Calcutta High Court
Jawadul Huq vs Ram Das Saha on 1 July, 1896
Equivalent citations: (1897)ILR 24CAL143
JUDGMENT Macpherson, J.
1. In my opinion the decision of Mr. Justice Beverley is right. There is no Jaw in this country which prevents one of several co-proprietors holding the status of a tenant under the other co-proprietors of land which appertains to the common estate. In the reported cases many instances will be found in which lands have been so held and in which the possession of the co-proprietor as a tenant has been recognised. Sub-section 2 of Section 22 of the present Tenancy Act does, however, provide that if an occupancy-right is transferred to a person jointly interested in the land as proprietor, the occupancy-right shall cease to exist. It is not said, and the Sub-section cannot be understood to mean, that the holding shall cease to exist, but that the occupancy right, which is an incident to the holding, will cease to exist; and there is nothing in the Sub-section inconsistent with the continuance of the holding divested of this right of occupancy which attached to it. The saving clause in the Sub-section "that nothing in it shall prejudicially affect the right of any third person," indicates also that the holding would, for some purposes at all events, continue to exist. This view of the construction of the Section was taken in an unreported case, appeal from Appellate Decree No. 37, decided by Mr. Justice Norris and Mr. Justice Banerjee on the 30th March 1894; and the same view was also taken in the case of Sitanath Panda v. Pelaram Tripati I.L.R. 21 Cal. 869.
2. Although the facts of those oases are not precisely similar to the facts of the present case, the view taken of the provisions of Sub-section 2, Section 22 of the Bengal Tenancy Act was the same as that which I have expressed. I, therefore, think that the appeal must be dismissed with costs.
Treyelyan, J.
3. I entirely agree with Mr. Justice Macphekson.
Ghose, J.
4. I am of the same opinion.
Hill, J.
5. I am also of the same opinion.
Gordon, J.
1. I also agree.