JUDGMENT Niamatullah, J.
1. This is an appeal by defendant 1(Raghunath) arising out of a suit brought by his brother, Buddhu Ram (plaintiff-respondent), for joint possession of 460 acres of land in a village in Jaunpur district. Defendants 2 and 3 are the other two brothers of the plaintiff and defendant 1. The land in dispute was leased by its proprietors, Raja Amarpal Singh and Sheikh Kifayatullah by an instrument, dated 21st January 1925, ostensibly to Raghunath defendant 1 and one Sat Narain, a stranger to the family, on receipt of a premium of Rs. 2,000 at an annual rent of Rs. 24-8-0. The lease confers heritable and transferable rights on the lessees in express terms (naslan bad naslan wa batalan bad batalan qabili warasat we qabili intiqal), like those of a fixed rate tenant.
2. The plaintiff alleged that defendant 1 was not the lessee in his individual capacity but that it was the joint family consisting of all the four brothers that had taken the lease in the name of defendant 1 for the benefit of the whole family and that a disruption of the family occurred a few months after the date of the lease. The plaintiff claims one-eighth share in the leasehold, the whole family being entitled to one half, the other half belonging to the stranger Sat Narain; The defence of defendant 1 was that the family was no longer a joint Hindu family when the lease was taken, that he represented no one but himself in taking that lease and that he had been in possession of the land in dispute to the exclusion of his brothers, who had no interest, whatever, in the land in dispute.
3. Both the Courts below have found that the name of defendant 1 was entered in the lease as representing the entire family. The plaintiff's suit has been accordingly decreed. Defendant 1 has preferred the present second appeal.
4. It has been contended by the appellant's learned advocate that the findings arrived at by the Courts below cannot affect the right of defendant 1 under the lease. He does not question now the facts found by the lower appellate Court. To appreciate his argument, it is necessary to state the findings arrived at by the lower appellate Court on certain questions of fact. It finds (1) that the family was joint when the lease in question was obtained, (2) that the premium of Rs. 2,000 was paid by the family and (3) that the plaintiff and one of the brothers, namely, Raghubir, took the lease for the family in the absence of defendant 1(appellant), whose name was entered in the lease at their instance. There can be no doubt that, under ordinary circumstances, any property acquired in the manner stated above, cannot but be regarded as joint family property in which every member of it will have a share. It is, however, contended on behalf of the appellant that the terms of the lease must be given effect to and that Section 92, Evidence Act, precludes evidence to show that persons other than the ostensible lessee were the lessees. It is argued that the lease confers heritable rights on defendant 1 and that, on his death, the property must go to his heirs alone. I am unable to accept this line of argument. Section 92, Evidence Act, excludes evidence of oral argument to vary or contradict the terms of any grant as "between the parties to" it. The dispute here is between one of the parties to the instrument and third persons, namely, members of his own family. If this argument is correct, no 'benami' transaction can ever be recognised. No sale, mortgage or other transfer in favour of a joint Hindu family, if the deed evidencing it is in the name of an individual member of it, can enure for its benefit. There is no difference in principle between an ordinary 'benami' transaction and a transfer in favour of a joint Hindu family evidenced by a deed in the name of one of its members. It is contended that, in so far as it has been found by the lower appellate Court that the entire joint family took the lease from the grantors, they should be deemed to be parties to the instrument. If that is so, the terms of the instrument, namely, the lease, are not in any way varied. The very proposition which it is sought to be established by the respondents is assumed in arguing the contrary, For these reasons I am clearly of opinion that, on the findings arrived at by the lower appellate Court, which cannot be questioned and have not been questioned, the plaintiff-respondent was rightly allowed to succeed.
5. Another line of argument which was pursued by the learned advocate for the appellant is this. He contends, on the authority of some cases to be presently noticed, that whatever may be the terms of the lease before us, the tenancy created thereby must be limited to an occupancy tenure, which cannot become joint family property by its income being thrown into the common stock of the family. Reliance is placed on Kallu v. Sital [1918] 40 All. 314. Apart from other considerations, I do not think this case has any application to the circumstances before me. It was expressly mentioned in the judgment of this Court (see p. 329) that the member of the joint Hindu family who had acquired occupancy rights under a grant had taken the lease for himself alone and that the joint family was not interested in the holding in its inception. The learned Judges were careful to point out:
that the letting was to Matola alone and not to Matola as representing the joint family.
