Richard Garth, C.J.
1. I think that both the lower Courts have taken an erroneous view of the law in this case. In the Munsif's Court two issues were raised: first, whether the defendants did relinquish the land; and, secondly, whether the relinquishment was good in law. With regard to the first point, which was a question of fact, the Munsif found that the defendants had relinquished the land, and that they had given the notice to quit, upon which they relied. And upon the second point, namely, whether the notice was good in law, the Munsif found that it was, holding, apparently, that a lessee, under a lease of this kind, was at liberty, after due notice to his landlord, to relinquish his lease, and that upon relinquishing it, and holding no further possession of it, his obligation was at an end.
2. The Subordinate Judge appears to me to be rather doubtful about confirming the view of the law which the Munsif had laid down. He says: 'That the defendants gave three months' previous notice of their intention of relinquishing the holding, and afterwards actually relinquished, the same, has been satisfactorily proved. Plaintiff could not prove that the defendants occupied the land after relinquishment.' Then he goes on to say (by way, as it seems to me, of making himself secure whether his view of the law was right or no): 'It appears that the plaintiff brought this suit after more than a year; his long silence to make any objection may be considered as his accepting the relinquishment, for if he did not do so, he could have given defendants a notice that he would not accept. I, therefore, think that he must have consented to the relinquishment.'
3. It has been boldly argued before us, on behalf of the respondent, that the Munsif was right, and, indeed, that both Courts were right, (if the Subordinate Judge intended to agree with the Munsif), in saying that the tenant, under a lease of this character, had a right to relinquish the land at his option, whenever he pleased, upon giving due notice to his landlord; and it was also contended, that, whether that was so or not, the notice of relinquishment being proved to have been given, the facts of the case justified the Subordinate Judge in finding that the landlord, the plaintiff, had consented to the relinquishment.
4. Now, in order to see what the question really is, and what is the true nature of the lease with which we are dealing, I will read the language of the kabuliat itself. (His Lordship read the document and continued).
5. Of course the terms of this lease are wholly inconsistent with any idea of its creating a ryoti tenure. It is in the nature of a building lease of valuable property, because, in addition to the yearly rental of Rs. 625, which is to be paid for five bighas of land, there was also a premium of Rs. 1,150 paid by the lessees.
6. Now it is said that a lessee, who holds under a lease of this kind, is entitled to relinquish his land at any time, and without assigning any reason, if he only gives due notice to the landlord.
7. Such a contention appears to me absurd. The bargain would then be entirely one-sided. If the learned Junior Government Pleader were right, the lessee might, under such a lease, do what he liked with the property, and then leave it. If there were trees on the land, he might cut them down and remove them; he might excavate pits, or alter the disposition of the land in any way he pleased; and then if be found that the alterations he had made answered his purpose, he might abide by his bargain; but if he found that he had made a bad speculation, and that the alterations were not likely to be beneficial, he might throw up the land and cancel his lease, although the landlord in the meantime might have had good opportunities of disposing of the land to advantage. This would be such an unfair and one-sided bargain, that I should require very strong authority to satisfy me that such was the true view of the law.
8. We, accordingly, pressed the learned Pleader for some authority in support of his view, and, so far as I can see the only authorities which he has cited, so far from supporting his contention, are decidedly opposed to it.
9. He has alluded (amongst others) to a case, decided in 1873 by Mr. Justice Jackson and Mr. Justice Dwarkanath Mitter, J.; Heera Lall Pal v. Neel Monee Pal 20 W.R. 383 which is decidedly against him.
