Das, J. :

1. This appeal under the Letters Patent raises a problem of some complexity as to the transfer of homestead land governed by Section 182, Bihar Tenancy Act. The problem, in some of its aspects, has been the subject of consideration in several decisions of this Court and the Calcutta High Court. The latest decision of this Court was that of a Special Bench of three Judges in -- Hari Narain Singh v. Babui Mohari : AIR 1949 Pat 413 [LQ/PatHC/1949/41] (A), which practically overruled the earlier decision in --Mahadeoashram Prasad Sahi v. Parikha Choudhri : AIR 1945 Pat 428 [LQ/PatHC/1945/36] (B). Under orders of my Lord the Chief Justice the appeal has now been placed before a Full Bench of five Judges.

2. The facts so far as they are relevant to this appeal, may be briefly stated. The plaintiffs are the appellants. They brought a suit for a declaration of title and confirmation of possession, or, in the alternative, recovery of possession in respect of about .08 acres of land comprised in plot No. 1050 of holding No. 176 situate in village Lauria, in the district of Monghyr within tauzi No. 445 of the proprietor, popularly known as the Banaili Raj. The holding was recorded in the record of rights (finally published in 1908) as gairmaarua-malik, the total area of the holding being 13 acres. The holding consisted of this plot, namely, plot No. 1050 on which stood a house and sahan. In the remarks column of the record of rights was recorded the possession of one Musammat Darsano Kuari, widow of Tale Rai. On the death of Musammat Darsano Kuari, one Musammat Chaurabati came in possession of the plot. She was the widow of a brother of Tale Rai.

On the 11th of July, 1939, Musammat Chaurabati conveyed the plot, along with her raiyati lands, about 1.46 acres in area appertaining to holding No. 66 in village Siloutha and about 1.08 acres of holding No. 25 of village Tevai, to the defendant second party, namely, one Jagrup Mawar. Musammat Chaurabati died sometime in 1941. The case of the plaintiffs was that they took possession of the plot on the death of Musammat Chaurabati, in spite of the sale deed executed by her on 11-7-1939. Then, on 27-6-1946, Bhagwat Sharma, one of the plaintiffs, took settlement of the plot from the landlord, Banaili Raj, under a registered Kabuliat of that date. The house standing on the plot having become dilapidated by that time, the plaintiffs repaired the house and began to grow vegetables on the rest of the land and amalgamated it with survey plot No. 1051.

3. The defendants first party, Baijnath Sharma and others, claimed .08 acres out of the plot on the strength of an oral purchase from Musammat Chaurabati for a consideration of Rs. 75/- only, made some 15 or 16 years before the institution of the suit. There was a proceeding under Section 144, Criminal P. C., between the plaintiffs on one side and the defendants first party on the other. This proceeding terminated in favour of the defendants first party by the order of the Sub-divisional Magistrate, Monghyr, dated 6-1-1948, which order was upheld by the District Magistrate on 20-1-1948. The plaintiffs then brought their suit on 29-1-1948, against the defendants first party.

4. Jagrup Mawar intervened, and was added as the defendant second party. His claim, I have already stated, was that he had purchased the disputed land along with her raiyati lands from Musammat Chaurabati by a registered sale deed dated 11-7-1939. Jagrup Mawars defence was that Musammat Chaurabati left the house after the sale, and though she returned sometime after and lived with him till her death in 1941, he came in possession of the disputed land and house after his purchase. The contention of Jagrup Mawar was that he acquired a good title to the homestead by reason of the sale-deed in his favour.

5. In the Courts below as also before us the case proceeded on the footing that (a) the disputed land and house were a homestead, (b) Musammat Chaurabati was the tenant of the homestead, and (c) Musammat Chaurabati had no other raiyati land in village Lauria, though she had raiyati lands in village Siloutha and Tevai. It was also admitted that the disputed homestead was held by Musammat Chaurabati otherwise than as part of her raiyati holdings in the aforesaid two villages. Several questions of fact and law fell for decision in the Courts below.

