JUDGMENT
Charles Sargent, C.J.
1. Section 9 of the Khoti Act (Bombay) I of 1880 is plainly not retrospective in its terms as the Subordinate Judge appears to have thought. The question whether the lease, which had been granted to Balambhat in 1854, and transferred to plaintiff in 1878, was transferable as against the defendants, must depend upon the language of the lease itself and the custom of khoti villages. The Assistant Judge relies entirely on the former as showing that the tenant’s interest was inalienable; but the words “you are to enjoy, you and your sons, grandsons, from generation to generation” do not of themselves have that effect, as was ruled by the Privy Council in Rajah Nursing Deb v. Roy Koylashnath 9 Moore’s I.A. 55. The only conclusion to be drawn from them is that the tenant was to hold in perpetuity at a fixed rent, in consideration of his making the embankment. The defendants have not raised an issue as to the custom of the village, or given any evidence of such custom; and we do not find anything in the Act of 1880 which can be construed as a declaration of the existing custom of khoti villages when the Act was passed. The question can, therefore, only be decided in favour of the defendants on one or other of the grounds on which the Courts below proceeded; and as each of those grounds, in our opinion, fails to establish the inalienability of the lease, the plaintiff is entitled to the declaration prayed.
2. We must, therefore, under these circumstances, reverse the decree of the Assistant Judge, and declare that plaintiff is entitled to hold the lands at a permanent fixed rent of eleven maunds, and 6½ pailis of bhat. Costs on defendants throughout.
