KAILASH CHANDRA PAL Vs. HARI MOHAN DAS

JUDGEMENT

(1.) This was an application under Section 244 of the former Code in which the judgment- debtor pleaded inter alia, that a certain property, which the decree-holders sought to attach in execution of their decree, was not liable to attachment. The Subordinate Judge of Comillah held that the property was subject to attachment and refused the application and the judgment-debtor appeals.

(2.) The only question that now arises for determination is whether this property, which is a homestead in the Town of Comillah, is saleable property within the meaning of Section 266 of the former Civil P. C.. The learned Subordinate Judge refused the application on two grounds. He held, firstly, that the judgment-debtor was not entitled to deny that the holding was transferable by usage, and secondly that the holding, was transferable under the Transfer of Property Act. As to the first point, the evidence seems to us perfectly clear. The learned Subordinate Judge himself appears to have shrunk from holding in so many words that a usage existed, authorizing the transfer of this holding without the landlord's consent. In one part of his judgment he says: "There is no custom or usage in existence according to which the Maharaja gives his consent to the transfer of such holdings as a matter of course," and later he says: "There is sufficient indication that usage is growing up for the transfer of such lands without permission and for obtaining the sanction of the landlord after the purchase is made."

(3.) Now it appears to us that we are not at all concerned with the question whether or not a usage of sale exists in Comillah. It is very likely that such a usage exists and we believe it exists widely throughout these provinces. What we are concerned with is a very different thing, that is to say, whether there is any usage of sale without the consent of the landlord.