JUDGMENT Sen, J.
1. This is an appeal from the appellate judgment of the Third Additional Subordinate Judge of Jaunpur oversetting a decision of a Munsif of the same district. Bisheshar Lonia executed a simple mortgage in favour of the plaintiffs-appellants on 15th September 1911. The security consisted of two houses, certain trees and a holding described as No. 12 and having an area of 1 bighas 19 biswas and 4 dhurs. This was originally an occupancy tenure held by the predecessors-in-title of the mortgagor. On 8th September 1887, Bisheshar Lonia appears to have relinquished the holding in favour of the zamindar Shah Mohammad Husain and obtained from the latter a patta in perpetuity at a uniform rate of rent. The patta provided that the grantee was to remain in possession and enjoyment of the holding from generation to generation. The leasehold property was therefore heritable. The document however did not prescribe any special rule of inheritance. The tenure sought to be created under this instrument was described as bataur sharamoian. The tenure created therefore was not the creature of statute but was the creature of a special contract and unless there was something repugnant to the statute or opposed to principles of public policy, such a tenure could be validly created by a zamindar.
2. The mortgagee sued on his mortgage and obtained a preliminary decree on 4th July 1924. A final decree was obtained on 4th December 1926. Bisheshar Lonia does not appear to have contested the suit on the ground that the holding was not transferable and that no decree for sale should or could be passed in respect of the mortgage security. On an application for execution being made by the decree-holders for sale of this property, notice under Order 21, Rule 66, Civil P.C., was issued to the judgment-debtor in due course, but the latter did not raise any objection on the score that the property was not saleable in execution of the decree. In due course, the decree was executed, the property was sold and eventually purchased by the decree-holders. The judgment-debtor applied under Order 21, Rule 90, Civil P. C., for avoidance of the sale on the ground that the proceedings were vitiated by fraud and material irregularity in publishing and conducting the sale. He also contended that the property in dispute could not be sold in execution of the decree inasmuch as it was the occupancy holding of the judgment-debtor. These pleas were repelled by the trial Court and the application was dismissed on 19th November 1928.
3. The judgment-debtor preferred an appeal which was heard by the Third Additional Subordinate Judge of Jaunpur. The learned Judge agreed with the first Court that the judgment-debtor had failed to substantiate that the sale was vitiated by fraud or material irregularity in publishing and conducting the sale, but he held that in view of certain decisions of this Court the leasehold property was not transferable. Reliance was placed upon Majid Husain v. Kurban Ali (A.I.R. 1926 All. 412) and Katwari v. Sita Ram A.I.R. 1921 All. 118). He further held that, although the defendant had not contested the suit on the ground of the nontransferability of the holding at earlier stages of the case either in defence of the suit or in response to the notice issued under Order 21, E. 66 of the Code, he is not estopped from raising the plea by his application under 0.21, E. 90, Civil P. C. I may state at once that I do not agree with the lower appellate Court on this point. Where a defendant or a judgment-debtor has a right and opportunity to contest the suit or an application for execution upon a specific ground and has not availed himself of that opportunity with the result that the suit is decided against him or that the decree is allowed to be fully executed against him, he cannot be allowed to raise that point at a later stage of the case.
4. To permit him to raise that point is obviously to take away that finality and repose which should, after a certain stage indicated by the statute, attach to all judicial proceedings and pronouncements, both upon the ground of public expediency as also in the interests of the parties concerned.
5. I am further of opinion that the lower appellate Court has failed to appreciate the nature and incidents of the mortgaged property. The property in question was not an occupancy tenure. The holding in the hands of the predecessor-in-litle of the mortgagor was at one time an occupancy holding. Bisheshar Lonia however relinquished that holding in favour of the zamindar, and under the lease, dated 8th September 1887, he obtained a fresh tenure. And as already pointed out this tenure was not the creature of statute but was the result of a special contract between the parties. In some of its incidents, this tenure bore a close resemblance to a fixed rate holding, but it was not open to the parties to create a fixed rate holding by contract. It was held by Banerji, J., in Bachchi v. Bachchi [1906] 28 All. 747 that a zamindar by executing a deed in favour of a tenant could not make him a fixed rate tenant within the meaning of Section 8, Act 2 of 1901. A tenant at fixed rates is ''not a tenant who under a contract with the zamindar holds at a fixed rate of rent." I do not however agree with the view that where a zamindar confers upon a person a right to occupy land in perpetuity at a fixed rate of rent, he makes him thereby an occupancy tenant of that land. It may be noticed here that under the terms of that instrument dealt with in Bachchia's case [1906] 28 All. 747 the lessor did not confer upon the lessee a transferable right and the question of transferability of the holding was not in issue in the case.
