1. I have the honour to submit for the decision of the Hon'ble High Court under Order 46, Rule 1, Civil P.C., the following points which have arisen on the hearing of Bent Suit No. 419 of 1930 of this Court: Purna Chandra Saha v. Hydar Ali Patari.
2. In this suit the plaintiff seeks to recover rent as a fractional landlord in respect of a permanent mukarari tenure at the rate of Rs. 8-1-0 per year in his share for the years 1333 to 1336, cesses thereon at six pies in the rupee and interest on the arrears at the rate of three per cent per mensem. The total claim amounts to Rs. 45-9-0 only. The evidence makes out the claim. The only point that raises difficulty is whether the plaintiff can recover interest at the rate of three per cent per mensem. The plaintiff's claim of interest at this rate is based upon a stipulation in the kabuliyat (Ex. l) executed by the defendants' predecessor on 21st Chait, 1284 B.S. But whether this contract can be given effect to in view of the provision of Section 178 (1) (i), Ben. Ten. Act, which lays down that:
Nothing in any contract between a landlord and a tenant made before or after the passing of this Act shall affect the provisions of Section 67 relating to interest payable on arrears of rent.
3. It is urged on behalf of the plaintiff that this provision is the result of an amendment made in the section by Act 4 of 1928 (B. C.) and that prior to this amendment the section did not interfere with contracts regarding interest made before the passing of the Bengal Tenancy Act (8 of 1885) and that the amending Act has no retrospective operation. In support of this contention reliance is placed upon a decision of the Hon'ble High Court in the ease of Hamiduddin Khan v. Ramani Kanta Roy  33 C.W.N. 123 (notes). In that case the tenant wanted to take advantage of the amendment made during the pendency of the case in second appeal but it was held that the amendment could not be applied retrospectively to that case. Stress is laid upon the following observation of his Lordship Mukerji, J., quoted in the above report:
I do not find any word either in Section 178 or anywhere else in the amending Act which gives this amendment retrospective operation.
4. To my mind what this observation means is that the amending Act does not apply to cases which had been instituted prior to the passing of that Act and not that it has no application to contracts made before the passing of that Act. The wording of the amended Section 178 expressly covers contracts made prior to the passing of the Act of 1885. The next contention of the plaintiff is that Section 179, Ben. Ten. Act 8 of 1885, makes the contract in this case valid though it may offend against the amended provision of Section 178. There can be no doubt that Section 178 must be read subject to the exception provided in Section 179 which deals with a particular class of tenancies. In the present case the tenancy is a permanent mukarari lease in a permanently settled area. So Section 179 evidently applies to it. But this section contains a proviso that the landlord of a permanent mukarari lease in a permanently settled area is not entitled to recover interest at a rate exceeding that set forth in Section 67. I am however asked by the plaintiff's pleader to read Section 179 excluding the proviso on the ground that this proviso was added by the Amending Act 4 of 1928 (B. C). His contention is that the proviso does not apply to any contract made before the passing of Act 4 of 1928 which introduced it. In Mr. Sen's latest edition of the Bengal Tenancy Act an opinion is expressed to the effect that this proviso has no retrospective effect and as such applies only to contracts made after the passing of Act 4 of 1928 (B. C.). The point requires to-be examined closely. The main provision of Section 179 gives some right to lessors of permanent mukarari tenures in permanently settled areas.
5. That right is in some respect curtailed by the newly added proviso. It may well be contended that the right acquired under the main section prior to the addition of the proviso cannot be interfered with by the subsequent addition of the proviso in the absence of anything to show that the proviso should be treated as if appended to the main section from the very time of the enactment of the main section itself. But can the right of the plaintiff in the present suit to recover interest at the rate stipulated in the kabuliyat be said to have been one given by Section 179 (as it stood prior to the amendment) Let us see what the provisions of the Act were prior to the amendment which came into force on 21st February 1929. The relevant sections relating to interest are Sections 67, 178 and 179. Section 67 provided that an arrear of rent would bear interest at the rate of 12i per cent per annum. Section 178 provided that any contract made after the passing of the Act (8 of 1885) to pay interests in contravention of Section 67 was invalid. Thus the contract in the present case which is prior to the passing of Act 8 of 1885 was unaffected by the provision of Section 178. The succeeding Section 179 dealing with a particular class of tenancies was an exception to the general Section 178. The said Section 179 secured a right in favour of certain persona who but for that section would have bean affected by the other provisions of the Act including Section 178. This is clear from the words with which the section began, viz.: ' Nothing in this Act shall be deemed to prevent.' As the general Section 178 did not touch the contract in this particular ease (it being prior to the passing of Act 8 of 1885) it can hardly be said that the present plaintiff's right to recover interest at the stipulated rate exceeding 12i per cent was derived from Section 179 proving an exception to the general section. In fact the case law was that the provision of Section 178 (as it stood before 21.3t February 1929) did not affect any contract made prior to the passing of Act 8 of 1885 for payment of interest on arrears in respect of any kind of tenancy at a higher rate than that provided in Section 67 of that Act. But by the Amending Act (4 of 1928) (B. .C.) the restriction upon the rate of interest imposed by Section 178 was extended to contracts made prior to the passing of Act 8 of 1885. By the same Amending Act the proviso to Section 179 was added. It then comes to this: the legislature for the first time on 21st February 1929, came to interfere with contracts made prior to the passing of Act 8 of 1885 for payment of interest at a higher rate than 12 1/2 per cent and at the same time added the proviso to Section 179 by the same enactment.
