SM KAMALA MAYEE DASI Vs. NIBARAN CHANDRA PRAMANIK

JUDGEMENT

(1.) This case has been placed before the Division Bench as it is said to involve a question of law on which there has been a divergence of opinion. The facts on which the question turns are that one Dukhimoyi Dasi had a tenancy under the defendant in respect of a piece of homestead land from before the Transfer of Property Act. She was succeeded by her daughter Basanta Kumari who sold it to the plaintiff in 1924. The plaintiff having been dispossessed by the defendant who is the landlord brought the present suit for declaration of his title and for possession of the land. The defence pleaded that Dukhimoyi had no right to the land as she was allowed to live there as a mere licensee. The trial Court gave a decree to the plaintiff holding that on the pleadings the defendant could not raise the question of transferability of Dukhimoyi's tenancy which he held was rightly transferred to the plaintiff. The learned Subordinate Judge in the appellate Court held that the defence sufficiently raised the issue of transferability of the tenancy and that under the law as it stood before the Transfer of Property Act Dukhi's tenancy which was a bastu one could not be transferred and hence the plaintiff acquired no title to it, and dismissed the plaintiff's suit.

(2.) It is argued before us in the first place that the defendant in the face of the written statement cannot question the transferability of the tenancy and if ho can, an opportunity should be given to the plaintiff to meet such a case. The written statement has been placed before us and we find that the defendant in para. 11 of it distinctly says that Dukhimoyi or Basanta Kumari had never any jamai right or any saleable right. The question of transferability having been thus raised the plaintiff had to meet the case set up by the defence. The plaintiff in any case has to establish his title before he gets a decree.

(3.) The real question on which this appeal turns is with regard to the correctness of the view of the Subordinate Judge that the tenancy in question which is a non-permanent one is not transferable. It cannot be questioned now as it has been settled by numerous authorities that non-permanent tenancies whether of homestead or of agricultural land created before the passing of the Transfer of Property Act are not transferable. Harinath Karmokar V/s. Raj Chandra Kar [1898] 12 C.W.N. 122 Ananda Mohan V/s. Gobind Chandra [19161 33 I. C. 565 Hanuman Prasad Singh V/s. Deo Charan Singh [1908] 7 C.L.J. 309 and Hiramoti Dassya V/s. Anuoda Prasad Ghosh [1908] 7 C.L.J. 553. This proposition has not been questioned before us but Mr. Roy for the appellant argues that there is a distinction between a tenancy of homestead and a tenancy for residential purpose according to the law as it existed before the Transfer of Property Act. In the former case it is undoubtedly true that the tenancy is not transferable, but in the latter case where it is for residential purposes, there is authority for holding that the tenancy is transferable. This distinction is attempted to be based upon a certain dictum of Sir Barnes Peacock, C. J., in the ease of Beni Madhab V/s. Joy Krishna (5). There the facts found were that the tenancy was created for building purposes; the tenants had built houses on the land which they had transferred and of which the vendors and their father were in possession for more than 35 years; that there were pucca buildings on the land; that it had descended from father to son and that the kabuliyat showed that the tenures were not merely of a temporary nature. It was observed that on these facts the tenancy was prima facie one for building purposes and as such assignable as well as heritable according to custom. It was also found that the custom of transferability of similar leases in the locality was proved. After mentioning all these facts and the conclusion to be drawn from them the learned Chief Justice observed: Independently of this, speaking for myself, I should say that if one man grants a tenure to another for the purpose of living upon the land, that tenure in the absence of any evidence to the contrary would be assignable.