JUDGMENT Fletcher, J. - This is an Appeal by the Plaintiffs from the judgment of the learned Subordinate Judge of Murshidabad, dated the 27th of January 1912. The Plaintiff's as the executors of the Will of one Anandamoyee brought the suit against the Defendants to recover certain moveable and immoveable properly. The property in question formerly belonged to one Digambar Roy who by his Will, dated the 14th Bhadra 1304, bequeathed all his properties absolutely to his wife Anandamoyee. By her Will, dated the 29th of Bhadra 1314, Anandamoyee appointed the Plaintiff and one Atul Behary Roy (since deceased) to be her executors and gave the whole of her property for the maintenance of the worship of an idol to be established after her death. Anandamoyee died on the 2nd Aswin 1314, corresponding with the 19th of September 1907, and after her death her Will was duly proved. The Defendants having dispossessed the Plaintiffs of the property, they brought the present suit to recover the same. The Defendants claimed as heirs of Digambar after the death of Anandamoyee. The learned Subordinate Judge decreed the suit in part, but dismissed it with respect to certain jotes held with a right of occupancy by Digambar holding that such fates were not capable of being bequeathed by Will. Against this decision the Plaintiffs have appealed to this Court. 2. Sec. 26 of the Bengal Tenancy Act, 1885, enacts, "If a raiyat dies intestate, in respect of a right of occupancy, it shall, subject to any custom to the contrary, descend in the same manner as other immoveable property." 3. This section standing alone no doubt suggests that a right of occupancy is immoveable property and, if it be so, I should have thought that the holder would have the right to bequeath it by his Will. 4. For, by sec. 46 of the Indian Succession Act, 1865 (which is incorporated in the Hindu Wills Act), it is provided that "every person of sound mind and not a minor may dispose of his property by Will." 5. It has not been argued before us, nor could it be, that in no circumstances can a raiyat make a Will in respect of a right of occupancy. It has not been argued before us, nor could it be, that in no circumstances can a raiyat make a Will in respect of a right of occupancy. Sec. 26 of the Bengal Tenancy Act speaks of a raiyat dying "intestate" in respect of a right of occupancy and must therefore contemplate that in such cases a raiyat should die "testate" in respect of a right of occupancy. It has been argued however that an occupancy raiyat can only dispose of his right by Will when there is a special custom enabling him to do so. In support of this argument reference was made to secs. 11 and 18 of the Act authorising a tenure holder and a raiyat holding at fixed rates to dispose of their holdings by Will. 6. It is said therefore that as the Act is silent as to the power of an occupancy raiyat to dispose of his holding by Will, the only power that an occupancy raiyat has of disposing by Will of his holding under sec. 183 is in the even of there being a special custom in that respect. This principle of construction was applied by the Full Bench of this Court in the case of Lakhan Narain v. Jainath I. L. R. 34 Cal. 516 (1907) with respect to the heritability of non-occupancy rights. In a recent case [Amulya Ratan Sarcar v. Tarini Nath Day 18 C. W. N. 1290 (1914)] it was held that an occupancy raiyat had no power to bequeath by Will his holding unless a special custom to do so was proved. This decision is binding on us unless it has been affected by the recent decision of the Full Bench reported in Dayamayi v. Ananda Mohan Ray 18 C. W. N. 971 (1914). That decision however did not deal with the power of an occupancy raiyat to bequeath his holding. 7. The case appears to me to be concluded by the authorities I have cited above. The present Appeal therefore fails and must be dismissed with costs. Richardson, J. 8. The law is admittedly in an unsatisfactory condition, the question of transferability of occupancy rights having been dealt with in the Bengal Tenancy Act rather by way of suggestion than by way of positive legislation. The present Appeal therefore fails and must be dismissed with costs. Richardson, J. 8. The law is admittedly in an unsatisfactory condition, the question of transferability of occupancy rights having been dealt with in the Bengal Tenancy Act rather by way of suggestion than by way of positive legislation. I agree that on the authorities as they stand, occupancy rights are not capable of being made the subject of testamentary disposition.