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1. The first question before us is, whether the lower Courts have erred in holding that the plaintiff has a right to bring the present suits. On this point there is the decision in Ahmed v. Ganesh , 525 that the temporary attachment of the village would not affect the other rights which the Khot might have independently of the right of management. Such right of management would, of course, cover acts such as letting out waste or uncultivated lands in the village, which he can do in his capacity as a Khot: see Secretary of State v. Wasudeo (1907) I.L.R. 31 Bom. 466, 459, s.c. 9 Bom. L.R. 719 But here we are concerned with a condition against the alienation of certain Khoti Nisbat lands without his consent. In my view such a condition would be part of the terms of the tenancy on which the lands were held, and the Khot would still be the landlord inspite of the Government attachment. Section 160, paragraph 1, of the Bombay Land Revenue Code shows that an attachment under that section is mainly directed to the protection of the public revenue and is without prejudice in other respects to the rights of individuals. No doubt, under paragraph 2 of that section, the Collector is entitled to manage the lands attached and to receive all rents and profits accruing therefrom for the time being, but the words are that the Collector " shall be entitled to" do these acts of management, not that in every case the superior holder is debarred from doing such acts, In the present case, it is not alleged or proved that the Collector did, in fact, exercise the power of the Khot, which is now in question, namely, the power of sanctioning the alienation of Khoti Nisbat lands. On the contrary, the Record of Rights entry, Exhibit A in appeal, seems clearly to show that the Collector went on the basis that no alienation required such sanction, so that presumably he never exercised this power. Again, another point to be borne in mind is that the plaintiff is, as held by the Court below, a watandar Khot, and this gives him higher rights than he might have, if he were an ordinary Khot. In this connection, I may refer to the remarks in Bhikaiji Ramchandra Oke v. Nijamali Khan (1884) I.L.R. 8 Bom. 525, 528 and in Ahmed v. Ganesh (1923) 26 Bom. L.R. 521, 526. Then we have the further fact that in Ganpati Gopal v. Secretary of State (1924) I.L.R. 48 Bom. 599 s.c. 26 Bom. L.R. 754 the attachment has been declared to be illegal, so that the Khot's rights are really unaffected by that attachment. The case, therefore, is entirely different from the one that was under consideration in Ramchandra N. Mahajan v. The Collector of Ratnagiri (1870) 7 B.H.C.R. (A.C.J.) 41, Consequently, I think, there can be no doubt that the plaintiff had a right to sue; and this also covers his right to recover mesne profits of the lands, if he succeeds in his suits. It is not shown that the mesne profits of the lands that would otherwise have gone to the Khot have, in fact, been paid to the Collector or any other person.

2. The second question in the appeal is, whether the lower Courts have improperly placed the onus of proof in regard to the custom of unrestricted alienation, which is pleaded by the defendants. The question of onus is, no doubt, to some extent, immaterial in a case like this, where in fact evidence was adduced on each side. But, in any case, I do not think that any sufficient ground has been shown for saying that the lower Courts wrongly placed the onus upon the defendants to prove the custom alleged. This follows from judicial authority, which practically amounts to establishing a presumption that the Khot's permission to an alienation of Khoti Nisbat lands is necessary in any Khoti village in the Kolaba District. In Hari v. Gangadhar (1916) 18 Bom. L.R. 446 this question of onus was in fact argued; but as it is not referr-ed to in the judgment of Scott C.J., the contention that the burden of proof should have been put upon the Khot was presumably vetoed by the Court. I think this is supported by the wording of the proviso to Section 38 of Bombay Act I of 1865, which seems to contemplate that the general rule is that a tenant of the Khot has no unrestricted right of alienation; and the corresponding Section 9 of Bombay Act I of 1880 clearly did put the burden of proof on the tenant However that may be, the decision in Gopal v. Bhagirthi undoubtedly adopted the view that throughout the Kolaba District a Khoti tenant could not transfer his holding without the permission of the Knot; and in regard to Khoti Nisbat lands, with which we are now concerned, that ruling in effect lays down the presumption I have mentioned. It is, of course, still open to a tenant to prove a contrary custom in regard to his particular village, unless, of course, it has already been decided that no such custom exists in the village But I think, in view of the rulings just referred to, the burden of proof undoubtedly rests upon him to show that an unrestricted right of alienation exists in his village; and according to the proviso to Section 38 of the Act of 1865 he would have to show that it also existed prior to 1860. On the other hand, as has been laid down in Aba bin Yesu Jadhav v. Hari Keshav Dongre (1896) P.J. 314, he may be able to satisfy this requirement by evidence of more recent transactions, from which an inference that the custom existed from prior to 1865 will arise. But in the case of this particular village (Maluk) we have the fact that it has already been held in Ganpati Gopal v. Secretary of State (1924) I.L.R. 48 Bom. 599, 608, s c. 26 Bom. L.R. 754 that it has been established by custom that a permanent tenant of Khoti-nisbat land cannot transfer without the consent of the Khot." No doubt, that was a suit between the Khot and Government, but, in the absence of strong evidence to show that the finding I have just mentioned is erroneous, it is one which must be given due weight in the present case Accordingly, I think, the lower Courts have not erred in law in their consideration of this question of custom. On the merits also their finding seems clearly correct. The evidence adduced in favour of a custom of unrestricted alienation is very meagre; and the mere fact that there is a Record of Rights entry in support of it, made during the attachment of the village, is of very little weight, for, as was remarked in Gopal v. Bhagirthi this record was not made until after the commencement of the litigation between Government and the Khot.

