RAM BHAROSE Vs. BISHNATH PRASAD

JUDGEMENT

(1.) This is a defendant's second appeal. The facts which have given rise to the litigation between the parties are set forth in our order of 2 May, 1933. We framed an issue: Whether Narain Prasad had a right of transfer either under a lease or under any other valid agreement with the landholder?

(2.) The case was sent back to the lower appellate Court with directions for a finding on this issue. The learned Judge has sent his finding which is that Narain Prasad had a right of transfer as a lessee of the plot on which the house stands. The learned Subordinate Judge has found that it is proved that the house was built over 50 years ago. This finding is binding in second appeal. Lachhmi Narain and Thekur Din ware the two sons of Narain Prasad. Lachhmi Narain sold his one-half share to Raj Narain under a sale deed dated 15 February 1928, while Thekur Din sold his share to the defendant-appellant on 11 July 1929. The plaintiff, Bishnath Prasad, instituted a suit for partition of the one-half share which Ram Narain had purchased on the allegation that he got that share of Raj Narain under a will. Both the Courts below have held that the plaintiff had a right, as legal representative of Raj Narain, to maintain a suit for partition.

(3.) The only other question in dispute is as to whether or not Narain Prasad had a right to transfer the house in suit. The contention raised by the appellant who, in addition to being a purchaser of the other one-half share, happens to be the legal representative of the lessor of Narain Prasad, is that Narain Prasad was a mere licensee and therefore under the provisions of Section 56, Basements Act, was incompetent to make a transfer. The first question for consideration is whether the ease is governed by the provisions of the. Easements Act, which came into force on 1 July 1882. The Act is not retrospective in its effect and its provisions were extended to United Provinces of Agra and Oudh by Act, 8 of 1891. Neither the Easements Act, 8 of 1882, nor the amending Act, 8 of 1891 can affect the rights which were acquired before 1891. In the case before us there is a clear finding of the learned. lower appellate Court that, the lease of Narain Prasad carne into existence about 70 years ago, that is to say, long before the passing of the aforesaid two Acts. So in our opinion these two Acts do not apply to the case before us where the lease was given to Narain Prasad long before the passing of the aforesaid Acts. But we will assume for the purpose of deciding this case that the case is governed by the provisions of the Easements Act. What is the position then? Section 56, Easements Act enacts: Unless a different intention is expressed or necessarily implied, a license to attend a place of public entertainment may be transferred by the licensee; but save as aforesaid a license cannot be transferred by the licensee, or exercised by his servants or agents.