Ram Labhaya, J.
1. This is an appeal from the judgment and decree of the Additional Subordinate Judge dated 31-5-1950 by which the order of the Munsif of Dhubri granting plaintiff a decree for 90 maunds of paddy or in default Rs. 675 the market price thereof was affirmed.
2. Plaintiff had sued to recover 90 maunds of paddy or in the alternative its price. The defendants were tenants since 1937. According to the terms of the original kabuliyat the rent was payable in kind. It was fixed at 361/4 maunds per annum. The defendants fell into arrears and a suit for recovery of rent was instituted against them. This was disposed of on the basis of a compromise between the parties. One condition of the compromise was that plaintiff will accept for the next three years (1352 B.S. to 1854 B. S.) produce rent at a reduced rate of 30 maunds of paddy per annum. The concession was limited to three years. From 1355 B. S. onwards, the old rate of rent was to be received. The claim to 90 maunds of paddy is for three years, viz., 1352 B.S. to 1354 B.S. and it is based on the terms of the compromise referred to above. The terms of the compromise are not in dispute. The only question raised by the learned counsel for the appellants is that the price of 30 maunds of paddy at the market rate comes to Rs. 225. Plaintiff is a raiyat paying Rs. 27 as cash rent to her landlord. She is not entitled to more than double the rent she herself is paying. The contention rests on the language of Section 41, Goalpara Tenancy Act, as amended in 1943. This section (Section 41) provides that when an under-raiyat is admitted to the occupation of land, he shall, subject to the provisions of this Act, become liable to pay such rent as may be agreed upon between himself and his landlord at the time of his admission. The rent must not be less than the rent or rate of rent payable by the raiyat to his landlord nor must it exceed that sum by more than a hundred per cent. The maximum and the minimum limits for the rent which may be agreed upon between a riyat and an under-raiyat are contained in the proviso to. Section 41. The maximum limit was fixed by the amendment made in 1943. It is within these limits that any rent may be agreed upon between the landlord and the tenant at the time the tenant is admitted to the occupation of the land. The word 'rent' used in the section would cover both cash and produce rent as there is nothing in the language of the section which would justify giving a more restricted meaning to the word 'rent' than it should ordinarily bear. Its ordinary meaning in the Act, unless the context indicates to the contrary, includes both cash and produce rent. The definition of the word 'rent' is given in Section 4, Clause (17) of the Act. According to this definition 'rent' means whatever is lawfully payable in money or kind by a tenant on account of the use and occupation of the land held by the tenant. It is obvious that the word 'rent' in Section 41 of the Act would include whatever is payable by an under-raiyat to his raiyat either in money or in kind. This position is conceded by the learned counsel for the respondents. If money or cash rent alone had been intended, it should have been expressly stated. This, however, could not have been contemplated as the result would have been to preclude completely an under-raiyat from getting land on produce rent. So far there is no dispute.
3. The difficulty in this case arises from the fact that plaintiff, the raiyat, is paying cash rent (RS. 27) annually to his landlord. The under-raiyat is liable to pay 30 maunds of paddy per annum for the 3 years in suit. The price of 30 maunds of paddy which is claimed if the specified quantity of paddy is not given is Rs. 225 per year. The learned counsel for the defendants contends that the maximum rent that the plaintiff may claim is Rs.54 per annum, viz., double the amount she is herself paying to her landlord under proviso added to Section 41 in the year 1943. This contention would be correct if defendant under-raiyat had been liable under his agreement to pay cash rent. Could a comparison be instituted where the plaintiff is paying fixed cash rent and her under-raiyats are liable to pay produce rent? The learned counsel for the respondents contends that no comparison is possible in such circumstances and the case does not come within the mischief of Section 41. I am inclined to accept this contention. The cash rent which the plaintiff pays is fixed and invariable. The produce rent may also be regarded as fixed and invariable if the rent is paid as stipulated. But the two would not admit of any comparison unless produce rent is computed into money. The money value of the produce rent, however, is changing and it could be claimed not as rent but only as compensation for failure to pay stipulated rent. If the produce rent is allowed to fall into arrears and the market price of the produce due is claimed as compensation for the failure to deliver paddy due under the agreement, this market price may vary with each year of default as the prices of foodgrains fluctuate. No comparison between the cash rent which a raiyat pays and the market price of the paddy rent that he may claim could have been intended. The market price in such a case may not be appropriately regarded as rent. Besides such a conversion of produce into money for purpose of comparison would give the under-raiyat the option to pay rent as he pleases. He would give paddy if it fetches a price lower than Rs.54, the maximum that the plaintiff may claim. If the price of the fixed quantity of paddy can being him more than Rs.54, he would commit default and force the landlord to accept Rs.54. The effect would be that the agreement to pay a fixed produce rent would be rendered nugatory. This effect shall not follow if a raiyat is permitted by law to admit under-raiyat to the occupation of land on produce rent. In an unreported case decided by the Calcutta High Court in Komaraddi v. Monmohini Dasya, Civil Appeal no. 29 of 1916 (vide 21 cal. W. N. 100) it was held that Section 48, Bengal Tenancy Act, taken as a whole indicates plainly that the landlord and the under-raiyat must both hold their respective tenancies at a cash rent as otherwise no comparison can possibly be instituted as contemplated by the section.
4. Mr. Ghose has not argued that the language of Section 48 is in any way materially different from the language employed in Section 41, Goalpara Tenancy Act; nor has he given any other reason why a different interpretation be placed on Section 41, Goalpara Tenancy Act. I am in full agreement with the view expressed in the unreported Calcutta case and hold that Section 41 has no application to this case.
