Lawrence Jenkins, C.J.
1. This second appeal arises out of a suit to eject the defendants from a piece of land in Kidderpore on the ground that they are monthly tenants to whom due notice to quit has been given. The lower Appellate Court, reversing the decree of the Court of first instance, has dismissed the plaintiffs' suit with costs holding that the defendants have a permanent tenancy.
2. From this decree the plaintiffs have appealed. It cannot be said in the light of the decided cases that there are no materials to justify the lower Appellate Court's view; but it has to be borne in mind that the conclusion rests not on direct proof but on presumption.
3. The presumption in favour of a permanent tenancy implies that there is ground for inferring that the tenure was always intended to be and always was hereditary, or that it acquired that character by subsequent grant. But a presumption in favour of a transaction assumes its regularity: it cannot be made in favour of that which offends legal principle. It is this that prevents our accepting the view of the lower Appellate Court as final, for it would seem that the property to which the presumption has been applied is debutter.
4. If it was debutter at the time the tenancy originated, then this would affect the applicability of the presumption, for to create a new and fixed rent for all time, though adequate at the time, in lieu of giving the endowment the benefit of an augmentation of a variable rent from time to time would be a breach of duty in a shebait and is not, therefore, presumable. Shibessuree Debia v. Mothooranath Acharjee 13 M.I.A. 270 at p. 275 : 13 W.R. 18 (P.C.). It should, therefore, be seen whether at the origin of the tenancy the property had acquired its debutter character and on this will depend the applicability of the presumption.
5. In the course of the argument before us the appellants have relied on the use of the words Bharatia: we cannot pronounce an opinion as to the weight it should carry, but it will be for the lower Appellate Court to consider its bearing as one of the factors in the case.
6. We reverse the decree of the lower Appellate Court, and send back the appeal for re-hearing in the light of the foregoing remarks,
7. The costs in this Court and those incurred elsewhere up to this stage will abide the result.