Asutosh Mookerjee, Acting C.J.
1. This is an appeal by the plaintiffs in a suit for recovery of possession of land on declaration of title. The land belonged originally to Tilak, the founder of a family of Ghataks, which consisted of three brothers, Khetra, Gopal and Gobinda, as shown in the following genealogical table:
| | |
Khetia, Gopal, Gobinda,
| | |
Muktakeshi, Jogendra, Sarat
died 4-8-1909, died 14-10-1908 W. Monmohini.
| W. Surasi,
| Plaintiff No. 3.
Plaintifi No. 1. Plaintiff No. 2.
2. Khetra left a daughter, Muktakeshi, whose sons are the first two plaintiffs. They claim as reversionary heirs to the estate of their maternal grandfather. Gopal left a sort, Jogendra, who left a widow, Surasi Bala, the third plaintiff in this litigation. Gobinda left a son, Sarat Chandra, who left a widow, Monmohini, the pro forma defendant in this suit. The property was taken by the three brothers in equal shares. Consequently, upon their death, Muktakeshi, Jogendra and Sarat held the property in equal shares by right of inheritance. On the 18th April 1904, Muktakeshi and Sarat granted a lease of the entire property to the first defendant, as if Jogendra had no interest therein and they themselves were entitled to it to his exclusion. Muktakeshi died on the 4th August 19C9. Jogendra had died en the 14th October 1908; prior to his death, he had made a testamentary disposition of his properties on the I8th August 1908. Under that Will, he left one-half of his one-third share to his cousin sister Muktakeshi and the other half to his cousin Sarat. The plaintiffs claimed to recover the property from the first defendant on the allegation that the permanent lease granted to him on the 18th April 1904 was without legal necessity and ceased to be operative upon the death of Muktakeshi. The defendant pleaded that the lease was binding upon the reversionary heirs, and farther that be was entitled to remain in occupation, as he hide, on the 25th April 1904, purchased from one Bepin Behary Roy the interest of a tenant of the land.
3. Tue Court of first inatance dismissed the suit. Upon appeal, that decision has been affirmed by the District Judge.
4. The first point which requires consideration in the present appeal is, the validity of the permanent lease granted by Muktakeshi and Sarat on the 18th April 1904. It is clear that the lease was operative in respect of a two-third share, during the lifetime of Muktakeshi and Sarat. But, as we have already explained, Muktakeshi and Sarat subsequently obtained the one-third share of Jogendra by virtue of his Will. In these circumstances, the Courts below have rightly held that the provisions of Section 43 of the Transfer of Property Acts are applicable, and that the share of Jogendra, when it vested in Maktakashi and Sarat on the 14th August 1908, became available to perfect their title and consequently the title of the first defendant in the entire property see Bhairab Chandra v. Jiban Krishni 60 Ind. Cas. 819 : 33 C.L.J. 184: Second Appeal No. 1837 of 1917, decided on the 20th May 1920.
5. But the question remains whether the lease is operative as against the sons of Muktakeshi who claim as reversionary heirs to the estate of their maternal grandfather. It has not been established that the lease was executed for legal necessity. Prima facie, then, the lease does not bind the reversionary heirs but; the Courts below have held, on the authority of the decision of the Judicial Committee in Modhu Sudan Singh v. E.G. Rooke 25 C. 1 (P.C.) : 24 I.A. 161 : 1 C.W.N. 433 : 7 M.L.J. 127 : 7 Sar. P.C.J. 194 : 13 Ind. Dec. (N.S.) 1, that an alienation made by a Hindu widow or a Hindu daughter who has only a qualified estate in the property of the last male owner is not void but voidable and that as the plaintiffs did not take steps before the institution of the suit to avoid the lease, they are not entitled to relief in the present litigation. We are of opinion that the view taken by the Courts below is manifestly erroneous. The decision of the Judicial Committee in Modhu Sudan Singh v. E.G., Rooke 25 C. 1 (P.C.) : 24 I.A. 161 : 1 C.W.N. 433 : 7 M.L.J. 127 : 7 Sar. P.C.J. 194 : 13 Ind. Dec. (N.S.) 1 was, for a time, erroneously regarded as an authority for the proposition that a lease granted by a Hindu widow is on her death only voidable and must consequently be avoided. This is manifest from the decision of this Court in Bejoy Gopal Mukerji v. Nil Ratan Mookerji 30 C. 990 : 7 C.W.N. 864, When that case, however, was taken up to the Judicial Committee, Lord Davey pointed out Bijoy Gopal Mukerji v. Krishna Mahishi Debi 34 C. 329 : 11 C.W.N. 424 : 5 C.L.J. 334 : 9 Bom. L.R. 602 : 2 M.L.T. 133 : 17 M.L.T. 154 : 4 A.L.J. 329 : 34 I.A. 87 (P.C.) that the earlier decision of the Judicial