Page, J.:— The suit out of which this appeal arises was brought to recover khas possession of certain homestead land. The land in question for many years had been in the possession of one Tilak Das under a hawla of which the plaintiffs possessed a 12 annas and the pro forma defendant a 4 annas share.
The defence to the suit was that the appellants defendants in the suit had purchased the interest of Tilak Das in the land which was set out in, and controlled by, a kabuliat executed by Tilakdas on the 24th Falgun 1308, that is, in the year 1901.
The lower Court has found as a fact that the kabuliat of 1901 was a document merely confirmatory of a pre-existing tenancy, and did not create a fresh tenancy. The learned advocate for the appellants has urged that this finding of fact cannot stand, because there was no evidence on the record upon which the Court could have based the conclusion that the kabuliat merely confirmed a prior tenancy. This point, however, has not been raised in the grounds of appeal, and it is not open to the appellants to urge it before the High Court in second appeal. It must be taken, therefore, that the kabuliat of 1901 merely confirmed an earlier-tenancy. Now the kabuliat was executed in 1901, and the learned Subordinate Judge in the course of his judgment stated that “admittedly Tilak Das Bairagi's tenancy with respect to the land in suit commenced about fifty years ago, that is, before the passing of the Transfer of Property Act”. It is necessary, therefore, for us to consider whether before the passing of the Transfer of Property Act in 1882 a lease of homestead land was transferable by law. The only authory which lays down that a lease of homestead and was transferable apart from custom or contract is the decision in Banee Madhub Banerjee v. Joy Kishen Mookerjee in which case Peacock, C.J expressed the opinion that “speaking for myself, I should say that if one man grants a tenure to another for the purpose of living upon the land, that tenure, in the absence of any evidence to the contrary, would be assignable”. It is to be observed that in that case the tenure was created for “building purposes”, and as such was both assignable and inheritable according to the custom of the country. A further ground upon which the decision in that case was based was that the landlord, having stood by while pucca buildings were erected upon the land in such circumstances that the tenant reasonably might imagine that if the landlord's rights were thereby being infringed he acquiesced in such a violation of his rights, was not entitled to treat the tenant as a person without a legal interest in the land in question. The observations of Peacock, C.J in that case were cited, apparently with approval, by Jackson and Ainslie, JJ. in Doorga Pershad Misser v. Brindabun Sookul. But that case was decided upon another ground. The view expressed by Peacock, C.J since 1871 has never been approved in any other case. On the contrary, when upon the facts of a case the learned Judges were unable to distinguish Banee Madhub Banerjee's case they usually expressed their doubt as to the accuracy of Peacock, C.J's observation as a correct statement of the law prior to the Transfer of Property Act. In Madhusudan Sen v. Kamini Kanta Sen(3) Maclean, C.J stated that “there are no doubt certain observations of Chief Justice Peacock in that case, which give support to the appellant's contention. They were, however, unnecessary for the decision of the case, and we doubt whether they accurately state the law as now understood in Bengal”. See also Harinath Karmakar v. Raj Chandra Karmakar, Nabu Mondul v. Cholim Mullik, Madhab Chandra Pal v. Bejoy Chand Mahatab, Ram Charan Naskar v. Hari Charan Guha(4), Ananda Mohan Saha v. Gobinda Chandra Ray Choudhury(5), Manmoth Nath Mitter v. Anath Bandhu Pal(6) and Sulin Mohan Banerjee v. Raj Krishna Ghose(7). In the last case at page 197 Acting Chief Justice Mookerjee observed that “under the law as it stood before the Transfer of Property Act tenancies, whether of homestead lands or of agricultural lands were not transferable in the absence of a custom to the contrary or of an express contract to that effect”. In our opinion that must be taken to be the settled view of the Calcutta High Court. His Lordship in that case proceeded to add that “the only recognised exception to this rule is that stated in the case of Banee Madhub Banerjee v. Joy Kishen Mookerjee(8) and others. In that case Sir Barnes Peacock, C.J observed that if one man grant a tenure to another for the purpose of living upon the land, that tenure in the absence of evidence to the contrary is assignable. The same view was subsequently taken in the case of Doorga Pershad Misser v. Brindabun Sookul(9).” The learned advocate for the appellants has contended, having regard to there observations of Acting Chief Justice Mookerjee, that it must be taken that where land was let for the purpose of residence before, the Transfer of Property Act, 1882, the tenancy was assignable. We cannot accede to that contention. Acting Chief Justice Mookerjee was also a party to Ram Charan Naskar v. Hari Charan Guha in which Rampini and Mookerjee, JJ. held that “We think that this plea cannot be sustained in the face of the rule laid down in Madhab Chandra Pal v. Bejoy Chand Mahatab and Madhusudan Sen v. Kamini Kanta Sen in which it has been held that the incident of non-transferability was common to tenancies from year to year of homestead lands and agricultural lands created before the passing of the Transfer of Property Act in the absence of a custom to the contrary”. And we are of opinion that the Acting Chief Justice in Sulin Mohan's case, when referring to the case decided by Chief Justice Peacock did not do so for the purpose of expressing approval of the observations in that judgment which have been cited above.
In our opinion, these observations of Peacock, C.J are opposed to the settled view of this Court, and cannot now be regarded as correctly stating the law. It follows, therefore, that by purchasing Tilak Das's interest in this land the defendants obtained no title or interest therein, and he has no defence to the claim of the plaintiffs to khas possession of this plot of land.
For these reasons, in our opinion, the appeal fails and must be dismissed with costs.
Cuming, J.:— I agree.
Appeal dismissed.
B.M.S