Rampini and Mookerjee, JJ.
1. This appeal arises out of a suit for rent.
2. The Munsiffi dismissed the suit as not maintainable. Both parties appealed.
3. The Subordinate Judge held that the suit was maintainable and that the defendants were occupancy raiyats. He disallowed the plaintiff's claim for puja kharach, road cess at one anna in the rupee and interest at 75 per cent. per annum, all which the defendant had agreed in his kabuliat to pay. The plaintiffs appeal on the points of (1) puja kharach, (2) road cess and (3) interest.
4. We agree with the Subordinate Judge in holding that puja kharach is an abwab and cannot be allowed. It is obvious from the defendant's kabuliat itself that it is an abwab, because it is something agreed to be paid in excess of the rent.
5. The stipulation for payment of road cess at the rate of one anna in the rupee is of a different character. We do not think that road cess comes within the definition of an abwab contained in Section 74 of the Bengal Tenancy Act. It is not an imposition on the tenant by the landlord in addition to the rent, but a tax imposed by Government. Hence a contract to pay more than the proportion payable by the tenant under the Road Cess Act is not illegal. We are fortified in this view by the cases of Surnomoyee Dabee v. Koomar Purresh Narain Roy (1878) I.L.R. 4 Calc. 576 and an unreported case, S.A. No. 2403 of 1898, decided by Maclean C. J. and Banerjee and Stevens JJ. on the 28th May 1900.
6. The appellant's contentious as to the interest are (a) that the contract was made before the Act came into operation, (6) that the rent was not payable quarterly, but in five instalments, and therefore under the Privy Council ruling in Hemanta Kumari Debt v. Jagadindra Nath Roy (1894) I.L.R. 22 Calc. 214 : L.R. 21 I.A. 131 the provisions of Section 67 do not apply.
7. We consider that as the kabuliat was executed on the 8th' May 1885, and the Bengal Tenancy Act was passed on the 14th March 1885, the provisions of Section 178(3) (h) are applicable.
8. As regards the argument that Section 67 of the Bengal Tenancy Act does not apply, because the rent is not payable quarterly, we are of opinion, that the decision of the Judicial Committee relied upon by the appellants, does not support their contention. We find from an examination of the records of that case, that there the plaintiff sued to recover arrears of rent, which had accrued partly before and partly after the commencement of the Bengal Tenancy Act. He claimed interest at the rate of 12 per cent. per annum upon each instalment of rent, which he alleged, was payable monthly. There was no dispute, that the rent was payable in monthly instalments and that the plaintiff was entitled to interest at the rate of 12 per cent. per annum. The only dispute was, whether the interest was to run from the date of default in payment of each instalment, or whether it was to run from the end of the quarter in which a particular instalment fell due. The Court of first instance allowed interest from the date of default of each instalment. Upon appeal to this Court, the learned Judges held as regards arrears, which had accrued due after the Bengal Tenancy Act had come into force, that as the plaintiff did not claim interest as due under any contract, his claim must be governed by Section 67, and that under that section he was 'not entitled to interest from the date of instalment but from the end of the quarter in which it fell due.' The case then went on appeal to the Judicial Committee and the decision of the High Court upon this point was reversed. Their Lordships however did not hold that the whole of Section 67 does not apply when the rent is not payable quarterly.
9. This is clear from the following passage in the judgment: 'it appears that there are some arrears, which have become due since the Bengal Tenancy Act, 1885. The Subordinate Court held that interest was to be calculated monthly on the arrears; but the High Court held that under the provisions of that Act as regards arrears, which became due after the Act came into force, the interest should be calculated quarterly. It appears to their Lordships that the High Court were wrong and that the provision in Section 67 of the Act, on which they relied, only applies to cases where the rent is payable quarterly. Here it is not disputed that the rent is payable monthly, and on rent in arrears, it appears to their Lordships, that interest ought to be calculated monthly.' It will be observed, that their Lordships did not rule, that the whole of Section 67 is limited in its application to cases where the rent is payable quarterly, although we find that that is the form in which the decision of their Lordships is summarized in the head note of the case It appears to us to be clear, that Section 67 contains two distinct provisions, namely, one which fixes the rate of interest and the other, which defines the time from which the interest is to run. It is this second provision alone which was interpreted by their Lordships; we are unable to hold that their Lordships decided by implication any question as to the effect of the other provision of the section regarding which no question did or could arise in the suit before them. We are not prepared to take any view, which, will nullify the effect of Section 178, Sub-section 3, Clause h, and enable parties to contract themselves out of the provision in Section 67, which limits the interest to simple interest at 12 per cent. per annum, by the device of making the rent payable otherwise than quarterly. We must hold accordingly, that as the contract in the present case was made after the passing of the Bengal Tenancy Act, it is not enforceable, in so far as it provides for payment of interest at a rate higher than 12 per cent. We desire to add, however, that, even if we considered that it was open to the parties to contract themselves out of the provisions of Section 67, the covenant for the payment of interest at the rate agreed upon ought not to be enforced upon another ground. We consider that a contract to pay interest at the rate of 75 p.c. for arrears of rent payable for land, for which arrears the landlord has good security in the holding on which those arrears are a first charge and which he can recover in other ways, is an unconscionable one, and one which we should not allow to be enforced. The rate of interest stipulated for is in the circumstance excessive.
10. We, therefore, decree this appeal so far as the claim for road-cess is concerned. We dismiss it in other respects. Costs in proportion.