BABU LACHMI NARAIN Vs. BATUK SINGH

JUDGEMENT

(1.) This is a Letters Patent appeal in execution by a decree-holder who has lost his case before the two Courts below and also before a learned Single Judge of this Court. The appellant had a simple money decree and in execution of that decree, he attached certain property belonging to the judgment-debtors. The objection taken by the judgment-debtors was that their interest was not attachable or saleable in execution of a civil Court decree and the Courts below have upheld that contention. On 10 February 1919 two zamindars granted a permanent lease to the judgment-debtors of six plots of land of an area of 8.29 acres. The lease was a permanent lease and it stated that the judgment-debtors had been tenants of these plots and that the plots were now being given on a permanent lease and it provided that the lease would be heritable and that any arrangements could be made which the lessees desired and permission was granted for the lessees to plant a grove or construct buildings. It was further provided that the lessees could make all kinds of transfer they desired whether by way of gift or sale or otherwise. The annual rent was fixed at Rs. 56.2-6 and the lessees paid Rs. 250 nazrana. There is no doubt that the classification of this kind of lease presents some difficulties. It was executed at the time when Act 2 of 1901 was in force and the lessees were classed in the records as non-occupancy tenants under a permanent lease. When Act 3 of 1926 came into force, the lessees were classed as statutory tenants. At no time had the lessees ever been entered in the khewat as thekadars, that is as lessees of proprietary rights. The present definition of thekadar as contained in Section 199 of the present Tenancy Act is: A thekadar is a farmer or other lessee of proprietary rights in land, and in particular of the right to receive rents or profits.

(2.) Now as the collection of rents and profits is not the subject of lease but the mere possession of six plots, we do not consider that there is any lease of proprietary rights and we do not consider that the lessees are in the position of thekadars. In passing, we may notice that we do not agree with the learned Single Judge in his interpretation of Section 20(3) of the former Tenancy Act 2 of 1901. That sub-section provides : "The interest of the thekadar is, subject to the terms of his lease, heritable, but not transferable."

(3.) In our opinion, the clause subject to the terms of his lease governs all the words which follow and is not limited only to the word heritable but also (applies to the word transferable. Previous to this Act, the section in question read : "The interest of a thekadar is not heritable or transferable, unless so pro-vided in his lease".