6. I had better state first the findings of the learned Munsif who dealt with the suit in the first instance. He found that the story of oral purchase set up by the defendants first party was not worthy of credence. Secondly, he found that no local custom or usage having been pleaded by any of the parties, Musammat Chaurabati had a transferable interest in the homestead. The learned Munsif relied on my decision in -- : AIR 1945 Pat 428 [LQ/PatHC/1945/36] (B) for this finding, and held that Jagrup Mawar had acquired a good title to the homestead on the strength of his sale deed dated 11-7-1939. Thirdly, he held that Jagrup Mawar having acquired a good title in 1939, the landlord could not make a valid settlement in favour of the plaintiffs in 1946.

Fourthly, the learned Munsif disbelieved that Musammat Chaurabati had abandoned the holding, or that the landlord came in possession after her death. On the question of possession, he held that though the defendant second party had acquired title to the land in 1939, he never came in possession; and after the death of Musammat Chaurabati, the defendants first party took possession of the disputed portion of .08 acres as trespassers, and the plaintiffs took possession of the undisputed portion of plot No. 1050. On these findings, the learned Munsif dismissed the suit, primarily on the ground that the plaintiffs had failed to make out any title to the disputed portion of plot 1050.

7. On appeal, the learned Subordinate Judge held that the question of possession was of little importance in the case, as admittedly Musammat Chaurabati died in 1941, and the defendants first party who came in possession thereafter, were not in possession for more than 12 years. He thereupon discussed the question of title, and affirmed the finding of the learned Munsif that Musammat Chaurabati had a transferable interest in the homestead, which had been validly transferred to Jagrup Mawar; in arriving- at this finding, the learned Subordinate Judge corrected an apparent error of the learned Munsif in treating the disputed land in Lauria as a raiyati holding.

The learned Subordinate Judge rightly pointed out that the land was homestead land, held otherwise than as part of a raiyati holding. The learned Subordinate Judge found, however, that Siloutha and Lauria were adjoining villages under the same landlord, and relying on the decision in -- Krishna Kanta Ghosh v. Jadu Kasya AIR 1916 Cal 32 (C) and other Calcutta decisions, he held that the incidents of the homestead land, in the absence of any local custom or usage, would be governed by the provisions of the Bihar Tenancy Act applicable to the raiyati land of Musammat Chaurabati; in that view of the matter, the learned Subordinate Judge held that Musammat Chaura- bati could validly transfer her interest in the homestead land.

8. A second appeal was then preferred to this Court which was heard by Sarjoo Prosad J. (as be then was). The case was first remanded for a definite finding if the defendant second party had acquired both the raiyati and homestead lands of Musammat Chaurabati by the sale deed dated 11-7-1939. The learned Subordinate Judge gave a finding that the defendant second party had acquired both the homestead and raiyati lands by the aforesaid sale deed. Sarjoo Prosad, J. then heard the second appeal, and distinguishing the Full Bench decision of this Court in -- : AIR 1949 Pat 413 [LQ/PatHC/1949/41] (A) held that inasmuch as the raiyati holding had also been transferred along with the homestead land, the transfer was a valid transfer. He expressed himself as follows :

"The homestead land taken apart from his raiyati holding is devoid of all incidents except under local custom or usage, and, as such, there may be no right to transfer under Section 26A of the Act of such a land; but along with the raiyati holding itself the incidents whereof continue to regulate the incidents of the homestead land, I see no reason why such a homestead land cannot be transferred. There the raiyat is not transferring merely his homestead which loses its incidents as soon as it is sought to be severed from the raiyati holding to which it is linked by virtue of the common incidents which regulate the two. So long therefore, as this link of common incidents continues to operate upon the homestead land as the raiyati holding of the tenant, and the two are transferred together the incident of the right to transfer, in my opinion, still operates with equal efficiency upon the homestead land as well.

In the present case, the finding being that both the raiyati lands and the homestead have been transferred, I see no reason to hold that the right of transfer which could be validly exercised in respect of the raiyati holding with the incidents of which the homestead land continues to be regulated could not be validly exercised in respect of the homestead. This distinction, therefore, in my opinion, is essential, and the decision of the Pull Bench does not in any manner conflict with the view which I am adopting in regard to the validity of the transfer of the homestead land in the present case."

