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Basanta Kumar Boy Chowdhry Vs. Promotha Nath Bhuttacharjee and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Judge
Reported in(1899)ILR26Cal130
AppellantBasanta Kumar Boy Chowdhry
RespondentPromotha Nath Bhuttacharjee and ors.
Excerpt:
interest - interest on arrears of rent--bengal tenancy act (viii of 1885), section 67, 178, sub-section 3, clause (h) and 179--contract to pay interest at higher rate than allowed by section 67 of the act. - .....act, a contract by a tenant holding under a permanent mokarari lease to pay interest on the arrears of rent at a higher rate than 12 per cent per annum is enforceable in law.2. the plaintiff brought this suit to recover from the defendant a sum of rs. 244 for arrears of rent and interest; the interest calculated being at the rate of one anna per rupee per month, according to the terms of a registered kabuliat executed by the defendants in favour of the plaintiff. this document is printed at page 6 of the paper book. it purports to create a permanent mokarari lease, and was admittedly executed after the passing of the bengal tenancy act.3. the munsif made a decree in favour of the plaintiff in terms of his prayer. on appeal, the subordinate judge has varied the amount of interest.....
Judgment:

Ameer Ali and Pratt, JJ.

1. The question involved in this appeal is whether, having regard to the provisions of Sections 178 and 179 of the Bengal Tenancy Act, a contract by a tenant holding under a permanent mokarari lease to pay interest on the arrears of rent at a higher rate than 12 per cent per annum is enforceable in law.

2. The plaintiff brought this suit to recover from the defendant a sum of Rs. 244 for arrears of rent and interest; the interest calculated being at the rate of one anna per rupee per month, according to the terms of a registered kabuliat executed by the defendants in favour of the plaintiff. This document is printed at page 6 of the paper book. It purports to create a permanent mokarari lease, and was admittedly executed after the passing of the Bengal Tenancy Act.

3. The Munsif made a decree in favour of the plaintiff in terms of his prayer. On appeal, the Subordinate Judge has varied the amount of interest awarded by the Munsif, and directed that the plaintiff should recover interest at the rate of 12 per cent. only. He was of opinion that Section 179 of the Bengal Tenancy Act does not override the provisions of Clause (h), Section 178, relating to the payment of interest on arrears of rent.

4. The plaintiff has appealed to this Court, and the contention on his behalf is that under Section 179 the plaintiff is entitled to recover the interest agreed upon between the parties by their contract, and that the provisions of Clause (h), Section 178, do not affect the express terms of Section 179. The sole question in this case is what is the meaning to be attached to the provisions of Section 179, and whether in the case of tenants holding permanent tenures a contract to pay interest not in accordance with the provisions of Section 67 of the Bengal Tenancy Act can be regarded as valid in law. No authority has been cited on either side, and we must therefore deal with the point on general principles. Sub-section 3, Clause (h) Section 178, provides as follows: 'Nothing in any contract made between a landlord and a tenant after the passing of this Act shall affect the provisions of Section 67 relating to interest payable on arrears of rent.' Section 67 provides that 'an arrear of rent shall bear simple interest at the rate of twelve per cent, per annum from the expiration of that quarter of the agricultural year in which the instalment falls due to the institution of the suit.' It will be observed that the expression 'tenant' in Sub-section 3, Clause (h) is of a general character. Section 5, which defines the word 'tenant,' is as follows: ''Tenant,' means a person who holds land under another person, and is, or but for a special contract would be, liable to pay rent for that land to that person.' Sub-section 3, Clause (h), Section 178, therefore includes tenants holding under mokarari leases. Section 179 provides 'that nothing in this Act shall be deemed to prevent a proprietor or a holder of a permanent tenure in a permanently settled area from granting a permanent mokarari lease on any terms agreed on between him and his tenant.' It is obvious that if the argument put forward by the appellant be well-founded, we must hold that the Legislature intended by Section 179 to repeal what it had expressly enacted by Clause (h), Sub-section 3, Section 178. It may be observed that if this had been the intention of the Legislature nothing would have been easier than to include a saving clause to that effect in the clause referred to. Now, it is a well recognised principle in the interpretation of Statutes that an Act of the Legislature should be so construed as to give effect, so far as possible, to all its enactments; nor must it be so construed as to allow one provision to stultify the other. The question, which we have to determine, is whether there is anything in Section 179 by which the Legislature intended to override the provisions of Clause (h), Sub-section 3, Section 178. In order to answer the question it is necessary to bear in mind that ordinarily speaking the word 'terms' used in connection with a lease does not include a condition relating to interest upon arrears of rent. In Redmond on Landlord and Tenant, p. 52, will be found a passage showing exactly the matter included in 'the terms of a lease.' Did the Legislature use the expression 'terms' in Section 179 of the Tenancy Act in its ordinary legal acceptation, or did it intend to give the word a wider meaning? Having regard to the provisions contained in Section 67 and Clause (h), Sub-section 3, Section 178, we are not prepared to say that it had the latter object in view. If that had been the intention it would have avoided the expression 'terms,' which conveys a distinctive signification in the treatises on the law relating to landlords and tenants, and employed instead the more comprehensive word 'conditions.' Then, again, it is to be observed that (apart from special legislation) it was considered at one time doubtful whether the holders of permanent tenures generally had the power to create permanent under-tenures. Under Section 3 of the Bengal Regulation of 1812 the proprietors alone were so authorised, and it is by no means improbable that the Legislature intended by Section 179 to vest the holders of permanent tenures generally with the right of granting permanent mokarari leases on any terms agreed upon between the parties which did not contravene the substantive provisions of the law. However that may be, it seems to us that we ought not to put such a construction on Section 179 as would have the effect of nullifying, with respect to an important body of tenants, the enactment in the previous section.

5. For these reasons, as at present advised, we think that the conclusion arrived at by the Subordinate Judge in this case is correct, and this... appeal must be dismissed with costs.


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