JUDGMENT Ghulam Hasan and Misra, JJ. - This is an appeal by Lallu Singh and others applicants, under the Encumbered Estates Act against the decision of the learned Special Judge, First Grade, Hardoi, decreeing the claim of Chandi and others u/s 11 of that Act in respect of 20 biswas share in chak Koeli, Pargana Kalyanmal, Tahsil Sandila district Hardoi. 2. On the 29th October, 1936, Lallu Singh and others applied u/s 4 of the U.P. Encumbered Estates Act, and in the proceedings that followed, the aforesaid property was shown as being in their ownership. On the 8th August, 1937, Chandi and others filed a written statement u/s 10 and therein pleaded that the entire chak Koeli was possessorily mortgaged to their ancestors more than 100 years previously in lieu of Rs. 1,100, and from that time onwards they and their ancestors had been in possession and occupation of it. They averred that they have now become owners of that property by virtue either of the fact that the mortgage is now irredeemable or by reason of adverse possession. It was further claimed that if for any reason the mortgage deed be still deemed to subsist, the claimants were entitled to the entire mortgage money due. On the 12th April, 1938 Chandi and others also filed objections u/s 11 of the U.P. Encumbered Estates Act and therein claimed that they were the owners of the property in question and that it was not liable to attachment, mortgage or sale in lieu of the applicants' debts. In oral pleadings, dated the 15th September, 1938, more particulars of the mortgage were given, and in further oral pleadings on the 3rd November, 1938, it was pleaded that failing absolute proprietary rights in the property, the objectors were at any rate under proprietors under a settlement Court decree of 1864. The applicants denied the claim of Chandi and others to ownership of the share, and they denied also that the decree of 1864 conferred any under-proprietary rights on the objectors. After a consideration of the evidence the learned Special Judge found that the alleged mortgage was extinguished by virtue of a compromise arrived at between the parties in the Settlement Court, whereby the predecessors of Chandi had been granted certain rights in Chak Koeli in lieu of their previous mortgagee rights. After a consideration of the evidence the learned Special Judge found that the alleged mortgage was extinguished by virtue of a compromise arrived at between the parties in the Settlement Court, whereby the predecessors of Chandi had been granted certain rights in Chak Koeli in lieu of their previous mortgagee rights. The objectors in his opinion, therefore, could not be permitted now to set up that mortgage. As regards the rights that were obtained by the predecessors of the objectors under the decree of 1864, the learned Special Judge was of opinion that it operated to confer upon the objectors and their ancestors under-proprietary rights in the property in suit. As a result of his findings he allowed the objections and declared that the 20 biswas share of mauza-Tiria, Chak Koeli, which had been included in the property of the applicants was not liable to attachment, sale or mortgage in liquidation of their debts. Aggrieved by the aforesaid decision of learned Special Judge, Lallu Singh and others, applicants have come up in appeal, and it has been argued by the learned Counsel on their behalf that the decree of 1864 has wrongly been interpreted, and on a correct view of it, it did not in any manner operate to invest the predecessors-in-interest of the objectors with under proprietary rights. In order correctly to appreciate the legal position arising out of the settlement decree, it is necessary to consider the facts which gave rise to the proceedings in 1864 as well as the conduct of the parties subsequent thereto. 3. On the 11th October, 1863, Thakur Prasad, the ancestor of the objectors, executed in favour of the applicants' predecessor, Gajja Singh, a mustajri lease Ex. 1, whereunder he took inter alia 12 big has land in mauza Tiria on a rental of Rs. 18. During the first settlement proceedings Thakur Prasad along with one Mst. Kundan, who was the widow of one Sheo Bakhsh, another member of the family filed an application. Ex. 2, on the 16th of August, 1864, against Gajja Singh and other members of his family for entry of their names in the khewat relating to the village Tiria on the basis of a mortgage-deed executed a long time ago by the Defendants for a sum of Rs. 100. In the proceedings consequent upon this application Gajja Singh made a statement, Ex. 100. In the proceedings consequent upon