1. In this appeal, which arises out of a suit for arrears of rent, the question for consideration is, whether the court of appeal below is right in disallowing the claim for interest at the rate mentioned in the kabuliat, dated the 21st Bysack 1280. The learned Vakil for the plaintiff-appellant contends that the Lower Appellate Court is wrong in not allowing interest at the rate mentioned in the kabuliat, as the grounds upon which it has based its decision are wrong in law.
2. Now the grounds upon which the Lower Appellate Court has held that the plaintiff is not entitled to interest at the rate mentioned in the kabuliat are given in the following passage of the judgment: 'The contention on the part of defendant-appellant is that this kabuliat became inoperative on its having been returned to the executant immediately after registration at his request by the zemindar's naib on the complaint of the executant; that the stipulation of interest' was rather hard; that this stipulation as to interest was never enforced; and that therefore the defendant is not bound to pay interest at the rate demanded. It appears to me that there is much force in this contention, regard being had to the fact that the original kabuliat has been produced in the case by the defendant, and to the absence of evidence on the side of the plaintiff as to interest having ever been realised at the rate specified in the kabuliat, There is no foundation for plaintiff's allegation that this kabuliat was conclusively made over by the defaulting putnidar, Mohendra, to the present defendant, with a view of thwarting plaintiff's claim. Taking all things into consideration, I am of opinion I would not be justified in allowing the exorbitant rate of interest provided in the kabuliat, which is now sought to be enforced against the defendant.'
3. It is argued that the two grounds upon which interest at the stipulated rate has been disallowed are, first, that there has been a waiver of the right created by the kabuliat by reason of the non-realization of the interest at the stipulated rate; and, second, that the kabuliat has become inoperative by reason of the return of the document to the defendants; and it is urged that both these reasons are bad in law, the first, bad in law, because mere omission to claim interest at the stipulated rate cannot amount to waiver, as has been held in the case of Johoory Lall v. Bullab Lall (1879) I.L.R., 5 Cal., 102, and the second, bad in law, because it is contrary to the provisions of Section 92 of the Evidence Act, as has been held in the case of Umedmal Motiram v. Davu bin Dhondiba (1878) I.L.R., 2 Bom., 547.
4. No doubt, the case of Johoory Lall v. Bullab Lall (1879) I.L.R., 5 Cal., 102, is authority for the contention that the mere omission to claim interest for past years from a tenant cannot amount to a waiver of the landlord's right to claim interest at the stipulated rate. The decision of the Lower Appellate Court is, however, based, not merely upon the omission of the plaintiff to claim interest at the stipulated rate, but is based upon another ground besides, viz., the return of the kabuliat to the tenant-defendant, the validity of which will be considered presently.
5. It was further argued that, in the absence of anything to show that any occasion arose for claiming interest at the stipulated rate, the Court of Appeal below was wrong in attaching any weight to the mere absence, of evidence on the side of the plaintiff as to interest having ever been realised at the rate specified in the kabuliat. But this objection is met by the finding of the first Court on point No. 1-a finding which has not been displaced by the Appellate Court, from which it would appear that occasions did arise for claiming interest.
6. This brings us to the consideration of the second branch of the appellant's contention. No doubt Section 92 of the Evidence Act would exclude the evidence of any oral agreement or statement to rescind or to contradict the document in this case, having regard to the provisions of proviso 4 of that section. But as we understand the contention of the defendant and the judgment of the Lower Appellate Court, what has been given effect to as making inoperative the kabuliat relied upon by the plaintiff in this case is not any oral agreement or statement rescinding the kabuliat, but the evidence of conduct amounting to waiver of the right created in favour of the plaintiff by the kabuliat; and such evidence is not, in our opinion, excluded by the provisions of Section 92 of the Evidence Act. The view we take is in accordance with the decision of the Full Bench in the case of Preonath Shaha v. Madhu Sudan Bhuiya (1898) I.L.R., 25 Cal., 603, where it was held that oral evidence of the acts and conduct of parties, such as oral evidence that possession remained with the vendor, notwithstanding the execution of a deed of out and out sale, is admissible to prove that the deed was intended to operate only as a mortgage.
7. Last of all it is contended that the Lower Appellate Court has not distinctly found any waiver of the right created by the kabuliat, and that in fact it does not find that the stipulation relating to interest contained in the kabuliat has become inoperative, all that it says being that it would not be justified in allowing the exorbitant rate of interest provided for in the kabuliat.
8. The language of the Subordinate Judge may not be very happy, but his meaning, taking his judgment as a whole, is, in our opinion, very clear. For he sets out the contention of the defendant that by reason of the return of the kabuliat the stipulation about interest became inoperative; he observes that the contention has much force; and he comes to the conclusion that the rate of interest provided for in the kabuliat was not one that the plaintiff was entitled to enforce. He also finds that the case set up by the plaintiff that the return of the kabuliat was a fraudulent act on the part of the defaulting putnidar was unfounded.
9. Taking all this into consideration, we think that the Lower Appellate Court has, in effect, come to the conclusion that the stipulation in the kabuliat regarding interest has become inoperative.
10. The result is that the contentions urged before us fail and the appeal must be dismissed with costs.