Henry Richards, C.J. and Pramada Charan Banerji, J.
1. The facts out of which this appeal arises are admitted. The suit was one for rent. The holding at one time was the sir of the defendants, who were then proprietors. They mortgaged their proprietary rights, and on the same day agreed to pay a rent to the plaintiffs of Rs. 8 per bigha. It is admitted that the rate which an exproprietary tenant, within the meaning of the Tenancy Act, would pay for an exproprietary holding would be Rs. 3-11 odd. Accordingly the rent claimed in the present suit is largely in excess of the rent to which the defendants were entitled as exproprietary tenants to hold the land. The court of first instance dismissed the suit of the plaintiffs on the ground that the agreement to pay an excess rent was contrary to law. The lower appellate court reversed this finding and decreed the suit. A learned Judge of this Court dismissed the appeal affirming the decree of the lower appellate court. Hence the present appeal.
2. Section 10 of the Tenancy Act provides that where a proprietor alienates his proprietary rights he shall become a tenant with a right of occupancy in his air land. It goes on further to provide that he shall be entitled to hold the same at a rent which shall be four annas in the rupee less than the rate generally payable by non-occupancy tenants for land of similar quality.
3. It is argued on behalf of the plaintiffs that while an exproprietary tenant is 'entitled to hold' his land at that rate, there is nothing in law to prevent him entering into a contract to pay a higher rent. The appellant contends, on the other hand, that by alienation a proprietor becomes an exproprietary tenant with all the rights of such and that he cannot contract himself out of such right.
4. In our opinion the contention put forward on behalf of the appellant h correct. This Court has always held that a proprietor cannot contract himself out of his right to become a tenant of his sir, and in our opinion he cannot contract himself out of his right to become an exproprietary tenant with all the rights of such. We need hardly point out that to hold otherwise would be contrary to the clear policy of the Act, and would in fact make the provisions of Section 10 entirely nugatory.
5. We accordingly allow the appeal, set aside the decree of this Court and also of the lower appellate court and restore the decree of the court of first instance with costs in all courts.