P.B. Chakravartti, J.

1. These six appeals arise out of as many suits forejectment brought by the same plaintiff against different defendants. Theyinvolve a common question of law and were heard together. On the facts, thesuits fall into two groups, one composed of Suits Nos. 96, 97, 100 and 101 outof which arise second Appeals numbered 836, 837, 838 and 839 respectively andthe other composed of Suits Nos. 93 and 99 out of which arise respectivelyAppeals numbered 834 and 835.

2. The plaintiff is a joint stock company which in the years1919 and 1920 obtained permanent leases of certain areas of land for theexpansion of its mills. In two of the three documents, there is a casualreference to settlement of tenants as one of the acts to be within the rightsof the lessee, but it is perfectly clear that the immediate and governingpurpose was a manufacturing one and this character of the plaintiffs leaseswas not questioned either in the Courts below or before me. On portions of theland so settled with the company, the defendants, who had been inducted by thecompanys lessors, had already their homesteads but the leases stated that theywere liable to eviction and might be evicted. The lessors of the company appearin each case to have been zamindars. The tenancies of the defendants in suitsNos. 98 and 99 have been found by the Courts below to have been created 25 or30 years ago. In the remaining four cases, the tenancies have branched out ofan original settlement with a single tenant which, according to the version ofthe defendants apparently accepted by the Courts below, was made about 20 yearsago. The defendant in Suits Nos. 96 and 97 who is the same person is an heir ofthe original tenant and the defendant in suits Nos. 100 and 101, who again, isthe same person, is a purchaser from an heir. When his purchase or purchaseswere made does not appear from the record.

3. The Record of Rights was published in the year 1933 andthere with respect to these tenancies, all the defendants have been recorded asdakhalkar basat tenants. But they are otherwise settled raiyats, the defendantsin the first group of suits, of the same village and the contiguous village ofBalibhara and those in the other group, of the contiguous village of Garifa.The lower appellate Court has stated that the defendants are occupancy raiyatsof the villages above mentioned but that, it appears, is an under-statement, asa reference to the Record of Rights would show. There is a further statement inthe judgments under appeal that the tenancies of both the plaintiff and the defendantshave been expressly recorded as governed by the Transfer of Property Act, butfor that statement there is no foundation except that both have been describedas dakhalkars. The company alleged in the plaints that the defendants weretenants-at-will and although their tenancies had been terminated by notices toquit, they had not quitted the lands. Accordingly the company prayed forejectment of the defendants, mesne profits and injunctions restraining themfrom erecting further structures.

4. The special defence of the defendants in the first groupof suits was that their tenancies were agricultural in character and could notbe terminated by notices to quit under the Transfer of Property Act. Thedefendants in the other group of suits pleaded permanent tenancies. All thedefendants, however, set up two common defences which were that no notices toquit had in fact been served, at least no valid notices, and that in any eventthey were protected from eviction by S. 182, Ben. Ten. Act. None of the defencesother than the one taken under S. 182, Ben. Ten. Act, need be considered inthese appeals. They were repelled by the Courts below and no attempt was madebefore me to pursue them further. The sole question, therefore, is whether thedefendants are entitled to the benefit of S. 182, Ben. Ten. Act.

5. As regards whether the last question arises in all theappeals in the same form, it is necessary that I should dispose of one matterwhich is peculiar to the appeals of the second group. With respect to thetenancies to which those appeals relate, it has been found by the trial Courtthat although the land was undoubtedly used at one time for residentialpurposes, the house constructed thereon fell down shortly after itsconstruction and the land has since been "lying jungly and fallow."The lower appellate Court appears to accept this finding and further finds thatthe tenants of these tenancies are now living at Bhowanipore and Hooghlyrespectively. In the circumstances a question might well arise whether therewas in these cases any homestead at all to attract the provisions of S. 182,Bengal Tenancy Act. That section, by its terms, applies only to the homesteadof a raiyat or under-raiyat which he may hold otherwise than as part of hisraiyati or under-raiyati holding and the language, to my mind, requires thatthe land should actually be used as a homestead or at least still be possessedof its homestead character when the section is sought to be invoked for itsprotection. No objection on this ground was, however, taken in the Courts belowand none was taken before me. I must, therefore, proceed on the basis that thelands to which the second group of appeals relate are also homestead lands andthey are not excluded from the operation of S. 182, Bengal Tenancy Act, by anyspecial fact.