6. So I think I would not be justified in this case in regarding Section 178 with the amendment made in it but Section 179 without the amendment made therein by the same amending Act. In the case of contracts made after the commencement of Act 8 of 1885 it might be said that Section 179 of that Act gave the lessor of a permanent mukarari lease in a permanently settled area a right to recover interest at the contract rate even if it exceeded the rate provided in Section 67 and the change in Section 179 made by Act of 1928 did not therefore affect that right in the absence of anything to show the contrary. But in the case of the present contract, as already stated, the right to recover interest at three per cent per mensem was based on a contract which was not at any time before 21st February 1929, affected by provisions of Act 8 of 1885 and this right cannot therefore be said to have been given or protected by Section 179 as it stood before 21st February 1929. The result seems to be rather anomalous but it is inevitable if that be the effect of truly interpreting the section. In cases of contract made after the commencement of Act 8 of 1885 it may be said that there was an express provision of law made in Section 179 and the parties to the contrast were led by the statutory provision to regulate their respective rights. This consideration does not exist in cases of prior contracts which the legislature had power to interfere by subsequent legislation. But it is not for the Court to seek for the motive lying behind an enactment. The Court is to interpret the statute. There is no case covering the point under consideration and it is not free from difficulties or doubts. My decision in the present suit would be final under Section 153 (b), Ben. Ten. Act. The decision in this suit would therefore regulate the right of parties in all time to come regarding the rate at which the plaintiff can recover interest on arrears of this tenancy from the defendant. The plaintiff claims interest at the rate of 38 per cent per annum whereas the statutory rate is 12a per cent per annum. The difference is substantial and the decision of the point one way or the other in this suit would have a permanent effect on the parties. So I beg to seek the opinion of the Hon'ble High Court on the point. I may refer here to another argument advanced by plaintiff's pleader. He points out that the kabuliyat describes the tenure to be a patni and he contends that the provisions of the Bengal Tenancy Act would not apply to this case in view of Section 195 (a) of the Act. What Section 195 (e) provides is that:
Nothing in this Act shall affect any enactment; relating to patni tenures in so far as it relates to those tenures.
7. This section does not make the Act entirely inapplicable to a patni tenure but only lays down that its provisions should not override any provision of the law relating to Patni Regn. (8 of 1819). That regulation contains no provision about the rate of interest on arrears. Nor does that regulation contain any provision like Section 179 of the new Bengal Tenancy Act prior to its amendment by Act 4 of 1928 (B. C.). However the matter is laid before the Hon'ble High Court for decision.
8. In the circumstances stated above I beg to seek for a decision of the Hon'ble High Court on the point of law involved in the determination of the question whether in this particular case the plaintiff is entitled to recover interest on the arrears of rant at the rate of three par cant par mensem stipulated in the kabuliyat. I reserve passing final orders in the suit, awaiting receipt of the Hon'ble High Court's order in the matter.
9. It is quite clear that the law as it now stands makes all stipulations as to payment of interest in excess [of 12i per cent unenforceable whether the contract was executed before or after the passing of the Bengal Tenancy Act or whether it related to a permanent mukarari tenure or not.
10. This follows from the provisions of Sections 178 and 179 of the present Act. Section 179 of the Act nullifies the effect of the rulings to the effect that interest in excess of 121 per cent might be recoverable under the terms of permanent mukarari leases, Lot the reference be returned with this opinion.