1. In this case the facts found are that in the year 1306, one Somir sold a portion of his non-transferable occupancy holding to one Fazil, that on a subsequent partition between the landlords this Jote, formerly held under Gyanoda Sundari, Abinash Chandra Ray and others, was allotted to the share of the present plaintiff, and that in 1318 Somir surrendered to the new landlord the portion of his Jote which he had previously sold to Fazil.
2. On these findings the learned Subordinate Judge has held that the plaintiff-landlord is entitled to recover khas possession from the heirs of Fazil.
3. He supports this decision by saying that it was agreed, i, e., that it was provided in the conveyance that Fazil should have his name recorded in the landlord's Sherista as a tenant of the land in suit at a rental of Rs. 2-1-0. In the course of the 12 years that had elapsed after the sale Fazil had failed to secure a settlement or recognition from the landlord and his vendor, the original tenant, therefore, remained liable for the whole rent. The vendor was, therefore, justified in surrendering and in the circumstances the surrender could not be called collusive.
4. Now, whether the transferee had failed in any duty to his vendor, or whether he had failed to take the measures necessary for securing recognition are questions which do not appear to have been raised in the Court of first instance. The vendor Somir, it seems, did not enter appearance and he did not give evidence in the case. The clause in the conveyance regarding recognition I read, not as throwing a risk or burden upon the transferee, but as intended to facilitate his obtaining the recognition which, however, neither the original tenant nor the transferee could compel the landlord to accord. In this view the transferee continued liable to pay to the original tenant the rent assessed as between themselves upon the portion transferred and the vendor's duty to protect the interests of his transferee remained.
5. It has then been suggested in this Court that the surrender was in fact the surrender not of a portion but of the whole holding. In support of this view reference has been made to the judgment of Newbould, J., in Second Appeal No. 18 of 1914 Zamir Munshi v. Bisseswari' Deby 40 Ind. Cas. 544 : 25 C.L.J. 480. affirmed by a Bench of three Judges in Letters Patent Appeal No. 1 of 1917 on the 29th April 1918 Tamiz Munshi v. Bisweswari Bebya 46 Ind. Cas. 862 : 22 C.W.N. 296. On the facts of that particular case it may be that there was a surrender of the whole holding and not merely a surrender of the portion previously sold. But the findings here are that there was a surrender merely of the portion sold, and to say that in every case the surrender of a part implies the surrender of the whole holding and the creation of a new tenancy in the part retained is, in my view, to ignore the plain provisions of Section 88 and also the provisions, for instance, of Section 86(7) and Section 50(3) of the Bengal Tenancy Act.
6. The position then is that the raiyat having sold a part of his holding next surrenders that part to the landlord who accepts the same. In this state of facts is the landlord entitled to eject the transferee?
7. Now in the Fall Bench case of Bayamoyi v. Ananda Mohan 27 Ind. Cas. 61 : 42 C. 172 : 18 C.W.N. 971 : 20 C.L.J. 52 (F.B.). it has been laid down that voluntary transfer by a raiyat of a part of his non-transferable holding is valid and operative as against the raiyat and does not per se entitle the landlord to re-enter. It follows that in the part sold the raiyat's rights are extinguished and indeed it is on this ground that in certain cases Tamizuddin Khan v. Khoda Nawaz Khan 5 Ind. Cas. 116 : 14 W.N. 229 : 11 C.L.J. 16. Bamoni Mohan Roy v. Kqlimuddi 17 Ind. Cas. 682 : 17 W.N. 1101, and Abdul Rahman chowdhuri v. Ahmadar Rahman 31 Ind. Cas. 554 : 19 C.W.N. 1217 : 22 C.L.J. 356 : 43 C. 558, it has been held that the sale of part of a holding is not an encumbrance within the meaning of Section 86(6) of the Act. Whether those cases have been rightly decided it is not necesarry for the purposes of the present case to inquire, but as at present advised I am of opinion that it may reasonably be argued that the sale of a part is an 'encumbrance' or limitation of the raiyat's right in the whole, and should, therefore, operate to prevent a surrender, whether of the whole or of the part.
8. The raiyat's right in the portion sold having been extinguished, it would seem to follow that by the surrender or grant to the landlord, the landlord took nothing.