6. The suits have been decreed in part by the Courts below.Decrees for ejectment have been passed but no mesne profits have been allowed,nor any injunctions granted. Both the Courts have held that S. 182, BengalTenancy Act, has no application to these tenancies and have given the samereason for their decision. They have referred to the amended section and heldthat under the section, as it now stands, the status of a tenant of homesteadland is dependent on the status of the landlord and where the landlord himselfhas no status under the Bengal Tenancy Act, holding, as here, under a leasegoverned by the Transfer of Property Act, the tenant cannot possibly be araiyat or under-raiyat under him and therefore the section is plainlyinapplicable. The tenants question this decision and have appealed.

7. Before the appeals came for hearing, they were mentionedto me on behalf of the appellants who contended that they could not be heardbut must be stayed under the provisions of the Bengal Non-Agricultural Tenancy(Temporary Provisions) Act. It might seem curious that persons seeking reliefby an appeal should themselves insist that the appeal should not be proceededwith, but the explanation for such seemingly strange conduct is to be found inthe present case in the order which the lower appellate Court appended to itsdecrees. By that order, execution of the decrees was stayed till 1st June 1942,that is to say, till one day after the date then fixed for the expiry of the specialAct. I doubt whether the lower appellate Court had any jurisdiction to makethis order when dealing with the appeals, but the order was made and theplaintiff had not appealed. Meanwhile, the life of the special Act had beenextended and the appellants may have thought - though mistakenly, since therespite granted to them by the lower appellate Court was only up to a nameddate - that as long as the special Act remained in operation it would be totheir interest not to seek a reversal of the lower appellate Courts decrees.It seemed to me, however, that the appeals could not be stayed in any event inlimine. Since the appellants were contending that they were to be treated, evenas respects their homesteads, as agricultural tenants the appeals had to beheard at least on the question of their status, and if it was decided that theywere non-agricultural tenants, the question of stay might then arise. But ithad already been held by this Court in a number of cases that a tenants appealcould not be regarded in any sense to be a suit or proceeding for ejectment andwas not liable to be stayed under the provisions of S. 3, BengalNon-Agricultural Tenancy (Temporary Provisions) Act. I accordingly ruled thatthe hearing of the appeals could not be stayed or adjourned. Thereafter theywere in due course heard.

8. The argument addressed to me was, in the case of both theparties, solely by reference to S. 182, Bengal Tenancy Act, as amended in 1928.On behalf of the appellants, Mr. Hiralal Chakravarty did not dispute that theplaintiff company held under leases to which the Bengal Tenancy Act did notapply and consequently it did not, as a tenant, come within any of the classesknown to and dealt with by that Act. But he did not concede that a tenant couldnot claim the benefit of the present S. 182 unless the Act applied to thelandlord of his homestead and the latter had a status thereunder. The maineffect of the section, he contended, was to direct that in the circumstancesmentioned in its opening clause, the Bengal Tenancy Act would apply to thehomestead tenancy of a raiyat or under-raiyat and the reference to the statusof the landlord was no more than an ancillary provision which would apply onlywhen there was a landlord, having a status under the Bengal Tenancy Act. In anyevent, he contended further, the relevant landlord under the section was thelandlord who had inducted the tenant into the homestead or at least the personwho was the landlord at the time when the two circumstances of the tenant holdinga homestead and also a raiyati or under-raiyati holding outside it came firstto co-exist. At one stage of his argument Mr. Chakravarty also contended thatthe facts to be considered were those existing at the time when the dispute asto the incidents of the homestead tenancy arose, as indeed had been held incertain cases decided under the old section, but when it was pointed out to himthat this would destroy his second argument he abandoned the contention.

9. On behalf of the plaintiff-respondent, the learnedAdvocate-General insisted, quite rightly that I must confine myself to theterms of the section and construe it according to the natural meaning of thelanguage used. That language, he contended, did not warrant either of theinterpretations suggested by Mr. Chakravarty. The section did not say that onthe conditions laid down in its opening clause being satisfied, the BengalTenancy Act would apply to the homestead tenancy of a tenant in allcircumstances, but required that in order that the Act might apply, thelandlord must himself have a status under the Act. Again, the section had noreference to past history but only present circumstances, for the language usedwas simply "holds" and not "holds or held." Accordingly, thelearned Advocate-General contended that under S. 182, as it now stood, if atthe time a question arose as to the status of a tenant with respect to hishomestead, the landlord of the homestead happened to be one to whom no statusunder the Bengal Tenancy Act could be assigned, the section, under its ownlanguage, could not apply at all. He expressed some surprise that the oldsection should have been applied as reported decisions showed it was, even incases decided long after 1928.

