Somar Ram and Another vs Badhu Ram

James, J.—This appeal arises out of proceedings in execution of a decree for a sum of money. The respondent who holds a tenure under the proprietor of the Gande Estate in the Hazaribagh District obtained an advance from the appellant by mortgaging his tenure. He subsequently gave the tenure in usufructuary mortgage but in the end the appellant instituted a suit on his debt and obtained a money decree. In execution of the decree he put up the tenure to sale. The tenure was described in the Record of Eights as thika doami and the judgment-debtor objected that such a tenure was not transferable.

In support of his claim, he put forward two witnesses, one of whom alleged that the thika doami tenure was not transferable without the landlord''s consent, but that these tenures; were transferable with his consent; while the other came forward to say that thika doami tenures were not transferable at all. This witness held three thika doami tenures, all three of which had been mortgaged.

On the other side a large amount of evidence was produced to show that thika doami tenures in that neighbourhood were in practice transferable by sale and it was proved incidentally that the respondent''s co-sharer had actually transferred his share in the particular tenures under question to the appellant. The Courts relying on the description of the incidents of thika doami tenures given in para. 196 of the Settlement Report of Hazaribagh District, held that the tenure was absolutely non-transferable and the decision of the Judicial Commissioner on this point has been affirmed in a second appeal by a single Judge of this Court.

Mr. Mukharji on behalf of the appellant argues that if this tenure is to be treated as property, then it must be transferable by virtue of the provisions of Sections 6 and 10, T.P. Act, subject to the condition that it may not be transferable without the landlord''s consent. Mr. Mukharji concedes that the consent of the landlord may be required to validate a transfer ; but he argues that this is a matter between the purchaser and the landlord and that objection cannot betaken to the sale by the judgment-debtor on the ground that the consent of the landlord to the transfer has not been obtained. The tenures described by Mr. Sifton in paras. 195 and 196 of the Settlement Report are generally speaking tenures wherein the status of the tenure. holder is that essentially of a village headman or of khunt-kattidar so that the tenure-holder has a dual capacity and his tenure is of the nature of an office rather than of a mere property in land.

But in the present in. stance the entry in the Record of Eights describes the tenure as created by a patta of the ear 1879. There is a remark that the rent is not permanently fixed; but there is nothing to suggest that the tenure-holder enjoys any right other than that conferred upon him by his patta. The patta has not been produced in the present case; and the respondent prefers to rely upon the entry in the Record of Eights, together with the remarks contained in para. 196 of the Settlement Report. The effect of the entry in the Record of Eights, which merely describes this tenure as property, would be to warrant the presumption that this is a tenure which is permanent, but held at a rent liable to enhancement, which the tenure holder is entitled to transfer by sale or mortgage. I do not suggest that certain tenures found in Hazaribagh District, described in the Record of Eights as thika doami may not be strictly non-transfer, able; but in order to demonstrate that the tenure is not transferable, it would have to be shown that the tenure-holder occupied something in the nature of an office rather than the mere enjoyment of property. If for instance the tenure-holder were really a village headman of the kind described in the Settlement Report, then the tenure might well be non-transferable as being analogous to the office described in Sub-section (f) of Section 6, T.P. Act.

Mr. S.S. Bose suggests that the tenures are by custom not transferable; but even if that had been so, if the tenure had not been transferable when it was created, it would have become transferable on the enactment of the Transfer of Property Act, whereby property of all kind is made transferable with certain exceptions. The tenure may or may not be transferable without ''the landlord''s consent; we are not here, strictly speaking, concerned with that question, but in order to demonstrate that it is absolutely non-transferable with or without the consent of the landlord, it would be necessary to prove, as I have said that the tenure partakes in the nature of an office rather than of property. Nothing of the kind has been attempted in the present case. The patta has been withheld; and we may presume that its production would *not have assisted the judgment-debtor in his claim. The Courts below have made too little of the fact that it has been proved that thika doami tenures have been freely transferred in the Gande Estate, and that all the holders of the tenure, now under consideration, have at one time or another made transfers of the property.

One of the judgment-debtor''s two witnesses says that thika doami tenures are transferable with the landlord''s consent, while the other has acquired such a tenure by purchase, and ,has after acquiring it transferred it by mortgage. The judgment-dabtor has himself transferred his share by mortgaging it to the present decree, holder as a security for an advance. It is -sufficient to say that it is not open to the tenure-holder, who obtained advances from the decree-holder on the representation that he enjoyed a transferable interest in the land, to object in execution proceedings that his interest is one which cannot in any circumstances be alienated. Whether the landlord is entitled to object to the transfer is another matter; but the tenant cannot in execution proceedings prevent the sale of his own right, title and interest by putting forward the plea that the landlord''s consent will be required to complete the title of the purchaser. That will be a matter between the purchaser and the landlord. I would there, fore set aside the decree of the Judge of this Court and allow the appeal, dismissing the respondent''s objection with costs throughout.

Courtney-Terrell, C.J.

I agree.