Spankie, J.@mdashThe defendant, as lambardar, sold his share including the "sir" and "ex-proprietary rights" to the plaintiff. The lower Appellate Court holds that he could not dispose of the ex-proprietary right, as it had not accrued until the defendant had transferred his share in the estate to the plaintiff.
2. The wording of Section 7, Act XVII of 1873, is to the following effect, "that every person who may hereafter lose or part with his proprietary rights in any mahal shall have a right of occupancy in the land held by him as sir in such mahal at the date of such loss or parting, at a rent which shall be four annas in the rupee less than the prevailing rate payable by tenants at will for land of similar advantages." The second paragraph goes on to say that "persons having such rights of occupancy shall be called ex-proprietary tenants and shall have all the rights of occupancy-tenants. "
3. It is true that the general rule is that the subject of sale must belong to the vendor and that he can sell no more than the interest which he legally possesses. But it appears to me that Section 7 of the Act recognizes from the date of its passing that a proprietor has a right of occupancy in land held by him as "sir," and reserves it to him, if he pleases, upon the terms provided by the section. The vendor was at liberty to sell his sir-land, and I do not think that Section 7 debars him from selling the interest reserved to him by the Act, namely, the right to occupy the land at a favourable rate of rent. This seems to me to be an interest created from the date of the passing of Act XVIII of 1873, and an expectancy which he might dispose of along with the sir and his proprietary share. It also seems to me that it is erroneous to refer to the right as that of an "ex-proprietary tenant." Persons who have such rights of occupancy as, those described in Section 7 shall be, the Act says, called ex-proprietary tenants and shall have all the rights of occupancy tenants. They are so called to distinguish them from the occupancy-tenants described in Section 8. What Section 7 recognizes is a right of occupancy that has always perhaps been inherent in the proprietor of a share, a right to occupy a portion of the lands as his sir, either for his own cultivation, or to sublet them to others. Whether this be so or not, that he has a recognized interest in the right to occupy the land held by him as sir, in the event of his losing or parting with his proprietary rights in the mahal, would appear to be quite clear. How far the second paragraph of Section 9 of the Rent Act would invalidate such a sale of the occupancy-right, as being contrary to law and policy, is another matter, which might have required fuller consideration. But I feel myself bound by the ruling of the Full Bench in Umrao Begam v. The Land Mortgage Bank of India ILR 2 All 451, from which, however, I dissented. I am of opinion that the appeal should be decreed and that the case should go back to the lower Appellate Court to be tried on the merits.
Straight, J.
4. I have had some doubt as to the proper construction to be put upon s. 7 of the Eent Act, but after very careful consideration, I agree with the view of Mr. Justice SPANKIE as stated in his judgment. I may add, that like him I feel bound by the decision of the Full Bench ILR 2 All. 451, referred to, though were the matter still an open one, I should hold the prohibition of Section 9 of the Rent Act to apply strictly.
