JUDGMENT

Simpson, A J C - This is a second appeal in execution proceedings. The appellant, Mt. Mohan Dei, is the judgment-debtor. The respondent, Bal Makund, is the decree-holder. The appellant's point is that the property which the decree-holder wishes to sell is not transferable. In fact, it is one of those hereditary non-transferable leases which have frequently been before this Court.

2. I have before me the judgment of the Settlement Officer, dated 16th September, 1869, under which the land in suit is still held. The suit was between the ex-zamindar of the village and taluqdar. The ex-zamindar sued for sub-settlement. This was refused, but with the consent of the taluqdar the ex-zamindar received 600 kachcha bighas of land as sir. With that we are not now concerned. But the taluqdar also gave what is called "the right of taking the lease" of certain villages at such jamas as may be determined between the parties. "The sir land is held on a tenure, both heritable and transferable. The right to lease is heritable but not transferable." These are the express words of the judgment. But both the Courts below have attached importance to the immediately preceding sentence in which it was said that the taluqdar cannot possibly pay the Government demand, unless his under-proprietors paid him. They have considered that these words amount to a decision by the Court that the ex-zamindars were under-proprietors. This is a mistake. There is no justification for pressing the expression used to that extent. All that the Settlement Officer wished to say was that the taluqdar cannot pay the Government demand unless those holding under-him pay him. The expression "under-proprietor" is used loosely. It is perfectly clear that the right to lease was not transferable, and that the lease-holders as such were not under-proprietors.

3. The land in suit was held under this lease by one Bhabhuti. The respondent, Bal Makund, obtained a decree against Bhabhuti. The judgment and decree are before me. It was simple money decree. He proceeded to attach these leases with a view to selling them. Bhabhuti objected in an application dated 28th November, 1922.. Among other pleas, he raised one that the property in question was held under a perpetual lease, and could not be sold in execution of a decree. This application was dismissed for default on 6th January, 1923. This decision may be res judicata against the present appellant, Mohan Dei, who is the widow of Bhabhuti, but Counsel for the respondent has not supported the decree on this ground, so I do not propose to take up that point.

4. The proceedings dragged on, and in October, 1924 Bhabhuti died. On the 14th November, 1924, his widow, Mt. Mohan Dei, made the application, against the dismissal of which she now appeals. She set up a case that the lease, being hereditary but non-transferable, was in effect a series of life-estates, and that she was applying not as the representative of her husband, but as the next holder of a life-estate in the lease. The learned Subordinate Judge considered that the question of res judicata turned on whether the lease was transferable or not. He thought that if the lease was not transferable, her Contention would be sound, because her husband would have only a life-estate in the lease. On the other hand, if the lease was transferable, there would be a res judicata against her, but she would also fail on the merits. He passed, therefore, to the main contention, and there he decided that the lease could be sold in execution of the decree. He relied upon Rampher Singh v. Ram Khelawan Singh (1899) 2 O.C. 252, Wazir Mohammad v. Har Pershad (1912) 15 O.C. 67, Golak Nath v. Mathura Nath (1893) 20 Cal. 273 and Jugeshar Misra v. Nath Koeri A.I.R. 1922 Patna 19.

5. On appeal the learned District Judge said that the question had to be determined on the interpretation of the settlement decree. He mentioned the use of the word "under-proprietor," which, as I have already shown, is o