1. The point for decision in this case is whether a sixteen anna landlord holding a money decree against one of his own raiyats can put up for sale in execution that raiyats occupancy holding not transferable by usage Jenkins, C.J., in Agarjan Bibi v. Panaulla 6 Ind. Cas. 432, 37 C 687 at p.693, 14 CW N 779, 12 CIJ 169 has said, If a sale by private contract would validly passed right of occupancy then a sale in execution of a decree would equally pass it and vice (sic) [Dwarka Nath Messer v. Hurrish Chunder 4C 925 4 CLR 130, 2 Ind. Dec. (N.S.) 585, the power of voluntary transfer being the measure of the power of involuntary alienation " In Vyankatraya v. Shivrambhat 7 B. 256; 7 Ind. Jur. 482; 4 Ind. Cas. (N.S.) 173 and Tamaya v. Timapa Ganpaya 7 B 262 : 4 Ind. Dec. (N.S.) 177, a distinction is drawn between cases in which a landlord imposes upon his tenant an immunity from Court sales and cases in which no such immunity is imposed
2. The question, therefore, may be divided into two parts:
(1) Does the relationship of landlord and occupancy raiyat presuppose an immunity from Court sales
(2) If so, can the landlord remove the immunity without the consent of the tenant
3. The whole current of case law is against a sale in execution of an occupancy right without the consent of the landlord It must be conceded that without the consent of the landlord an occupancy right is ordinarily not a saleable right
4. In Naragani v. Nabin Chandra Chowdhari 36 Ind. Cas. 803, 25 CLJ 361, 21 CWN 400, 44 C 720 it is assumed that the landlord can not, against the wishes of the tenant, made this right saleable. On this assumption the role propounded in Ananda Das v. Ratnakar Panda 7 C.W.N. 572, Shukuruddin Chowdhury v. Ram Hemangini Debi13 Ind. Cas. 192 : 16 C.W.N. 420 and Dwarkanath Pal v. Tarini Sankar Ray 7 B 256; 7 Ind. Jun. 482, 4 Ind. Dec. (N.S.) 173 is overridden. If it could be said that in the three earlier cases there has been a steady trend of decisions in the Calcutta Court, I should feel bound to ask that the case be referred to a Full Bench
5. In Duarkanath's case 34 C 199, 5 CLJ 294, 41 CWN 513 the decision was ultimately based on the fact that the raiyat had failed to come in under section 244 and in Shukuruddin's case 13 Ind. Cas 192, 16 CWN 420 it is said "In any case the decree holder takes the risk and in the present state of the law the purchaser will purchase at his peril" These two decisions can hardly be taken as decisive. The decision in Ananda Das case 7 CWN 572 is decisive. But so also is that in the case of Narayani v. Nabin Chandra Chowdhari 36 Ind. Cas. 803, 25 CLJ 361, 21 CWN 400, 44 C 720 To get at the root of the matter it is necessary to enquire into the origin and nature of the occupancy right. In Agarjan Bibi v. Panaulla 6 Ind. Cas. 432, 37 C 687 at p.693, 14 CW N 779, 12 CIJ 169 that enquiry has been made. The basis of all authoritative statement on the subject (page 691) is that the right of occupancy is a, right personal to the particular raiyat. A personal right is not a saleable right. Can the landlord say to his raiyat "You have to day a right personal to yourself I covet that right and against your will make that right transferable in order that to morrow I may deprive you of it' Surely; not Occupancy rights may by usage became transferable But here there is mutuality the raiyats as a body desire a conversion of the personal nature of the right. The landlord acquiesces in that desire. Before the nature of the occupancy right can be changed, landlord and raiyat must concur. This was the ratio decidendi in the case of Narayani v. Nabin Chandra Chowdhari 36 Ind. Cas. 803, 25 CLJ 361, 21 CWN 400, 44 C 720
The power of voluntary transfer is the measure of the power of involuntary alienation. The landlord cannot extend that power without the consent of the tenant.
The appeal is dismissed with costs
