The right of a raiyat having a non-transferable holding was immovable property and could be disposed of by will.

JUDGMENT

Guha, J. - This is an appeal by the plaintiffs from the decision and decree passed by the Subordinate Judge of Birbhum, reversing those of the Munsif of Birbhum, in a suit for recovery of possession of the lands mentioned in the plaint, on declaration of the plaintiffs' title to the same. The lands in suit which appertain to an occupancy holding were owned by one Lal Behari Dawn, who died leaving the plaintiffs as his heirs him surviving; defendant 1 is in possession of the lands as a legatee under the will of Lal Behari Dawn. It was alleged in the plaint that there was no custom in the locality under which an occupancy holding could be transferred or bequeathed, and that defendant 1 could not therefore have any title to the lands in suit as a legatee under the will of Lal Behari Dawn, which could under the law prevail against the plaintiffs. The suit was contested, and the plaintiffs' claim in suit was resisted by defendant 1. The defendants' case so far as it is relevant for the purpose of this appeal was that occupancy holdings could be bequeathed in the locality in question.

2. The primary Court held, that the lands in suit, the occupancy holding, could not be bequeathed, as there was no such custom in the locality, and that the plaintiffs were therefore entitled to succeed in the suit, defendant 1 having derived no title under the will of Behari Lal Dawn. -The learned Subordinate Judge, in the Court of appeal below, has however reversed the decision of the Court of first instance, and has held that the right of occupancy being a special kind of property-as no transfer or bequest is valid as against the landlord, unless there be custom or his consent), it could be bequeathed. The legatee, defendant 1, therefore got a good title as against the heirs, the plaintiffs in the suit. The suit was accordingly dismissed. The ground urged in support of the appeal to this Court, directed against the decision of the Subordinate Judge, dismissing the plaintiffs' suit, is that inasmuch as there was no custom by which occupancy holdings could be disposed of by will, the Court of appeal has erred in law, in dismissing the plaintiffs' suit.

3. The case has been argued before us, with great thoroughness and ability, by Dr. Bijan Kumar Mukerji on behalf of the appellants, and by Mr. Cham Chandra Biswas, on the side of the respondent, and we have given our best consideration to the questions arising for consideration, regard being had to a divergence of opinion, so far as the decisions in reported cases of this Court are concerned, on the point whether an occupancy raiyat had, before the Bengal Tenancy (Amendment) Act, 1928 came into operation, the right to make a valid testamentary disposition of his non-transferable holding.

4. The question was considered, in the year 1908, by Lal Mohan Doss, J. in the case of Hari Das Bairagi v. Udoy Chandra Das 12 C.W.N. 1086. The learned Judge discussed the position as to whether the heir of an occupancy raiyat whose holding was not transferable by local custom or usage was bound by a bequest of the holding, made by the latter in favour of a stranger; and came to the conclusion, that the transfer of an occupancy holding was not a void transaction, that it was binding between the parties, namely the transferor and the transferee, and all persons claiming, through them; that the transfer was voidable only at the option of the landlord. According to the learned Judge, if such was the character of the transaction it seamed to follow that the heir of an occupancy raiyat ought to be held bound by a transfer of the holding" made by a will. If the heir was bound by a transfer for a valuable consideration or by a gift, there did not seem, according to the learned Judge, to be any reason why he ought not to be held bound by a transfer made by a will. It is therefore necessary to examine, under general principles and under the general law, apart from the provisions contained in the Bengal Tenancy Act, as they