9. An appeal was then filed under the Letters Patent, which has now been heard by this Full Bench.

10. The principal question for decision in the appeal is what is the true scope and effect of Section 182, Bihar Tenancy Act; and if under the provisions of that section read with Section 26A of the said Act, Musammat Chaurabati had the right to transfer her interest in the homestead land

11. Before I deal with that question, it is advisable to dispose of two other points which were argued before us at an initial stage of the hearing. The learned Munsif found that there was no abandonment of the homestead by Musammat Chaurabati during her lifetime; nor did the landlord come in possession after the death of Musammat Chaurabati. A question arose, if, in these circumstances, the landlord could make a valid settlement in favour of the plaintiffs, irrespective of any question as to the right of Musammat Chaurabati to transfer the homestead. On this question, Mr. K. K. Sinha who has argued the case on behalf of the plaintiffs-appellants, has relied on the decisions in -- Lal Mamud Mandal v. Arbullah Sheikh : 1 CWN 198 (D) and --Abdul Majid Bhuiya v. Ali Mia : AIR 1931 Cal 657 [LQ/CalHC/1930/255] (E).

He has argued that the right of the landlord to recover possession of a tenancy relinquished by the tenant or his heirs does not depend exclusively upon Section 87, Bihar Tenancy Act; the landlord has the right to re-enter when the land remains unoccupied or is in the occupation of a trespasser, and if the landlord has the right to re-enter, he can as well make a valid settlement in favour of the plaintiffs-appellants, unless the transfer of her interest by Musammat Chaurabati in favour of Jagrup Mawar in 1939 stands in the way as a valid transfer in law. M.r. N. L. Untwalia appearing on behalf of the contesting respondent, has not challenged the correctness of the aforesaid contention of Mr. K. K. Sinha. It may, therefore, be taken as correct that the plaintiffs-appellants would be entitled to succeed, unless the sale-deed in favour of Jagrup Mawar stands in their way.

12. Mr. N. L. Untwalia has also conceded with commendable fairness, that he is not in a position to submit that the distinction made by Sarjoo Prosad J. makes any real difference in the legal position with regard to the interpretation of Section 182, Bihar Tenancy Act. He has submitted that if a raiyat holding his homestead otherwise than as a part of his holding as a raiyat, has the right to transfer his homestead, it makes no difference whether he transfers the homestead along with the raiyati lands, or he transfers the homestead first and then the raiyati lands, though he accepts that the position may be different if at the time of the sale of the homestead, the vendor has no raiyati land at all; in that event Section 182, Bihar Tenancy Act, will not be attracted at all. If, on the contrary, a raiyat holding his homestead land otherwise than as part of his holding has no right to transfer the homestead, it makes no difference whether the transfer of the homestead is made along with the raiyati lands or not. Mr. K. K. Sinha, appearing for the plaintiffs-appellants, has also challenged the correctness of the distinction drawn, by Sarjoo Prosad J.

13. I agree with learned Counsel for the parties : that the distinction drawn by Sarjoo Prosad J. (as he then was) is not decisive of the question which falls for determination in the present appeal. I do not think that it can be laid down as a general proposition of law, that when the1 homestead is transferred along with, raiyati lands, the transfer is valid; but when the homestead is transferred separately, the transfer is invalid. The, incident of the right of transfer with regard to such homestead land as is governed by Section 182, Bihar Tenancy Act, has to be determined with reference to the provisions of that section and such other sections of the Bihar Tenancy Act as may be applicable by reason of the words used in Section 182, Bihar Tenancy Act.

14. I proceed now to a consideration of the main question in this appeal. I must first read Section 182, Bihar Tenancy Act :

"When a raiyat holds his homestead otherwise than as part of his holding as a raiyat, the incidents of his tenancy of the homestead shall be regulated by local custom or usage, and, subject to local custom or usage, by the provisions of this Act applicable to land held by a raiyat."

I think that it is a little easier to understand the section if it is divided into its component parts. The first part is expressed in the form of a condition, namely, "when a raiyat holds his home- stead otherwise than as part of his holding as a raiyat." This condition includes two elements, and both the elements must be present at the time when the protection of the section is sought to be invoked by the tenant. The tenant must be a raiyat at the time, that is to say, have arable lands and must be using the other land for his residence. As has been observed in -- Naihati Jute Mills Co. Ltd. v. Kali Prosad Saha AIR 1949 Cal 259 [LQ/CalHC/1948/52] (P) it is the co-existence of these two elements that brings in the section (see also --Sukh Lal v, Prosanna Kumar AIR 1923 Cal 1193 (G) and --- Pulin Cliandra Daw v. Abu Bakar Naskar : AIR 1936 Cal 565 [LQ/CalHC/1936/12] (H)). The tenant may have acquired the homestead before, but the moment he acquired later on a raiyati holding, he comes within Section 182.

