Sinha, J.:— This is a, plaintiff's second appeal from the decision of the learned Subordinate Judge of Arrah, affirming that of the Munsif of the same place in a suit in ejectment.

The facts leading up to this appeal are as follows: The plaintiff-appellant is the proprietor of village Kosihar where the disputed plot no. 537 lies. This plot is recorded, along with many other plots, in khata no. 69 as dih basgit belagan. The particular plot no. 537 was recorded as in the possession of Raktu and Bhadesar. They had also an occupancy holding in the village which was separately recorded in their names in khata no. 45. The recorded tenants died, and their mother succeeded to their interest. She also died, leaving Deomurat Kuer, defendant no. 6 in this suit, as her heir. Deomurat Kuer executed a, sale deed on the 1st of December, 1939, with respect to the homestead plot no. 537 only in favour of the defendants first party (defendants nos. 1 to 5). The plaintiff claimed possession of the plot on the ground that the tenant in possession had no transferable interest in the plot.

The suit was contested by the defendants first party who denied that the land was not transferable. Hence, the only question in controversy between the parties is whether the land in question was transferable. If this question is decided in the affirmative, the suit and this appeal must fail. If, on the other hand, it is decided that the land is not transferable either by law or by custom of the locality, the suit must succeed, as the defendants in possession of the plot could not have acquired any title by virtue of their purchase from the defendant no. 6.

Both the Courts below have taken the view that, by the joint operation of sections 20 and 182 of the Bihar. Tenancy Act, the defendant no. 6 and her predecessors-in-interest had acquired occupancy rights in the disputed land, and that, by virtue of Section 26A of the Bihar Tenancy Act, the defendant no. 6 had a transferable right in the homestead plot also. In that view of the matter, both the Courts below agreed in dismissing the plaintiff's suit. Hence this second appeal.

The appeal was heard by me sitting singly, and I directed that the matter be heard by a Division Bench as it raised an important question of law relating to the interpretation of the Bihar Tenancy Act as amended in 1938.

Now, Section 182 of the Bihar Tenancy Act runs as follows:—

“When a raiyat holds his homestead otherwise than as part of his holding as a raiyat the incidents of his tenancy of the homestead shall be regulated by local custom or usage, and subject to local custom or usage, by the provisions of this Act applicable to land held by a raiyat.”

This section applies to that class of cases where the homestead of the raiyat is not held as a part of his main holding as a raiyat, and it presupposes that the homestead itself is not held as a raiyat. Primarily, local custom or usage governs the incidents of a tenancy of such a homestead piece of land. In the present case, neither party has either pleaded of proved any custom regulating the rights and liabilities of the tenant in respect of such a land. There is a note in the record-of-rights to the effect that the landlord has no right to eject the tenant from the dih basgit land, so long as it continues in possession of the tenant or his heirs. It was sought to be argued that by implication it records the custom that the tenant has no transferable right in the homestead. This entry in the record-of-rights cannot be construed as expressly barring the right of the tenant to transfer the land. It may as well mean that the landlord's right to eject has been barred so long as the tenant or his heirs are there. Hence, this case has got to be decided on the footing that there is no custom or usage governing the incidents of this tenancy. Failing this, the case has got to be decided with reference to

“the provisions of this Act (Bihar Tenancy Act) applicable to land held by a raiyat”.

It was contended on behalf of the defendant-respondents that the new Section 26A of the Bihar Tenancy Act, which was enacted by the Bihar Act XI of 1938, must apply to the facts of the present case. Section 26A of the Bihar Tenancy Act runs as follows:—

“(1) Every occupancy holding or a portion thereof together with the right of occupancy therein, shall be capable of being transferred and bequeathed in the same manner and to the same extent as other immovable property, and all transfers made by sale, exchange or gift and all bequests shall, subject to the provisions of sub-section (2), be binding on the landlord.

(2) Every, transfer of an occupancy holding or a portion thereof, together with the right of occupancy therein, by sale, exchange or gift and every bequest of such holding or portion, together with the right of occupancy therein, shall be made in the same manner and subject to the same conditions as a permanent tenure in respect of registration and the payment of landlord's registration fee.”