this application Gajja Singh made a statement, Ex. F54, pointing out that the Plaintiffs' suit in respect of the mortgaged haqiat was unnecessary, as a settlement to the following effect had been arrived at between the parties:-- (1) that Thakur Prasad would not be ejected from the land in question which had been under his cultivation on a rent of Rs. 18 and (2) that the rent was not liable to increase, so long as the land revenue of the entire village remained as theretofore. But if in the present settlement the Government increases the land revenue of the village, the revenue of the land under Thakur Prasad's Cultivation will be proportionately increased. It appears from the document, to which reference will be made hereafter, that out of the sum of Rs. 18, Rs 15 approximately constituted the land revenue of the village, and Rs. 3 alone was receivable by Gajja Singh as malikana. 4. Ex. 3 is a report, dated the 12th September, 1864, included in the haqiat volume of the first settlement. It appears that this report was submitted by some subordinate official, and it was stated therein that the matter having been settled between the parties with their own consent, there was no necessity for giving any decision in respect of the allotment of shares of the mortgagors. The names of the Plaintiffs, it was suggested should be entered in the khewat, and in the wajib-ul-arz the land in suit should be entered in their names bearing Rs. 18 as rent. It was recommended that a decree should be passed to that extent subject to the conditions mentioned in the agreement. 5. Ex. 4 is the judgment of the Assistant Settlement Commissioner stating that the Plaintiffs had filed a razinama to the effect that the Defendants had allowed them 36 bighas at a fixed rent of Rs. 18 enhanceable in the event of the jama being increased prorata. The compromise was attested by the Defendants of that case, and the Court, therefore, dismissed the Plaintiffs' claim to have their names recorded as mortgagees of the Defendants' share in village Tiria but decreed the right to hold the aforesaid 36 kachcha bighas at a fixed rent of Rs. 18 enhanceable as aforesaid. The decree which was passed in consequence of the above order is Ex. F55. 6. Ex. 18 enhanceable as aforesaid. The decree which was passed in consequence of the above order is Ex. F55. 6. Ex. 5 is the khewat of chak Koeli prepared in consequence of the aforesaid decree, and it states that there is only 36 bighas kham land in that chak which is equal to 12 bighas 12 biswas 13 bisis pucca land according to present measurement. The jama is mentioned as Rs. 14/12. This sum appears to have been later on increased to Rs. 15. 7. The next series of documents relate to proceedings during the second settlement. It appears that an attempt was again made by Thakur Prasad for amendment of khewat upon the basis of mortgage in 1894, and he got a report filed by one Ram Ghulam Munsarim that his name be entered as an owner of the property. During the course of the proceedings, to which this report gave rise, Bharat Singh was examined, and in his statement he related the facts leading up to the agreement and the decree of 1864 based thereon. He then goes on to say that since then Thakur Prasad along with other co-sharers has remained in possession. He has been paying Rs. 15 towards the land revenue and Rs. 3 towards zamindari dues. Referring to the rights enjoyed by the parties Bharat Singh stated that Thakur Prasad was entitled to sell or mortgage his mortgagee rights, and that he, the witness, was likewise entitled to sell or mortgage his proprietary rights. The importance of this document lies in the fact that it if shows the manner in which the family of Gajja Singh treated or understood the interest that had in 1864 been carved out in favour of Thakur Prasad. 8. Ex. F-6 is the order of Munshi Sidheswar Narain Deputy Collector in charge of the Settlement operations in the district of Hardoi, dated the 10th March, 1894. This order gives the previous history of Chak Koeli and says that during the last settlement separate khewat in respect of 20 biswas of Chak Koeli was prepared and verified. Rs. 14-6-0 were fixed as mal (revenue) for this Chak, and this rate continued upto the date of the second settlement. This order gives the previous history of Chak Koeli and says that during the last settlement separate khewat in respect of 20 biswas of Chak Koeli was prepared and verified. Rs. 14-6-0 were fixed as mal (revenue) for this Chak, and this rate continued upto the date of the second settlement. The entire Chak was in possession of Thakur Prasad