It follows that if the aforesaid two elements become dissociated later on, Section 182 will cease to be applicable, from the moment when either of these two elements disappears in relation to the tenant concerned. When, however, the two elements coexist, the second part or the third part of the section, as the case may be, comes into operation. The second part says that "the incidents of his tenancy of the homestead shall be regulated by local custom or usage." The third part says that

"subject to local custom or usage, the incidents of his tenancy of the homestead shall be regulated by the provisions of this Act applicable to land held by a raiyat."

Where local custom or usage is pleaded or proved, there is no difficulty of interpreting Section 182, Bihar Tenancy Act; either the case will be decided on such proof of custom or usage as is given, or the case will be decided on the doctrine of onus, and the person who has to prove the custom must prove it or fail. The difficulty arises in a case where no local custom or usage is at all pleaded, or where the parties proceed on the footing that there is no local custom or usage governing the incidents of the homestead tenancy. What will happen in such a case That is the crucial question in this appeal. In my opinion, the third part of Section 192, Bihar Tenancy Act, will then come into operation, and the incidents of the homestead tenancy shall be regulated by the provisions of the Bihar Tenancy Act applicable to "land held by a raiyat."

There has been some discussion before us as to what is meant by the expression "land held by a raiyat" in the third part of the section. It seems to me that the expression refers to the same raiyat who holds his homestead otherwise than as part of his holding as a raiyat, mentioned in the first part of the section; in other words, if that raiyat is an occupancy raiyat in respect of his other land, the incidents of his homestead shall be regulated by the provisions of the Act applicable to occupancy holdings; if, on the contrary, that raiyat is a non-occupancy raiyat, the incidents of his homestead shall be regulated by the provisions of the Act applicable to non-occupancy holdings.

This seems to me to be the plain meaning of Section 182 of the Bihar Tenancy Act. If that be the correct meaning of Section 182, Bihar Tenancy Act, then Section 26A of the Bihar Tenancy Act, which was substituted for the former section by the Bihar Tenancy (Amendment) Act, 1938, will apply to the homestead tenancy in a case where the same raiyat has other land capable of being transferred under s. 26A, Bihar Tenancy Act. This is the view which I elaborated in some detail in my judgment in -- : AIR 1945 Pat 428 [LQ/PatHC/1945/36] (B). I do not wish to repeat what I said then.

15. Mr. K. K. Sinha has argued that a too literal adherence to the words of Section 182, Bihar Tenancy Act, will produce injustice and absurdity, and it should be the duty of the Court. to consider the state of the law at the time Sections 182 and 26A were enacted with a view to ascertaining whether the language of Section 182 is capable of any other fair interpretation, or whether it may not be desirable to put upon the language a more restricted meaning or, perhaps, to adopt a construction not quite strictly grammatical. The first point which Mr. K. K. Sinha has pressed is that the right or protection given to a tenant in respect of his homestead under Section 182, Bihar Tenancy Act, is of the nature of a personal right in the sense that it is not! transferable; the protection is available to the tenant as long as he holds the homestead land. Mr. Sinha has relied on the observations made by Sinha J. (as he then was) in the decision in -- : AIR 1945 Pat 428 [LQ/PatHC/1945/36] (B). He has also relied on similar observations made by Mookerjee, J. in -- Indra Chand Dutt v. Tinkari Chose : AIR 1950 Cal 170 [LQ/CalHC/1949/262] (I), where Mookerjee J., said :

"The effect of the provisions is not to create a transferable occupancy right in that homestead. The right is a personal one dependent on the proof of the existence of certain facts. Such personal rights continue to be available only so long as the conditions are satisfied."

