JUDGMENT
Adami, J.
1. It appears that the appellants, having obtained a mortgage decree against the respondents, brought to sale the entire mortgaged property including a portion of kahata No. 274, which was the kasht land of the respondents. The proceeds of the sale were insufficient to satisfy the decretal amount, so the appellants obtained a money-decree for the balance and proceeded to attach the remaining portion of khata No. 274, 14 bighas of land and certain houses of the respondents. The latter then put in an objection that their occupancy jote could not be sold as there was no custom of transferability without the consent of the landlord; and that the houses were exempt under Section 60 of the Civil Procedure Code.
2. Both the lower Courts have found that the appellants decree holders failed to prove any custom of transferability of occupancy holdings without the consent of the landlord, and have held that the land should, therefore, be released from attachment. Likewise, with regard to the houses it has been held that they cannot be sold as their owners, the judgment-debtors, occupy them as agriculturists.
3. It is contended before us that, even if there is no custom of transferability in the village, following the ruling of the Special Bench of the Calcutta High Court in Chandra Benode Kundu v. Ala Bux 58 Ind. Cas. 353 : 24 C.W.N. 818 : 31 C.L.J. 510, the transfer of the whole or part of the occupancy holding by the execution sale will be operative as against the raiyat judgment debtor, and that he cannot object and, secondly, that the bar to transferability without consent applies only to the transfer of an entire holding, and not to that of a portion of a holding as in the present case.
4. The question to be decided is whether an occupancy raiyat in a village, where no custom of transferability without the consent of the landlord exists, can object to the sale of his holding in execution of a money-decree obtained by a creditor who is not his landlord. It is to be noted that there is no finding that the landlord in this case has given consent to the transfer.
5. In 1897 it was decided in the case of Bhiram Ali v. Gopih Kant 24 C. 355 : 1 C.W.N. 396 : 12 Ind. Dec. (N.S.) 904 that in the absence of a custom or local usage to the contrary, a raiyati holding, in which the raiyat has only a right of occupancy, is not saleable at the instance of the occupancy raiyat or any creditor of his, other than his landlord, seeking to obtain satisfaction of his decree for arrears of rent. In that case, following Norendro Narain Roy v. Ishan Chunder Sen 22 W.R. 22 : 13 B.L.R. 274, it was held that a right of occupancy was a right personal to the raiyat and could not be transferred by sale. In 1914 a Full Bench of the Calcutta High Court in Dayamoyi v. Anandd Mohan Roy Chowdhury 27 Ind. Cas. 61 : 42 C, 172 : 18 C.W.N. 971 : 20 C.L.J. 52 ruled that the transfer of the whole or part of an occupancy holding is operative as against the raiyat
(a) where it is made voluntarily,
(b) where it is made involuntarily and the raiyat with knowledge fails or omits to have the sale set aside.
6. That is to say that the raiyat may object to an involuntary transfer of his holding either before the sale is held, or may within a reasonable time after the sale get the sale set aside. In Mac Pherson v. Debi Bhushan Lal 42 Ind. Cas. 36 : 2 P.L.J. 530 it was held by this Court that a sole landlord cannot sell his raiyat’s occupancy holding in execution of a money-decree, unless the occupancy holding is transferable by usage, that is to say, that even the landlord’s consent is not sufficient to make the holding transferable if the raiyat objects to the involuntary transfer.
7. The law then followed by the Courts in this Province up to the present is that where there is no custom of transferability, an occupancy raiyat has a right to object to the sale of his holding in execution of a money-decree, provided that the objection is made within a reasonable time, even though the landlord consents to the transfer. In localities, therefore, where no custom of transferabiliy without the consent of the landlord exists, the consent, not only of the landlord, but also of the raiyat is necessary, the consent of the latter being shown by a failure to object.
