MANPAL SINGH Vs. RAJ PARTAB SINGH

JUDGEMENT

(1.) This appeal arises out of a suit for possession of a certain cultivatory holding, The plaintiffs came to Court on the allegations that one Nanhe Singh who owned a large area of occupancy holding and fixed-rate holding, died about 1863, that after him his widow Musammat Nankai entered into possession of the occupancy holding as a life tenant with limited rights only, that she made a gift of the said property to Manpal Singh, defendant, and his wife in the year, 1893, that she being only a life-tenant had to right to make the gift, that the gift was, therefore, invalid, that she died in the year 1915 and that, thereupon, they, the plaintiffs now sued as her next reversioner for possession which was postponed till her death. The original tenant Nanhe Singh having died before the Tenancy Act of 1873 was pursued, the question is, was there a succession to his holding at the time of his death and, if so, to whom. We have not been able to find any provision of law regulating the devolution of succession to an occupancy tenancy at that time. The right of an occupancy tenant was first created by Act X of 1859, Section 6 of that Act runs as follows: "Every Raiyat, who has cultivated or held land for a period of twelve years, has a right of occupancy in the land so cultivated or held by him, whether it be held under pottah or not, so long as he pays the rent payable on account of the same, but this rule does not apply to khomar, nijjote, or sir land belonging to the proprietor of the estate or tenure and let by him on lease for a term or year by year, not (as respects the actual cultivator) to lands sub-let for a term or year by year by a Raiyat having a right of occupancy. The holding of the father or other person from whom a Raiyat Inherits, shall be deemed to he the holding of the Raiyat within the meaning of this section."

(2.) In the case of Ajoodhya Pershad V/s. Imam Bandi 7 W.R. 528 : B.L.R. Sup. Vol. 725 a Full Bench of the Calcutta High Court held that such a right was not transferable, and Sir Barnes Peacock stated in his judgment, speaking for myself I am not at all sure that a right of occupancy gained under Section 6, Act X of 1859, is necessarily heritable.

(3.) In Nurendro Narain V/s. Ishan Chunder Sen 13 B.L.R. 274 22 W.R. 22 (F.B.) a Fall Bench of the Calcutta High Court decided that such a right was not transferable.