Judgement

Appeal (No. 68 of 1934) from a decree of the High Court (April 27, 1933) reversing a decree of the First Additional Subordinate Judge at Patna (June 20, 1930).

The first question which arose in this appeal was whether the first respondent, Musammat Ramratan Kuer, had proved that she had occupancy rights in 641.15 acres = 1005 bighas odd of raiyati land situated in the district of Patna, Bihar. She was sued by the appellant on the footing that she had taken a transfer of a non-transferable occupancy holding by deed dated September 28, 1916, and that he was entitled to re-enter.

The facts appear from the judgment of the Judicial Committee.

The Subordinate Judge made a decree ejecting the first respondent.

Upon appeal to the High Court the learned judges (Wort and Fazl Ali JJ.) were of opinion that since the date of the deed the appellant or his predecessors had recognized the right of the transferee and could not now impugn the transfer.

While the appellants appeal to the Judicial Committee was pending the Bihar Tenancy (Amendment) Act, 1934, was passed, which by s. 10 inserted certain sections into the Bengal Tenancy Act, 1885, in its application to Bihar and Orissa, s. 26 (n) of which provided that " Every person claiming an interest as landlord in any holding....shall be deemed to have given his consent to every transfer of such holding....made before January 1, 1923....."

1935. Oct. 28. De Gruyther K.C. and Parikh for the appellant. The trial Court and Wort J. found that neither Ram Kishun Singh nor Ganpat Narayan Singh was a benamidar of the first respondent. The deed of September 28, 1916, was a transfer of occupancy rights and not what it purported to be, and by executing it the raiyats abandoned their holdings. If there was a sale by Ram Kishun Singh and Ganpat Narayan Singh to the first respondent that would amount to an abandonment of their holdings Dayamayi v. Ananda Mohan Roy Chowdhury. (( 1914) I. L. R. 42 C. 172.) A conveyance by the occupancy tenant without the consent of his landlord is bad. The question of transferability of occupancy tenure is not a statutory right but rests on custom in Bengal Redferns Bengal Tenancy Act, 120, " Occupancy rights transferable by custom.” In the absence of custom they are non-transferable Chundrabati Koeri and Another v. Harrington. (( 1891) L. R. 18 I. A. 27.) But the Bihar Tenancy (Amendment) Act, 1934, by s. 10, inserts new sections, 26A to 26 (p), in s. 26 of the Bengal Tenancy Act, 1885. By s.26 (N) the landlords consent shall be deemed to have been given to the transfer of an occupancy holding made before January 1, 1923. The question is whether the rights of the parties are now to be determined by the law that existed at the time the plaint was filed, that is, to what date is the Act of 1934 retrospective ? [Reference was made to the Code of Civil Procedure, Order xli., r. 33.]

[LORD THANKERTON. If the new Act declares that this transaction, being dated in 1916, shall be valid despite the fact that consent is not given by the landlord, would not this Court be bound by that ? The duty of a Court is to administer the law of the land at the date when the Court is administering it.]

[Reference was made to Quitter v. Mapleson. (( 1882) 9 Q. B. D. 672.)] .

The respondents did not appear.

Nov. 12. The judgment of their Lordships was delivered by

SIR GEORGE RANKIN. This appeal has been heard ex parte, there being no appearance on behalf of any respondent. Their Lordships are much indebted to Mr. De Gruyther for the care and candour with which he has explained the considerations arising upon the appeal.

The suit was brought on June 30, 1927, by the Official Receiver of the High Court at Calcutta, who represents the landlords interest in a village called Majhauli. The first defendant, Musammat Ramratan Kuer, was sued on the footing that she had taken a transfer of a non-transferable occupancy holding in this village by deed dated September 28, 1916. The case made against