Mookerjee J. was, however, dealing with a case of ejectment and not of transfer, and based his decision on the earlier case of -- AIR 1949 Cal 259 [LQ/CalHC/1948/52] (F), with particular reference to Section 182, Bengal Tenancy Act, as it stood in Bengal after the amendment in 1928. The main ground of the decision was, as the learned Judge himself pub it, that the homestead itself did not become a raiyati holding, and, therefore, the effect of Section 182 was not to create a transferable occupancy right In the homestead; it was in this sense that the expression "personal right" was used by Mooker-jee J. If the right or protection given under Section 182, Bihar Tenancy Act, is a mere personal right, the right cannot be heritable. The right should then disappear with the death of the person enjoying the right. There are, however, many decisions where the right has been held to be heritable. It would be so under Section 26 of the Bihar Tenancy Act, if the raiyat has a right of occupancy in the other arable land held by him,

In the Special Bench decision of three Judges : AIR 1949 Pat 413 [LQ/PatHC/1949/41] (A), Shearer J. dealt with this question and did not subscribe to the view that the right was a personal right. Section 182 by itself does not define the status or right of the raiyat in homestead land held otherwise than as part of his holding as a raiyat; it merely states that the incidents of the tenancy of the homestead shall be regulated by local custom or usage, and subject to local custom or usage, by the provisions of the Act applicable to land held by a raiyat. Where there is no local custom or usage, the incidents of the other land held by the raiyat regulate the homestead by a sort of legal fiction; that seems to me to be the meaning of Section 182, Bihar Tenancy Act, and if I may say so with great respect, the question of a personal right, a right which disappears with the death of the tenant, does not really arise out of Section 182, Bihar Tenancy Act.

16. Mr. K, K. Sinha then referred to the absurdity or anomaly, which in his opinion, will arise if Section 182, Bihar Tenancy Act, is given its plain meaning. He has referred particularly to the decision in -- AIR 1916 Cal 32 (C), where it was held that the provisions of the Act applicable to a raiyat would regulate the incidents of the tenancy of the homestead, even though the tenant had only the interest of an under-raiyat with respect to the homestead. That was also a case of ejectment, and it was held that even though the tenant of the homestead had only an under-raiyati interest with respect to it, he could not be evicted. Their Lordships observed :

"It may lead to some anomalous results, but so would the application of Section 182 to the cases cited above, and the present case cannot be distinguished on principles from the said cases."

Mr. K. K. Sinhas argument is that on the interpretation of Section 182, as given in -- AIR 1916 Cal 32 (C) an under-raiyat in respect of the homestead land, if he is a raiyat in respect of other land, will have the right of transferring the homestead under Section 26A, though this Court has held, on an interpretation of Section 49A, Bihar Tenancy Act, that an under-raiyat, who has acquired a right of occupancy, cannot transfer his interest under Section 26A, Bihar Tenancy Act; therefore, Mr. K. K. Sinha contends that such an interpretation would bring Section 182 into conflict with Section 49A, Bihar Tenancy Act, a conflict which should be avoided by giving a somewhat narrower interpretation to Section 182. Section 182, as amended in Bengal, has resolved the conflict; because the amended section states that

"the incidents of his tenancy of such homestead shall be governed by the provisions of this Act applicable to raiyats or under-raiyats, as the case may be,"

Unfortunately, Section 182, Bihar Tenancy Act, was not amended in Bihar when Sections 26A and 49A were incorporated for the first time in 1938. We are not concerned, in the present case, with the rights of an under-raiyat in respect of the homstead. We are concerned with the rights of a raiyat who holds his homestead otherwise than as part of his holding as a raiyat. So far as the rights of such a raiyat are concerned, the meaning of Section 182, Bihar Tenancy Act, seems to me to be quite clear, and I do not see how the plain meaning of the section can be cut down by reason of some anomaly which may arise in the case of an under-raiyat.

17. The third and most important point which Mr. K. K. Sinha has urged arises out of the Special Bench decision in -- : AIR 1949 Pat 413 [LQ/PatHC/1949/41] (A). Mr. Sinha has placed reliance on that decision; firstly, on the point that in every case where there is no custom or usage of transferability of the homestead, there would be a legal presumption of a custom or usage to the contrary; and, secondly, on the point that Section 182, Bihar Tenancy Act, merely provided that subject to local custom or usage prescribing a shorter period, a raiyat would acquire a right of occupancy in his homestead when he had been in possession of it for 12 years, and that until he had been in possession for 12 years, his rights in it should be those of a raiyat who did not have a right of occupancy. It is necessary to examine these two points with some care. It must be stated at this stage that Meredith, J. who was a party to the Special Bench decision, confined his judgment to the question of custom only as it arose out of the pleadings of the parties in the case under consideration before their Lordships. Meredith, J. said :

"Under Section 182, where a custom exists, the matter is regulated by that custom. I agree that when the tenant has failed to prove a custom of transferability the finding should be that there is a custom of non-transferability. For these reasons I concur in the view that the appeal should be allowed."

