LECTURE X. RELATIVE RIGHTS OF ZEMINDARS AND HOLDERS OF pancy. Right of occupancy-Acquisition of the right-Transferability of the right-Effect of transfer of holding by occupancy ryot-Subinfeudation-Enumeration of sub-tenures-Enhancement and abatement of rent-Right of measurementDivision of zemindaries-Zemindar's right of alienation-Zemindar's power to lease-Succession to zemindaries-Transfer of under-tenures-Registration. Right of occu- I HAVE given some account of the nature of a right of occupancy. I go on now to consider the mode of its acquisition, the way in which it may be lost, and the extent to Acquisition of which it is transferable. With regard to the acquisition of the right. the right, the power of the landlord to eject the tenant under a tenancy-at-will does not prevent the right of occupancy arising.1 In like manner if, after the expiry of a holding for eleven years, the tenant is allowed to remain so that he could not be ejected till the end of the twelfth year, he would have acquired a right of occupancy: and the same principle would apply to a holding during part of which the tenant was allowed to remain as a tenant-at-will. The section expressly says that the right arises whether the holding was under pottah or not. Nevertheless, some learned Judges at first held that the right did not necessarily arise when there was a pottah for a fixed term:3 and in overruling the case referred to, it was said that an express stipulation for re-entry would be sufficient Hyder Buksh v. Bhoopendro Deb Coomar, 15 W. R., 231. 2 Dariao v. Dowluta, 5 All., 9. ' Damanulla Sirkar v. Mamudi Nashio, 3 B. L. R., A. C., 178. TRANSFERABILITY OF THE RIGHT. 359 to bar the accruing of the right. However, this opinion was merely an illustration made use of in the later case which overruled, with the concurrence of one of the learned Judges who had originally held the other way, the decision that the stipulating for a fixed term in a pottah prevented the accrual of a right of occupancy. It is now therefore settled that the right may be acquired by holding under a lease or a succession of leases. The occupation cannot however be made up partly by the occupation of the claimant's vendor of the holding, even although the landlord consented to the transfer.3 The Act being retrospective as to the commencement of the holding, the right may be acquired by a holding partly before and partly after the passing of Act X of 1859.* LECTURE of the right. With regard to the alienability of the tenure much Transferability difference of opinion has existed. The Act, as I have before remarked, does not define a right of occupancy: it provides that the ryot holding for the prescribed period "shall have a right of occupancy in the land, so long as he pays the rent." The right is not expressed to be heritable; but it is provided that "the holding of the father or other person from whom a ryot inherits shall be deemed to be the holding of the ryot within the meaning of this section." Pundit Sheo Prokash Misser v. Ram Sahoy Singh, 8 B. L. R., 165; 17 W. R., 62, s. c. See also Damanulla Sirkar v. Mamudie Nashio, 3 B. L. R., A. C., 178; 11 W. R., 556, s.C. Khukoornissa Begum v. Ahmed Reza, 11 W. R., 89. Golam Sanja v. Hurish Chunder Ghose, 17 W. R., 552. Hooba Khan v. Munsub Ali, 3 N. W. R., 37. Mukandi Lal Dubei v. Crowdy, 8 B. L. R., App., 95. 3 Tara Pershad Roy v. Soorjo Kant Acharjee Chowdry, 15 W. R., 152. Hyder Buksh v. Bhubendro Deb Koonwar, 17 W. R., 179. Thakooranee Dassee v. Bisheshur Mookerjee, B. L. R., Supp. Vol., 202; 3 W. R., Act X, 29, s.c. LECTURE That provision only refers to the acquisition of the right; and the right, when acquired, is nowhere declared to be heritable; and the literal meaning of the terms used would not necessarily include an hereditary quality in the right. Moreover, the right being one created by Statute, although analogous in some respect to the right of the khoodkashts, its nature cannot be ascertained by a reference to the rights of the khoodkashts or to custom. Occupancy tenants may of course have customary or other rights in addition; but it is difficult to see how these can assist in determining their rights as occupancy ryots. Apparently, the strict terms in which the right is bestowed would be satisfied by giving the ryot a personal right, neither hereditary nor transferable. Accordingly, Sir Barnes Peacock in one case doubted whether a right of occupancy was heritable. The right of occupancy is necessarily acquired by holding upon a tenure which is either hereditary and transferable or not: and at one