Section 311, and in both cases the point is considered as depending on the question whether he had an interest in the property. It is possible, of course, that the phrase 'having any interest' in Section 170(3) of the Bengal Tenancy Act might be construed as having a wider application than the 'representative' of a party to a suit under Section 244, or the owner of immoveable property under Section 311. But in Ishan Chunder Sirkar v. Beni Madhub Sirkar 24 C. 62 : 1 C.W.N. 36 the authority on which Srimati Nissa Bibi v. Radha Kishore Manikya 11 C.W.N. 312 was decided it seems as if the classes of persons described in the three Sections were all the same, as indeed there is no reason why they should not be.
4. I should feel no difficulty in following these decisions were it not for the decision of this Court in Hari Das Bairagi v. Udoy Chandra Das 8 C.L.J. 261 : 12 C.W.N. 1086 where it was held that the sale of a non-transferable holding is not void but merely voidable by the landlord, a rule that has frequently been followed by this Court in holding that where the landlord is not a party to proceedings arising out of the transfer the question of transferability does not arise. I doubt, however, whether the distinction between void and voidable contracts has not been pushed too far in the case in question. The landlord's rights were not directly concerned in the case in question and on the facts before it, in order to support the conclusion arrived at, the Court need not have decided more than that the contract was void only. If the landlord recognises a transfer of a non-transferable holding it is probably open to him to recognise it on the footing that it is or is not the subject of an occupancy-right; or at least there does not appear to be any authority that it is not. If the interest' in Section 170(3), Bengal Tenancy Act, is read as interest against the landlord, a sense which would bring the Section into line with Sections 244 and 311 of the old Code, this would put an end to the distinctions between void and voidable contracts a far as the present case is concerned. That it should be so read I do not say, but the possibility of the reading inclines us to follow the two decisions we have followed.
5. We have also been referred to the case of Omar Ali Majhi v. Bassiruddin Ahmad 7 C.L.J. 282 where it was held that the transferee of a portion of a holding had a right to pay the amount of a decree in a rent suit under Section 310 A of the old Code. I cannot say that this is consistent with the principles on which Srimali Nissa Bibi v. Radha Kishore Manikya 11 C.W.N. 312 and Prosanna Kumar Middar v. Rama Charan Mondal 13 C.W.N. 652 : 3 Ind. Cas. 461 were decided; but the difference between the views expressed does not seem to me to justify a reference.
6. Under these circumstances, I need not consider the further question whether the applicant had an interest voidable on the sale.
7. If the applicant had no interest he had no right of appeal from the first decision, and consequently the present appellant had no such right. But on our findings it appears that the Courts below have prevented the landlord from proceeding with the execution of his decree, at the instance of one who, on the Courts' own finding, was a stranger and had no locus standi in the matter. It must be held, therefore, that there has been an irregular exercise of jurisdiction. The appeal is, therefore, dismissed, but the Rule is made absolute, the orders of both the lower Courts are set aside, and the money deposited by the applicant must be returned to him, and the execution case must proceed according to law.
8. The petitioner is entitled to the costs of the Rule which we assess two gold mohurs, and to his costs in the Courts below.
9. Considering the importance of the point and the conflict of judicial opinion upon it I should have preferred to have the case referred to a Full Bench, but as my learned colleague does not think that this course is rendered necessary by the decision in Omar Ali Majhi v. Bassiruddeen Ahmad 7 C.L.J. 282 and as I agree with the view that the purchaser in this case is not entitled to deposit, I do not press for a reference.
10. To the cases cited by my learned colleague I may add that of Thomas Barclay v. Syed Hossein Ali Khan 6 C.L.J. 601. In that case it was held that if the landlord does not dispute the title of the depositor and withdraws the money, he cannot afterwards refuse to recognise the transfer. It is argued that that case has no bearing on the present case, because it does not lay down that the mere drawing of the money would debar the landlord from denying the title of the depositor, and in this case the landlord has contested the depositor's right to make the deposit. This argument, however, is hardly in accordance with the explanation of the decision given in Jugal Mohini Dasi v. Srinath Chatteree 12 C.L.J. 609 : 7 Ind. Cas. 477. Moreover, bath these decisions imply that the landlord can attack successfully the right of a purchaser to make the deposit. If a purchaser of a holding that is not transferable is entitled to deposit the money, what will be the use of the landlord's resisting him, and why should the landlord be estopped from contesting his title because he has refrained from taking action that is bound to be fruitless? On the other hand, if drawing the money estops the landlord in future, what is he to do, if he desires to exercise his undoubted right of refusing to recognise the transfer? If he draws the money he is bound to recognise the transfer. If he does not, the sale is stopped and he has to go without his rent. It appears to me to follow necessarily from these rulings that the landlord is entitled to resist the deposit, and that if he resists it, the purchaser cannot be allowed to make it and save the holding from sale.