LAKHAN NARAIN DAS Vs. JAINATH PANDAY

JUDGEMENT

(1.) I express my opinion upon the point submitted to us, namely, whether the right of a non- occupancy raiyat is heritable, with some diffidence, because I am conscious that many of my colleagues are much better acquainted with such a subject than I am.

(2.) I, however, do not propose to express any opinion upon the question whether or not such right was heritable before the passing of the Bengal Tenancy Act. No argument was addressed to us upon that point, and the argument rather proceeded upon the basis that it was not heritable, but that it had been made so by that Act.

(3.) Upon the question whether that Act created the right if it did not previously exist, I do not see how we can avoid the strong inference to be drawn from Section 26 of the Act. The legislature by that section has expressly enacted that, "if a raiyat dies intestate in respect of a right of occupancy, it shall, subject to any custom to the contrary, descend in the same manner as other immoveable property;" but it says nothing about the right of a non- occupancy raiyat. On the principle of expressio unius est exclusio alterius the inference is strong that the legislature did not intend by that Act to make the right of a non-occupancy raiyat heritable: but if such right were heritable at the time of the passing of the Bengal Tenancy Act, it has not in my judgment, been taken away by the Act. In my opinion the Act neither created, nor destroyed any such right.