time it was a question whether a right to occupy and not to be ejected so long as the rent is paid is added to the rights already existing, so that it becomes part of the tenure and goes with it, being transferable when the original tenure was so. It has been held that the acquisition of an occupancy right would not render a tenure transferable which before was not so; on the other hand, it has been said that a right of occupancy is perpetual, transferable, and heritable." In other and later cases the right has been decided not to be Ajoodhya Pershad v. Mussamat Emam Bandee, 2 In. Jur., 192; 7 W. R., 528, s. c.; B. L. R., Supp. Vol., 725, s. c. See also Rani Durga Sundari v. Brindabun Chandra Sirkar Chowdhry, 2 B. L. R., App., 37; 11 W. R., 162, s. c. 2 Ib. 3 Mussamut Taramonee Dossee v. Birressur Mozoomdar, 1 W. R., 86. PERSONAL NATURE OF THE RIGHT. 361 transferable;' while in others the transferability appears to have been decided with reference to the original nature of the holding. Thus it has been laid down that a khoodkasht ryot with a right of occupancy may transfer if there is a custom authorising such transfer; that is, it seems if his original holding was transferable, since at the date of this decision there could be no custom which would affect the new right of occupancy created by Act X of 1859. In several other cases the same test of transferability is applied or referred to, namely, the original nature of the tenure.* And in most of the cases in which a right of occupancy was decided not to be transferable, the original tenure was not transferable and Sir Barnes Peacock says it was not intended to alter the nature of a jote by giving the right of occupancy. But it has now been decided by a Full Bench of the High Court of Calcutta that the statutory right of occupancy is not transferable as such. This decision is grounded upon the personal nature of the right. Thus Chief Justice Couch says "it is a right to be enjoyed only by the person who holds or cultivates and pays the rent and has done so for a period of twelve years:"5 and again "the ordinary construction of the words" (in section 6) “appears to me to be, that the right is only to be in the person who has 1 Bibee Sohodwa v. Smith, 12 B. L. R., 82; 20 W. R., 139, s. c. * Chunder Coomar Roy v. Kadermonee Dossee, 7 W. R., 247. Narendra Narayan Roy Chowdhry v. Ishan Chandra Sen, 13 B. L. R., 274. 8 Juggut Chunder Roy v. Ramnarain Bhuttacherjee, 1 W. R., 126. Unopoorna Dossee v. Oomachurn Doss, 18 W. R., 55. Sreeram Bose v. Bissonath Ghose, 3 W. R., Act X, 3. And see Nanku Roy v. Mahabir' Prasad, 3 B. L. R., App., 35; 11 W. R., 405, s. c. 725; Ajoodhya Pershad v. Mussamut Emam Bandee, B.L.R., Supp. Vol., 2 In. Jur., 192, s. c. ; 7 W. R., 528, s. c. Narendra Narayan Roy Chowdhry v. Ishan Chandra Sen, 13 B. L. R., 274, at p. 287. LECTURE URR occupied for twelve years, and it was not intended to give any right of property which could be transferred." This view is more fully developed in the following extract from a judgment of Mr. Justice Phear: "As the authorities stand, this question seems to be one of some nicety, and in considering it there is need to bear in mind that the relations between the zemindar and the ryot are not generally the same as those between the English landlord and tenant. No doubt the zemindar has been made by legislative enactment the proprietor of the land which forms his zemindary; and as regards his khamar, nij-jote or sir land, it may be taken that the cultivator of the soil has generally no other rights than those which he obtains as a tenant by contract with the zemindar: but with regard to the ryotti lands which constitute the bulk of the zemindary, it is much otherwise. There while the zemindar is still proprietor of the land, the ryots of the village, as the combined effect of custom and legislation, have in most, if not in all, cases some right to cultivate the ryotti land of the village, which is altogether independent of the zemindar, and which, in the case of a ryot having a right of occupation, is a right to occupy and use the soil quite irrespective of any assent or permission on the part of the zemindar. This right resting upon legislation and custom alone, is not derived from the general proprietary right given to the zemindar by the Legislature, but is, as I understand, in derogation of, and has the effect of cutting down and qualifying, that right. I may 1 Narendra Narayan Roy Chowdhry v. Ishan Chandra Sen, 13 B. L. R., 274, at p. 288. • Bibee Sohodwa v. Smith, 12 B. L. R., 82, at p. 86; 20 W. R., 139, |