This section makes an occupancy holding or a portion thereof transferable. But can it be said in this case that the plot in question in this suit is either an occupancy holding or a portion thereof? Unless it is held that the plot in question is an occupancy holding by itself or a portion of the defendants' occupancy holding, the provisions of section 26A in terms cannot apply to the facts and circumstances of the present case. Section 182 of the Bihar Tenancy Act does not provide that, in the absence of local custom or usage, the homestead, also becomes a, part of the tenant's other holding. Now, does section 182 have the effect of making this homestead a holding by itself of the raiyat, to which the provisions of section 26A can be made applicable? In this connection reliance was placed on behalf of the respondents on the case of Golam Mowla v. Abdool Sowar Mondul in which Rampini, J. is reported to have laid it down that “even though the defendant is not a raiyat in respect of this piece of bastu land in dispute between the parties, still under section 182, the provisions of this Act applicable to land held by a raiyat are applicable to this particular piece of land; in other words, he has, under section 21, a right of occupancy in this piece of bastu land as well in the agricultural land in the village of which he is a settled raiyat”. I am not sure whether the learned Judge has not stated the result of the application of section 182 a little too broadly. Section 182 does not say in so many words that a raiyat, holding his homestead otherwise than as a part of his holding as a raiyat, shall acquire in the homestead all the rights, and be subject to all the liabilities, that he has as a raiyat in his holding. If it had said that, certainly the homestead would have constituted a separate raiyati holding with all the incidents of such a holding. What section 182 lays down, in my opinion, inter alia is that a raiyat shall not be ejected from his homestead, so long as he continues to be a raiyat of some land in the village; for example, section 182 does not have the effect of making the raiyat liable for payment of rent for the homestead portion on the same terms as he holds his raiyati holding, though in this case, as in other cases, the land is belagan. Furthermore, the provisions of section 182 continue to apply to the homestead only so long as the raiyat continues to hold other lands as such as soon as a raiyat's holding as a raiyat passes out of the hands of the raiyat, leaving in his possession the homestead portion only, it cannot be said that the tenant still has any rights of occupancy in the homestead. This is the effect of the decision of the Letters Patent Bench of this Court in the case of Bishnath Singh…Defendant v. Mt. Bibi Ayesha…Plaintiff .. In that case the defendant had the status of a settled raiyat in respect of a holding which was sold up in execution of a decree for arrears of rent. Apart from the holding, he had a homestead also in that village. More than a, year after the sale of his holding, the landlord settled the same holding with him for a period of nine years. After the expiry of the term of the lease, the landlord sued to eject the raiyat, and the latter contested the suit on the ground that, having held the homestead while he was a settled raiyat of the village, he had acquired the right of occupancy in the homestead, and, therefore, even after the sale of his raiyati holding, he continued to be a raiyat with occupancy rights in respect of the homestead, and, therefore, when the settlement was made with him of his original holding for nine years, he acquired occupancy rights in the land settled with him. Ross. J., who heard the appeal in the first instance, held that he had not acquired any rights other than that of a, non-occupancy raiyat and that, therefore, he was liable to ejectment. On Letters Patent appeal, Jwala Prasad and Dhavle, JJ. affirmed that decision, Jwala Prasad, J. in the course of his judgment observed as follows:—

“The contention is that the homestead land had already before the sale of the defendant's holding acquired the incident of occupancy and therefore the land which he held under the kabuliyat must also be governed by the same incident. The fallacy lies in the assumption that whatever homestead land the defendant had was held by him as a raiyat. There never was any contract between the landlord and the defendant constituting his homestead land as a raiyati holding governed by the Bengal Tenancy Act. This homestead was in no case governed by the provisions of the Bengal Tenancy Act contained in Chapter V, except that by reason of the defendant having at one time held some agricultural land as a raiyat the incident at that time might have attached to the homestead land. But when the appellant ceased to be a raiyat in respect of cultivable land section 182 has no application. Similarly the incident of occupancy right, if any, that attached to the homestead land came to an end; it was never revived either in respect of the homestead land or in respect of the raiyati land which the defendant held under the kabuliyat in question.”

Dhavle, J., in the course of his concurring judgment has made the following observations:—

“Reading the two sections together it is difficult to see how homestead held otherwise than as part of a holding could be regarded for the purposes of section 20(5) as land held by the raiyat. Section 182 merely provides that, the incident's of a raiyat's tenancy of his homestead (held otherwise than as Dart of his holding as a raiyat) shall be regulated…………by the provisions of the Bengal Tenancy Act applicable to land held by a raiyat. This does not define the status of the person holding the homestead but merely deals with the incidents of his tenancy of the homestead.”

