JUDGMENT Sulaiman, Ag. C.J.
1. This is a defendant's appeal arising out of a suit for joint possession brought in a civil Court. A certain parnaanent lease had been granted by the zatiundarin the name of Raghunath and Sat Narain on payment of Rs. 2,000, the terms of the lease being that the lessee would not be liable to ejectment nor to enhancement of rent. The plaintiff being a member of the joint family of Raghunath claimed that the lease had been taken by the whole joint Hindu family which must be taken into account at the time of the partition. The defendant pleaded that the lease was in favour of Raghunath and his partner alone and not in favour of the whole joint Hindu family of which Raghunath was a member. It was further pleaded that the civil Court had no jurisdiction to entertain the suit. The first Court overruled the plea of jurisdiction and decreed the claim. Before the lower appellate Court the plea of want of jurisdiction was not pressed. It found that the leise had been taken by the whole joint family and the nazarana money had been paid out of the joint funds and that it had not been taken by appellant exclusively for himself. It then went on to observe that even if it; had been taken by one member only inasmuch as the rights were heritable and transferable rights the lease could have been thrown into the joint family stock becoming joint family property, On appeal to this High Court a learned Judge has affirmed that decree.
2. The plea of want of jurisdiction was not taken in the grounds of appeal before the learned Judge and was not pressed before him and has not been considered by him nor is it taken in the grounds of appeal before us. As it would turn on. an interpretation of the lease and the nature of the leased property as to whether this lease was or was not for agricultural purposes which would take out the tenancy from his contract, we cannot allow this new point to be raised at this stage. A number of other questions have been raised, namely, that it is not open to the zamindar to grant heritable and transferable rights in a tenancy and that the lease taken by one member cannot be thrown into the hotohpotoh so as to become a lease belonging to the joint family. Reliance has been placed on the cases of Kallu v. Stial [1918] 40 All. 314, Bachchi v. Bachchia [1906] 28 All. 74 and Qurban Alt v. Sheikh Majid Husian A.I.R. 1925 All. 63.
3. It seems to us that the finding of the lower appellate Court that the lease had in fact been taken by the whole joint family and not Raghunath alone is fatal to this appeal. That being the finding there is nothing in law to prevent the other members of the family from showing that it was a lease taken by the entire joint family, although the name of only one of its members was entered in the document. Section 92, Evidence Act, cannot of course be a bar to such a claim been put forward by persons whose names do not ostensibly appear in the deed. This feature distinguishes it from Kallu's case [1918] 40 All. 314, inasmuch as in that casa an occupancy tenancy had been acquired by one member of the family alone.
4. The learned Judge who disposed of this appeal has held that there is nothing in the law to prevent the owner of a land from granting heritable and transferable rights in an agricultural lease upon the lessee nor is there anything to prevent him from granting a perpetual lease to such a lessee.
5. It was held by a Bench of this Court of which one of us was a member in the case of Bahadur v. Raja Moti Chand A.I.R. 1925 All. 580, that Section 20(2) of the old Tenancy Act did not apply to the case of a thekadar although he was a non-occupancy tenant and under Sub-section (3) the interest of a thekadar subject to the terms of his lease was heritable and not transferable. On the other hand, the case of Qurban Ali v. Sheikh Majid Husain A.I.R. 1925 Ali. 63, was affirmed in Majid Husain v. Karban Ali A.I.R. 1926 All. 412.
5. As the point is not necessary we refrain from expressing any final opinion on it in this case.
6. The result is that this appeal is dismissed with costs.