Mitra and Ormond, JJ.
1. On the 28th Bhadra 1309 the plaintiff, who is the respondent before us, executed a kabuliat in favour of the defendants, the appellants before us, agreeing to pay rent for certain plots of land at the rate of Rs. 39-10. In 1883 the plaintiff or his predecessor in title had executed a kabuliat in favour of the same defendants for the same lands agreeing to pay rent at the rate of Rs. 24-4. The enhancement was, therefore, more than 2 annas in the rupee and contravened the provisions of Clause (b) of Section 29 of the Bengal Tenancy Act.
2. The plaintiff asked in the suit for a declaration that the kabuliat executed by him was void, he having executed it under coercion and undue influence, and it having contravened the provisions of Clause (b) of Section 29 of the Bengal Tenancy Act.
3. The Lower Appellate Court, without going into the question of coercion and undue influence, has decreed the suit, holding that the rent enhanced was more than two annas in the rupee and the Kabuliat was not binding on the plaintiff.
4. The defendants in their answer to the suit attempted to justify the enhancement by setting up the case of improvement by the excavation of a canal such as is contemplated in proviso (2) of Section 29 of the Act. They further pleaded that there were stringent conditions in the lease of 1883 and the plaintiff executed the kabuliat for enhancement of rent avoiding these stringent conditions.
5. The learned District Judge on appeal has held that evidence as to improvement effected by the landlord could not be gone into, inasmuch as the document of the 28th Bhadra 1309 B.S. did not refer to any such improvement, and under Section 91 of the Evidence Act, evidence of such improvement is inadmissible. He has also held that the enhancement was more than two annas in the rupee and not because of the settlement of any dispute between the parties, and was unwarrantable, even if the present kabuliat expunged the stringent clauses of the former kabuliat.
6. The defendants have urged in this appeal, first, that evidence as regards the improvement effected by them and evidence of the fact that enhanced rent was agreed to be paid in consideration of such improvement, should have been admitted and the Lower Appellate Court should have come to a finding in their favour. Secondly, that the kabuliat executed by the plaintiff was good, notwithstanding the enhancement of more than two annas in the rupee, inasmuch as the tenant derived considerable benefit by the new agreement, the stringent conditions in the old agreement having been avoided.
7. We are of opinion that as regards the first argument addressed to us the appellants are right. Section 91 of the Evidence Act says: 'When the terms of a contract or of a grant or any other disposition of property have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property or of such matter.' The consideration for enhancement does not constitute a term of the contract or of the disposition of the property in this case. The contract between the parties was that the raiyat should hold a certain quantity of land on payment of a certain amount of rent in certain instalments. The consideration of the contract is different from the terms of the contract itself, and we do not see why the provisions of Section 91 of the Evidence Act should prevent the defendants from giving evidence of the consideration for the contract. Neither the Bengal Tenancy Act nor the Indian Evidence Act requires that statements as to consideration should be contained in a document and that the statements should find place in a registered document.
8. We are, therefore, of opinion that the learned Judge in the Court below ought to have gone into the questions indicated above, namely, Was any improvement within the meaning of the Bengal Tenancy Act effected by the landlord before the execution of the kabuliat by the plaintiff and whether the plaintiff agreed to pay enhanced rent in consideration of such improvement? If these questions are answered in favour of the defendants, a further question would arise, which was not decided by the Lower Appellate Court, namely, whether the kabuliat was executed by the plaintiff under coercion or undue influence.
9. As regards the second question argued before us, namely, that the kabuliat at an enhanced rent was executed in consideration of the avoidance of stringent conditions in the previous lease, we do not think that such a case comes within proviso (3) of Section 29 of the Bengal Tenancy Act, which has been relied on by the appellants. The contention is that under the former kabuliat the tenant had agreed to pay two rupees more per kani of land as rent, in case he cultivated sugarcane on the land. The proviso does not contemplate cases like this. It contemplates a case of the tenant holding at a specially low rate of rent in consideration of cultivating a particular crop for the convenience of the landlord, such as indigo and other crops. Proviso (3) has, therefore, no application. We have no hesitation in saying that the landlords were not entitled to get enhanced rent in consideration of allowing the tenant to cultivate sugarcane.
10. The fact that the tenant was exonerated from certain liabilities under the former contract is not also sufficient to give validity to the kabuliat in suit. The plaintiff was a raiyat with a right of occupancy. He had held the land for more than 12 years before he executed the kabuliat. He was a settled raiyat within the meaning of Section 20 of the Act. We have no doubt that he had a right of occupancy as contemplated by Section 21 of the Act. The mere fact that there were certain stringent conditions in the former lease would not take away his right as that of an occupancy raiyat. His rent had been enhanced in contravention of Clause (b) of Section 29. He cannot be compelled to pay rent in contravention of Clause (b) simply because certain conditions were not inserted in the present kabuliat.
11. Sheo Sahay Panday v. Ram Rachia Roy (1891) I.L.R. 18 Calc. 333 and Nath Singh v. Damri Singh (1900) I.L.R. 28 Calc. 90 have been cited before us to show that under circumstances similar to the present enhancement was allowed, though it was more than two annas in the rupee. The ratio decidendi in these cases was that there was no certainty as to the initial rents; there were disputes, as to what the initial rents were, and the Court therefore held that, as the enhancement had been given in settlement of disputes, the enhancement could be allowed notwithstanding Section 29 of the Act. The facts were different, and these cases therefore do not affect our decision in the present case.
12. The case must go back to the Lower Appellate Court for decision on the only points indicated above.
13. The costs of this appeal will abide the result.