5. There is another reason also why Section 41 should not apply to this case. The under-raiyat was admitted to the occupation of the land in 1937. At that time there was no provision for a maximum rent that an under-raiyat may agree to pay. The agreement to give 361/4 maunds of paddy as fixed produce rent was admittedly valid then. In 1943, the proviso to Section 41 was amended and a maximum limit to the rent that may be agreed upon between a raiyat and his under-raiyat was fixed. The compromise on which the suit is based merely gives the defendants a concession which was limited in duration. The rent was reduced for three years. If the original agreement is not within the mischief of the section, the grant of a concession for three years would not be hit by it. Defendant's case is that after the amendment of Section 41 no raiyat can recover as rent from his under-raiyat anything more than double of what he himself pays to the landlord. According to this contention the agreements made before the amendment also are affected and rent in excess of the maximum limit imposed by the amended proviso to Section 41 cannot be claimed for any period after 1943. This contention is not sound. The section in terms applied to agreements under which under-raiyats are admitted to the occupation of land. It provides that when an under-raiyat is admitted to the occupation of land, he shall, subject to the provisions of the Act, become liable to pay such rent as may be agreed upon between himself and his landlord at the time of the admission. The proviso merely lays down the maximum limit for the rent which may be agreed upon. There can be no manner of doubt that the section refers to and applies to the agreement made between a raiyat and an under-raiyat when the under-raiyat is admitted to the occupation of land. It is then that the under-raiyat incurs the liability to pay such rent as may be agreed upon. The raiyat and the under-raiyat have to come to such an agreement at the time of the admission. The reference in the section apparently is to the first or the original agreement of rent between a raiyat and an under-raiyat. The marginal note to the section is 'initial rent.' The language of the section is so clear that it is not necessary to refer to it. But it also does indicate the intention of the Legislature.
6. As stated above the original agreement fixing initial rent was admittedly valid when made. The question is whether the subsequent amendment of the proviso affects the agreement and makes it unenforceable except to the extent permitted by it. My answer to the question is that the amendment made in 1943 by which a maximum limit for the rent was fixed does not prevent the raiyat from enforcing the original contract. Section 41 in its amended form does not provide that a tenant shall not recover rent in excess of the prescribed minimum. Its requirement only is that at the time an under-raiyat is admitted to a tenancy, the rent agreed upon at the time of admission should not exceed a certain limit. Its language limits its application to the agreement made at the time of the admission of the tenant to the tenancy. It would follow that it could not apply to agreements by which the tenants were admitted to the occupation of land before the Act came into force and, therefore, also to agreements made before Section 41 was amended. If an under-raiyat is admitted before the Act came into force, the section would not cover the agreement even though the minimum rent provided by it was below the statutory limit. Similarly, an agreement made after the Act came into force but before the amendment would not be affected if the rent made payable is in excess of the specified maximum. This follows from the language of the amended section itself.
7. Mr. Ghosh argues that the words 'admitted to the occupation of land' do not have this significance. He has not been able to give any other meaning to these words. He, however, has relied on Jodhan Prosad v. Haji Mahomed Yanus, 42 cal. w.n. 992, in support of his contention. The proposition laid down in that case is very different and the decision, therefore, is of no assistance to him. To appreciate the significance of this decision, it is necessary to examine the provisions of the law on which it was based in relation to the facts of the case. Section 48, (old) Bengal Tenancy Act, provided that the landlord of an under-raiyat holding on a money rent shall not be entitled to recover rent exceeding the rent which he himself paid by more than certain percentages laid down in the section. A maximum limit was thus fixed by the section. It was later on amended. The amendment abolished the maximum limit. The learned Judges of the Calcutta High Court held that though under the old Act rent in excess of specified maximum was not recoverable, the agreement providing for it was not itself cancelled or condemned. When the old section was amended and the maximum limit was abolished, the rent for the period after the amendment could be claimed at the contractual rate. This decision is not an authority for the proposition that Section 41, Goalpara Tenancy Act, would apply even to rent agreement by which under-raiyats were admitted to the occupation of land before even the Act came into force or that the amended section would apply to agreements made before the amendment. The removal of a restriction may not have the same effect as its imposition particularly when the imposition of a new restriction affects vested rights.
8. On general principles, also the amended provision should not have any retrospective effect. As held by a Full Bench of the Lahore High Court in Sham Singh v. Vir Bhan, A.I.R. 1942 Lah. 102 :
'A retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as regards matters of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation it ought to be construed as prospective only.
The same rule governs the applicability of an amending statute to a pending action and provisions which touch a right in existence at the passing of the statute should not be applied retrospectively in the absence of express enactment or necessary intendment.'
9. This decision is based on Delhi Cloth and General Mills Co. v. Income-tax Commrs. Delhi, A. I. R. 1927 P. C. 242. In Asikannessa Bibi v. Dwijendra Krishna, A.I.R. 1931 cal. 92 (2), Mallik J. held that
'Every statute which takes away or impairs vested rights acquired under existing laws or creates a new obligation, or imposes a new duty or attaches a new disability in respect of transactions or considerations already past, must be presumed to be intended not to have a retrospective operation.'
The rule so stated was applied by him to an amendment of Section 174, Bengal Tenancy Act.
10. It is clear that the rights which the raiyat acquired under the original agreement made prior to the amendment would remain intact and would not be impaired by the amendment of Section 41 which came in force in 1943.
11. The compromise on which the suit is based came after the agreement. But this merely reduced the rent for 3 years and as plaintiff's rights under the original agreement are not impaired there is nothing in law to prevent him from making some concession to the under-raiyat for a limited period. The tenant was not admitted to the land by the compromise; nor has it been contended that the compromise could be regarded as fresh agreement of tenancy. It merely gave the under-raiyat a temporary concession. The claim under the compromise thus is enforceable.
12. For reasons given above, this appeal must fail and is dismissed with costs.