It follows from what has been said above that it is one thing to say that an occupancy raiyati holding his homestead otherwise than as part of his holding, cannot be ejected on grounds other than those on which he could have been ejected from his raiyati holding; and quite a different thing to say that he has acquired occupancy rights in the homestead with all the rights and liabilities attaching; to an occupancy holding. If the raiyat acquired-occupancy rights in the homestead, thus making it either an accretion to the original raiyati holding or a separate and an independent holding, it must follow that it is transferable as a raiyati holding, and, in the event of its sale, the transferee acquires the rights of an occupancy raiyat irrespective of the question whether or not the transferee himself has any other raiyati holding. There is no contract for payment of any rent in respect of the homestead (as in this case); but the transferee becomes an occupancy raiyat in respect of the same without any liability for payment of rent and, consequently, any liability for enhancement of rent or the corresponding right of claiming abatement of rent. In my judgment, this was not the result intended by the legislature in enacting section 182. That section was only intended for safeguarding the interests of the raiyat so long; as he himself continues to hold the homestead even apart from his occupancy or non-occupancy holding: in other words, the section does not confer on the raiyat, holding such a homestead (that is, otherwise than as a part of his holding), the status of a raiyat of any kind, but only attaches to the homestead the incidents of his raiyati holding so long as he continues to occupy the homestead. It is a personal right created in favour of the raiyat, which cannot be transferred either by act of parties or by operation of law.

Let us look at the question from another point of view. The decision of Rampini, J., in the case of Golam Mowla, on which great reliance was placed on behalf of the respondents only is an authority for the proposition that the raiyat had acquired occupancy rights. Assuming that this dictum is correct, does it follow therefrom that it becomes a part of his occupancy holding, or a separate holding, by itself? The answer, in my opinion, is in the negative. This follows from the wording of section 182 itself which, as already indicated, presupposes that the homestead is not held by the raiyat as such. That being so, the provisions of Section 26A of the Bihar Tenancy Act cannot be attracted to such a homestead. By way of analogy, an under-raiyat may acquire occupancy rights in the land held by him under an occupancy raiyat, under certain conditions. But that does not have the effect of constituting the land his occupancy holding. Hence, it may be said that the right of occupancy in land does not carry with it the necessary result of constituting that land an occupancy holding.

As a result of these considerations, I would have come to the conclusion that the defendant-respondents did not acquire any right by virtue of their purchase in question in this case; but as at present advised. I am not prepared to differ from my learned brother Das in his opinion that the transferor had the right to transfer the homestead. Hence, I agree that the appeal be dismissed, though not without a good deal of hesitation. As the question is not free from doubt and difficulty and not covered by a direct authority on the point in controversy, I would direct that each party should bear its own Costs throughout.

Das, J.:— The facts have been fully set out in the judgment of my learned brother, and I need not re-state them. The question is if plot no. 537, appertaining to khata no. 69, which is homestead land, could be legally transferred by defendant no. 6, and if by the sale deed of the 1st of December, 1939, defendants 1 to 5 had acquired any valid title to the plot in question. For an answer to the question, we have to examine sections 182 and 26A of the Bihar Tenancy Act. Section 182 is an old section of the Bengal Tenancy Act. It was amended for Bengal in 1928 by the same amending Act (Act IV B.C of 1928) which inserted section 268 (corresponding to our section 26A) in the Bengal Tenancy Act, by which section occupancy holdings were made transferable in Bengal. I shall refer to these amendments subsequently. In Bihar, however, section 182stood as before, and present section 26A relating to the transfer of occupancy holdings was inverted by the amending Act of 1938. Unlike Bengal, no corresponding amendments were made in section 182 in Bihar. I have referred to this aspect of the matter at the very outset, because, in my opinion, some of the difficulties illustrated by this case are due to the fact that while section 26A has created new incidents regarding occupancy holdings, no corresponding amendments have been made in section 182 to make the position clear with regard to homestead land, as has been, done in Bengal.

Section 182 as in force in Bihar reads as follows:—

“When a raiyat hold's his homestead otherwise than as part of his holding as a raiyat, the incidents of his tenancy of the homestead shall be regulated by local custom or usage, and, subject to local custom or usage, by the provisions of this Act applicable to land held by a raiyat.”

