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TMI Blog1938 (1) TMI 28X X X X Extracts X X X X X X X X Extracts X X X X ..... land had been given by the landlords, was true. Shortly, the case of the defendants was that such consent had been given and that subsequent to the consent there had been an exchange of land, and the land which the defendants exchanged with the plaintiffs had been built upon by the plaintiffs. This piece of land as far as my memory goes is 6 dhurs in area. That statement in the report of the Commissioner as to whether buildings of the plaintiffs were actually upon the land in dispute was not evidence of any agreement on the part of the landlords to the transfer but was mere evidence of the fact whether buildings stood thereon or not. Had the Commissioner's report been directed against any particular point which had been advanced by the parties, even so the report and the evidence of the Commissioner himself was nothing more than evidence in the case which the learned Judge in the Court below was entitled to accept or reject as he would. Both parties apparently had given evidence on this matter and the fact that the learned Judge did not accept the Commissioner's report in my judgment does not support the appellants' contention that the judgment of the Judge in the Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he learned Judges referred to the case reported in Banee Madhub Banerjee v. Joy Kishen Mookerjee (1869) 12 W.R. 495 with these words: A case has been cited by the appellant to be found in Banee Madhub Banerjee v. Joy Kishen Mookerjee (1869) 12 W.R. 495, in which the late Chief Justice Sir Barnes Peacock has expressed an opinion which seems to us to bear directly upon this case. 7. Coming from those decisions to the decision of this Court in Ambica Prasad Singh v. Baldeo Lal A.I.R.1916. Pat. 194, Mullick and Kingsford, JJ. decided that with regard to tenancies of homestead lands created before the Transfer of Property Act, the onus of proof was upon the tenants if they wished to show that they had a right to transfer and relied upon Madhusudhan Sen v. Kamini Kanta Sen (1905) 32 Cal. 1023, a decision of Sir Francis Maclean. Taking the other decisions in order of time I come to the case to which I have just made reference and upon which Mullick, J. relied, the facts being these. The Subordinate Judge in the case who heard the appeal from the decision of the Munsif had held that the tenancy in question was neither permanent nor transferable and remanded the case to be heard by the M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervation of Maclean, C.J. to the effect: They were however unnecessary for the decision of the case, and we doubt whether they accurately state the law as now understood in Bengal, and then, later on in the judgment makes this observation: Mr. Roy attempts to maintain that "lease for homestead" means homestead of an agricultural tenant which would be non-transferable but the lease for purposes of residence would be transferable in view of the observation OF Sir Barnes Peacock. In my judgment there is no authority for making a distinction between a lease for homestead and a lease for residential purposes. In fact the cases cited above and similar cases were all dealing with leases of ordinary homestead for residential purposes. A lease for homestead may be a lease for residential purposes of such a nature that the parties intended that pucca buildings might be built upon the land at some expense by the tenant and it is reasonable to deduce from this fact a contract which though not put into writing but was impliedly understood that the lessee would have a heritable and transferable right in the land. 11. It is pointed out in a number of other decisions the question w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the general law one of the incidents of a tenancy whether permanent or otherwise in India prior to the Transfer of Property Act or the Bengal Tenancy Act is non-transferability; and, as Mullick, J. pointed out in Ambica Prasad Singh v. Baldeo Lal A.I.R.1916. Pat. 194, if the tenant contends that the tenancy carries with it the incidence of transferability, the onus is upon him to show it. 15. For those reasons in my judgment the decision of the Judge in the Court below is right, the appeal fails and it must be dismissed with costs. S.P. VERMA, J. 16. I agree. Dr. Mitter cited several authorities before us in order to establish that the tenancy with which we have to deal was transferable. He relied upon the decision in Banee Madhub Banerjee v. Joy Kishen Mookerjee (1869) 12 W.R 495 chiefly upon the observation made by Sir Barnes Peacock towards the end of his judgment. I may mention that this observation was relied upon in the subsequent case in Doorga Pershad Misser v. Brindaban Sookul (1871) 15 W.R 274 but the decision reported in Banee Madhub Banerjee v. Joy Kishen Mookerjee (1869) 12 W.R. 495 ultimately turned upon the question of custom of transferability of such tenures in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... most of the authorities cited before us have been referred to, and the distinction which Dr. Mitter has been trying to draw for the purpose of the present case has been shown to be a distinction without a difference. 19. The passage has been referred to by my learned brother but as this point appealed to me for some time I was at some pains to find out if the distinction pointed out by Dr. Mitter really existed, that is to say, the distinction between homestead lease and a lease for residential purposes. The interpretation, Dr. Mitter was trying to put upon the expression "homestead lease" is that it may be something different from a lease for residential purposes. 20. This was not accepted by Suhrawardy, J. in Kamal Mayee Dassi v. Nibaran Chandra Pramanik AIR1932Cal431 . He says: In my judgment there is no authority for making a distinction between a lease for homestead and a lease for residential purposes. In fact the cases cited above and similar cases were all dealing with leases of ordinary homestead for residential purposes, and then he also says that the observation made in the case in Banee Madhub Banerjee v. joy Kishen Mookerjee (1869) 12 W.R. 495 "was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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