Authored By : Ernest Edward Fletcher, Nalini RanjanChatterjee

Ernest Edward Fletcher, J.

1. The only question arising for decision in this case iswhether a portion of a non-transferable occupancy holding can be devised byWill.

2. The facts are extremely simple. The holding in questionbelonged to three brothers, Ram Jiban Das. Jugal Kishore Das and Lob NarainDas. Lob Narain died on the 23rd Baisakh 1314, having by his Will, dated the30th Baisakh 1928 (which was duly admitted to probate), bequeathed his share tohis widow, Jugat Tara.

3. The widow subsequently made a gift of the property suedfor to the plaintiff. The defendants claim through the other brothers. So theclaimants to the property are on the one hand a person claiming through theWill of Lob Narain and on the other hand persons claiming through his heirs.Now it was decided in this Court in the case of Arnulya Ratan Sarkar v. TanimiNath Dey 27 Ind. Cas. 235 [LQ/CalHC/1914/30] : 18 C.W.N. 1290 : 21 C.L.J. 187 : 42 C. 254pc that anon-transferable occupancy holding is not capable of being devised by Will.This case was followed in the case of Kunja Lal Roy v. Umesh Chandra Roy 27Ind. Cas. 352 : 18 C.W.N. 1294. These cases are clearly binding on us andgovern this case, unless a different rule applies with reference to a portionof a non-transferable occupancy holding.

4. Reliance in the present case has been placed by theappellant on the decision of a Full Bench of this Court. But as Mookerjee, J.,points out, the validity as against the raiyat of transfers by him of hisholding for value depends on the doctrine of estoppel and in oases ofinvoluntary transfer by sale in execution where the ryot does not apply to havethe sale set aside, on the doctrine of acquiescence or waiver. It is suggestedthat the decision of the Full Bench above referred to has modified considerablythe remarks of the learned Judge, but I am unable to agree to this view.

5. The learned Judges in Arnulya Ratan Sarkar v. Tarini NathDey 27 Ind. Cas. 235 [LQ/CalHC/1914/30] : 18 C.W.N. 1290 : 21 C.L.J. 187 : 42 C. 254 lay downdefinitely that a raiyat has no right of testation with regard to anon-transferable occupancy holding and the principles enunciated by the learnedJudges apply equally to the whole or a portion of occupancy holding. Theprinciples laid down by the Full Bench on which transfers inter vivos for valueof a holding are supported do not apply to the case of a bequest by Will.

6. The present case does not in any way involve theconsideration of the rights of the landlord. The only question is one ofcompetition between a person claiming under a Will of an occupancy raiyat and aperson claiming under his heir.

7. I am of opinion that the present case is governed by theprinciples laid down in Arnulya Uatan Sarkar v. Tarini Nath Dey 27 Ind. Cas.235 : 18 C.W.N. 1290 : 21 C.L.J. 187 : 42 C. 254pc.

8. That being so, in my opinion, the present appeal fails.

9. It is conceded that the plaintiff-appellant is entitledto a declaration that he is entitled to the share in the khanabiri whichbelonged to Lob Narain and as transferred to the plaintiff by the deed of giftexecuted by Lob Narains widow but that his claim for possession of thekhantbari lands should be disallowed. It is also agreed that the mesne profits,instead of being ascertained in the execution proceedings as directed by thelower Appellate Court, should be ascertained in this suit. Subject to theseslight variations the decree appealed from is confirmed and the present appealstands dismissed with costs.

Nalini Ranjan Chatterjee, J.

10. The question involved in this appeal relates to thevalidity of testamentary disposition of a part of an occupancy holding, nottransferable by custom. It appears that a certain occupancy holding belonged tothree brothers one of whom Lob Narain by his Will bequeathed his share in theholding to his wife Jagat Tara absolutely, and the latter made a gift of theshare of the jote to her brothers son the plaintiff. The defendants, the sonsof the other two brothers of Lob Narain (who are the heirs of the latter on thedeath of Jagat-Tara), dispossessed the plaintiff and hence the suit.

11. The only reference in the Bengal Tenancy Act to thetestamentary power of an occupancy raiyat over his holding is contained inSection 178. Sub-Section 3, Clause (i), of that section provides that nothingin any contract between a landlord and a tenant, after the passing of the Act,shall take away the right of a raiyat to transfer or bequeath his holding inaccordance with local usage. It is not suggested in the present case that thereis any local usage under which a raiyat can bequeath his holding. Section 26 ofthe Act deals with the devolution of occupancy rights on the death of a raiyatdying intestate in respect of an occupancy holding, but no implication arisesfrom the section in favour of testamentary disposition generally, because araiyat has the power to bequeath his holding in accordance with local usage.

