Authored By : Ernest Edward Fletcher, Thomas WilliamRichardson

Ernest Edward Fletcher, J.

1. This is an Appeal by the Plaintiffs from the judgment ofthe learned Subordinate Judge of Murshidabad, dated the 27th of January 1912.The Plaintiffs as the executors of the Will of one Anandamoyee brought thesuit against the Defendants to recover certain moveable and immoveableproperly. The property in question formerly belonged to one Digambar Roy who byhis Will, dated the 14th Bhadra 1304, bequeathed all his properties absolutelyto his wife Anandamoyee. By her Will, dated the 29th of Bhadra 1314,Anandamoyee appointed the Plaintiff and one Atul Behary Roy (since deceased) tobe her executors and gave the whole of her property for the maintenance of theworship of an idol to be established after her death. Anandamoyee died on the2nd Aswin 1314, corresponding with the 19th of September 1907, and after herdeath her Will was duly proved. The Defendants having dispossessed thePlaintiffs of the property, they brought the present suit to recover the same.The Defendants claimed as heirs of Digambar after the death of Anandamoyee. Thelearned Subordinate Judge decreed the suit in part, but dismissed it withrespect to certain jotes held with a right of occupancy by Digambar holdingthat such fates were not capable of being bequeathed by Will. Against thisdecision the Plaintiffs have appealed to this Court.

2. Sec. 26 of the Bengal Tenancy Act, 1885, enacts, "Ifa raiyat dies intestate, in respect of a right of occupancy, it shall, subjectto any custom to the contrary, descend in the same manner as other immoveableproperty."

3. This section standing alone no doubt suggests that aright of occupancy is immoveable property and, if it be so, I should havethought that the holder would have the right to bequeath it by his Will.

4. For, by sec. 46 of the Indian Succession Act, 1865 (whichis incorporated in the Hindu Wills Act), it is provided that "every personof sound mind and not a minor may dispose of his property by Will."

5. It has not been argued before us, nor could it be, thatin no circumstances can a raiyat make a Will in respect of a right ofoccupancy. Sec. 26 of the Bengal Tenancy Act speaks of a raiyat dying "intestate"in respect of a right of occupancy and must therefore contemplate that in suchcases a raiyat should die "testate" in respect of a right ofoccupancy. It has been argued however that an occupancy raiyat can only disposeof his right by Will when there is a special custom enabling him to do so. Insupport of this argument reference was made to secs. 11 and 18 of the Actauthorising a tenure holder and a raiyat holding at fixed rates to dispose oftheir holdings by Will.

6. It is said therefore that as the Act is silent as to thepower of an occupancy raiyat to dispose of his holding by Will, the only powerthat an occupancy raiyat has of disposing by Will of his holding under sec. 183is in the even of there being a special custom in that respect. This principleof construction was applied by the Full Bench of this Court in the case ofLakhan Narain v. Jainath I. L. R. 34 Cal. 516 (1907) with respect to theheritability of non-occupancy rights. In a recent case [Amulya Ratan Sarcar v.Tarini Nath Day 18 C. W. N. 1290 (1914)] it was held that an occupancy raiyathad no power to bequeath by Will his holding unless a special custom to do sowas proved. This decision is binding on us unless it has been affected by therecent decision of the Full Bench reported in Dayamayi v. Ananda Mohan Ray 18C. W. N. 971 (1914). That decision however did not deal with the power of anoccupancy raiyat to bequeath his holding.

7. The case appears to me to be concluded by the authoritiesI have cited above. The present Appeal therefore fails and must be dismissedwith costs.

Thomas William Richardson, J.

8. The law is admittedly in an unsatisfactory condition, thequestion of transferability of occupancy rights having been dealt with in theBengal Tenancy Act rather by way of suggestion than by way of positivelegislation. I agree that on the authorities as they stand, occupancy rightsare not capable of being made the subject of testamentary disposition.

.

Kunja Lal Roy and Ors. vs. Umesh Chandra Roy and Ors.(21.07.1914 - CALHC)