1. This is a suit whereby the plaintiffs seek to vindicate a right which they claim under a putni lease in their favour executed in 1870. By that document it was provided on the part of the zemindar as follows: 'We (that is the zemindars) shall pay the Government revenue, poolbundi and dak cesses, you having nothing to do with the same.' The Embankment Acts in force at that time were XXXII of 1855 (Government of India) and Act VII of 1866 (Government of Bengal), and for the purposes of this argument it has been assumed that the obligation in respect of embankment charges was on the zemindars at that time. Whether that was so under Act VII of 1866 in all cases we need not now determine, but we will assume, for the purpose of this case, the correctness of the view that the stipulation which I have read gave practical effect to the state of the law as it then stood. These two Acts have been repealed, and that now in force is Act II of 1882 of the Bengal Legislature. There are provisions in that Act under which there can be an apportionment of embankment charges as between the zemindar and his tenure-holders. There has been that which purports to be an apportionment under the Act, and by it a certain burden in respect of poolbundi charges has been cast on the tenant. At the time of the proceedings before the revenue authority a protest was entered against this view, on the strength of the stipulation in the putni lease of 1870. But the argument failed, and it was held that this made no difference for the purposes of the Collector's decision. It may be that the Collector merely had to apportion without regard to the contractual rights between the parties; but of this I am confident that he had no power to take away from the plaintiff the benefit of any contractual right which he had against the zemindar, and that the plaintiff is entitled to come to this Court for the purpose of having his contractual rights vindicated.
2. The first question then that we have to determine is whether this suit can be entertained. At one time I felt some doubt as to whether the suit was not somewhat premature, and whether the proper method of meeting any claim advanced by the zemindar would not have been by defence to a suit. But any doubt on that score has been dissipated by a consideration of the provision contained in Section 74, which vests in the zemindar wide powers of recovery of the amount to which he is entitled under an apportionment order. He could possibly realize his claim without going to a Court, and therefore it will be right for us to give protection to the plaintiff now, if he is entitled to it. More than that, it has been very properly conceded before us that in this case the defendant does intend to take action, notwithstanding the terms of the agreement, so that the plaintiff is within the provisions of the law which require that it should be shown that there is reason to apprehend the breach of the contract on which he relies. Therefore, I think the suit is properly conceived. The only question then is whether the plaintiff has the contractual rights which he claims. The clause in the putni lease to which I have already referred is in wide terms; and is in effect an indemnity against poolbundi charges. The first point, therefore, we have to consider is whether that in respect of which the zemindar now intends to advance a claim is a poolbundi charge. Admittedly it is.
3. The next point for consideration is whether by reason of its being a poolbundi charge arising under an Act subsequent to the date of the putni it was outside the intention of the parties, so that, though covered by the words, it would not be fair to extend the agreement to this particular charge. There again, I think, there can be no doubt that the poolbundi charge with which we are concerned in this case is so similar to that in existence at the date of the putni lease that it is clear it was within the intention of the parties to include such a poolbundi as that with which we are now concerned. Indeed the basis of the contract between them must have been that the putnidar was to be exempt from all charges to which the term poolbundi could reasonably be applied. Therefore, I think, this second point is established in the plaintiffs' favour, and that the agreement extends to the present poolbundi charges, though they arise under the Act of 1882. This view is, I think, supported by the decision of the High Court in Appeal from Appellate Decree No. 920 of 1880, for it was there held that the agreement was operative, though prior to that suit Act VI of 1873 had come into operation and had superseded the previous Embankment Acts.
4. The final point is whether it is contrary to the policy of the law that we should enforce the agreement to which the parties came. I fail to see the fine distinction which embarrassed the learned Judge in reference to this point. The Government is in no way prejudiced by this contract between the zemindar and the putnidar. It is merely a contract that the zemindar will bear, as between him and the putnidar, certain charges. If the Government have any right against the property of the putnidar, this agreement would not prejudice in any way the assertion by the Government of its claim. I cannot see any difficulty in the zemindar undertaking to discharge a burden in the place of the putnidar or indemnifying the putnidar against this harden. Therefore, the final point, as it appears to me, is also in the plaintiffs' favour, that is to say, there is nothing in the Act of 1882 that renders this agreement contrary to the policy of the law or void for any other reason.
5. To sum up: in my opinion, the decree of the lower Appellate Court was erroneous, as was the judgment of Mr. Justice Coxe by which it was affirmed. The Munsif took a correct view.
6. We, therefore, restore the decree of the Munsif, with this variation, that we only grant an injunction restraining the defendants from realizing poolbundi and dak charges from the plaintiffs in respect of the putni.
7. The plaintiffs must receive from the defendants their costs in all Courts.
8. I agree.