Sri Satyanarain Sami and another vs Jamuna Bai and another

Mohamad Noor, J.—The suit out of which this second appeal arises was instituted by the plaintiff-respondents under O. 21, R. 63, Civil P.C., for a declaration that about 12 bighas of land situated in village Khrhat Golapur is liable to be sold in execution of their decree against defendants 3 and 2 and that the claim of defendant 1 an idol, was wrongly allowed. The suit was dismissed by the trial Court but has been decreed by the Court of appeal below. Defendant 1 has preferred this second appeal.

The facts are these: The defendants 2 and 3 obtained a temporary lease of the village from the plaintiffs and in 1906 during its continuance acquired by purchase the occupancy right of the land which is the subject-matter of the present litigation. Later in 1909 they dedicated this land in favour of the idol, defendant 1. Their lease expired in the year 1320 (corresponding to 1913). By that time their financial conditions became bad and they defaulted in payment of the rent. The plaintiffs obtained a decree for rent, and in execution of it sought to sell the land as the property of defendants 2 and 3. A claim was preferred on behalf of defendant 1 on the basis of the dedication made in the year 1909, which was allowed. Hence the present suit. The learned Subordinate Judge found the dedication valid and bonafide.

The learned District, Judge has decreed the suit relying mainly upon the fact that just about a year before the expiry of the thika lease defendant 3 executed on his own behalf of a kabuliat in respect of the land in suit in favour of the plaintiff, Ex. 3, in which it is stated that the purchase of the occupancy rights in 1906 was invalid as there was no custom of transferability of the holding in the village, and therefore he (defendant 3) was taking the settlement from the proprietors. The kabuliat does not purport to be on behalf of the idol.

It has been contended before us that if by the purchase of the year 1906 the property was legally vested in defendants 2 and 3 and thereafter defendants 2 and 3 legally dedicated it in favour of defendant 1 in 1909 the execution of the kabuliat by the defendant 3 who was the shebait of the idol would not take away the vested interest of the idol and the kabuliat executed by defendant 3 must be taken to have been executed for the benefit of the idol.

This leads us to the consideration of whether the purchase by defendants 2 and 3 of occupancy right of the land and its later dedication was valid, as the holding was non-transferable without the consent of the landlord. It was contended by the appellant before us as well as before the learned District Judge that in spite of the fact that the land was a non-transferable occupancy holding, the transfer to the defendants 2 and 3 was valid as it was a transfer to persons who were entitled to give consent and recognize that transfer. The case of Harrington v. Dwarka Prasad, 1920 Pat 577 = 55 IC 59, was relied upon before the learned District Judge. He seems to have accepted this contention so far as the transfer was in favour of defendants 2 and 3 as it was prior to the year 1907, when the Bengal Tenancy Act was amended by enacting that an ijardar or a lessee was not entitled to acquire occupancy right even by purchase during the continuance of the lease. He however seems to be of opinion that as the dedication in 1909 was after the amendment of the Act in 1907 it was not valid. Here the learned District Judge is clearly in error. If by virtue of the purchase in the year 1906 the occupancy right became vested in defendants 2 and 3 as has been held in Harrington v. Dwarka Prasad, 1920 Pat 577=55 IC 59, above referred to, they were entitled to deal with it in any way they liked. The amendment of the Act in 1907 did not affect a right which had already became: vested in them prior to the amendment which has no retrospective effect. Therefore when in 1909 they dedicated the land to the idol, the dedication was perfectly valid. Assuming that the land dedicated was a non-transferable occupancy holding defendants 2 and 3 as transferors did consent to it by the dedication itself as they in 1906 consented to and recognised the transfer to themselves. It was held in Harrington v. Dwarka Prasad, 1920 Pat 577 = 55 I C 59, that a thikadar during the period of the lease stood in the place of the Landlord for that period and was the land-lord of the raiyat and as such could give consent to the transfer of a nontransferable occupancy right and could consent to a transfer to himself. We must therefore hold that in taking a transfer to himself in 1906 he consented to it and in making the transfer by himself in 1909 he again gave consent to it. Perhaps the learned District Judge did not consider that in the year 1909 when the dedication was made defendants 2 and 3 were still the lessees of the village and as such they could recognise that transfer. The principle has also been laid down by their Lordships of the judicial Committee in Chandra Churdeo v. Laldhari Prasad Singh, 1932 PC 264 = 139 IC 550 (PC).

Mr. H.N. Mitter who appears on behalf of the respondents has relied upon Raghubar Mahto v. H. Manners, (1911) 11 IC 389 for the proposition that even before 1907 a lessee could not during the term of his lease acquire occupancy right by purchase. We are unable to follow it in view of the clear decision of this Court in Harrington v. Dwarka Prasad, 1920 Pat 577 = 55 I C 59. The case relied upon by Mr. Mitter seems to have been dissented from in this Court in J.P. Morgan v. Ramjee Ram, 1920 Pat 97 = 56 IC 366 = 5 Pat LJ 302, where their Lordships observed:

we must hold that prior to the Act of 1907 the acquisition by thikadar of an occupancy right by purchase was not barred by S. 22 (3).

We must follow the two Division Bench decisions of this Court and hold that defendants 2 and 3 acquired a valid right in the lands in question by purchase in the year 1906 and validly transferred it to the idol in the year 1909. Once we hold that the property was validly transferred to the idol and vested in it, the Kabuliat, Ex. 3, executed by defendant 3 in favour of the plaintiffs will be of no avail, and we must construe it as having been executed by the shebait for the benefit of the idol. The view taken by the learned Subordinate Judge was correct. Apart from the validity of the transfer, I am of opinion that the question cannot be raised by the plaintiff in the present suit. A transfer of a nontransferable occupancy holding is not void but voidable. The suit to avoid it had become barred when the present suit was instituted nor is the suit framed on that basis.

I would allow this appeal with costs, reverse the decree of the learned District Judge and restore that of the learned Subordinate Judge. The plaintiffs will pay the costs of defendant 1 of the lower appellate Court also.

Luby, J.

I agree.