12. In two recent cases in this Court, it has been held thata raiyat is not competent to make a testamentary disposition of a nontransferableoccupancy holding. See Amulya Ratan Sarkar v. Tarini Nath Dey 27 Ind. Cas. 235 [LQ/CalHC/1914/30] : 18 C.W.N. 1290 : 21 C.L.J. 187 : 42 C. 254pc and Kunja Lal Roy v. UmeshChandra Roy 27 Ind. Cas. 352 [LQ/CalHC/1914/333] : : 18 C.W.N. 1294. In thesecues the entire holding appears to have been devised.

13. In the first case it was pointed out that in the case ofa transfer inter viros for value, there is an estoppel in favour of thetransferee as against the transferor or persons claiming under the latter andthat even assuming for the sake of argument that the same principle applies tothe case of a gift, the principle can have no operation in the case of atestamentary devise and the contrary view taken in the case of Hari Das v. UdoyChandra : 12 C.W.N. 1086: 8 C.L.J. 261, by Doss, J., wasdissented from. As observed in Amulya Ratans case 27 Ind. Cas. 235 [LQ/CalHC/1914/30] : 18 C.W.N.1290 : 21 C.L.J. 187 : 42 C. 254 it is open to the testator to change his mindup to the last moment of his life and revoke his Will, and the right of theheir to the holding under the law comes into operation immediately on the deathof the testator. That being so, the grounds upon which a testamentarydisposition of an entire holding is invalid would apply equally to such adisposition of a part of the holdinar.

14. It is contended, however, on behalf of the appellantthat the case of Amulya Ratan Sarkar v. Tarini Nath Dey 27 Ind. Cas. 235 [LQ/CalHC/1914/30] : 18C.W.N. 1290 : 21 C.L.J. 187 : 42 C. 254 pc was decided before the Full Benchdecision in Dayamoyi v. Ananda Mohan Roy Chowdhuri 27 Ind. Cas 61 [LQ/CalHC/1914/242] : 18 C.W.N.971 : 20 C.L.J. 52 : 42 C. 172, and that the Full Bench has held that theoccupancy raiyat has a property in his holding which can be transferred. One ofthe questions (in the third case) referred to the Full Bench no doubt waswhether a right of occupancy which is not transferable by custom or local usageis a right which can be transferred at all, and the answer was in theaffirmative. But the Full Bench did not lay down that an occupancy raiyat hasan absolute power of disposal over his holding If it were intended to hold thathe had such a right, it would have been wholly unnecessary to consider or laydown in what cases a transfer is operative against the raiyat. The answer mustbe read with the question referred, viz., whether it can be transferred at all,and subject to what was said in the earlier part of the judgment where the FullBench laid down that in certain cases a transfer by an occupancy raiyat of hisholding is operative against him. A transfer for value of the whole or a partof an occupancy holding apart from custom or local usage is, according to theFull Bench, operative against the raiyat (a) where it is made voluntarily, (6)where it is made involuntarily and the raiyat with knowledge fails or omits tohave the sale set aside, and the transfer of the whole or part is operativeagainst all persons (other than the landlord) where it is operative against theraiyat. The Full Bench did not deal with the power of an occupancy raiyat tobequeath his holding nor lay down any principle contrary to that upon which thecase of Amulya Ratan Sarkar v. Tarini Nath Dey 27 Ind. Cas. 235 [LQ/CalHC/1914/30] : 18 C.W.N.1290 : 21 C.L.J. 187 : 42 C. 254pc proceeded.

15. The validity of a transfer of the whole or part of anoccupancy holding made voluntarily appears to depend upon the principle ofestoppel, and that of a transfer made involuntarily upon the principle ofacquiescence and waiver. No such principles are applicable to the case of atestamentary disposition.

16. That being so, the grounds upon which a testamentarydisposition of an entire holding is invalid, would apply equally to such adisposition of a part of the holding.

17. It is true the Full Bench laid down that in the case ofa transfer of a part of a holding, the landlord is not ordinarily entitled toreenter. But the considerations upon which the right of the landlord as againsta transferee of a part of a holding have to be determined have no bearing uponthe question of the validity of a bequest of a part of the holding as betweenthe devisee and the heir-at-law.

18. I am accordingly of opinion that a portion of anoccupancy holding, apart from custom or local usage, cannot be devised by Will,and the appeal must, therefore, be dismissed with costs subject to the slightvariation agreed to between the parties as mentioned in the judgment of mylearned brother, Mr. Justice Fletcher.

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Umesh Chandra Dutta vs. Joy Nath Das and Ors. (24.08.1917 -CALHC)