Meredith, J. did not say anything about the true meaning and effect of the other two parts of S. 182, Bihar Tenancy Act. Shearer, J. referred to the pleadings of the parties in the case, and pointed out that the conclusion at which the lower appellate court had arrived was that while the defendants had failed to prove the existence of a local custom or usage which they set up, the plaintiffs also failed to prove affirmatively that it did not exist. Shearer, J. then said :

"This, in my opinion, must, in second appeal, be taken as a finding that the defendants failed to discharge the onus which lay on them to prove the existence of the local custom or usage, in the absence of which, the conveyance which they had taken was voidable at the instance of the landlord."

Later on, in another part of his judgment, his Lordship said :

"In my opinion, the Courts below have misdirected themselves in placing the onus on the plaintiff to show the non-existence of any local custom or usage of transferability instead of placing the onus on the defendants to show its existence."

If I may say so with great respect, the decision of his Lordship, in so far as it rested on the pleadings of the parties and onus of proof in that case, was correct. I have already stated that in a case where custom is pleaded or sought to be proved, the decision must depend on such proof of custom as is given. If, however, the decision goes further and lays down, as a matter of law, that in every case where no local custom or usage is pleaded, there is a presumption of a custom of non-transferability, then I must demur to the decision. Ordinarily, custom is a mixed question of law and fact; first, certain facts have to be proved, and from those facts an inference of the existence of a valid custom is drawn. The inference Is a legal inference.

I do not see any reason why in a case where none of the parties plead custom, there should be a presumption in law of a custom of non-transferability. I speak with humility, but I fail to see how such a legal presumption can be drawn in every case. In my opinion, there may be local areas where no custom, either way, has grown up. Our attention has been drawn to Section 183, Bihar Tenancy Act, which saves custom. The illustrations to that section have now become otiose by reason of the amendments made in 1933. It is true that the position in law was different, before a raiyat was given the right to transfer his occupancy holding. The position then was that an usage under which a raiyat was entitled to sell his holding without the consent oi : his landlord was not inconsistent with the provisions of the Act; therefore, a raiyat who relied on that usage had to prove it.

That does not, however, mean that there was a prevailing local custom or usage with regard to every bit of homestead land, and unless the contrary was proved, the presumption was of a custom of non-transferability. When by law a raiyat has been given the right to transfer his raiyati holding, that incident of his raiyati land will regulate his homestead, subject to local custom or usage. It may well be that the draftsman thought it unnecessary to make any change in Section 182, when new rights were given to a raiyat in 1938; because the draftsman proceeded on the footing that those rights will regulate the homestead as well, in the absence of any local custom or usage. Where, however, there is local custom, or usage, the incidents of the homestead shall be regulated by such local custom or usage.

I do not see any compelling circumstance existing at the time when the amendments of 1938 were made, which would lead to a presumption that every bit of homestead land was either transferable or non-transferable by custom. If such a legal presumption of universal application is to be made with regard to transfer ability, I see no reason why it was not made with regard to heri-tability or eviction; yet we have many cases where on the points of heritataility and eviction, the incidents of the homestead were regulated by the provisions of the Act irrespective of custom, on the footing that there was no local custom or usage. If a legal presumption of universal application arises in every case, the third part of Section 182 can never come into operation.

18. With regard to the second point arising out of the Special Bench decision -- : AIR 1949 Pat 413 [LQ/PatHC/1949/41] (A), I have the greatest respect for the view of Shearer, ,J. but I am unable to concur in it. Shearer, J. has expressed the view that the intention of Section 182, Bihar Tenancy Act, is that subject to local custom or usage prescribing a. shorter period, a raiyat acquires a right of occupancy in his homestead when ho has been in possession of it for 12 years. This view is in direct conflict with a long line of decisions of the Calcutta High Court and of this Court in --Bishnath Singh v. Mt, Bibi Ayesha : AIR 1930 Pat 224 [LQ/PatHC/1929/208] (J). The meaning of the expression "raiyat" is given in Section 5(2) of the Bihar Tenancy Act; the expression means

"primarily a person who lias acquired a right to hold land for the purpose of cultivating it by himself, or by members of his family or by hired servants, or with the aid of partners, and includes also the successors-in-interest of persons who have acquired such a right."

