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PERSONAL NATURE OF THE RIGHT. 361
transferable;1 while in others the transferability appears to Lkcturk 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 r. Smith, 12 B. L. R., 82; 20 W. R., 139, s. c.
* Chunder Coomar Roy r. Kadermonee Dossee, 7 W. R., 247. Narendra Narayan Roy Chowdhry r. Ishan Chandra Sen, 13 B. L. It., 274.
* Juggut Chunder Roy v. Ramnarain Bhuttacherjee, 1 W. R., 126. Unopoorna Dossee r. Oomachurn Doss, 18 W. R., 55. Sreeram Bose v. Bissonath Gbose, 3 \V. R., Act X, 3. And see Nanku Roy v. Mahabir Prasad, 3 B. L. R., App., 35; 11 W. R., 405, s. c.
4 Ajoodhya Pershad v. Mussamut Emam Bandee, B.L.R., Supp. Vol., 725; 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.
362 PERSONAL NATURE OF THE RIGHT.
Lecturr occupied for twelve years, and it was not intended to give — any right of property which could be transferred."1 This view is more fully developed in the following extract from a judgment of Mr. Justice Phear :a
"As the authorities stand, this question seems to he 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, IS B. L. R., 274, at p. 288.
» Bibee Sohodwa v. Smith, 12 B. L. R., 82, at p. 86; 20 W. R., 139, 8. c.
PERSONAL NATURE OF THE RIGHT. 363
say that, in my conception of the matter, the relation Leotubk between the zemindar's right and the occupancy ryot's — right is pretty much the same as that which obtains between the right of ownership of land in England and the servitude or easement which is termed 'profit a prendre: although I need hardly say the ryot's interest is greatly more extensive than a profit d prendre. It appears to mo that the ryot's is the dominant and the zemindar's the servient right. Whatever the ryot has, the zemindar has all the rest which is necessary to complete ownership of the land: the zemindar's right amounts to the complete ownership of the land subject to the occupancy ryot's right, and the right of the village, if any, to the occupation and cultivation of the soil, to whatever extent these rights may in any given case reach. When these rights are ascertained there must remain to the zemindar all rights and privileges of ownership which are not inconsistent with or obstructive of them. And amongst other rights, it seems to me clear that he must have such a right as will enable him to keep the possession of the soil in those persons who are entitled to it, and to prevent it from being invaded by those who are not entitled to it."1
It was held in an early case that the customary right to occupy as long as the ryot paid the customary or agreed rent could not be transferred, and the zemindar was held entitled to possession as against the transferee.2 The right dealt with in this case may be the right of the khoodkashts, or an analogous right which had grown up out of mere
» See Regulation VII of 1799, s. 15, el. 7.
* Baboo Prosonokoomar Tagore r. Rammobun Doss, S. D. A. (1865), 14, referring to llurington's Analysis, Vol. III, 434, 450.
364 EFFECT OF TRANSFER OF HOLDING.
Lectdek occupancy. I have already discussed the position of the
— khoodkashts: their right may have tended in some parts
to become the kind of right here referred to, and to lose
such alienability as it had acquired.
Effect of trans- There has been considerable discussion as to the effect of
fer of holding
by occupancy a transfer of a holding in which the tenant has only a right of occupancy, and which as we have seen cannot itself be transferred. In one case in which the zemindar sued for possession against the transferee, contending that the transfer gave the transferee no rights, it was held that the landlord could not evict the transferee so long as the recorded tenant or his representatives paid the rent, but that he was not bound to recognise the transfer, or take rent from the transferee.1 The effect of this decision is to keep the right and liability in the original tenant, the transferee being regarded as a lessee of the occupancy holder. Other decisions agree in this view.2 Again it has been held that the transfer is not a forfeiture.3 In another case it was said that a tenant with a right of occupancy could not transfer his title without possession as against the zemindar or talookdar* In the same case it was said that if a ryot having a non-transferable tenure quits possession and gives over the land to a stranger, he may be treated as
* Joykishen Mookerjee v. Rnjkishen Mookerjee, 5 W. R., 147.
* Ajoodhya Pershad v. AJussatnat Eraam Bandee, 2 In. Jar., 192; B. L. R., Supp. Vol., 725, s. c.; 7 W. R., 528, s. c. Rani Durga Sundari v. Brindaban Chandra Sirkar Chowdhry, 2 B. L. R., App., 37; 11 W. K., 162, s. c. Suddye Purira v. Boistub Purira, 12 B. L. R., 84 (note); 15 W. R., 261, s. o.
* Gorachund Moostafee r. Buroda Pershad Moostafee, 11 W. R, 94. Suddye Purira v. Boistub Purira, 15 W. R., 261. Dwarkanaih Misree r. Kanaye Sirdar, 16 \V. R., 112.
4 Hureehur Mookerjee v. Jodouath Ghose, 7 W. R., 114.
EFFECT OF TRANSFER OF HOLDING. 365
having abandoned his rights in the land, or as a tenant-at- Lectuur will whose tenancy is determined, and that the landlord — may sue to have it declared that no interest vests in a purchaser from such tenant. In one of the latest cases on the point, however, a view somewhat different to those before referred to is taken. In that case1 Mr. Justice Phear, in a judgment already quoted, treated a transfer neither as a forfeiture by the original ryot nor as conveying a right to the transferee; he held the transferee to be a mere trespasser as against the zemindar, whom he considers entitled to keep his own tenant in possession and to evict the transferee, who cannot plead as against the zemindar that the original tenant is entitled to possession. The learned Judge throws out that it may possibly be that the transferor has not lost his right as against the zemindar to resume his occupation. In the latest decision upon the point, it was held that an attempt to transfer a right of occupancy by a ryot, who quits his occupation and ceases himself to cultivate or hold the land, may be treated as an abandonment of the right so as to entitle the landlord to evict the transferee.' In his judgment in that case, Mr. Justice Phear remarked that in the case before referred to,* nothing was decided as to the rights of the transferor. An occupancy ryot may it seems lease :4 and it has been held that he may grant a mokurreree lease without rendering his