10. The question is undoubtedly one of some difficulty, butbefore taking it up for examination on my own account, it is proper that Ishould deal with two decisions on which the Courts below have relied assupporting the view taken by them. Each is a decision of a Judge sittingsingly, but if they have decided the point and decided it in the same sense, myduty would be the simple one of following them, unless I had strong reasons todiffer. Unfortunately, I am unable to regard either decision as havingdetermined the question which has arisen for consideration in this case.

11. The first decision relied on is that of Panckridge J. in36 C. W. N. 788 Raj Kumar Mandal v. Shib Chandra Mandal (32) 19 A. I. R. 1932Cal. 857 : 139 I. C. 765: 36 C. W. N. 788. There, as would appear from thestatement of facts, a raiyat held a homestead otherwise than as a part of hisoccupancy holding but it was under the same landlord. He transferred thehomestead and thereupon the landlord sought to pre-empt it under the provisionsof the then S. 26F, Ben. Ten. Act. That section, it will be remembered, appliedonly to occupancy holdings of a raiyat and the landlords contention was thatby virtue of S. 182, all the incidents of the transferors occupancy holdingwere attached to his homestead. The transferee resisted the landlords claimand his contention was that although the holding of the transferor was anoccupancy holding and he was a raiyat in respect thereof the position was notnecessarily the same as regards the homestead but would depend, under the termsof S. 182, on the nature of the superior interest held by the landlord in thehomestead. Panckridge J. accepted this contention and held that S. 182

makes the position of the raiyat or the under-raiyat withregard to the homestead dependent not upon his position with regard to hisholding but upon the status of the landlord of the homestead.

As the landlord had not adduced any evidence as to what hisstatus with regard to the homestead was and therefore had not proved that withrespect to it the transferor was an occupancy raiyat, it was held that he hadnot proved his right to pre-emption.

12. No question was decided by Panckridge J. as to theapplicability of S. 182 in a case where the landlord of the homestead had nostatus under the Bengal Tenancy Act. All that he decided was, given thelandlord had such status, given S. 182 applied, given there was a raiyatiholding also under him, the status of the tenant with respect to the homesteadwould not be that of a raiyat simply because that was his status with respectto the occupancy holding, but would be a status in accordance with the statusof the landlord with respect to the homestead, whatever such status might be.It was, so to say, a decision on an internal question within S. 182, not adecision on a question which involved the applicability of the section itself.The other decision relied on was that of S. K. Ghose J. in 41 C. W. N. 1327Panchanan Choudhury v. Samatul Chandra Laha (37) 24 : A.I.R.1937 Cal. 695 [LQ/CalHC/1937/226] : 173 I.C. 602 : 41 C.W.N. 1327. There the question was directlyraised, but it is not at all clear to me what the learned Judge actually held.As far as I can understand the judgment, he appears rather to have beeninclined to the view that in order that S. 182 might apply, it was notnecessary that the landlord of the homestead should have a status under theBengal Tenancy Act. First the learned Judge refers to the fact that thelandlord had described himself in the plaint as holding the property in niskarright and observes that that might mean he was the holder of a revenue-freeestate or a rent-free tenure. Next he proceeds to discuss a number of casesdecided under the old section and points out that in those cases it was heldthat the section only required that the tenant should be a raiyat and that heshould hold his homestead otherwise than as a part of his holding. The learnedJudge points out particularly that in neither of those cases was it contendedthat the landlord of the homestead should have a status under the BengalTenancy Act. In the end he concludes that the section would apply in spite ofthe fact that the homestead did not constitute an agricultural tenancy. If Imay say so with respect, the learned Judge does not appear to have had presentin his mind the very different language of the amended section and, in anyevent, he did not answer the question which he took up for discussion at page1328 of the report. The question, was not whether the tenants tenancy withrespect to the homestead was required to be an agricultural one, but whetherthe landlords interest in the homestead was required to be one governed by theBengal Tenancy Act. The question is thus not covered by authority and must bedecided on the language of the statute. It will be convenient to set out thesection first. Before the amendment, the section stood in the following form :

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

The amended section stands thus :

When a raiyat or under-raiyat holds his homestead otherwisethan as part of his holding within the same village or any village contiguousto that village, his status in respect of his homestead shall be that of araiyat or an under-raiyat according to the status of the landlord of thehomestead, and the incidents of his tenancy of such homestead shall be governedby the provisions of this Act applicable to raiyats or under- raiyats, as thecase may be.