This section has been interpreted in a series of decisions of the Calcutta High Court beginning from 1893 in the case of Golam Mowla v. Abdool Sowar Mondul. These decisions have been noticed and followed in this Court in the case of Ganga Singh v. Chairman, District Board, Patna, and the following observations from that case bear repetition:—

“The uniform current of authority in the High Court of Calcutta from the year 1893 down to 1915, and up to the present time, has been in favour of giving sections 21 and 182, Bengal Tenancy Act, a wide and very liberal construction; and from the positive judicial decisions which have been pronounced, during the period mentioned, a clear rule of law is deducible, which decides that if a settled raiyat of lands in a village acquires other land as a raiyat, apart from the lands of which he is a settled raiyat, for the purpose of creating a homestead thereon, then he acquires occupancy rights in such lands even though the lands so acquired for the purpose of a homestead be not held under the same landlord as the lands in respect of which such tenant is a settled raiyat indeed in two cases, viz., the cases reported as Kripa Nath Chakravarti v. Shiekh Anu and Harihar Chattopadhyaya v. Dinu Bera, the High Court of Calcutta have gone so far as to lay down that if a raiyat is a settled raiyat of one village under one landlord, and lie acquires lands for the purpose of a homestead under a different landlord in a different village, that nevertheless by the operation of sections 21 and 182, Bengal Tenancy Act, he has occupancy rights in the lands so acquired by him for the purposes of a homestead. This decision is very far reaching and may under suitable conditions require further judicial consideration in this province.

The authorities cited in support of the argument addressed to us on behalf of the defendant are reported as Kripa Nath Chakravarti v. Sheikh Anu, Golam Mowla v. Abdool Sowar Mnndul, Harihar Chattopadhyaya v. Dinu Bera. Bhikariram Bhagat v. Maharaj Bahadur Sinah Iswar Chandra Dey v. Murari Lal Dutt and Dina Nath Nag v. Sashi Mohan Dey Tarofdar.

In the case reported as Bhikariram Bhagat v. Maharaj Bahadur Singh, the current of all the prior decisions is carefully reviewed in the judgment of the learned Judges that decided that case and there is little room for doubt that the law is now perfectly well settled and that by the cursus curiae of judicial authority, laid down, by the Calcutta High Court, we in this Court feel ourselves bound in cases where the facts are in pari materia with such current of authority, and more especially so in interpreting and construing an Act such as the Bengal Tenancy Act which applies to Bengal as well as to the Province of Bihar, and formerly within the jurisdiction of the Calcutta High Court.”

It may, therefore, be taken as well settled that a tenant, who is not a raiyat in respect of a piece of homestead land but is so in respect of the agricultural land which he holds in the village and the homestead land is held otherwise than as part of the tenant's holding as a raiyat, must be regarded, in the absence of any local custom or usage as holding the homestead land in accordance with the provisions of the Bihar Tenancy Act applicable to land held by a raiyat. There is no proof of local custom or usage in the case before us, and it has to be decided apart, from questions of custom or usage. The Calcutta High Court has even held in cases like Krishna Kanta Ghose v. Jadu Kasya that the provisions of the Bengal Tenancy Act are applicable to the homestead land of a person who holds other lands as a raiyat not under the landlord of his homestead but under a different landlord, and in a village different from that in which the homestead is situate. The decisions regarding a different village have been characterised as very far reaching in Ganga Singh's case, referred to above, and may require further consideration. In the case before us, however, defendant no. 6 holds other agricultural lands (khata no. 45) as an occupancy raiyat in the same village, and the decisions regarding a different village need not be called to aid. The question, therefore, boils down to this: if the incidents of the tenancy of the homestead land (i.e, plot no. 537) be regulated by the provisions of the Act applicable to land held by a raiyat, is it transferable under section 26A of the Act?

Section 26A reads as follows:—

“(1) Every occupancy holding or a portion thereof, together with the right of occupancy therein, shall be capable of being transferred and bequeathed in the same manner and to the same extent as other immovable property, and all transfers made by sale, exchange or gift and all bequests shall, subject to the provisions of sub-section (2), be binding on the landlord.

(2) Every transfer of an occupancy holding or a portion thereof, together with the right of occupancy therein, by sale, exchange or gift and every bequest of such holding or portion, together with the right of occupancy, therein, shall be made in the same manner and subject to the same conditions as a permanent tenure in respect of registration and the payment of landlord's registration fee.”