9. But it is urged that there is in the present case a finding that in the landlord's acceptance of the surrender there was nothing fraudulent. No doubt in the view of the conveyance taken by the Subordinate Judge, he has said that the original tenants' surrender was not a collusive one but if the Subordinate Judge's view of the conveyance and of the rights and duties of the parties is wrong, it follows that his view of the surrender is also vitiated. In any case there is no suggestion here that the landlord was himself deceived by the original tenant, and as I understand it was the case of both parties that the landlord accepted the surrender with full knowledge of the prior sale. If then fraud or collusion on the part of the landlord is essential, such knowledge in my view would be sufficient to deprive him of the right to evict, and if this were material a remand for the purpose of obtaining a clear finding on the point might be directed.
10. But if the landlord took nothing by the surrender, fraud, collusion or knowledge on the part of the landlord becomes immaterial.
11. In support of the view I take there is clear authority in the judgment of Digambar Chatterjee, J., in Second Appeal No. 541 1909 Ananda Mohan Roy v. Guru Bayal Saha 7 Ind. Cas. 19, affirmed by Woodroffe and Mookerjee, JJ. in Letters Patent Appeal No. 11 of 1915 Ananda Mohan Roy Chowdhury y, Gurudayal Saha 49 Ind. Cas. 979 : 22 C.W.N. 965. It finds further support in the observations to be found in the judgment delivered in the case of Algar Ali v. Gouri Mohan Roy 21 Ind. Cas. 58 : 18 C.L.J. 257 : 18 C.W.N. 601. and in the case of Basuni Bibi v. Sadir Mamud 30 Ind. Cas. 252, and Ram Udar Singh v. William Cox 27 Ind. Cas. 564 : 19 C.W.N. 268.
12. For these reasons I am of opinion that the decree of the Subordinate Judge should be reversed and the decree of the Court of first instance restored.
13. But as my learned brother agrees with the decision of the Subordinate Judge, in accordance with his judgment this appeal will be dismissed with costs. I should add that my learned brother has suggested a reference to a Full Bench, but I am unable to' agree to this as I follow the decision in Letters Patent Appeal No. 11 of 1915 [Ananda Mahcn Roy Chowdhury v. Gurudayal Saha 49 Ind. Cas. 979 : 22 C.W.N. 965.] and in the view I take there is no decision in direct conflict therewith
14. At the hearing 1 was disposed to take the view that under the terms of the conveyance executed by Somir in favour of Fazil, the latter accepted the risk of obtaining the consent of the landlords to the transfer. The terms in effect are: 'I (the vendor) make over to you, under this instrument of absolute sale, the land below for the consideration expressed. You (the vendee) shall have your name recorded and so forth, on payment of the said rent of Rs. 2-1-0 in the office of the landlords, in your own name, on account of the land sold and you shall hold and enjoy the same, etc.' The parties, as it appears to me, contemplated that the vendor's interest in the land should cease and determine, and that the responsibility for the rent should be transferred with the land to the vendee who at this own risk was to obtain the landlords' consent. It is found that the vendee failed to obtain the necessary consent and that the vendor waited for some ten or twelve years before surrendering the part transferred to the landlord. Until he took that step, he remained responsible to the landlord for the rent of the whole. That being the position, I cannot see that the defendants-appellants before us, claiming under Fazil, can found on the conveyance any equity which will protect them from ejectment at the instance of the plaintiff, the landlord to whom the land in question or the proprietary interest therein has been allotted on a partition between him and his former co sharers.
15. Even, however, if the terms of the particular instrument are incapable of the construction which I have suggested and if the case be treated as one of a type of not infrequent occurrence, we should not, in my opinion, on the authorities as they now stand, be justified in allowing the appeal and reversing the decree of the Courts below in favour of the plaintiff.
