AJODHIA KALWAR Vs. BALKARAN

JUDGEMENT

(1.) This is a decree-holder's appeal arising out of execution proceeding s. The decree-holder had obtained a simple money decree against the judgment-debtors, and in execution of it they attached three plots of land belonging to the judgment- debtors. The latter objected that they were mere non-occupancy tenants of these plots and their rights were not saleable. The decree-holders contention was that the judgment-debtors had acquired the rights of perpetual lessees under a registered document executed by a zamindar on 23 September 1927. The first Court held that the rights of the judgment-debtors were not transferable in spite of a provision to that effect in the lease. The lower appellate Court came to a contrary conclusion. A learned Judge of this Court in second appeal has agreed with the view of the first Court and has dismissed the decree-holder's application.

(2.) The sole question before us for consideration is whether, under the terms of this particular document, the judgment-debtors acquired transferable rights, which can be attached and sold, or whether the rights possessed by them are not attachable and saleable. Prior to the Tenancy Act of 1901, they was not any clear restriction on the power of the. zamindar in granting rights in perpetuity to tenants. But Section 20 of Act 2 of 1901, provided that the interests of certain tenants would not be transferable, and also provided that the interest o? a thekadar is, subject to the terms of his lease, heritable, but not transferable.

(3.) This last mentioned Sub-section (3), with its rather ambiguous language, was the subject of an interpretation in two cases in which slightly different meanings were attached to it. In the case of Ballabh Das V/s. Murat Narain Singh , it was held by at least one of the Judges that there was no prohibition against the transfer ability of the rights of a thekadar, if under the terms of the document a right of transfer was specifically conferred. In the case of Majid Hussain V/s. Kurban , it was held by the Letters Patent Bench affirming the decision of a Single Judge of this Court that under Section 20(3), it was not open to the zamindar to create a theka with transferable rights. It does not however appear that although the latter case was decided a few days after the first, the former decision was cited before the Letters Patent Bench. We may point out that the decree-holder's case also receives considerable support from the observations made in the cases of Raghunath Tewari V/s. Buddhu Ram Tewari 1930 All 315 and Mahesh Narain Singh V/s. Bisheshar Lonia 1931 All 534.