Bijoy Krishna Mukherjee vs Surendra Nath Banerjee

Fletcher, J.—The only question involved in this appeal is whether the transfer of a portion of a nontransferable occupancy holding is an encumbrance within the meaning of Section 161 of the Bengal Tenancy Act. The decisions of this Court seem to be quite clear that it is not. The ruling in the case of Abdul Rahman Chowdhuri v. Ahmadar Rahman ILR (1915) 43 Calc. 558 is exactly in point. A similar view has been taken in the High Court at Patna in the case of Ramehswar Singh Bahadur v. Raghunandan Khabas (1916) 1 Pat. L.J. 403. On Section 86 of the Bengal Tenancy Act, there is also a decision of this Court [Tamiznddin Khan v. Khoda Nawaz Khan 14 C.W.N. 229] which shows that the sale of a portion of a non-transferable occupancy holding is not an encumbrance, within the meaning of Section 86, Sub-sections (6) and (7) of the Bengal Tenancy Act. The only difficulty that is raised is by the decision in Chandra Sakai v. Kalli Prosanno Chuckerbutty ILR (1895) 23 Calc. 254. That is a case of exchange where it was held that an exchange was an encumbrance within the meaning of Section 161 of the Bengal Tenancy Act. Whether we agree with that decision or not, it is quite clear that an exchange is not for all purposes a sale, and the case has been, distinguished already in the case of Abdul Rahman Chowdhuri v. Ahmadar Rahman ILR (1915) 43 Calc. 558 already referred to on the ground that an exchange is not a sale. There may be a difficulty in principle in the case of an exchange and it may be that on some subsequent date it may be necessary to review the judgment in Chundra Sakai v. Kalli. Prosanno Chuckerbutty I.L.R.(1895) 23 Calc. 254. But on the question of sale, it seems to me that the authorities are clear and conclusive, namely, that the sale of a portion of a non-transferable occupancy holding is not an encumbrance within the meaning of Section 161 of the Bengal Tenancy Act. In that view, the present appeal fails and must be dismissed with costs.

Cuming, J.

I agree.