AMINNESSA Vs. JINNAT ALI

JUDGEMENT

(1.) This appeal arises out of a suit brought by the plaintiff for declaration of her raiyati right in the land in suit and khas possession thereof. It appears that the plaintiff became 16 annas tenant of an ocenpaney holding by purchase from her husband in the year 1314 and that she then found that the under-raiyat on the land who is defendant 2 had sold the under-raiyati to defendant No. 1 eight years before in 1306.

(2.) It is admitted that the lease was only for a term and it appears that now that lease must have expired, since move than 9 years have elapsed from the time when it was sold to defendant No. 1. Be that as it may, it is conceded that the learned Judge s finding that all leasehold property is saleable and that there is nothing in the Bengal Tenancy Act to prevent the sale of an under-raiyati is not a correct view of the law. That is a rule of English law and it is incorporated in the Transfer of Property Act. But the Transfer of Property Act by Section 117 clearly excludes all agricultural lands from that rule, and the true rule is. as was laid down by the late Sir Francis Maclean in the case of Hira Moth Dassya v. Annoda Prasad Ghose (1908) 7 C L J. 553, 555 that when a tenure or holding, apart from the Transfer of Property Act, is not transferable it cannot become so unless it is expressly made so by some other statute. The learned Chief Justice pointed out, if it had been intended to make holdings transferable which were before non-transferable we might have expected the Legislature in framing the Bengal Tenancy Act to have said so. It was clearly laid down in 1878 by Chief Justice Garth and Jackson. J., that jummaie rights of a korpha under-tenant are not, transferable without the consent of the raiyat landlord. Mr. Justice Jackson goes so far as to say, I would only add that I never heard before that the question as to the possibility of selling a korpha tenant s right could be raised, and it appears to me to be contrary to the nature of things that such a thing could happen." The Tenancy Act has not made any change in the law as laid down there; and it must be held as a matter of law contrary to what has been said by the learned Judge in the Court below that an under-raiyati is not transferable.

(3.) That being so and the plaintiff being the landlord of the entire 16 annas and the defendant having transferred the whole holding to defendant No. 1, the case falls within the second heading of the recent Full Bench ruling,-where the transfer of the whole holding has been made the landlord is ordinarily entitled to enter on the holding, and such a relinquishment as the relinquishment of the whole 16 annas without any proof of payment of runt or any arrangement made to pay the rent is certainly a relinquishment in fact which would entitle the plaintiff to eject the defendant.