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3. Upon the question whether that Act created the right if it did not previously exist, I do not see how we can avoid the strong inference to be drawn from Section 26 of the Act. The legislature by that section has expressly enacted that, "if a raiyat dies intestate in respect of a right of occupancy, it shall, subject to any custom to the contrary, descend in the same manner as other immoveable property;" but it says nothing about the right of a non-occupancy raiyat. On the principle of expressio unius est exclusio alterius the inference is strong that the legislature did not intend by that Act to make the right of a non-occupancy raiyat heritable: but if such right were heritable at the time of the passing of the Bengal Tenancy Act, it has not in my judgment, been taken away by the Act. In my opinion the Act neither created, nor destroyed any such right.

14. In arriving at their conclusion in that case the learned Judges appear first to have proceeded on the assumption that the rights of non-occupancy raiyats were not heritable prior to the passing of the Bengal Tenancy Act; and in the argument before us it has been suggested that they have supported it by applying the maxim "Expressio unius esl exclusio alterius" to the interpretation of Section 26 of the Act. Lastly they refer to the sections of the Act which deal with non-occupancy raiyats, and hold that they do not give to the heir of a non-occupancy raiyat the right to succeed to the holding or rights of that raiyat on his death; or in other words that on the death of a non-occupancy raiyat the land-lord is entitled to take possession of the holding by ejecting the heirs of the raiyat.

29. In the next place it is impossible to accept the suggestion that the maxim expressio unius, est exclusio alterius' can be applied to interpret Section 26 of the Bengal Tenancy Act, so as to deprive non-occupancy raiyats of the right of heritability. It is not a case to which the maxim would properly apply, where words or expressions have been coupled together in the section one of which generally includes the other so as to give rise to the conclusion that the more general term is used in a meaning excluding the specific one. It is rather a case to which, as has been pointed out in several cases in England, the maxim cannot be applied. The section deals only with the particular case of raiyats having rights of occupancy, and if the rights of raiyats outside that class were already heritable by custom, as seems to have been the case, the inference cannot be drawn from its provisions that its object was to alter the general law. The heritable character of a right of occupancy appears indeed never to have been questioned till the doubt on the point was expressed by Peacock, C.J., in the case of Ajoodhia Persad v. Emambandee Begum (1867) B.L.R. Sup. 725. The object of Section 26 appears to have been two-fold:--(i) to remove any doubt which may have arisen as to the heritability of that right, and (ii) to provide against escheat of the holding to the Crown in the event of a raiyat with a right of occupancy dying and leaving no heirs.It seems impossible to apply the maxim so as to extend the provisions of that section, which were framed for a definite and distinct purpose, to cover or in any way affect the rights of non-occupancy raiyats.

40. Section 26 standing, as it does in a chapter dealing with the rights of raiyats with lights of occupancy can hardly be interpreted as by itself sufficient, regardless of the other provisions of the Act, to indicate that the intention of the Legislature was not to make the rights of a non-occupancy raiyat heritable.

41. I would, therefore, answer the question referred in the affirmative.

Mitra, J.

42. The decision in Karim Chowkidar v. Sundar Bewa (1896) I.L.R. 24 Calc. 207, is based mainly on the principle of interpretation--expressio unius est exclusio alterius. The argument adopted in that case is that, because Section 26 of the Bengal Tenancy Act declares that the interest of an occupancy raiyat is heritable and the Act is silent in this respect as regards the interest of a non-occupancy raiyat, the inference by implication is that the framers of the Act intended that heritability should not be an incident of the right of the latter. But it is well settled that great caution is necessary in dealing with the maxim expressio unius est exclusio alterius. The maxim is not of universal application as was observed by Lord Campbell in Saunders v. Evans (1861) 8 H.L. Cas. 721, 729. There are many exceptions to it. In London Joint-Stock Bank v. Mayor of London (1875) 1. C.P.D. 1, Lord Coleridge, C.J., observed--" The general principle that expressio unius est exclusio alterius cannot indeed be questioned; but it applies with a force differing in different cases." Its application depends to great extent on the way in which a deed or statute is drawn. In Bosteck v. North Staffordshire Railway Co. (1855) 4, E. & B. 832 ; 24 L.J., Q.B. 225, Lord Campbell said with reference to statutes relating to a canal company: "In construing instruments so loosely drawn as these local Acts, we can hardly apply such maxim as that, 'the expression of one thing is the exclusion of another or that "the exception proves the rule." Chitty L.J. made a similar observation in Thames Conservators v. Smeed, Dean and Co. (1897) 2 Q.B. 334. At page 351 the following observation is reported with reference to the Thames Conservancy Act 1894:--"To an Act drawn as this is, I think it would be dangero is to apply the rule of expressum facit cessare tacitum. I decline to draw the inference that because shores are mentioned in (d) they are excluded from (a), (b) and (c)."