who through the agency of the Munsarim had got the report made to the effect that his name be entered as owner on the basis of the decree. The order points out that if it had been the intention of the late settlement Officer, he would have got the name of Tkakur Prasad entered in the last settlement papers. He, therefore, refused to allow the amendment as sought and suggested that Thakur Prasad should file a civil suit against the heirs of the mortgagors and get a decree declaring him as the owner passed, if he so desired 9. In 1924 Lallu Singh, and Lalta Bakhsh Singh, the present Appellants Nos. 1 and 2 applied for correction of papers relating to chak Koeli Reference in this application was made to the decree of 1864, and it was pointed out that despite that decree the patwari in the present village khewat still entered the representatives of Thakur Prasad as mortgagees. They desired that it the names of Thakur Prasad's representatives be removed from the khewat, and their names be entered in ordinary tenancy at a rent of Rs. 18 per annum. 10. Ex. F53 is a statement in these proceeding of one Munna Lal Patwari, dated the 17th July, 1924, and in it he said that out of Rs. 18 the descendants of Thakur Prasad used to pay Rs. 3 in cash to Bharat Singh and Rs. 15 as land revenue to Government. 11. The learned Sub-Divisional Officer, Sandila, by his order, (Ex. F9), dated the 15th September, 1924, refused to make the corrections, as in his opinion it was proper for the applicants to go to the Civil Court in order to get a declaration of their rights. He thought that it was improper and beyond the jurisdiction of a Revenue Court to decide the question regarding the nature of the rights acquired by virtue of the decree of 1864. 12. He thought that it was improper and beyond the jurisdiction of a Revenue Court to decide the question regarding the nature of the rights acquired by virtue of the decree of 1864. 12. Upon a review of this evidence it appears that the decree of 1864 in the first place had the effect of extinguishing the previous rights of Thakur Prasad as the mortgagee of the land in suit. In the second place Thakur Prasad and his family were thereafter to hold chack Koeli comprising 12 bighas odd standard measurement at a rent of Rs. 18, about Rs. 15 out of which was the land revenue and Rs. 3 was the malikana. In the third place the rights of Thakur Prasad to hold the land were not subject to ejectment or re-entry. We also observe that these rights have been held by Thakur Prasad and his descendants ever since 1864. There is no doubt that the rights were heritable. That they were also transferable is clear from the statement of Bharat Singh, Ex. F2. Apart however, from this statement we are of opinion that in cases where heritable rights are conferred, and no right of re-entry is reserved, the conditions of transferability must be regarded as being implicit in the grant. 13. It is argued by the learned Counsel for the Appellants that the proceedings of 1864 and the subsequent conduct of the parties disclosed that what was intended to be conferred upon Thakur Prasad was merely a tenancy right under the previous lease, Ex. 1, at a fixed rent of Rs. 18. It is urged that this may amount to a permanent lease but it affords no indication of the conferment of under-proprietary right. The difference between a permanent lease and an under-proprietary right was pointed out by a Bench of the late Court of the Judicial Commissioner in Raja Rameshwar Bakhsh Singh v. Sankata Bakhsh Singh (1914) 1 O.L.J. 389, and it was said that-- "in addition to the elements of heritability and transferability there is one essential factor in under proprietary right, viz that in no circumstances is the proprietor afforded a right of re-entry against the under-proprietor." 14. This latter element constituted the main difference between under-proprietary rights and the rights of a permanent lessee. This latter element constituted the main difference between under-proprietary rights and the rights of a permanent lessee. In Ram Autar v. Drigpal (1911) 14 O.C. 41, the proprietor of a mahal executed deeds declaring that he had granted a Birt Shankalp to the Appellant in respect of a certain area of land having received a money consideration therefore and that the Appellant was to pay the lagan sarkari. No right of re-entry was reserved in case of non-payment of lagan sarkari. It was held that the documents conferred under-proprietary rights. In Shaikh Rutab Ali v. Mahomed Zaman Beg AIR 1923 Oudh 47, a Bench of the late Court of the Judicial Commissioner laid down that-- "Section 3, Clause (8) of the Oudh Rent Act does not exhaustively define the rights of an under-proprietor and that if in any circumstance a proprietor is afforded a right of re-entry against a transferee of agricultural land in Oudh, such transferee will not be entitled to under-proprietary rights." "We however think that there is no possibility for the exercise by the lessor of a right of re-entry. The possible bar to the Defendants' under-proprietary title having been removed, the rights conferred by the lease are perfected into under-proprietary rights." 