There are three classes of raiyats as described in Section 4 of the Bihar Tenancy Act, namely, raiyats holding at fixed rates, occupancy raiyats and non-occupancy raiyats. When the homestead is part of a raiyati holding, there is no difficulty. As was pointed out in the Full Bench decision of --Tilakdhari Singh v. Kuman Das : AIR 1930 Pat 201 [LQ/PatHC/1930/15] (FB) (K), the homestead land recorded as included in the holding of a raiyat must be deemed to have been held by the raiyat for the purpose of cultivating the lands in that holding, such as, for the purpose of storing the produce of the land, keeping cattle and implements of cultivation and residence. In respect of such homestead land which is part of the holding of the raiyat, the tenant is a raiyat even within the meaning of Section 5(2) of the Bihar Tenancy Act.

We are, however, dealing with homestead which is not part of the raiyati holding. In respect of such homestead, the tenant is not a raiyat within the meaning of Section 5(2) o.f the Bihar Tenancy Act. The contention that the tenant of a homestead Requires a right of occupancy in the homestead by 12 years possession though he has no other raiyati land, was repelled in the Letters Patent Appeal -- : AIR 1930 Pat 224 [LQ/PatHC/1929/208] (J). Jwala Prasad, J. expressed himself as follows on this point :

"The fallacy lies in the assumption that whatever homestead land the defendant had was held by him as a raiyat. There never was any contract between the landlord and the defendant constituting his homestead land as a raiyati holding governed by the Bengal Tenancy Act. This homestead was in no case governed by the provisions of the Bengal Tenancy Act contained in Chapter V, except that by reason of the defendant having at one time held some agricultural land as a raiyat the incident at that time might have attached to the homestead land. But when the appellant ceased to be a raiyat in respect of cultivable land Section 182 had no application. Similarly, the incident of occupancy right, if any, that attached to the homestead land came to an end; it was never revived either in respect of the homestead land or in respect of the raiyati land which the defendant held under the kabuliyat in question."

Dhavle, J. said as follows :

"Section 182 of the Bengal Tenancy Act itself makes a distinction between a homestead held by a raiyat otherwise than as part of his holding as a raiyat and !and held by a raiyat1. Under Sub-section (5) of Section 20 it is necessary that a man should hold some land as a raiyat in a village if he is to be a settled raiyat; and the status of a settled raiyat, so acquired, will disappear one year after he ceases to hold any land as a raiyat in that village.

Reading the two sections together it is difficult to see how homestead held otherwise than as part of a holding could be regarded for the purposes of Section 20(5) as land held by the raiyat. Section 182 merely provides that the incidents of a raiyats tenancy of his homestead (held otherwise than as part of his holding as a raiyat) shall be regulated .....by the provisions of the Bengal Tenancy Act applicable to land held by a raiyat. This does not define the status of the person holding the homestead but merely deals with the incidents of his tenancy of the homestead."

I respectfully agree with the aforesaid observations. There is a long line of Calcutta decisions which have taken the same view, and unless it can be shown that the decisions are manifestly or plainly wrong, this Court should not depart from the authority of long established decided cases. In one part of his judgment Shearer, J. himself said that a raiyat does not hold his homestead as a reiyat as he takes the land not for the purpose of cultivation but for building and residential purposes. He said :

"Also, the incidents of the tenancy of his homestead are to be regulated primarily by local custom or usage and not by statutory provisions which regulate the incidents of occupancy rights";

yet in another part of his judgment he said that the intention of Section 182, Bihar Tenancy Act, was to allow a raiyat to acquire the right of occupancy in the homestdad when he had been in possession of it for 12 years. I say this with great respect, but it appears to me that his Lordships view with regard to the intention of Section 182, Bihar Tenancy Act, is not quite consistent with his earlier observation that a raiyat who holds his homestead otherwise than as part of his holding, does not hold it as a raiyat,

19. Mr. Lalnarain Sinha, appearing for the State of Bihar, has supported the view of Shearer, J. He has contended that under Section 182, Bihar Tenancy Act, a raiyat may acquire a right of occupancy in the homestead itself, and that right will remain intact even if the raiyat loses his other raiyati land. Mr. Lalnarain Sinha has argued that if a raiyat has acquired an occupancy right in the homestead, he can transfer it; if, however, he has not acquired a right of occupancy in the homestead, he cannot transfer it. Mr. Lalnarain Sinha does not quite accept the position that as long as raiyat has some other occupancy land, he can transfer his homestead by reason of Section 182 read with Section 26A, Bihar Tenancy Act. His argument is that a raiyat can transfer his homestead only when he has acquired an occupancy right therein by 12 years possession or otherwise.