16. It is not disputed that according to Dayamoyi's case 17 Ind. Cas. 61 : 42 C. 172 : 18 C.W.N. 971 : 20 C.L.J. 52 (F.B.). when the raiyat of a non-transferable holding transfers the whole or a portion, and then abandons, relinquishes, or repudiates the tenancy in its entirety, the landlord is entitled to re-enter and eject the transferee. The term 'relinquishment' no doubt includes a 'surrender' [Of Ramchurn Singh v. Ranigani Goal Association Ltd. 25 I.A. 210 : 26 C.29 : 2 C.W.N. 697 : 7 Sar. P.C.J. 399 : 13 Ind. Dec. (N.S.) 622 (P.C.).] The question is whether apart from any fraudulent conduct on the part of the landlord--there is no fraud here--his right to accept a relinquishment or surrender of the whole holding with liberty to eject a transferee from the whole does not include a right to accept a relinquishment or surrender of a part with liberty to eject a transferee from that part, in other words, whether the larger right does not include the lesser. Where a part has been transferred the raiyat may take one of several courses. He may relinquish or surrender the whole or he may relinquish or surrender the part not transferred, or he may disclaim all interest in or relinquish or surrender the part transferred. If the raiyat at the same time accepts a re settlement of the part not transferred, it does not seem to matter which of the courses suggested he takes and the precise point for consideration is whether in such circumstances the landlord is entitled to eject the transferee from the part transferred.
17. Now, in a series of cases before Dayamayi's case 27 Ind. Cas. 61 : 42 C. 172 : 18 C.W.N. 971 : 20 C.L.J. 52 (F.B.). it was held that in such circumstances the landlord was entitled to eject the transferee. In Second Appeal No. 19 of 1895 [Kissen Pertab Sahi Bahadur v. J.R. Tripe 2 C.W.N. clive (154).] the question, in the very form in which it arises here, was referred by Trevelyan and Wilkins, JJ., to a Full Bench. Unfortunately the reference was thrown out on the facts, and proved in fructuous. The view expressed in the reference was clearly in favour of the landlord's right to eject. Then, there are the cases of Badan Chandra Das v. Rajeswari Debya 2 C.L.J. 570. where the question arose in regard to a sub-lease, Tamixuddin Khan v. Khoda Nawaz Khan 5 Ind. Cas. 116 : 14 C.W.N. 2296 : 11 C.L.J. 16., Ramoni Mohan Roy v. Kalimuddi 17 Ind. Cas. 682 : 17 Cas. 682 : 17 C.W.N. 1101, and Ganga Chandra v. Alak Chand Saha 18 Ind. Cas. 996 : 17 C.W.N. 698. In Badan's case 2 C.L.J. 570. it seems to have been laid down that under Section 86, Clause (7) of the Bengal Tenancy Act, the whole or a part of a holding might be surrendered, and that there was no distinction in prinoiple as to the landlord's right of re entry under Clause (5) whether the surrender was of the entire or of a part of the holding. In Tamuuddin's case 5 Ind. Cas. 116 : 14 C.W.N. 229 : 11 C.L.J. 16, and in Gagaa's case 18 Ind. Cas. 996 : 17 C.W.N. 698. the question was also considered with referenoe to the provisions of Clauses (5), (6) and (7) of Section 86. It was held that a sale was not an incumbrance' within the meaning of Clause (6) and that under Clauses (5) and (7) the landlord was entitled to accept a surrender of the part of the holding which the raiyat had transferred and to eject the transferee therefrom.
18. The case of Asgar Ali v. Gouri Mohan Boy 21 Ind. Cas. 58 : 18 C.L.J. 257 : 18 C.W.N. 601. is not a decision to the contrary. There an entire holding was surrendered but the surrender was found to be collusive. Incidentally, however, doubt was thrown on the correctness of the deoision in Tamizuddin's case 5 Ind. Cas. 116 : 14 C.W.N. 229 : 11 C.L.J. 16. as regards the sale of a part not being an incumbrance. Tamizuddin Khan v. Khoda Nawaz Khan 5 Ind. Cas. 116 : 14 C.W.N. 229 : 11 C.L.J. 16, and Ganga Chardra's case 18 Ind. Cas. 996 : 17 C.W.N. 698. were distinguished on the ground that there was no incumbrance secured by a registered instrument within the meaning of Clause (6) of Section 86. The case of Ram Udar Singh v. William Cox 27 Ind. Cas. 564 : 19 C.W.N. 268, turns entirely on that clause.