10. That was a suit, as this is, for rent which was due under a patni, and the patnidar contended that he had surrendered the patni, and had a right to do so, and that he had thus terminated his obligation for rent. Mr. Justice Jackson in giving judgment says: 'The point which we reserved for consideration in this case is, whether it is optional with the patnidar to surrender the patni which he holds at any time, and to plead such surrender in answer to a suit for rent. We are clearly of opinion that, whether or not the Civil Court might, upon sufficient ground, give relief in a suit brought to dissolve a contract between the zamindar and his patnidar, it certainly is not open to a patnidar, of his own choice to throw up the patni, and, by so doing escape his liability to pay rent. We do not say that the contract is indissoluble, because many circumstances might arise in which the interference of a Court of Justice might fairly be invoked to put an end to it, but the dissolution of such a contract must, we think, be an act of the Court and the result of proper enquiry, and cannot be taken by the patnidar alone, and pleaded in answer to a suit for rent.'
11. This is a direct authority, as it seems to me, against the defendants' contention, but having regard to the fact, that my learned brother, who has been for twenty years in this country, both in executive and judicial capacity, has never even heard of such a contention as has been pressed upon us, I do not think I need say more on this part of this case.
12. The only other point that remains to be noticed is as to the supposed consent of the notice by the plaintiff. It was contended that there were sufficient grounds in point of law for the Subordinate Judge to find that the lessor has accepted the relinquishment which was tendered by the lessees.
13. Now what happened was this; I assume, of course, that a notice was given by the lessees to the plaintiff that they would relinquish the lease at the end of Assar 1286; and it appears that a day or two before Assar they paid the rent due for Assar, and they intimated at the same time that they would leave the premises at the end of the month, which they did. Nothing appears to have been said by the plaintiff on this occasion, nor was any communication received from him; and when the lessees set up that they had relinquished the property, he denied having received any notice. However, it was proved that a notice had been sent by post, though it is not suggested that the plaintiff ever said anything which could be construed into an express assent. Now was this enough, in point of law, to justify the Subordinate Judge in finding an assent on the part of the lessor to the relinquishment? I am clearly of opinion that it was not. A man who is bound by lease to pay his rent cannot, by merely informing his landlord that he is going to relinquish the land, get rid of his obligation, and the mere fact that the landlord silently receives the notice, which the lessee had no legal right to give, cannot be construed, in my opinion, into an assent to the relinquishment; and no Court has any right under such circumstances to find that the landlord did assent.
14. I am clearly of opinion, that the judgment of the lower Courts should be reversed, and that the plaintiff's claim should be decreed with costs in all the Courts.
15. This was a suit for the recovery of Rs. 532-8, being the rent of the year 1286, together with interest, after giving credit for certain payments made.
16. The defence to the suit was that a notice was issued on 29th of April 1879, corresponding with the 17th of Bysakh 1286, by the defendant of his intention to give up the land, for the rent of which this suit has been brought, and that this notice was followed up, on the 8th of July 1879, by an actual relinquishment.
17. Upon this defence one of the issues fixed by the Munsif was, whether the relinquishment was good in law, and upon this point the Munsif says: 'With reference to the other contention of the defendant, I think that it is tenable. What is a dur-maurasi mokurari tenure? It is an ordinary contract to pay the rent as long as the tenant would occupy the land, and that the landlord, would not be able to eject him or enhance his rent, for which consideration a price is paid. The occupation of the land is the consideration for payment of the rent, and the tenant can, at any moment, say (of course giving the landlord reasonable notice) take back your land and let me go.'
18. On the hearing of this appeal a question was raised as to whether upon the appeal to the Judge in the Court below the question was raised as to whether a tenure of this nature could be relinquished. I think there can be no doubt chat this question was raised in the fourth ground of appeal, and this being so, it appears to me clear that the contention of the plaintiff, throughout the whole course of the case, has been that a tenure of this nature, that is a dur-maurasi mokurari, could not be put an end to by a mere relinquishment on the part of the lessee.
19. As to the question whether the plaintiff accepted the relinquishment I think there can be no doubt. It was no doubt very wrong for him to deny that which we must take to have been clearly proved, viz., the service of the notice of relinquishment upon him; but according to a principle that has been laid down by the Privy Council we must not, in dealing with this case, allow ourselves to be led to decide otherwise than according to law, because the plaintiff has been ill-advised, or misled into doing, in the conduct of his suit, that which was beyond doubt very wrong and improper.