Committee, in Modhu Sudan Singh v. E.G. Rooke 25 C. 1 (P.C.) : 24 I.A. 161 : 1 C.W.N. 433 : 7 M.L.J. 127 : 7 Sar. P.C.J. 194 : 13 Ind. Dec. (N.S.) 1 had been misunderstood and misapplied. A Hindu widow, 'it was stated,' is not a tenant for life, but is owner of her husband's property, subject to certain destructions on alienation and subject to its devolving upon her husband's heirs upon her death. But she may alienate it, subject to certain conditions being complied with. Her alienation is not, therefore, absolutely void, but it is prima facie voidable at the election of the reversionary heir. ?He may think fit to affirm it, or he may at his pleasure treat it as a nullity without the intervention of any Court, and he shows his election to do the latter by commencing an action to recover possession of the property. There is, in fact, nothing for the Court either to set aside or cancel as a condition precedent to the right of action of the reversionary heir.' The institution of a suit for possession shows his election to treat the alienation as a nullity, and in such a suit, it is not necessary for him to ask for a declaration that it is inoperative. It is thus plain that the first two plaintiffs are entitled to succeed in respect of the one-third share which originally belonged to their maternal grandfather. They are not entitled, however, to be planed in the same position with regard to the one-sixth share which became vested in their mother by virtue of the Will of Jogendra. The terms of that Will show that it has been a correctly held by the Courts below that Muktakeshi obtained an absolute interest in the one sixth share left to her by her own cousin. As regards the share of Sarat, namely, the one-third share vested in which at the time of the grant of the permanent lease and also the one sixth share which he subsequently obtained under the Will of Jogendra, the plaintiffs are admittedly not entitled to relief. The conclusion follows that, subject to the determination of the question of the validity of the purchase of the tenant's right by the first defendant, the first two plaintiffs are entitled to a decree in respect of the one-third share originally held by their maternal grandfather.
6. We have next to consider, whether the first defendant acquired a good title to possession by virtue of his purposed on the 25th April 1904 from Bepin Behary Roy, who had, it is alleged, obtained under successive transfer, the interest of a tenant, Satcowri Chose, in the disputed land. The question, in our opinion, must be answered in the negative. The tenancy of Satcowri Ghose was created long before the Transfer of Property Act, and is said to have been in existence at least as early as 1869. The tenancy has passed from father to son; in other words, there is evidence to show that the tenancy is heritable. But it does not follow that the tenancy is transferable. It is well known that there are tenancies which are heritable hut not transferable: an occupancy holding furnishes an obvious example. The first defendant must consequently establish that the tenancy was transferable under the law as it stood at the time of its inception. Now, it has bean laid down by this Court in the cases of Rabi Nath Karmakar v. Rai Chandra Karmakar 2 C.W.N. 122, Madhab Chandra Pal v. Feroy Chand Mahatab Bahadur 4 C.W.N. 574, Madhu Sudan Sen v. Kamini Kanta Sen 32 C. 1023 : 9 C.W.N. 895 and Ram Charan Naskar v. Hari Charan Guha 7 C.L.J. 107, that under the law as it stood before the Transfer of Property Act, tenancies, whether of homestead lands or of agricultural land, were not transferable, in the absence of a custom to the contrary or of an express contract to that effect. The only recognized exception to this rule is that stated in the case of Reni Madhab Banrjee v. Jai Krishna Mookerjee 7 B.L.R. 152 : 12 W.R. 495. In that case Sir Barnes Peacock, C.J, observed that if ore man grants a tenure to another for the purpose of living upon the land that tenure, in the absence of evidence to the contrary, is assignable. The same view was subsequently taken in the case of Durga Prasad Misser v. Brindaban Sookul 7 B.L.R. 159 : 15 W.R. 274. In the case before us, the tenancy had not been created for the purpose of residence. Consequently, we must hold that the tenancy was not transferable.
7. The result is, that this appeal is allowed, the decree of the District Judge set aside and the suit decreed for possession and mesne profits in respect of a one-third share. The record will be sent down to the Court of first instance so that mesne profits may be ascertained in that Court.
8. There will be no order for costs in this appeal. The parties will pay and receive costs in proportion in the Courts below.
Ernest Fletcher, J.
9. I agree.