8. In Chandra Binode Kundu v. Ala Bux 58 Ind. Cas. 353 : 24 C.W.N. 818 : 31 C.L.J. 510 Sir Asutosh Mookerjee, A.C.J., has made an exhaustive review of the history of the law governing the transfer of occupancy holdings and the decisions of the Courts thereon. He has shown that in the earlier stages of the Tenancy Law the guiding principle appeared to be the protection of the landlord’s interest, by allowing the landlord to eject occupancy raiyats who failed to pay rent and to refuse to admit as tenants transferees of whom he did not approve, while the tendency of the present law contained in the Bengal Tenancy Act, 1885, and the decisions based thereon, has been to protest the interest of the occupancy raiyats; and owing to that tendency the principles governing the transferability of occupancy holdings have some to be misunderstood, The learned Chief Justice of Bengal disagrees with the previous decisions that the right of occupancy is a personal right of the occupancy raiyat and points out that, even after the Bengal Tenancy Act had been passed, up to 1897 it was generally agreed that in the event of a transfer, voluntary or involuntary, of an occupancy holding not transferable by custom or usage, the landlord alone was entitled to dispute the validity of the transfer if effected without his consent. He examined the grounds given for the decision in 1897 of the case of Bhiram Ali v. Gopi Kanth 24 C. 355 : 1 C.W.N. 396 : 12 Ind. Dec. (N.S.) 904 and held that they would not stand the test of criticism and the decisions in that case and the cases of Durga Charan Mandal v. Kali Prasanna Sarkar 28 C. 727 : 8 C.W.N. 586 : 18 Ind. Dec. (N.S.) 1064; Sadagar Sircar v. Krishna Chandra Nath 26 C. 937 : 3 C.W.N. 742 : 13 Ind. Dec. (N.S.) 1189; Majed Hossein v. Baghubur Chowdhry 27 C. 187 : 14 Ind. Dec. (N.S.) 124; Gahar Khalifa v. Kasi Muddi 27 C. 415 : 4 C.W.N. 557 : 14 Ind. Dec. (N.S.) 274; Sita Nath Chatterjee v. Atmaram 4 C.W.N. 571; Sheikh Murullah v. Sheikh Barullah 9 C.W.N. 972; Khoda Baksh v. Sadu Pramanik 10 Ind. Cas. 417 : 14 C.L.J. 620 could not be supported. On the other hand, he relied on the cases of Ananda Das v. Rutnakar 7 C.W.N. 572 and Shukuruddin v. Hemangini Debi 13 Ind. Cas. 192 : 16 C.W.N. 420, upholding the doctrine that in principle there is no difference between, the case of a voluntary sale made by the raiyat and an involuntary sale held by the Court, if in each cage the sale is consented to by the landlord; consequently a sale in execution of a money-decree of an occupancy holding not transferable by custom or local usage is valid and effective as against the raiyat, if the sale is held with the consent of the landlord.”
9. The learned Acting Chief Justice then examined the meaning to be attributed to the statement that an occupancy holding is not transferable except by custom or local usage.” He says this may imply one of three alternatives, and, after stating the first two, say:
In the third place, the expression may signify that the transfer of an occupancy holding, whether voluntary or involuntary, cannot be made effective, except with the consent of the landlord. This was the view maintained from 1834 to 1897. For reasons already assigned, we hold that the third view is correct and was, through oversight or error, negatived in 1897.
10. Now it is to be noticed that in the case of Chandra Binode Kundu v. Ala Bux 58 Ind. Cas. 353 : 24 C.W.N. 818 : 31 C.L.J. 510 the question raised was really whether a raiyat has a right to object to the sale of his occupancy holding where the landlord has given his consent to the transfer, either expressly or impliedly, by being the decree holder in the execution proceedings resulting in the sale of the holding. And in most of the cases relied on, including the case of Mac Pheson v. Debi Bhushan Lal 42 Ind. Cas. 36 : 2 P.L.J. 530 the position has been the same.
11. In the present case, however, the landlord has neither given his consent nor is he the decree holder, and the judgment-debtor objects that the occupancy holding cannot be sold because the landlord has not given his consent, and as shown above, the Full Bench of the Calcutta High Court held that the transfer cannot be made effective unless there be the consent of the landlord.
12. The objection is, therefore, a valid one, and is not negatived by the decision in Chandra Binode Kundu v. Ala Bux 58 Ind. Cas. 353 : 24 C.W.N. 818 : 31 C.L.J. 510.
13. It is contended that the prohibition of transfer of occupancy holdings without consent of the landlord extends only to entire holdings and not to eases where only portions of holdings, are transferred.
14. In the present case the rest of the judgment debtor’s holding has already been sold in execution of the mortgage-decree, so that the portion now put up for sale represents the entire holding of the occupancy raiyat and the contention cannot prevail.
15. Lastly, it cannot be urged that because a portion of the entire holding was sold in execution of a mortgage decree, therefore, the respondents were estopped from denying the existence of the custom of transferability in case of the sale under a money-decree of the remaining portion.
16. I would dismiss the appeal with costs.
Das, J.
17. I agree.