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6. With regard to the question of fraud all that was argued was that para. 2 of the plaint in the rent suit contained two false statements: (1) that the grant to Narayandas and Sambhuprasad was under a registered patta and kubuliyat and (2) that Sambhuprasad the survivor of the two grantees had been holding possession of the village by virtue thereof. The learned Subordinate Judge has dealt with this point and it need not be further considered.

7. The main argument was that Section 178 of the Chota Nagpur Tenancy Act relates to cases where there is an admitted relation of landlord and tenant, whereas in the present case that relation is not admitted by the defence: that the decree is not binding on the plaintiffs because they were not made parties to the suit; that the decree against Sambhuprasad was void because no lease was executed; and, finally, that the plaintiffs have a good title either because the covenant in the draft lease (if it be assumed that a lease was executed in these terms) restraining alienation was void, or by adverse possession. So far as Sections 178 is concerned, the suit was between the landlord and Sambhuprasad the tenant and, as the decree passed the tenure, the plaintiffs were liable to ejectment even if the landlord did not admit their tenancy; but it may be observed that the case in the plaint is that the plaintiffs were tenants. Secondly, it is true that the plaintiffs were not made parties to the rent suit, but it appears that in 1904 an application was made to the landlord for registration of their names and that application was refused and no further steps were taken by the plaintiffs to enforce mutation. They were, therefore, not necessary parties. Thirdly the fact that no lease was executed in favour of Bakahi Narayandas and Sambhuprasad would not make the decree against Sambhuprasad void if the tenancy was otherwise establishad; and the evidence shows that tent was paid by Bakshi Narayandas and Sambhuprasad in 1869 (Ex. G) and in 1882 (Ex. G-1) and further that suits for rent were brought and decrees obtained for rent of 1912 to 1914 against Sambhuprasad (Ex. S) which were statisfied by the plaintiffs on behalf of the judgment-debtor (Ex. T), and for 1915 to 1918 against Sambhuprasad (Ex. S-1) and that decree was incorporated in the decree for rent of 1918 and 1919 (Exs. R-3, R-5 and R-6) which was also paased against Sambhuprasad, It was in execution of this decree, that the plaintiffs were ejected (Ex. M). Therefore, whether or not a lease was executed in favour of Bakshi Narayan Das and Sambhuprasad, there can be no doubt that they were treated as tenants and accepted the position of tenants by receipt and payment of rent. Fourthly, assuming that there was a lease in the terms of the draft (Ex. K), the learned Advocate for the appellant argues on the authority of Sital Prasad v. Dildar Ali Khan 33 Ind. Cas. 408 : 1 P.L.J. 1 : 3 P.L.W. 80 that the breach of the covenant against alienation does not operate to prevent the assignment of the leased properties, but only entitles the lessor to damages from the lessee, in the absence of any provision for re-entry. That decision is not of much assistance because it was a case of a sub-lease which evidently would not be against the covenant. In Basarat Ali Khan v. Manirulla 2 Ind. Cas. 416 : 36 C. 745 : 10 C.L.J. 40 Jenkins, C.J., held that an assignment was operative notwithstanding the covenant. That, however, was a case of a permanent lease with a restraint on transfer, without any provision for re-entry. These decisions have no application to the present case where the lease was a lease for life only. In Hiramoti Dassya v. Annoda Prosad Ghosh 7 C.L.J. 553 itwasheld that the provisions of the Transfer of Property Act do not apply to a tenancy created before the Act came into force and that a non-permanent tenure created before the passing of the Transfer of Property Act is not transferable. The decisions relied upon on behalf of the appellant are, there fore, of no assistance to him. It is unnecessary to consider whether the lease was void for want of registration or because it was granted in favour of an infant, because it is the evidence, and it is conceded, that no lease was in fact executed. The respondent relies on the evidence which I have already referred to to show that there was tenancy which may be inferred from the actings of the parties.