Chapter VIII. Leases and Transfers of Holdings and Tenures
As a matter of practice Zamindars do not generally grant Pattas or take Kabulyats from their Raiyats.
Restrictions on transfer of their rights by Raiyats:
(1) No transfer by a Raiyat of his right in his holding or any portion thereof –
(a) by mortgage or lease, for any period, expressed or implied, which exceeds or might in any possible event exceed 5 years, or
(b) by sale, gift or any other contract or agreement, shall be valid to any extent: provided that a Raiyat may enter into a Bhugut-bandha mortgage of his holding or any portion thereof for any period not exceeding 7 years.
(2) No transfer by a Raiyat of his right in his holding or any portion thereof shall be binding on the landlord, unless it is made with his consent in writing.
(3) No transfer in contravention of sub-section (1) shall be registered, or shall be in any way recognized as valid by any Court, whether in the exercise of civil, criminal or revenue jurisdiction.
(4) At any time within three years after the expiration of the period for which a Raiyat has, under this section, transferred his right in his holding or any portion thereof, the Deputy Commissioner may, in his discretion, on the application of the Raiyat, put the Raiyat into possession of such holding or portion in the prescribed manner.
(5) Nothing in this section shall affect the validity of any transfer (not otherwise invalid) of a Raiyat’s right in his holding or any portion thereof made bona-fide before the 1st January, 1903.
The restriction on the transfer of Raiyati holdings were first introduced in the amending Act of 1903, the object being to stop the sale of holdings by improvident Raiyats, and to restrict all forms of mortgage and thereby to save the aboriginal population from becoming serfs of the money lender. The terms of the law, as embodied in this Act, are very emphatic. A mortgage or lease for any period expressed or implied, which exceeds or might in any possible event exceed five years is invalid. A mortgage, therefore, which purports to be for a period of five years, but which contains a proviso that the lease may run until the consideration money is repaid by the mortgagor, or which contains or implies any other alternative, is void ab-initio and cannot be registered. The words “expressed or implied” and “or might in any possible event are new. A Raiyat may, however, enter into a Bhugat-bandha mortgage for a period not exceeding 7 years.
Registration Officers are bound to examine all documents which purport to be leases or mortgages of Raiyati holdings or Bhuinhari tenures, in order to see that the limitations on transfer contained in the law are not contravened. If the conditions contravene the law, the Registration Officer must refuse to register the document.
Restrictions on sale of Raiyats’ Rights under order of Court:
No decree or order shall be passed by any Court for the sale of the Right of a Raiyat in his holding, nor shall any such right be sold in execution of any decree or order:
Provided as follows:-
(a) any holding may be sold, in execution of a decree of a competent Court, to recover an arrear of rent which has accrued in respect of the holding;
(b) any holding may be sold, under the procedure provided by the Public Demands Recovery Act, for the recovery of a loan granted for the benefit of the holding under the Land Improvement Loan Act, or the Agriculturists Loans Acts, or otherwise by the Local Government; and
(c) nothing in this section shall affect the right to execute a decree for sale of a holding passed, or the terms or conditions of any contract registered, before the 1st January 1903.
As a matter of fact, the transfer of Raiyats’ holdings in perpetuity by sale or lease is contrary to local custom, though the custom was being gradually broken down. This section definitely forbids the sale of a Raiyat’s rights in his holding in execution of a decree or order.