15. In Rawat Sheo Bahadur Singh v. Raja Bahadur Raja Bishunath SaramSingh (1927) 4 O.W.N. 15, a Bench of this Court held that-- "Ordinarily a transfer of land without restrictions carries with it every incident of ownership and passes to the transferee all interests which the transferor is then able to pass in the property and in the legal incidents thereof. Therefore, where a grant is proved to be for generation after generation it must be construed in the absence of anything to the contrary to be a grant of a non-transferable estate." 16. This case eventually went to their Lordships of the Privy Council in appeal, and the decision of the Judicial Committee is reported in 7 O.W.N. 703. We find that their Lordships did not take any exception to the rule of law laid down by the Chief Court. In Kunwar Man Singh v. Bindeshwari Bakhsh Singh 1937 C.W.N. 959, it was held that-- "Where a person gets heritable but non-transferable under-proprietary rights under a compromise, the deed of compromise or agreement can only be interpreted as conferring upon such person absolute under-proprietary rights." 17. In Kunwar Man Singh v. Bindeshwari Bakhsh Singh 1937 C.W.N. 959, it was held that-- "Where a person gets heritable but non-transferable under-proprietary rights under a compromise, the deed of compromise or agreement can only be interpreted as conferring upon such person absolute under-proprietary rights." 17. The last case of this Court upon this point is reported in Raja Sri Amar Krishna Narain Singh v. Nazir Hasan 1939 A.W.R. (C.C.) 160 : O.W.N. 825. There a lease was executed in settlement of a dispute relating to proprietary title, and it purported to confer the rights upon the grantee generation after generation. It was held that on a consideration of the attendant circumstances and the language of the lease in dispute and the conduct of the parties subsequent to the time when the lease was granted, it was evident that it conferred a heritable and transferable interest in land which amounted to under-proprietary rights. The circumstance that there was nothing in the lease to show that the interest conveyed was sought to be limited in scope was relied upon as an element showing that the lessee was to possess a transferable right also. In the present case if the transferees were merely lessees, there is no reason why their names should have been recorded in the proprietary khewats, nor was there any reason for Bharat Singh to have deposed in 1894 that Thakur Prasad had the right to make the transfer of his property. The decree gave to Thakur Prasad the right to hold the property without any liability to ejectment upon a permanent basis and upon a rent which was to be Rs. 3 more than the proportionate Government revenue. We are clearly, therefore, of opinion that the rights which Thakur Prasad obtained in the property were those of an under-proprietor. 18. In our opinion the decision of the learned Special Judge upon this question was correct. We however think that the operative portion of the order passed by him was not justified in view of the fact that the superior proprietary rights must still be deemed to be possessed by the applicants Appellants. There cannot be any doubt that these superior proprietary rights are liable to attachment, mortgage and sale in liquidation of the debts of the applicants. There cannot be any doubt that these superior proprietary rights are liable to attachment, mortgage and sale in liquidation of the debts of the applicants. The order of the Court below is, therefore, modified, and it is declared that only superior proprietary rights of the applicants in chak Koeli, mauza Tiria, Pargana Kalyanmal published in the gazette, dated the 26th February, 1938, are liable to attachment, sale or mortgage in liquidation of the Appellants' debt, and the under-proprietary rights possessed by the Respondents will not be regarded as the property of the Appellants for the purpose of liquidation of debt. Subject to the above modification this appeal must fail and is dismissed with costs.