HIRALAL Vs. SUDHANSHU MOHAN BOSE

JUDGEMENT

(1.) This is an application by the transferees of a part of an occupancy holding, and arises in the following circumstances: In 1934, the petitioners purchased a portion of an occupancy holding. In 1987, the landlord sued the original tenant for arrears of rent and obtained a decree. The petitioners were made parties to the proceedings in execution of that decree in which the decree-holder attempted to sell the moveable property both of the original judgment-debtor and also of the petitioners. The petitioners objected and their objection was upheld. Against the order upholding the objection the decree-holders appealed and the decision of the Court below was reversed with the result that the moveables of the petitioners have now been held liable to be taken in execution of the decree obtained against the original judgment-debtor to which the petitioners were not parties. Their liability depends upon the construction of certain Secs.of the Tenancy Act, relating to the transfer of the whole or a part of an occupancy holding. Under the Act of 1913, a transferee of an occupancy holding or a portion of it could obtain registration of the transfer by payment of the transfer fee to the landlord.

(2.) In cases where the landlord was not prepared to accept the fee and recognise the transfer, the transferee could obtain registration by depositing the foe with the Collector who was then required to give notice to the landlord and hear him should he desire to oppose registration of the transfer. In considering whether the landlord should be compelled to recognise the transfer the Collector was required to consider, among other circumstances, whether there were any arrears of rent due in respect of the holding. He was not, however, prohibited from compelling the landlord to recognise a transfer merely because arrears wore due in respect of the holding.

(3.) In the case of a transfer which had been recognised by the landlord, either voluntarily or under compulsion, the portion of the holding which was the subject- matter of the transfer could not be sold in execution of a decree obtained against the transferor only. In the case of an unrecognised transfer the transferee could not object to the sale of a holding in execution of a decree obtained against the original tenant. Section 31 of the Act of 1913 has now boon repealed by the Amending Act of 1938 and in its place are a number of other Secs.designed to enlarge the right of a holder of an occupancy tenancy to transfer the whole or a part of his holding and to safeguard the rights of the transferee. Section 30A which has been inserted by the Amending Act declares that occupancy holdings shall be transferable without the landlord's consent and without the payment of any fee to the landlord, and further declares that such a transfer shall carry with it the occupancy right in the holding i and all the rights appurtenant thereto.