19. Then there are two decisions subsequent to Bayamoyi's case 27 Ind. Cas. 61 : 42 C. 172 : 18 C.W.N. 971 : 20 C.L.J. 52 (F.B.). which were cited in' argument and must be referred to, namely, (1) the deoiston of Woodroffe and Mookerjee, 53., in Letters Patent Appeal No. 11 of 1915 Ananda Mohan Roy Chowdhury v. Gurudayal Saha 49 Ind. Cas. 979 : 22 C.W.N. 965. (26th February 1917 Bot reported), affirming but without reasons the judgment of D. Chatterjee, J., sitting alone in Second Appeal No. 541 of 1909 Amanda Mohan Roy v. Guru Dayal Saha 7 Ind. Cas. 19. and 46 Ind. Cas. 862 : 22 C.W.N. 967. the decision of Woodroffe, Chitty and Shamsul Huda, JJ., in Letters Patent Appeal No. 1 of 1917 Tamiz Munshi v. Biiweswari Bebya 46 Ind. Cas. 862 : 22 C.W.N. 967. (29th April 1918 not reported), agreeing with the opinion of Newbould, J., in Zamir Munshi v. Bisseswari Bebya 40 Ind. Cas. 544 : 25 C.L.J. 480. in which case D. Chatterjee, J., and Newbould, J., had differed. The decisions in these two Letters Patent Appeals are not easy to reconcile.
20. In the first case, the landlord had, as in the present case, accepted a surrender of the part of the holding whioh the raiyat had sold and had absolved the raiyat from any further claim for rent in respect of that part. That amounted to a re settlement of the remainder with the raiyat at a reduoed rent. The landlord then sought to eject the transferee from the part transferred. The case was twioe heard by D. Chatterjee, J. On the first occasion [before Bayamoyi's case 27 Ind. Cas. 61 : 42 C. 172 : 18 C.W.N. 971 : 20 C.L.J. 52 (F.B.).] he decided in favour of the landlord. On review after Bayamoyi's case 27 Ind. Cas. 61 : 42 C. 172 : 18 C.W.N. 971 : 20 C.L.J. 52 (F.B.). he decided in favour of the transferee, and the decision was, as I have said, affirmed on appeal.
21. In the second case the facts were similar except that there was an express re-settlement with the raiyat of the part which he had not sold. It was held by Newbould, J., and on appeal that the landlord was entitled to eject the transferee from the part sold. In the course of his judgment Newbould, J., said 'it may be conceded that, relinquishment of the holding means a relinquishment of the whole holding, but the whole holding has been surrendered. The part sold to the defendant-appellant was expressly surrendered and the taking of a new settlement of the remainder of the holding operated in law as an implied surrender of the remaining portion.' The passage was cited with approval by Woodroffe, J., in whose judgment the rest of the Court agreed.
22. In this connection, I may be permitted to add a reference to the case of Kunja Kesori Pal Chowdhury v. Bama Sundari Basya 32 Ind. Cas. 781 : 43 C. 878, where a similar view of the effect of the law was taken.
23. Among the questions which arise is the meaning of the word 'incumbrance'. The point may be open to discussion before a Pull Bench, but on the authorities it would be impossible for a Divisional Bench to hold that the sale of a part of a holding is an incumbrance within the meaning of Clause (6) of seotion 86. The question may be permitted whether if the sale of a part is an incumbrance, the sale of the whole is also an inonmbranee in the sense that it is a limitation of the raiyat's rights under the subsisting lease. If so, what be comes of Bayamoyi's case 27 Ind. Cas. 61 : 42 C. 172 : 18 C.W.N. 971 : 20 C.L.J. 52 (F.B.).?
24. It has been suggested that Clause (5) of the same Section applies only to the surrender of an entire holding and that while Clause (7) recognises a part surrender, it does not make the provisions of Clause (5) applicable thereto. This view of the effect of Clauses (5) and (7) of Section 86 differs from that taken in Badan Chandra Das' case 2 C.L.J. 570, and in Tamizuddin Khan's case 5 Ind. Cas. 116 : 14 C.W.N. 229 : 11 C.L.J. 16.
25. Another tontenfcion is tbat on the sale of a part of a holding, the rights of the raiyat in that part oease and determine and he has no interest left in that part which he can surrender. But what is surrendered is the lease or contract between the parties, with the rights and liabilities thereunder, so far as it, or they, relate to the part transferred. The question is as to the effect of the surrender.
