BALLABHA DAS Vs. MURAT NARAIN SINGH

JUDGEMENT

(1.) This is a decree-holder's appeal arising out of an execution matter. On the 18 February 1875 one Sitaram granted a permanent lease of an entire village in favour of one Kalka Prasad Singh. The heirs of Kalika Prasad Singh, in the years 1915 and 1916, made two mortgages of the whole of this village in favour of Seth Ballabha Das. The mortgagee brought a suit for sale on the basis of the mortgage- deeds. No written statement was put in and the mortgagors did not contest the claim on the ground that the property mortgaged was not transferable. As ex- parte decree was passed which has been put in execution. The judgment-debtors have now raised the objection that their interest in the property is not transferable inasmuch as they are thekadars and therefore not occupancy tenants within the meaning of the Agra Tenancy Act. This objection has found favour with the Courts below and the application for execution has been disallowed. The decree-holder has come up in appeal and several contentions are put forward on his behalf.

(2.) First of all it is contended that Section 20(3) which make the interest of a thekadar subject to the terms of the lease not transferable does not apply to execution sales. The argument is that wherever the Legislature intends that the word "transferable" should cover execution sales also, it expressly has said so. Our attention is drawn to Sub-clause (2) where it is expressly provided that the interest of other tenants is not transferable in execution of a decree of a civil or revenue Court of otherwise. This contention cannot be accepted. The word "transferable" is used at two places in the same Section 20. In Sub-clause (2) it is used in its general sense no matter whether the transfer is voluntary or involuntary. Although the whole clause is not repeated in Sub-clause (3), there is no reason to suppose that the word transferable" is not used in the same sense in that clause also and that it is confined to private transfers only. In my opinion this contention therefore must be rejected.

(3.) The next argument advanced before us is that the lease in question was executed in the year 1875, long before the present Agra Tenancy Act was passed, and that inasmuch as at that time there was no prohibition against transfers of an interest by a thekadar, the interest remained transferable. This argument also has no force. Assuming that the interest was transferable prior to 1901, it can be made non-transferable by an express enactment. The law governing the transfer must be that one which was in force on the dates when the transfers in dispute took place.