Macpherson and Hill, JJ.
1. This is a suit for arrears of rent for the years 1296 to 1299 according to certain specified instalments, and interest at the rate of 1 anna per rupee per mensem. The interest claimed is much in excess of the principal. It seems that the holding for which the rent is claimed formerly belonged to one Anu Sarkar, who held it under a registered kabuliyat for a term of 7 years, extending from 1285 to 1291. After the lease expired he held over without any further agreement. In February 1889 (Phalgun 1296) the plaintiff' obtained a decree for arrears of rent against Anu Sarkar, and in execution of the decree the holding was sold and purchased by the defendant. The plaintiff in the present suit claimed interest at the rate and according to the instalments specified in the kabuliyat. The defendant said the rent was payable in the instalments specified in Section 53 of the Tenancy Act, and that the plaintiff could not recover a higher rate of interest than was allowed by Section 67 of the same Act. The first Court decided both points in favour of the defendant. The Appellate Court reversed that decision and decided them in favour of the plaintiff. The only question raised in this appeal is as to the rate of interest. The holding when sold was either an occupancy or non-occupancy holding; it does not appear, and for the purpose of the case it does not matter, which it was. Section 67 of the Tenancy Act provides that 'an arrear of rent shall bear simple interest at the rate of 12 per centum per annum from the expiration of that quarter of the agricultural year in which the instalment falls due to the institution of the suit.' Section 178 provides that nothing in any contract made between a landlord and a tenant after the passing of the Act shall 'affect the provisions of Section 67 relating to interest payable on arrears of rent.' Neither landlord nor tenant could, therefore, after the passing of the Act in March 1885, contract himself out of the provisions of Section 67.
2. We will assume, in the absence of anything to denote the contrary, that the original holder while holding over held under all the terms of the kabuliyat which he had given. When, however, the landlord put up the holding to sale for its arrears, he must be taken to have put it up subject to all the ordinary incidents of such a holding. It was not an ordinary incident that interest on arrears should be payable at the very high rate claimed. On the contrary there was no such incident, and if the landlord had put up the holding subject to an express condition that the higher rate should be paid, the condition would not bind the purchaser in so far as it purported to create a new contract between himself and the landlord. If there was no such condition attached to the sale, the purchaser must be taken to have purchased subject to all the ordinary incidents of the holding. If there was such a condition, and it was for the respondent to show it, which he has not done, the condition was, we consider, contrary to the provisions of the Act and not binding oil the purchaser. An agreement by a tenant of a holding for a term, to pay interest at a certain rate, may, if made before the passing of the Act, bind him so long as he continues to hold, but it does not attach to the land, when the term has expired, and the holding by the act of the landlord passes into other hands; and if the landlord, after the expiry of the term, puts up the holding to sale under the Act, he puts it up subject to the express provisions of the Act in connection with it.
3. The case of Ishan Chunder Chowdhry v. Chunder Kant Roy 13 C. L. R. 55 is, we think, quite distinguishable. That was a case of a putni tenure, which is a permanent and a well-known description of tenure, and the purchaser was held'iobe bound by the terms of the putrii agreement so far at all events as they were consistent witji the nature of a putni tenure.
4. The defendant is only liable to pay interest at the rate specified in Section 67 of the Tenancy Act. The decision of the Subordinate Judge is set aside, and the case must be sent back to him in order that he may determine what that interest is according to the instalments stated in the plaint, and make a decree accordingly.
5. The appellant will get his costs of this appeal.