3. The third point that we have to consider is Mr. Desai's contention that the transfer of the occupancy in this case does not result in any forfeiture, so as to entitle the Khot to sue in ejectment, as he does in the present suit. It is true that the word ' forfeiture' is not the proper word to use in this connection, as has already been mentioned in Hari v. Gangadhar (1916) 18 Bom. L.R. 446, 449. What in effect has been bald in the decided oases on this point is that, where there is an unauthorised transfer followed by the giving up of possession by the tenant to the alienee, it amounts to an abandonment of the land by the tenant. That is the basis of the ruling of this Court in Nargardas Sobhagyadas v. Ganu Balu (1891) P. J. 107. The converse case of such a transfer not being followed by the giving up of possession is dealt with in Nagardas Sobhagyadas v. Hari Damji Shet (1891) P.J. 138. The discussion of the main cases on the point, in Yesa bin Rama v. Sakharam Gopal (1905) I.L.R. 30 Bom. 290, 303, s.c. 7 Bom. L.R. 941 shows this to be the basis of the ruling. Now, I think, there can be no doubt that this theory of ' abandonment does go beyond the English law in regard to surrender, as well as the corresponding law contained in Clauses (e) and (f) of Section 111 of the Transfer of Property Act, Apart from this particular class of case, I can find no authority for saying that an implied surrender covers a case like the present. On the contrary, Section 115 of the Transfer of Property Act safeguards an under-lease in a case of this kind. On the other hand, that section does not apply to agricultural leases in the absence of a Government Notification such as is referred to in Section 117. Oases of unauthorised alienation are generally covered by an express condition in the lease giving a right of re-entry on breach of that condition compare the provisions of Clause (g) of Section 111 of the Transfer of Property Act. On the other hand, we have the fact that there is judicial authority for applying this theory of abandonment to Khott villages in the Kolaba District (adopting the Bengal view of 1874 in Narendra Natayan Roy Chowdhry v. Ishan Chandra Sen (1874) 13 Ben. L.R. 274 at any rate from the year 1891 and we have also the fact that the law, so far as Khoti villages in the Katnagiri District are concerned, has been amended so as to give clear effect to the view that, if a tenant of Khoti Nisbat lands unauthorisedly alienates his holding, the Khot has a right to reenter, Accordingly, if a different view is taken in regard to Khoti Nisbat lands in the Kolaba District, it is very probable that legislation would be enacted in order to bring the law of that District in harmony with the law in the Ratnagiri District. In these circumstances, it seems to me that the principle of stare decisis applies in favour of our continuing the view that has already been taken. As has been laid down in West Ham Union v. Edmonton Union [1908] A.C.I. 4 "great importance is to be attached to old authorities, on the strength of which many transactions may have been adjusted and rights determined. But where they are plainly wrong, and especially where the subsequent course of judicial decisions has disclosed weakness in the reasoning on which they were based, and practical injustice in the consequences that must flow from them, I consider it is the duty of this House (of Lords) to over-rule them, if it has not lost the right to do so by itself expressly affirming them.

2. The main question in both the appeals is whether in this particular village the occupancy tenant of Khoti Nisbit lands can mortgage with possession or sell the lands without the consent of the Knot, and, if not, whether the Khot can forfeit the lands. In the trial Court the issue framed was as follows : , " Does the plaintiff prove that there is no custom in the village authorising the Khoti kuls in that village to alienate their khoti lands without the permission of the Khot ?" throwing the onus on the plaintiff-respondent, the Khot. In appeal the District. Court held that, according to the provisions of Section 38 of Bombay Act I of 1865, "a Khoti tenant does not possess the right to transfer his occupancy right without the previous permission of the Khot." Both the Courts held that the custom of transfer without the Khot's permission was not proved. The appellants have also raised two other contentions. It is admitted that, in 1915, the Government presented, for the signature of the respondent Khot, a new form of kabulayat, which the Khot declined to accept, and the village was, therefore placed under attachment by Government. The illegality of this decision was decided in Ganpati Gopal v Secretary of State (1924) I.L.R. 48 Bom. 699, s.c. 26 Bom. L.R. 754. The sale and the mortgage in these two suits, respectively, were effected, and the suits were also brought during the period of attachment of the village by Government. The appellants, therefore, contended, firstly, that the Khot's permission was not necessary, at least during the attachment, and, secondly, that the suits being brought while the village was attached, the plaintiff-respondent Khot had no right to sue on the dates of institution. Both these contentions were disallowed by the lower Courts which decreed the suits,