26. As to fraud, the Courts will not allow the landlord to benefit by any fraud to which he may be a party [Panchanan Ghosh v. Mir Abdul Molik 16 Ind. Cas. 703 : 16 C.W.N. 920.]. In such a case as the present, there is no fraud or trick either on the part of the landlord or on the part of the raiyat,
27. The general principle, no doubt, is that as against strangers a surrender operates merely as an assignment. But that principle is already broken in upon. If the raiyat relinquishes or surrenders the whole, the landlord may re-enter on the whole notwithstanding an absolute transfer of the whole or part to a third party Daya-moyi's case 27 Ind. Cas. 61 : 42 C. 172 : 18 C.W.N. 971 : 20 C.L.J. 52 (F.B.).
28. Difficulty no doubt is caused by the fact that what is called a non-transferable occupancy holding or an 'untransferable right of occupancy' [Transfer of Property Act, Section 6(i), Section 108, Clause (i)] is not in every respect property which cannot be transferred. The transfer of such a holding even without the consent of the landlord is not expressly prohibited. It is not void for all purposes. It may be validated by the subsequent consent of the landlord. The transfer of occupancy holdings cannot be said to be contrary to the policy of the law. The Bengal Tenancy Act expressly recognizes as legal a custom of transferability where it exists. Whether a raiyati holding be non-transferable or by custom transferable, sub leases are permitted within certain limits by Section 85 and in view of Clause (6) of Section 86, the law, it would seem, also recognizes in some measure 'incumbrances' secured by a registered instrument.
29. Nevertheless in the nature of things there must be some limits to the trans ferability of non-transferable holdings. In Dayamoyi's case 27 Ind. Cas. 61 : 42 C. 172 : 18 C.W.N. 971 : 20 C.L.J. 52 (F.B.). the question whether a right of occupancy which is not transferable by custom or local usage is a right which can be transferred at all,' the last two words are important, was answered in the affirmative. The question whether the holding apart from the right of occupancy can be transferred, was answered in the negative. The observations at the beginning of the judgment in Dayamoyi's case 27 Ind. Cas. 61 : 42 C. 172 : 18 C.W.N. 971 : 20 C.L.J. 52 (F.B.). seem to show that the Full Bench was of opinion that the Courts had already gone as far as they could in the direction of transferability.
30. It is true that the law has not given the landlord a right of immediate re-entry in the event of a whole or part being transferred. That is the ground of the decision in Kabil Sardar v. Chunder Nath Nag 20 C. 590 : 10 Ind. Dec. (N.S.) 399. which is the foundation of all subsequent decisions in those cases where the raiyat takes no step which has the effect of terminating his responsibility for the whole of the rent. But it would seem that according to a current of authority which may be founded on Clauses (5), (6) and (7) of Section 86 or on the common law of the country or custom, the landlord (apart from fraud) has the right to reenter if the whole or a part be relinquished or surrendered. The right, if it exists, depends not on forfeiture but on the landlord's proprietary rights and the fact that the holding is in its nature nontransferable, or more accurately only transferable Within certain definite and recognized limits.
31. No transfer binds the landlord without his consent and no one has ever doubted that his discretion to give or withhold his consent is an absolute discretion, not open to review by the Courts.
32. No doubt the landlord is not obliged to accept a surrender from the raiyat. He can say: ' No. I will sue you for the entire rent and bring the holding to sale in execution.' But is he obliged to take that course? If he does, how will the transferee be benefited? In the long run he will be deprived just the same of his. land and his money. It is true that the transferee will have the right under Section 170 of the Tenancy Act to prevent the sale by depositing the amount due. Is the landlord obliged to give the transferee that opportunity P
33. It is said that regard being had to Clause (6) of Section 86, the law in this view of it treats the vendor of a part worse than the mortgagee. On the other hand sub leases are restricted within narrow limits. The truth is that the Bill which ultimately became the Bengal Tenancy Act was much altered in its passage through the Legislative Council and the Act may, therefore, contain anomalies or provisions which it is difficult to reconcile.