The opening clause of the section remains in the same formexcept that to raiyats originally entitled to its benefit, under-raiyats arenow added and the village in which the raiyati or the under-raiyati holdingmust be situated is required to be the same village or a contiguous one. Itwill be noticed, however, that whereas the old section provided that on thecondition laid down in the opening clause being fulfilled, the homesteadtenancy would be regulated, subject to local custom or usage, by the BengalTenancy Act, the amended section contains no such provision of a generalcharacter. It only says that on the condition laid down in the opening clausebeing fulfilled, the status of the tenant with respect to the homestead will bethat of a raiyat or a under-raiyat according to the status of the landlord andthe appropriate provisions of the Bengal Tenancy Act will then apply. In otherwords, it provides for the application of the Act only indirectly and that inspecial circumstances; or to put it in another way, the section requires thatbefore the Act can apply, the tenant must be found to be a raiyat or anunder-raiyat independently by reference to the status of the landlord. Theprovision for the applicability of the Act is thus not an absolute, but arelative and contingent one; and if the object of the Legislature was toprovide generally that the homestead tenancy of a raiyat or an under-raiyat ofthe same or a contiguous village would be governed by the provisions of theAct, that object has not been achieved by the language used. It would havebeen, I imagine, achieved only if the second and third clauses of the sectionhad been placed in the reverse order and the section stated that on thecondition laid down in the opening clause being fulfilled, the homesteadtenancy would be governed by the provisions of the Bengal Tenancy Act and thestatus of the tenant would be that of a raiyat or an under-raiyat according tothe status of the landlord.

13. The real operative clause in the section being that thestatus of the tenant with respect to the homestead shall be that of a raiyat oran under-raiyat according to the status of the landlord, it has to be seen in whatcircumstances this provision can possibly have effect. The terms raiyat andunder-raiyat are peculiar to the Bengal Tenancy Act and each is a relativeterm as regards the status it signifies. An under-raiyat is a tenant, holdingimmediately or mediately under a raiyat (S. 4 (3)); and no person can be deemedto be a raiyat unless he holds land either immediately under a proprietor orimmediately under a tenure-holder. It follows that the tenant of a homesteadcannot be an under-raiyat unless the landlord is a raiyat or an under-raiyat,as defined in the Bengal Tenancy Act; and he cannot be a raiyat unless thelandlord is a proprietor or tenure-holder; where the landlord is none of these,the tenant cannot be either a raiyat or an under-raiyat, and his being one orthe other with respect to the homestead being a condition precedent to theBengal Tenancy Act applying to the tenancy, the section does not attract theAct at all where the tenant, for the above reason, possesses neither status.The status conferred by the section on the tenant is not the status of a raiyator an under-raiyat simpliciter : it is only a status "according to thestatus of the landlord;" and the Act applies if and only if the tenant canbe said to possess one or the other status, this condition being prefixed tothe clause drawing in the Act by the conjunction and which in the contextmeans thereupon or on his so being a raiyat or an under-raiyat. Where thelandlords interest is not governed by the Bengal Tenancy Act at all and he isnot either a proprietor or a tenure-holder or a raiyat or an under-raiyatthereunder, a raiyati or under-raiyati status of the tenancy cannot possiblyaccord with the landlords status and possession of such a status by the tenantbeing wanting, there can be no room, under the words of the section, for theapplication of the Act to the homestead tenancy. I do not find it possible tohold, as Mr. Chakravarty invited me to do, that the clause linking the tenantsstatus with the landlords is no part of the principal enactment but asupplementary provision which would only come into play when the landlordhappened to be one, having a status under the Bengal Tenancy Act. In my view,the words of the section cannot bear that construction. Sufficient has beensaid above to show that unless the landlord has such a status that the tenantcan be a raiyat or an under-raiyat vis a vis him, the section does not make theAct applicable to the homestead tenancy at all.