The expression “occupancy holding” occurring in the section is not defined as a single expression in the Bihar Tenancy Act. The expression “holding” is however, defined as meaning parcel or parcels of land held by a raiyat and forming the subject of a separate tenancy. The expressions “raiyats” and “occupancy raiyats” are also explained in sections 4 and 5 of the Act. “Raiyat” primarily means a person who has acquired a right to hold land for the purpose of cultivating it by himself, or by members of his family, etc. As far as homestead land (not part of any agricultural holding) is concerned, the tenant holding it is not a raiyat in respect of the same; and if the tenant did not hold any other agricultural land as a raiyat, the Transfer of Property Act might have applied to such homestead land and not the Bihar Tenancy Act. I agree, therefore, that section 182 does not convert the homestead land into a separate raiyati holding, nor does section 26A apply to homestead land as though by section 182 the nature of the tenancy of the homestead land had been so converted. The reason why section 26A would apply is, in my opinion, different. The very general words used in section 182 are that the incidents of the homestead tenancy shall be regulated by the provisions of the Act applicable to land held by a raiyat. The homestead tenancy remains a homestead tenancy and it does not become a raiyati tenancy; yet the incidents are regulated by the provisions of the Act applicable to land held by a raiyat. If a raiyat holds lands in which he has acquired a right of occupancy, he can transfer it now under section 264 of the Act. In view of the general words used in section 182. I can find no reason why this provision shall not apply to homestead land in the same way as it is applicable to land held by a raiyat. The ratio decidendi of the decision in Golam Mowla v. Abdool Sowar Mondul is not that section 182 changes the nature of the homestead tenancy, but that the section makes applicable to a homestead tenancy the provisions of the Act which apply to land held by a raiyat. As observed in Krishna Kanta Ghosh v. Jadu Kasya, section 182 provides not merely that the provisions of the Bihar Tenancy Act would, apply, but that the provisions of the Act applicable to land held by a raiyat shall regulate the incidents of the tenancy of the homestead. The argument that the homestead tenancy was not held by a raiyat was one of the main arguments raised in Golam Mowla v. Abdool Sowar Mondul, and Rampini, J., admittedly a great authority on the Tenancy Law, met that argument by the remark that it was immaterial, because section 21 must be read with section 182. Similarly, section 264 by itself would not apply to homestead land; but read in conjunction with section 182, it would apply to homestead land in the same way as it is applicable to land held by a raiyat.

I can find no good grounds for narrowing down the scope of section 182 to mean that it merely prevents a raiyat from being turned out of his homestead, so long he continues to be a raiyat of some land in the village. I think the scope of section 182 is wider than that. In several cases, section 182 has been held to confer benefits on a tenant of homestead land contained in other provisions of the Act applicable to land held by a raiyat; for example, the benefit of section 76 in Surendra Nath Saha v. Nakoor Chandra Chakravarty, the benefit of Schedule III, Article 2, in Jitendra Mohan Dutt v. Abdul Ojha, so that against such a tenant the plaintiff's claim exceeding the rent for four years was held to be barred; the benefit of section 67 relating to interest payable on arrears of rent in Harihar Chatterjee v. Binu Bera. It would thus appear that section 182 has been given a, wide and liberal construction, in view of the very general words used in the section.

I now turn to Bishnath Singh v. Ayesha on which the appellant has very strongly relied. As far as I can make out, that case is no authority for the contention raised on behalf of the appellant. It merely lays down the proposition that the homestead land did not form part of any raiyati holding, nor was it an independent holding to which the Bihar Tenancy Act would apply; therefore, when the raiyati holding of the defendant in that case was sold up for arrears of rent, he ceased to have a right of occupancy in the homestead. That is not the same thing as saying that the homestead would not be regulated by other provisions of the Act applicable to land held by a raiyat, as long as the tenant holds other lands as a raiyat in the village. On the contrary, the observations in the judgment of Jwala Prasad, J., to the effect that “when a raiyat holds his homestead land, the incidents of the tenancy of his homestead will be regulated by the provisions of the Act applicable to the class of land of which he is a raiyat” show that he was not departing from the principles laid down in the earlier cases giving a wide and liberal construction to section 182. Some of the earlier Calcutta cases have gone so far as to hold that a settled raiyat of the village holding a homestead, though as an under-raiyat or under a raiyat, acquires a raiyati right in that homestead [Isap Ali v. Satis Chandra Roy, following Krishna Kanta Ghosh v. Jadu Kasya]. It is, however, unnecessary to consider the correctness of those decisions regarding under-raiyats in the present case: I am referring to those decisions merely to show how liberally section 182 had been interpreted in the past.