33. A further examination of the case of the mortgagee shows that the anomaly lies rather in requiring his consent to a surrender. If the mortgage is a mortgage of the entire holding and the mortgagee seeks to enforce his security and brings the holding to sale in execution of a mortgage decree, the holding not being transferable, the landlord will not be bound to recognize the purchaser, whether he be the mortgagee or a third party. If the purchaser obtains possession, the landlord will be entitled to evict him. If the mortgage is the mortgage of a part, and the mortgagor or purchaser obtains possession in the course of realizing his security, his position will be the same as that of the vendor of a part. Newbould, J.'s judgment suggests the question, why should the vendee or mortgagee of a part be better treated than the vendee or mortgagee of the whole.
34. It may be that whatever construction must be put on the Act as it stands, the draftsmen did not contemplate the application of Clause (6) of Section 86 to nontransferable holdings.
35. I fully recognize the complexity of the subject-matter and I express my own opinion not only without confidence but with diffidence. If, however, the appeal is to principle rather than to our individual views of expediency, I can at present see no reason in principle why the effect of the surrender of the whole should differ from the effect of the surrender of a part. Dayamoy's case 27 Ind. Cas. 61 : 42 C. 172 : 18 C.W.N. 971 : 20 C.L.J. 52 (F.B.). does not seem to me to cover the question, firstly, because the question was not referred to the Full Bench for decision, and, secondly, because the law is laid down in this way, that 'where the transfer is of the part only of the holding or not by way of sale, the landlord, though he has not consented, is not ordinarily entitled to recover possession of the holding, unless there has been (a) an abandonment...or (b) a relinquishment of the holding, or (c) a repudiation of the tenancy.' Now, this declaration of the law is deprived of universality by the use of the word 'ordinarily.' The language, again, clearly refers to the landlord's right to recover possession of the whole holding if the whole is abandoned or relinquished. The effect of the relinquishment or surrender of a part is not stated. But it seems consistent with the doctrine laid down as to the whole that the surrender of a part should also entitle the landlord to recover possession of that part.
36. It may be that this view goes further than the view adopted by Newbould, J., and affirmed by the Appeal Court. According to the latter view, the surrender of a part, meaning no doubt a substantial part, coupled with the resettlement of the remainder with the raiyat is equivalent in law to the surrender of the whole and the creation of a new tenancy in the part not surrendered. I cannot see that either Section 50 or Section 88 of the Act has any bearing on the question whether in such circumstances a new tenancy is or is not created. No general principle can be extracted from Clause (3) of Section 50. The operation of that clause is confined to questions arising under section be itself and is also restricted to land held by a raiyat'. In the case of such land the uniformity and continuity of the rent or rate of rent may be independent of the question whether a new tenancy has been created. Section 88 merely allows the sub-division of a tenancy with the consent of the landlord.
37. To return for a moment to the effect of a surrender as against third parties, the general rule of English Law appears to be incorporated, in part, in Section 115 of the Transfer of Property Act, which deals with the effect of a surrender on sub-leases. The section has not been applied to leases for agricultural purposes. Nor can English Law be of much assistance in determining the incidents of a non-transferable occupancy holding in Bengal. There are two cases, however, to which reference may made. In Doe v. Pyke (1816) 5 M. & S. 146 : 17 R.R. 296 : 105 E.R. 1005. the general principle was expounded and applied, but in the course of his judgment Lord Ellenborough dealt with an argument which had been advanced that the interest created by the lease was 'wrongful.' The lessee in the case was the lessee for three lives of a manor and before surrendering he had granted a 'sub-lease. The precise point taken by Counsel--it turned on the law of copy-hold tenure--is immaterial, Lord Ellenborough observed, referring to the sub-lease: 'It was said that this was a wrongful lease but no authority was cited to prove it wrongful.' Then he adds: 'If the owner of the manor wished to protect the suspension of the copy-hold tenure by such means, lest it should injure the inheritance of the manor, he should have guarded against it before he granted a particular interest as an estate for life in the manor, by imposing adequate restrictions upon the grantee.' Now it may be assumed that the transfer of a part of an occupancy holding is not 'wrongful' or illegal even as against the landlord. But under a system of pure contract, the landlord might protect himself by inserting an appropriate stipulation in the lease. The question here is whether the landlord is not protected by the incidents of the tenancy, customary or statutory, to this extent that on the surrender of the whole or part, he is entitled to eject the transferee the holding being not transferable.