6. They repelled the contention that the income accruing from the occupancy tenure having been.thrown in the common stock it became part of the joint family property, on the ground that such an acquisition by the joint Hindu family is opposed to the provisions of Section 20, Agra Tenancy Act (2 of 1901), because if a member of a joint Hindu family was an occupancy tenant in his own right, the joint family of which he was a member, could only acquire the occupancy rights by transfer in the peculiar manner known to Hindu Law, namely, by throwing the income of property in the common stock. On this ground the learned Judges negatived the rights of the joint Hindu family. This case is not an authority for the proposition that a joint Hindu family cannot acquire occupancy rights under a deed taken in the name of one of its members. In the case before me the lower appellate Court has not based its view on the fact that the income of the leasehold property was thrown in the common stock. It has found that the family was the real lessee and party to the transaction by which the leasehold was created. It has not been found that the family had no concern with the transaction when the lease was executed but subsequently the individual member, namely, defendant 1, by his voluntary act transferred it to the joint family, of which he was a member, by treating it to be part of the family property.
7. Reliance has been placed on Bachchi v. Bachchi [1906] 28 All. 747, in which a learned Judge of this Court held that a tenant at fixed rate is one described in Section 8, Tenancy Act, and every person who holds at a fixed rate of rent cannot have the rights and obligations of a fixed rate tenant described in Section 8 of that Act, and that it is not open to a landlord to create a tenancy of the character described in Section 8. In that case the lease did not in terms confer transferable rights, though the rights were declared to be heritable. All that was held in that case was that the special rules of inheritance, laid down in Section 20, Act 2 of 1901, were not applicable to the tenancy created by the instrument in question in that case, though it was at a fixed rate of rent. In a later case, viz., Qurban Ali v. Shaik Majid Hussain A.I.R. 1925 All. 63, another learned Judge of this Court expressed the opinion that a fixed rate tenancy of the kind referred to in Section 8, Tenancy Act, could not be created by acts of parties. If the question were whether special rules of inheritance laid down in Section 20 could be made applicable by private treaty in contravention of the personal law of the grantee, no exception could be taken to that view: but the learned Judge has gone so far as to nullify a clause conferring a transferable right upon the tenant on the ground that transferability is a feature peculiar to fixed rate tenancy, which cannot be created by contracts. With great respeci, I think the view is not supported by Bachchi v. Bachchi [1906] 28 All. 747, which it professes to follow. There is no law which prevents a landlord from creating a tenancy carrying heritable and transferable rights.
8. The power of transfer, if conferred by a lease, can be regarded as inoperative, if it is opposed to some law so as to defeat its provisions or is opposed to public policy. That it is not opposed to public policy is obvious. There is nothing in the Agra Tenancy Act, or in any other law, which forbids a landlord conferring a power of transfer on a tenant in perpetuity. In cases governed by the Transfer of Property Act Section 108(j) specially empowers a lessee to transfer his rights. For these reasons I respectfully take exception to the view expressed in Qurban Ali v. Majid Husain A.I.R. 1925 All. 63.
9. Even if the view taken in the case last quoted be accepted as correct, the appellant's position is not appreciably improved, in view of the finding of the lower appellate Court that it was the joint family consisting of the plaintiff and the defendants which acquired rights under the lease. If it be assumed that the power of transfer conferred thereby is not valid and the grantee or grantees thereunder have no more than occupancy rights, the question still remains whether it was the joint family that acquired such rights or defendant 1, in whose name the lease was taken. There is nothing to prevent occupancy rights being acquired by a joint Hindu family under a lease. The question which was decided in Kallu v. Sital [1918] 40 All. 314, namely, whether occupancy rights acquired by one of the members of the family for himself could be subsequently made part of the family property by throwing the income derived from the occupancy holding into the common stock of the family does not arise in the present case.
10. For the foregoing reasons I sustain the decree passed by the Courts below and dismiss this appeal with costs.