AMAR CHAND ROY Vs. PRASANNA DASI

JUDGEMENT

(1.) The substantial question in controversy in this appeal is, whether the term transfer in Clause (a) of Section 13 of that Bengal Tenancy Act includes a lease. Mr. Justice Newbould has answered this question in the affirmative on the authority of the decision of this Court in the cases of Hari Mohan Lal v. Atul Krishna Bose 32 Ind. Cas. 503 : 19 C.W.N. 1127 and Ramcharan Bairagi v. Vdai Bairagi 49 Ind. Cas. 515. We have been pressed to hold that those decisions are erroneous, and our attention has been drawn to the judgment in the case of Parushulla Sheikh v. Saikh Chandra Das 28 Ind. Cas. 267 : 19 C.W.N. 1110, where there is a dictum to the effect that the transfers conterppicted in Sections 11 and 18 of the Bengal Tenancy Act are transfers out and out and not partial transfers by way of sub leases. We have arrived at the conclusion that the view taken by Mr. Justice Newbould is correct and that there is really no room for serious argument in this matter.

(2.) The decision in the case of Hari Mohan Pal v. Atul Krishna Bose 32 Ind. Cas. 503 : 19 C.W.N. 1127 proceeded on the basis that Sections 18 and 85 should he read together, and that Section 85 should be read as if the words Subject to the provisions here in before contained had been inserted therein. Mr. Sen has strenuous contendei that this is not the proper way to interpret statutory provisions which are repugnant, and that we should either hold that the term transfer in Section 18 does not include a lease or adopt the view that Section 85 repeal the provisions of Section 18 with regard to a lease. In our opinion, there is no foundation for either branch of this contention.

(3.) Section 18 provides that a raiyat holding at a rent, or rata of rent, fixed in perpetuity, shall be Subject to the same provisions with respect to the transfer of, and succeeding to, his holding as the holder of a permanent tenure." The provisions relating to the transfer of and succession to a permanent tenure are contained in Sections 11 and 12. Section 11 provides that every permanent tenure shall, Subject to the provisions of this Act, be capable of being transferred and bequeathed in the same manner and to the same extent as other immoveable property." It is manifestly impossible to contend with any seraglio of plausibility that the term "transfer" in Section 11 does not include a "lease". On the other hand, if we contrast Section 11 with Section 12, it becomes plain that, where the Legislature intended to have a provision not applicable to all kinds of transfer, they specified the kind of transfer they had in view; for instance, Sub-section (1) of Section 12 refers to a transfer by sale, gift or mortgage. We are consequently unable to accept as well founded the dictum in the case of Parushulla Sheikh v Sital chandra Das 28 Ind. Cas. 267 : 19 C.W.N. 1110, as to the meaning of the expression transfer either in Section 18 or Section 11.