14. Nor am I able to hold that the landlord contemplated bythe section is the landlord who originally inducted the tenant into thehomestead or was the landlord of the homestead at the time when the tenantfirst came to possess both homestead and a holding. In fairness to Mr.Chakravarty, I must not represent him as wholly responsible for thiscontention, for he developed it only from a suggestion thrown out by me. Onconsideration, however, I think that this view is not tenable. It may be thatthe use of the present tense in the verb holds occurring in the openingclause, does not signify that the state of things existing at the time when acontroversy arises is to be regarded. In my opinion, although I am aware that acontrary view has been taken the words "when a raiyat or an under-raiyatholds" etc. constitute not a verbal but an adjectival phrase, having noreference to time, but only describing the class or kind of tenant which iscontemplated, still the tenor of the amended, section seems to me to be that incases where it would apply, the position must be judged by reference to thelandlord for the time being, except perhaps in cases where there has been achange in the landlord since the section became applicable and some suchconsideration as, that a status once acquired by a tenant cannot be lost,intervenes. In the result my opinion is that the view taken by the Courts belowof S. 182, Ben. Ten. Act, as amended is correct. The section requires that inorder that the Bengal Tenancy Act may apply to a homestead held by a raiyat oran under-raiyat otherwise than as a part of his holding, the landlord of thehomestead must have a status under the Act and such a one that the tenant maybe a raiyat or under-raiyat under him. Where the same is not possible, thesection does not attract the Act to the homestead at all.

15. I am sensible that this interpretation of the sectionmay lead to strange and anomalous results which could hardly have been in thecontemplation of the Legislature. If the superior interest in the homesteadchanges hands, the tenants status, varying therewith, may prove to be afluctuating one, coming once to be governed by the Bengal Tenancy Act and againby the Transfer of Property Act and once again by the former. There may bemeans of avoiding this result or there may not be. But on the words in whichthe section is expressed, the interpretation, adopted above, seems inescapable.The real object of the Legislature in amending the section may have been simplyto widen its scope so as to embrace under-raiyats and without affecting thegeneral applicability of the Act to separate homestead tenancies, to define itsresults in a more precise way. The clause specifying the status of the tenantmay have been added only for the purpose of adjusting the introduction of theunder-raiyat. But if so, the Legislature has failed to use appropriate languageto express that intention effectively and has on the other hand used languagewhich has produced a curious result.

16. But although I agree with the Courts below in the viewtaken by them of the amended S. 182, it does not follow that I must at onceuphold the decrees passed by them. The decrees are in accordance with theamended section, but the question whether in the special facts that sectionapplies at all remains to be considered. I put that question to the learnedAdvocate-General and he replied by referring me to the language of the sectionand one reported case to which I myself drew his attention. He contended thatthe amended section would apply. It is true that it was the defendants whopleaded the section in bar and the only question put in issue by them and triedby the Courts below was a question under the amended section. Nevertheless, allthe necessary facts have been found and if it appears from those facts that therights of the parties must be governed not by the new section but by the old, Ido not think I am debarred from saying so in second appeal.

17. Let me recall the facts. The record of rights, publishedin the year 1933, shows the defendants to be settled raiyats of the same or acontiguous village. It takes twelve years occupation as a raiyat to become asettled raiyat and therefore the defendants must have been occupying theirother holdings as raiyats before the amended section came into operation andwhen the old section was still in force. If at the same time they were alsoholding the homesteads, then by virtue of the old section the homesteadtenancies came to be governed by the provisions of the Bengal Tenancy Actapplicable to raiyats, whether or not the landlord had a status under that Act.It was not contended before me that there was any special local custom orusage. In other words, the defendants acquired an immunity from ejectmentexcept as raiyats might be subject to such process. That clearly was theposition in four out of the six cases, for the defendants in Suits Nos. 96, 97,98 and 93 are heirs of the original tenant of the homestead and the homesteadtenancy in all the six cases was created over twenty years ago. In the fourcases above referred to the defendants or their predecessors whose rights theyhave inherited were, on the facts found, in possession of both the homesteadand a raiyati holding during the currency of the old section. The position isnot clear with regard to the defendant in suits Nos. 100 and 101 for heacquired the homestead by purchase and it does not appear when his purchasetook place. In his case, therefore, it is not possible to say with definitenessthat he held the homestead as well as his raiyati holding at any time when theold section was in force and thus acquired any rights under the old section.

18. But in the case of the defendants who acquired, inrespect of the homestead, the rights conferred by the old section, is thereanything in the amendment to take those rights away I can find nothing atall. The moment these defendants came to hold a homestead as well as a raiyatiholding outside it, which they certainly did during the currency of the oldsection, they acquired the rights of a raiyat in respect of the homestead. Atthe time the amendment came into force, these rights were vested rights. Theamended section contains no words of divestiture or of any positive enactmentwhich might be said to take away those rights, either expressly or by necessaryimplication. The result is that the rights remain.