38. In the more recent case of Parker v. Jones (1910) 2 K.B. 32 : 79 L.J.K.B. 921 : 10 2 L. 635 : T.L.R. 453. the lessee was the lessee for a term of a field under a lease containing a covenant not to underlet without license and a proviso that on breach of the covenant the lessor might re-enter. The lessee sublet in breach of his covenant and then surrendered the term. The lessor re-let to someone eke and the question was whether the sub-lessee was still entitled to possession as against the new lessee. It is clear that the landlord was protected to this extent that he might have forfeited the lease, but I cite the case principally for the reason that Darling, J., held that while the new lessee was not entitled to disturb the possession of the sub lessee, the fact that the lessor had no notice of the sublease might possibly have entitled the lessor himself to re-enter even after accepting the surrender. Channel, J., no doubt held that after surrender the lessor had no right of re-entry whether he knew of the sub-lease or not. But in view of this difference of opinion between the learned Judges it cannot be said to be settled law, even in England, that a lessor can never evict a transferee after accepting a surrender.
39. It has also to be remembered that English Law does not recognize perpetual leases, though no doubt it does recognize leases for long terms. At any rate, a raiyat with rights of occupancy which are not transferable but are descendible to his heirs, appears to be an institution peculiar to India and we must work out our own salvation. It may on the one hand seem contrary to fixed principle that a landlord should be entitled to accept a surrender of the whole or part of a holding with liberty to eject a transferee of the whole or the part. On the other hand if in such a case as the present after the landlord has accepted a surrender the transferee is retained in possession as against the landlord, though the landlord has not consented to the transfer, the transferee, it would seem, is in forever with heritable rights. He becomes not merely a tenant but tenant with occupancy rights Dayamoyi's case 27 Ind. Cas. 61 : 42 C. 172 : 18 C.W.N. 971 : 20 C.L.J. 52 (F.B.). 'English tenures and Bengal Zemindari rights, unduly assimilated at one time, have never fully corresponded to one another.' [Raja Srinath Boy v. Dinabandhu, Sen 25 Ind. Cas. 467 : 41 I.A. 221 at p. 243 : 18 C.W.N. 1217 : (1914) M.W.N. 654 : 1 L.W. 733 : 16 M.L.T. 319 : 12 A.L.J. 1193 : 20 C.L.J. 385 : 16 Bom. L.R. 901 : 42 C. 489 (P.C.).]
40. I hold no brief for the landlord or the raiyat or the transferee. It seems to me, however, obviously desirable that the law on this important topic should be in a. more certain state than it is. As things stand, the landlord must be in doubt as to the effect of accepting a surrender and an intending purchaser from a raiyat must be in doubt as to the full extent of the risks which he runs, if he purchases without the landlord's consent.
41. The questions which seem to me to arise in the present case--the list is somewhat formidable--are:
(1) Whether having regard to the conveyance executed by the raiyat, the landlord is entitled in the particular circumstances to accept a surrender of the part transferred without prejudice to his right to evict the transferee.
(2) Whether the sale of a part of a non-tranaferable holding is an incumbrance within the meaning of Clause (6) of Section 86 of the Bengal Tenancy Act.
(3) If question (2) is answered in the negative, whether Clause (7) read with Clause (5) of Section 86 empowers a landlord to accept a surrender of a part of a holding without prejudice to his right to evict the transferee.
(4) Whether the decision in Letters Patent Appeal No. 11 of 1915 Ananda Mohan Roy v. Guruiayal Saha 49 Ind. Cas. 979 : 22 C.W.N. 965. is consistent with the decision in Letters Patent Appeal No. 1 of 1917 Tamiz Munshi v. Bisweswari Debya 46 Ind. Cas. 862 : 22 C.W.N. 967.
(5) Generally, whether, apart from fraud, the landlord is entitled to accept a surrender of a part of a holding without prejudice to his right to evict the transferee from that part.
On some at least of these questions there has been actual difference of opinion and I should have been glad to join in a reference to a Full Bench if my brother Teunon, J., had thought it light and proper that such a reference should be made.
42. On the authorities as they stand, my opinion is that was should not be justified in reversing the decree of the Court below. Apart from any more general question, there are, as I conceive, decisions binding on me in regard to the effect of Clauses (5), (6) and (7) of Section 88.
43. While I regret having to differ from my learned brother, I hold that the appeal should be dismissed.