20. The one question then which we have to decide is, whether a tenure, such as that with which this case is concerned, can be terminated at the will of the lessee by a relinquishment.
21. Let us see what this tenure is. It is quite clear that it is not a lease of agricultural land. The contents of the kabuliat show this very distinctly. This being so, the provisions of the Rent Act have no application, and the defendants could not, under the provisions of Section 20 of that Act, relinquish their holding.
22. But it is contended that according to a well-known custom in this country, any person holding a permanent interest intermediate between the zamindar and the cultivator may, of his own option, unless he has restrained himself by an express provision to the contrary, relinquish such interest or tenure.
23. I am bound to say that this is a proposition which I have never heard advanced until this case came before us; and before the hearing of this case, my impression has always been that no such tenure can be terminated unless with the consent of the landlord, i.e., apart from any question of a sale for arrears of rent brought about by the action of the landlord himself.
24. In support of the proposition advanced for the defendants three cases have been quoted to us from the reports of the Sudder Dewany Adawlat. The first of these cases is that of Kowla Kant Mukerjea v. Ram Mohun Gosain 2 Sel. Rep. 325. The marginal note of that case, which is substantially correct, is as follows: 'The right of landholders of patni taluks of the second or lower degrees in the zamindari of Burdwan, is not liable to be cancelled by the resignation of the patnidar who granted the taluk. It can only be cancelled by a public sale for arrears of revenue.' This stands to reason. If an individual having taken a patni taluk from the zamindar, and having, according to the well-known custom of that district, granted a number of darpatnies for a considerable amount of salami, could afterwards go to the zemindar, resign his patni, and thereby destroy the interest of the darpatnidars, the door would be opened for a large amount of fraud. Of course, the zamindar may, if he chooses, accept the relinquishment of the patni, but, by doing so, he is in no better position than an assignee of the patnidar. This case certainly does not show that, either by the law or custom of the country, a patnidar has any right, of his own option, to relinquish his tenure, and thereby free himself from future liability for rent.
25. The next case relied upon is that of Rajah Kishen Chunder Bahadoor v. Shunkeree Dassee 7 Sel. Rep. 174. Now in the first place, that was a case, not of an intermediate tenure in the nature of a taluk, but a case of a farming lease; and it further appears that proceedings had been taken to enhance the rent, and that after those proceedings, the lessee, alleging that, according to the valuation of the officer deputed for the purpose of increasing the assessment, an excessive, rent had been imposed, sought to resign the lease. It appears to me that this case also does not support the proposition advanced before us. It is just and reasonable that a person who takes a maurasi lease at a fixed rent should be bound to hold the land so demised, and pay the rent according to the terms of the lease; but the same justice and the same reason have no application, when one of the most important conditions of the original contract is altered, and the rent is enhanced. The lessee may very justly say to his landlord that, under the original contract, I agreed to pay that rent for the term of the lease. I certainly deny that you can raise the rent and compel me to continue to hold the tenure whether I desire to do so or not.
26. The third and last case quoted from the report of the Sudder Dewany Adawlat is a case of Omachurn Chuckerbutty v. Hurchunder. Haldar S.D.A. 1855. p. 205. That was also a case of a farming lease, and the only question decided related to the stamp required for an istafa or relinquishment. This observation disposes of that case as an authority upon the question before us.
27. It thus appears to me that none of the cases quoted from the Sudder Dewany Adawlat Reports support the allegation that has been made before us, while there are many cases to be found in those reports which go to show the contrary.
28. The very learned Chief Justice has dealt with the case of a patni tenure in which it was distinctly held that a patnidar cannot, of his own option, relinquish his tenure, and, so far as I understand the law of this country, the principle of that case is applicable to all intermediate tenures between the zamindar and the cultivator of the soil, and in this term tenure I do not here include a farming lease.
29. I think, therefore, that the alleged relinquishment was no answer to this suit for rent, and that this appeal must be decreed with costs.