RANI MINA KUMARI SAHEBA Vs. ICHAMOYEE CHOWDHURANI

JUDGEMENT

(1.) The appellant is the plaintiff in a suit brought to recover actual possession of an occupancy holding in the village of Basanta of which he is the proprietor. His case is that the holding is non-transferable and that the defendants, who are in possession as purchasers from the original tenant, are mere trespassers. Of the defences raised we are now concerned only with the defence that occupancy holdings in the village are transferable by custom without the landlord s consent. The written statement says nothing about the payment of nazar, customary or otherwise. There is no plea that nazar has in fact been piid. Nor is there any reference to nazar in the issue framsd upon this question. The issue is merely: "Are the disputed holdings transferable by local custom or usage?" At the trial, however, evidence relating to the payment of nazar has been given and both the Courts below have found in favour of a custom of transferability involving in some way, which is not clearly defined, the payment of naiar. The question is whether the finding can be supported in law.

(2.) The cases on the subject of customary nassar will be found collected in Mr. Sen s work on the Bengal Tenancy Act (3rd Edition, pages 136, 137). The principle of the cases is clearly this, that in order to establish a custom of transferability subject to the payment of a customary nazar the evidence must show that the landlord is bound to recogniz? the transfer when nazar of the amount or at the rate determined by custom is tendered to him. There is all the difference between a fixed nazar, which the landlord is obliged to accept whether he likes it or not, and a nazar which is bargained for and paid as the price of a consent which he may give or withhold as he pleases. A practice or course of business in a Zemindary office, according to which a transferee is recognized provided that the amount of the nazar is satisfactory to the landlord, is not sufficient.

(3.) Tried by this standard the finding of the learned Munsif is not a good finding of a custom. It is not enough to say "that there are constant transfers and the transferees pay nazar to the landlord to be recognized." The two statements that "occupancy jotes are transferable" and that "landlords recognize snoh on payment of nazar" are as they stand inconsistent. The payment of nazar without more is an indication that the jotes are not transferable without the landlord s consent, given on receipt of the nazar.