An occupancy raiyat holding a non-transferable holding has the right to make a testamentary disposition subject to the limitations mentioned in the Bengal Tenancy Act.

JUDGMENT

Suhrawardy, J. - This appeal arises out of a suit for recovery of bargah produce for the years 1324 to 1327 against the under-raiyat. The plaintiff's allegations are that the jama originally belonged to Alokemani Baishnabi who bequeathed it to the plaintiff's husband Shama Charan by a will of which probate was duly taken The plaintiff as successor of Shama Charan thereupon sued the defendant who is an under raiyat for lent The defendant denied the relation of landlord and tenant on the ground that neither the plaintiff nor her husband was ever in possession of the jarna He also took exception to the quantity and the price of the bargah produce claimed The learned Munsif who tried the suit overruled the defendant's objections except with regard to issue 2 and gave the plaintiff a partial decree. The defendant appealed and the learned Subordinate Judge in deciding the question as to whether the relation of landlord and tenant existed between the parties raised the point as to whether Alokemani as an occupancy raiyat had the right to make a will in favour of Shama Charan Relying upon certain cases which we shall refer to later the Subordinate Judge has held that an occupancy raiyat, as the law stands, is not competent to make a will and, therefore, the plaintiff has no right to the jama The plaintiff has appealed and it is argued on his behalf firstly that the view taken by the lower Court is incorrect and secondly that the point not having been raised in the trial Court an opportunity should have been given to the plaintiff to prove that by local usage and custom an occupancy raiyat has the right to make a will

2. With regard to the question whether an occupancy raiyat has the right to make a testamentary disposition the law seems to be in a fluid state. The point so far as the reports go was first seriously raised and discussed in Haridas v. Udoy Chandra 12 C.W.N. 1086 before Doss, J., sitting singly The learned Judge held that an occupancy raiyat has the right to make a testamentary disposition as much as he has the right to make a gift or a transfer There was a letters patent appeal from that decision, but the point now raised before us was not considered by the Bench hearing the letters patent appeal as the case was disposed of on a different point The question next came up for consideration in Amulya Ratan Sircar v. Tanni Nath De [1915] 42 Cal. 254 where it was held that a nontransferable occupancy holding could not be the subject of a valid testamentary disposition. This case was followed without further discussion in Kunja Lal Roy v. Umesh Chandra Roy 18 C.W.N. 1294 in which one of the learned Judges expressed the opinion that the law on the point was admittedly in unsatisfactory condition, but on the authorities as they then stood, an occupancy right was not capable of being made the subject of testamentary disposition. The case of Amulya Batan Sircar v. Tarini Nath De [1915] 42 Cal. 254 was again followed in Umesh Chandra Dutta v. Jeynath Das [1918] 22 C.W.N. 474. There it was held that the testamentary disposition of a part of a non-transferable holding like that of the whole holding was invalid though at the time the case was decided it was firmly established that a transfer of a portion of a non-transferable occupancy holding was valid even without the consent of the landlord.

3. The basis of all these decision is the ratio decidendi adopted in Amulya Batan Sircar's case and, therefore, we have to examine whether that decision cin be said to be good law at the present day. In Haridas Banerji's case Doss, J. held that gift and testamentary disposition stood on the same footing. In Amulya Batan Sircar's case Mookerjee, J., observes that the Bengal Tenancy Act does not invest a raiyat holding a non-transferable occupancy right with the power to transfer his holding. But such transaction by the raiyat must be held to be operative against him and the persons claiming through him on the application of the principle o