There are two previous decisions, so far as I have been able to find, where homestead land had been the subject of transfer before the amendments made in 1928 in Bengal. In Iswar Chandra Dey v. Murari Lal Dutt, a widow had inherited the property of her husband, viz., an agricultural jote, and paid rent for two years. She then acquired a homestead at a time when she was a raiyat. It was held that she must be taken as a raiyat as regards the homestead. It was, however, found that she was a non-occupancy raiyat and as such had no right to transfer the land. On behalf of the transferee, it was argued that the Transfer of Property Act would apply, and that section 182 of the Bengal Tenancy Act would apply only if the homestead land was held ancillary to an agricultural purpose. This argument was not, however, accepted. In the case of Hamidunnesa Bibi v. Gopal Chandra Malakar, defendant no. 5 had a raiyati holding and some bastoo (homestead) land and house; he sold them both to defendant no. 6, who again sold only the house and the bastoo land to the plaintiff. Plaintiff was dispossessed by the landlords. His suit was held by the courts below to be barred by the two years' limitation under Article 3 of Schedule III of the Bengal Tenancy Act. Rampini, J., held that as the plaintiff did not claim to recover possession as an occupancy raiyat and upon the facts he did not hold the homestead as part of his own jote and the agricultural lands of the original tenant were not sold to him he could not be said to be a raiyat in respect of the homestead lands. Both these cases were decided before occupancy holdings became transferable under the amendments made in 1928 in Bengal, the previous position being that in the absence of a custom or local usage to the contrary, the transfer was not effective against the landlord without his consent. After the amendments in 1928 the position in Bengal appears to be clear. In Tarak Nath Chakravarti v. Gangadhan De, it has been held that, according to the amended section when a raiyat holds his homestead otherwise than part of his holding, two things follow: (1) his status in respect of his homestead shall be that of a raiyat or an under raiyat according to the status of the landlord, and (2) the incidents of his tenancy shall be governed by the Bengal Tenancy Act. This case was one of a transfer of the homestead tenancy, and the question was if the landlord was entitled to transfer fee as laid down in the provisions of the Bengal Tenancy Act. It was held that section 182 applied, and the landlord was entitled to transfer fee. In Haru Charan Manna v. Sourendra Nath Ghosh—a single Judge decision of the Calcutta High Court—it has been held that even after the sale of the agricultural holding, a tenant is not divested of the occupancy right acquired in the homestead land under section 182. In view of the decision of this Court in Bishnath Singh v. Ayesha, that position may not, however, be accepted as correct under, section 182, as in force in Bihar. The point to be noticed, however, is that when in 1938 occupancy holdings were made transferable in Bihar by the insertion of section 26A, no changes were made in the words used in section 182: those were very general words which applied to the homestead tenancy the provisions of the Act applicable to land held by a raiyat. In the absence of any amendments curtailing or restricting the application of section 182, it must be taken that the legislature meant what it said; that is, the new provisions relating to transferability would apply to homestead land under section 182 as they apply to land held by a raiyat. The original intention behind section 182 is, I think, beside the point.

It has been contended that this may lead to anomalous results.—What would be the position of the transferee vis-a-vis the landlord is a question which does not directly arise in considering if homestead land is transferable under section 182 read with section 264 of the Bihar Tenancy Act. The position of the transferee may vary, and may depend on whether he has other agricultural lands in the village. The mere fact that the position may be anomalous in some cases would, however, be no ground for not giving effect to the plain words used in section 182. A similar argument was raised in Sukh Lal Shaha v. Prasanna Kumar Shaha—one of the decisions interpreting section 182, Bengal Tenancy Act—and it was observed as follows:—“It has been pointed out in various cases that the application of section 182 of the Bengal Tenancy Act to particular cases may give rise to anomalous results. But that cannot be helped, if the plain terms of the section apply to a particular set of facts.”

I am, therefore, of the view that section 26A read with section 182 would apply to the homestead land in this case, and the decision of the courts below to that effect is correct.

If the case were governed by the Transfer of Property Act, then the position would be as laid down in Mahadeo Saran v. Dharamnath Sahay, where it has been held that in a suit by the landlord to eject a transferee from a tenant of homestead land, the burden is, in the first instance, on the plaintiff to prove that the tenancy was created before the Transfer of Property Act was passed, before the onus can be thrown upon the defendant to prove the custom of transferability. In the absence of such proof, the case will be governed by the provisions of section 108(j) of the Transfer of Property Act, and the holding would be transferable.

For the reasons given above, I would dismiss the appeal. I agree that the parties should bear their own costs throughout, as the question is not entirely free from difficulty. Even as far back as 1915, it was stated in Krishna Kantg Ghosh v. Jadu Kasya that the meaning of section 182 is not clear.

Appeal dismissed.

K.D