19. Indeed, strictly speaking, the question is not one ofthe amended section operating retrospectively with the effect of destroyingvested rights. On the very words of the section, it does not apply to caseswhere the rights of a raiyat have already been acquired in respect of ahomestead tenancy by virtue of the old section. Leaving aside under-raiyats,the amended section applies when the only fact is that a raiyat holds hishomestead otherwise than as a part of his raiyati holding. The case whereanother fact is present, viz., the homestead has already acquired the incidentof being governed by the provisions applicable to land held as a raiyat, is, asI read the amended section, not within its purview at all.

20. Thus, from whatever point of view the matter may belooked at, whether that of retrospective operation so as to take away vestedrights or the presence of sufficient words, the amended section does not affector apply to cases where a raiyat, during the currency of the old section, heldhis homestead otherwise than as a part of his holding and acquired, as respectsthe homestead, the rights conferred thereby, although the landlord of thehomestead may not have or have had any status under the Bengal Tenancy Act. Thesection, before its amendment, contained no reference to the status of thelandlord and it was not necessary, in order that the benefit of the sectionmight be available, that he should have any particular status. Although it hasnot been specifically decided in any case that in such circumstances the oldsection would apply, it has in fact been always applied, a circumstance towhich the learned Advocate-General referred.

21. The reported case relied on by the learnedAdvocate-General which is the decision of Edgley J. in 41 C. W. N. 405 KishoreMohan Deb v. Secy. of State (36) 23 : A.I.R. 1936 Cal. 528 [LQ/CalHC/1936/138] :167 I. C. 310 : 41 C. W. N. 405 may be easily disposed of. All that the learnedJudge held was that the amended section would apply in a case where a tenantholding a homestead in a village subsequently acquired an under-raiyati holdingin the same village, although he had done so before the amended section cameinto force. The decision is easily explicable and clearly right, because under-raiyatshad no place at all in the old section and in their case the amendment iswholly in their favour. Since they had no rights under the old section, theapplication of the amended section in their case affects no vested rights; thefield is unoccupied and clear. And since the amended section is expressed ingeneral terms, without any reference to the time when the homestead or theholding was acquired, there is no reason why it should not apply tounder-raiyats in all circumstances. The decision does not touch the case ofraiyats who came on under the operation of the amended section with certainrights already acquired under the old. My conclusion on this part of the casetherefore is that in the case of a raiyat who held his homestead otherwise thanas a part of his holding when the old S. 182 was in force and thus acquired therights of a raiyat in respect of his homestead tenancy there being no questionof any local custom or usage, his homestead will continue to be governed by theold section even after the amendment, if he is still holding it as before. Theamended section would not apply and the fact that the landlord of the homesteadhas no status under the Bengal Tenancy Act would make no difference, inasmuchas the existence of such a status was not a requirement under the old sectionand the rights accrued without it.

22. The position, I conceive, would be the same if theraiyati holding is situated not in the same village as the homestead or acontiguous village but in some other village, since the limitation as to thevillage is also an addition made by the new section. For the reasons abovegiven, Appeals Nos. 834, S35, 836 and 837 must be allowed. The judgments anddecrees in these cases of both the Courts below are accordingly set aside and theplaintiffs suits dismissed with costs throughout. Appeals Nos. 838 and 839must also be allowed but in these cases no final decree can be passed. It isnot clear whether the defendant acquired the homestead during the currency ofthe old section or thereafter, but I consider it right that this matter shouldbe further investigated. The judgments and decrees of both the Courts are, inthese cases too, set aside and the cases remanded to the Court of appeal belowfor a further hearing of the appeals and a determination of the date of theacquisition of the homesteads on the evidence already on the record and suchfurther evidence as the parties may adduce. If it be found that the homesteadswere acquired by the defendant before the amended section came into force, theappeals will be allowed and the plaintiffs suits dismissed. If, on the otherhand, it be found when the homesteads were acquired, the amended section hadalready come into force, the appeals will be dismissed. Costs of these twoappeals in this Court will abide the result. Leave to appeal under cl. 15 ofthe Letters Patent has been asked for. It is granted.

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Kaliprosad Saha and Ors. vs. Naihati Jute Mills Co., Ltd.(27.08.1945 - CALHC)