6. The decision in Bhola Nath Tewari v. Suraj Bali Rai [1919] 41 All. 323 has been pressed upon this Court, but the point now under consideration did not arise there. I am not aware of any law which precluded a land holder in the year 1887 from conferring upon a tenant a heritable and transferable interest in the land. Upon a true construction of the lease referred to above, the zamindar intended to confer a right upon the lessee which was both heritable and transferable. The right to transfer has not been granted in terms. The document however provides that the property is to remain in the possession of the grantee from generation to generation and that he should, possess all the rights as are possessed by a fixed rate tenant. These rights include the right to transfer. The bestowal of such a right did not contravene the tenancy laws of the land and was not opposed to public policy. The principle underlying a transaction of this description has been discussed by my learned colleague in a case reported in Raghunath Tewari v. Buddhu Ram Tewari A.I.R. 1930 All. 315 at p. 317. I am in complete accord with his view. Reference has been made to the decision of this Court in Majid Husain v. Kurban Ali A.I.R. 1926 All. 412. This case has no application to the facts of the case in hand. The lease in the present case was executed when Act 12 of 1881 was in force. There was no provision in that Act corresponding to Section 20, Sub-section (3), Act 2 of 1901. This subsection could not operate retrospectively upon the rights of the parties under the document, dated 8th September 1887. In my view the interest; of the judgment-debtor in plot 12 was capable of being sold in execution of a decree. I would accordingly allow the appeal, set aside the order of the lower appellate Court and restore that of the Court of first instance.
Niamatullah, J.
7. I entirely agree. Apart from Section 20, Sub-section (3), Act 2 of 1901, which is not applicable to this case, there is nothing to prevent a landlord from creating a heritable and transferable tenancy by executing a registered lease in favour of the grantee. Where the lease expressly confers upon the grantee the right to transfer the holding or part thereof, no difficulty can arise. The law does not prescribe any particular mode or expression by which alone transferable rights can be conferred upon a grantee. The intention to create such rights may be expressed by any appropriate words employed in the instrument conferring them. In the case before us the landlord professed to create a fixed-rate tenancy, which is transferable. He must therefore have intended to confer upon the lessee all the rights . which are enjoyed by a fixed-rate tenant including the right to transfer.
8. A fixed-rate tenancy in the technical sense cannot however, be created by a landlord for the obvious reason that a holding of that description as defined in Section 5, Act 12 of 1881, and Section 8, Act. 2 of 1901, must be in a permanently settled district and the tenant must have held it from the time of the permanent settlement, conditions which, unless the tenure already exists, cannot be brought into existence by the landlord. As already stated there was nothing to prevent a landlord from creating a transferable tenancy, at any rate before Act 2 of 1901 was passed. Where the law provides a particular mode of devolution on the death of a tenant, it is not permissible for the landlord to create a tenancy carrying with it a different rule of succession. Any attempt to circumvent the rule of inheritance laid down by special enactment will be abortive. This question however does not arise in the case before us. All we are concerned with is whether Bisheshar Lonia had a transferable right in the land to which the lease in his favour related. If it is conceded that the landlord intended to confer upon him the right of transfer, as I think he did by the use of the word " sharahmoian " in the lease, nothing in Act 2 of 1901 which was subsequently passed could affect the right of transfer which he previously enjoyed.
9. It has been argued that it is not open to a landlord to alter the terms of the tenancy already existing between the parties to a lease. Without expressing any opinion on the legal proposition involved in the contention, I am prepared to hold that the transaction we are concerned with was valid, even though Bisheshar Lonia was an occupancy tenant before he obtained the lease which considerably added to his rights. If the landlord and tenant are agreed on improving the position of the latter qua the land held by him, it is open to the tenant to surrender his holding and to the landlord to reconfer the same upon the tenant with enlarged powers, In the case before us this is what happened in substance. Bisheshar Lonia agreed to accept the rights mentioned in the lease granted to him. The landlord who was equally willing to confer those rights should be deemed to have accepted the surrender implied in the act of the tenant and to have made a fresh grant in terms stated in the lease. For these reasons I am clearly of opinion that the argument above referred to is not sound. For the foregoing reasons I am in agreement with the view expressed by my learned colleague. The decree passed by the lower appellate Court is not sustainable and I agree in the order proposed.