AMULYA RATAN SIRCAR Vs. TARINI NATH DEY

JUDGEMENT

(1.) The subject matter of the litigation which has culminated in this appeal, is one half share of an occupancy holding, which admittedly belonged at one time to Tarapada Cbatterjee. The right to this one half share is claimed, on the one hand, by the transferee from the heir-at-law who is the plaintiff, appellant, and on the other hand, by the transferees from the executor who are the defendants respondents. The occupancy holding, it is not disputed, is not transferable by custom or local usage. In so far as the plaintiff is concerned, his transfer from the heir-at law has been recognised by the landlord, and no question can arise as to its validity on that ground. The substantial question in controversy is, whether the testamentary disposition was valid and operative so as to exclude the heir-at-law, because if there was a valid testamentary devise, the property passed to the executor, and the heir-at-law consequently took nothing. On behalf of the defendants respondents, it has been contended that the occupancy holding, though not transferable by custom or local usage, may be the subject of a valid testamentary disposition. The Bengal Tenancy Act admittedly does not contain any provision, expressly applicable to this subject. But our attention has been, drawn to Section 26 which regulates the devolution of occupancy right when a ryot dies intestate, and it has been argued that the Legislature has herein, by implication, indicated, that a raiyat is competent to make a testamentary disposition of his occupancy right. There is clearly no force in this contention. In the first place, if we were to accept the mode of interpretation of Section 26 suggested by the respondents, we would have to contravene the elementary rule of construction that rights cannot be conferred by mere implication from the language used in a statute; there must be a clear and unequivocal enactment: Arnold v. Mayor of Gravesend (1856) 2 K. & J. 574, 591 : 110 R. R. 372.

(2.) In the second place, full effect would be given to the implication contained in Section 26, if it were shown that a raiyat is competent to make a testamentary disposition of his right of occupancy in certain events. Now, Section 178, Sub-section (3), Clause (d) indicates that in this respect the right of an occupancy raiyat stands on the same footing as his right to transfer his holding. Clause (d) provides that nothing in any contract made between a landlord and a tenant after the passing of the Act shall take away the right of a raiyat to transfer or bequeath his holding in accordance with local usage. In the case before us, no local usage has been proved and the respondents are not in a position to support the validity of the bequest as made in accordance with a local usage. The respondents have consequently been driven to take up a different position. Their contention is that the heir-at-law is estopped from questioning the validity of the devise made by the testator, and in support of this view reliance has been placed upon, the judgment of Mr. Justice Doss in the case of Hari Das Bairagi v. Udoy Chandra Das (1908) 12 C. W. N. 1086 : 8 C. L. J. 261. It. may be conceded that the view taken by that learned Judge does support the argument for the, respondents. But it is worthy of note that when an appeal was preferred under the Letters Patent against the decision of Mr. Justice Doss, the decree was affirmed on a different ground; Udoy Chandra Das v. Hari Das Bairagi (1909) 10 C. L. J. 608. It is consequently impossible for us to treat the matter as concluded by authority, although the opinion expressed by Mr. Justice Doss must be deemed entitled to the highest consideration. On behalf of the appellant, the correctness of the view taken by Mr. Justice Doss has. however, been controverted; and we have been invited to examine the grounds upon which that opinion is based.

(3.) Mr. Justice Doss points out, in the first place, that a transfer of an occupancy holding is not a void transaction, that it is binding between the parties, namely, the transferor and the transferee, and all persons claiming through them, and that it is voidable only at the option of the landlord or his representative in interest. This view is founded on the doctrine of estoppel, which was clearly recognized by Phear, J. when he observed in Bihee Suhodra v. Maxwell Smith (1873) 20 W. R. 139. that the raiyat "certainly could not himself recover it (the holding) from the strauger to whom he had transferred it for valuable consideration ", and by Couch, C. J., when he remarked in Narendra v. Ishan (1874) 13 B. L. B, 274, 289; that " the raiyat could not recover possession from the transferee, as he would be bound by his act of transfer." To the same effect is the express decision in Bhagirath Changa v. Sheikh Hafizuddin (1900) 4 C. W. N. 679. where Stevens, J. pointed out that when the occupancy raiyat. has transferred his holding on the representation that he had a transferable interest therein, he cannot, on principles of equity and good conscience, be permitted to prove against the transferee who had paid consideration for the transfer, that he had no transferable interest to convey. This is an intelligible principle, recognized so long and So firmly established that its soundness cannot now be successfully challenged. Mr. Justice Doss then concludes that if this is the character of the transaction, namely, the character of a voidable transfer, " it seems lo follow that the heir of an occupancy raiyat ought to be held bound by a transfer of the holding made by a will." The learned Judge then proceeds to state the reason for this inference, namely, that if the heir is bound by a transfer for valuable consideration or by a gift, there does not seem to be any reason why he ought not to be held bound by a transfer made by a will. Before we test this reasoning, it is necessary to observe that the broad proposition that the heir of an occupancy raiyat is bound by a gift made by the raiyat himself may, when occasion arises, require examination. Cases are no doubt conceivable whore the donee may, by the acceptance of the girt, have altered his position, and may, in such circumstances, be entitled to rely upon the doctrine of estoppel in support of his title. To take a concrete illustration : A is offered two gifts by two of his relations, on the condition that if he accepts one, he must renounce the other ; he makes his election in favour of one of the gifts. His position would be altered if that donor were permitted thereafter to prove against him that the donor had no transferable title to convey. But, on the arguments addressed to under Section, we are not prepared at present to accept it as an invariable principle of law that, in every case of gift, the doctrine of estoppel may he applied as between donor and donee. Let it be assumed, however, for the purposes of the present argument and for that purpose alone, that in all cases of transfer for valuable consideration as also in all cases of gift, the heir is bound by the same estoppel as the transferor or the donor himself; does it follow that this principle is applicable to cases of testamentary devise? In the case of transfer inter vivos, with or without consideration, there is, on the assumption made, an estoppel in favour of the transferee as against the transferor; and that estoppel is binding upon the heir of the transferor. In the case of a testamentary devise, is there any estoppel as between the testator and the intended legatee or the executor? It cannot be disputed that it is open to the testator, up to the very last moment of his life, to change his mind, and to revoke the disposition made by him. His testament does not come into operation till the moment after his death. Consequently, as between the testator on the one hand and the legatee or executor on the other, there is no room for any possible application of the doctrine of estoppel. The position becomes plain when we recall to mind the nature of the estoppel applicable to cases of transfer for consideration.