He has placed reliance on the Pull Bench decision in -- : AIR 1930 Pat 201 [LQ/PatHC/1930/15] (K), referred to earlier, and has contended that Section 5 (2), Bihar Tenancy Act, does not define a raiyat and the word "primarily" occurring therein should be given a liberal meaning. According to him, if the homestead is held for the purpose of cultivating some other agricultural land, the tenant in possession of the homestead is a raiyat in respect of it within the meaning of Section 5(2) of the Act, and he acquires occupancy right therein by 12 years possession -- which right remains even after the tenant loses the agricultural land. In his opinion that is the meaning of Section 182, Bihar Tenancy Act.

My answer to this argument is contained in the observations in -- : AIR 1930 Pat 224 [LQ/PatHC/1929/208] (J), which I have earlier quoted in this judgment. Even if Mr. Lalnarain Sinhas argument is correct, Musam-mat Chaurabati must have acquired occupancy right in the homestead and could transfer it. Musammat Darsano was recorded in respect of it in 1908 and Musammat Chaurabati died in 1941; the tenant must have been in possession for more than 12 years.

20. Mr. Lalnarain Sinha has also argued that when a transfer is made, the transferee must get the whole bundle of rights which the transferor had. He has submitted that if Section 182, Bihar Tenancy Act, is given the meaning which I am giving to it, then the position of the transferee would be an anomalous position dependent on whether he has some other raiyati land or not. I can only give the same reply as was given in -- AIR 1916 Cal 32 (C), and what Dhavle, J. said in -- : AIR 1930 Pat 224 [LQ/PatHC/1929/208] (J); Section 182 does not define the status of a person holding the homestead but merely deals with the incidents of his tenancy of the homestead. The position of the transferee will also depend on whether he can get the protection of Section 182 or not; in other words, it will depend on whether both the elements mentioned in the first part of the section co-exist or not.

21. Therefore, the conclusion at which I have arrived is that in a case where no local custom or usage is pleaded, the third part of Section 182 comes into operation, and the incidents of the homestead shall be regulated by the provisions of the Bihar Tenancy Act applicable to the other arable land held by the raiyat. If the other arable land is transferable, the homestead will also be transferable provided both the elements mentioned in the first part of Section 182 co-exist at the time when the protection or right under Section 182, Bihar Tenancy Act, is claimed.

22. There is one other question for consideration. The other arable lands which Musammat Chaurabati had along with the homestead lay not in the same village but in another village which had been found by the final court of fact to be an adjoining village. The question is if in this circumstance Musammat Chaurabati could claim the right to transfer her homestead under Section 182 read with Section 26A of the Bihar Tenancy Act. So far as the Calcutta High Court is concerned, the position seems to be well settled. Mitter, J. sum- marised the Calcutta decisions with reference to old Section 182, Bengal Tenancy Act, in the following manner in -- AIR 1949 Cal 259 [LQ/CalHC/1948/52] (F). His Lordship said :

"When the old section was in force it was held uniformly that in order to attract the section

(1) the agricultural holding may be anywhere. --need not be in the same village where the homestead was situated or in an adjoining or even in a nearby village; (2) that the agricultural holding and the homestead need riot be under the same landlord; (3) that the word "homestead" occurring in that section is not generic term descriptive of a particular kind of land but it denotes land on which a raiyat has a house where he lives, -- Dina Nath v. Sasht Mohan AIR 1916 Cal 730 (L); (4) that it is not necessary that the agricultural holding should have been acquired either before or simultaneously with the homestead land. It would attract the section to the homestead even if the agricultural holding had been acquired after he had acquired the homestead in which he is living : -- : AIR 1926 Cal 1199 [LQ/CalHC/1925/432] (G); -- : AIR 1936 Cal 565 [LQ/CalHC/1936/12] (H)."