1. This is a second appeal by the defendants from an order of the lower Appellate Court upholding a decree of the trial Court awarding arrears of rent to the plaintiff against the defendants for three years, 1338, 1339 and 1340 F,, at the rate of Rs. 177-2-6 per annum. Two points were argued in appeal challenging the finding that there was rent fixed between the parties. The rent in question arose on an exproprietary tenancy and at the time the two defendants were minors and proceedings were taken under Section 36, Land Revenue Act, and the defendants minors were represented by their mother Mt. Jeohha Kuar. A compromise was entered into between the landlord and the tenants re-presented by their mother by which the rent was fixed at Rs. 177-2-6 and the order under Section 36 was passed on that compromise. The broad ground has been taken that an order passed on a compromise under Section 36, Land Revenue Act, is invalid. The provisions in Section 14(1), U.P. Act 3 of 1926, is that a person who becomes an exproprietary tenant is entitled to hold the same at a rent of two annas in the rupee less than the rate prescribed for occupancy tenants in Section 59 of that Act. In Section 8(1) of the Act it is provided:
Every agreement which purports or would operate to restrict a tenant from enforcing or exercising any right conferred on or secured to him by this Act is void to that extent.
2. The second sub-section specifies that an agreement is void [Sub-section (2)(a)] 'to prevent a tenant from acquiring a right of occupancy in land in accordance with the pro-visions of this Act'. Parts of the provisions of Section 14 in regard to the right of occupancy which the section confers are in regard to the rate of rent. Therefore any agreement preventing the rent being fixed in accordance with the provisions of the Act is an agreement which Section 8 makes void. The trial Court has found:
The rent in this particular case has been fixed at Rs. 7-11-3 per bigha. Prom the patwari's statement it appears that the rent for exproprietary tenancy in this village would be Rs. 4 and odd pet bigha.
3. The statement Ex. D-2 filed by the patwari is the basis for this finding and the finding appears to be approximately correct. This indicates that the rent agreed to was certainly excessive and contrary to the provisions of Section 14 of Act 3 of 1926. Learned Counsel for respondent referred to a ruling by a Bench of this Court, Har Prasad v. Khazan (1920) 7 A.I.R. All. 143. That was a case where the defendant had mortgaged his zamindari to the plaintiff who, under an agreement, leased to him the lands for cultivation on rent. On a suit for recovery of rent being brought, the defendant expressed his willingness to pay the said rent. The Court passed an order 'fixing the rent' under Section 36, Tenancy Act, and it was held that the tenant could not challenge the correctness of the order in a subsequent suit for rent unless he can, challenge it on the ground of jurisdiction or fraud. In the ruling there is no mention of a bar under the Tenancy Act against any tenant contracting himself out of his right to obtain an exproprietary holding at a certain rate of rent. The ruling was of the year 1920 and the order in question was of 15th March 1913. At that period the Agra Tenancy Act was Act 2 of 1901 and the provisions in it were similar; that is to say in Section 3(1) it was provided that nothing in any lease or agreement made between a landholder and a tenant on or after the first day of April 1900 shall take away or limit any right of a tenant as conferred or recognized by this Act.
4. The rights acquired when an occupancy tenure arose are stated in Section 10 of that Act, that the person acquiring the right of occupancy had a right to hold the land on which it arose at a rate of four annas in the rupee less than the rate generally payable by non-occupancy tenants for land of similar quality and similar advantages in the neighbourhood. It is apparent that this provision in Section 3, Tenancy Act of 1901 was not brought to the notice of the Bench of this Court and therefore the ruling cannot be taken as any authority on the effect of that section in the Tenancy Act. No ruling has been shown to me by learned Counsel for the respondent in which the provisions in the Tenancy Acts against contracting out of the rights conferred by the Tenancy Acts have been considered by the Courts in which it has been held that in spite of those sections, contracting out of the rights a compromise is valid. I am therefore of opinion that the agreement in question, on which the order of the Courts under Section 36, Land Revenue Act was founded, is an agreement which was invalid and therefore the order is not a proper order on which a suit can be based.
5. There is another ground on which the propriety of the order has been assailed and that is a mere technical one, that in this particular order the minors were represented by their mother, and if the Code of Civil Procedure applied to the proceedings, then under Order 32, Rule 7 it was necessary for the guardian to obtain the permission of the Court to effect this compromise which would have been granted if the Court considered it was in the interests of the minors. No such application was made to the Court for permission and no such permission was granted. The provision in the Tenancy Act, Section 264 of Act 3 of 1926 is that the provisions of the Code of Civil Procedure 1908 apply with certain exceptions and it is not shown that Order 32, Rule 7 comes within those exceptions. Presumably therefore those provisions apply. This Ch. 16 of the procedure in Act 3 of 1926 appears to cover the proceedings in question under Section 36, Land Revenue Act.
6. For both these reasons therefore it appears that rent has not been legally fixed in this suit. As there is no rent legally payable by the defendants to the plaintiff it follows therefore that the decrees of the Courts below must be set aside. Accordingly I allow this second appeal and I set aside the decrees of the Courts below and dismiss the suit of the plaintiff with costs in both Courts. As an important point of law has been argued, permission is granted for a Letters Patent appeal.