Macpherson and Banerjee, JJ.
1. This appeal arises out of a suit brought by the plaintiff appellant, who is the zamindar of mouza Panch Pukhuria, to recover from the defendants respondents, putnidars under him of an eight-annas share of the mouza, a sum of money payable to him under the terms of the putni settlement on account of a moiety of the chowkidari tax of the mouza for certain years.
2. The defence was that a part of the claim, namely, that for the year 1294, was barred by limitation; that the amount claimed on account of the chowkidari tax is in excess of what is really payable annually, and has hitherto been paid to and received by the plaintiff; and that he is not entitled to claim any interest.
3. The first Court overruled the plea of limitation, holding that the claim was not one for rent, but was one based on a registered contract; and having found for the plaintiffs on the merits, it decreed the claim in full.
4. On appeal, the defendant for the first time raised the objection that the agreement to pay the chowkidari tax was void in law, as it was an agreement to pay an abwab; and the Lower Appellate Court has allowed the objection and dismissed the suit.
5. In second appeal it is contended for the plaintiff appellant, that the Lower Appellate Court is wrong in law in holding that the amount claimed in this case is in the nature of an abwab, while the defendants respondents take a preliminary objection that the second appeal is barred by Section 586 of the Code of Civil Procedure, the suit being of the Small Cause Court class and the amount claimed not exceeding Rs. 500.
6. It is necessary to consider the preliminary objection first.
7. In support of his objection the learned vakil for the respondents relies upon the cases of Dheraj Mahtab Chund Bahadoor v. Radha Binode Chowdhry 8 W.R. 517 and Ershine v. Trilochun Chatterjee 9 W.R. 518. On the other hand, Babu Sreenath Dass, for the appellant, contends, on the authority of the case of Watson & Co., v. Sreekristo Bhumick I.L.R. 21 Cal. 132, that the claim is one for rent, and is, therefore, excepted from the cognizance of a Small Cause Court by Clause 8 of the second Schedule of the Mofussil Small Cause Courts Act (IX of 1887).
8. The two cases cited for the respondents do not appear to us to be exactly similar to the present, and upon the facts of this case we think the claim must be regarded as one for rent. In the first of the two cases cited above for the respondents, the facts are not set out in the report; and in the other case we learn from the judgment that it was a suit by the zemindar against his putnidars founded upon the contract between the parties for the recovery of a sum of money which had been expended by the zamindar in the way of zamindari dak charges, which expenses, it was alleged, the putnidar was bound by his contract to bear.' This would go to shew that the contract in that case was one by which the putnidar undertook to pay the dak charges, and that he not having done so, the zamindar had to undergo the expense and to sue for the money. If that was so, and if the contract was not to pay the amount to the zamindar in the first instance, the claim could not have been regarded as one for rent, and was rightly treated as one for compensation for the breach of contract. See Rutnessur Biswas v. Hurish Chunder Bose I.L.R. 11 Cal. 221, and the suit was properly held to be one of the Small Cause Court class. In the present case the contract between the parties, which is to be found in the putni kabuliat itself, is that the putnidars shall pay to the zamindar the chowkidari tax, which the latter has to pay. The consideration for the payment is the occupation of the land or the holding of the putni tenure; and the payment is to be made periodically to the zamindar by the putnidar. An amount so agreed to be paid comes, in our opinion, within the definition of rent in the Bengal Tenancy Act, provided it is lawfully payable, as was held in the case of Watson & Co. v. Sreekristo Bhumick I.L.R. 21 Cal. 132. That it is lawfully payable will be seen later on. The suit was not, therefore, one of the Small Cause Court class, and the preliminary objection must consequently be overruled.
9. Coming now to the contention of the appellant that the amount claimed in this suit is not of the nature of an abwab, we must hold that it is well founded, and that the Court of Appeal below is wrong in dismissing the suit, on the ground of its being one for the recovery of an illegal cess.
10. The stipulation by the putnidars to pay to the zamindars the amount payable by him on account of the chowkidari tax of the mouza let out in putni, is one of the terms of the putni settlement itself; it is entered into between parties competent to contract, and is made for valuable consideration; and the Putni Regulation VIII of 1819, in Section 3, distinctly declares that putni taluks 'shall be deemed to be valid tenures in perpetuity according to the terms of the engagements under which they are held.' That being so, let us see how far the provisions of the law prohibiting the imposition of abwab and other cesses, affects this otherwise valid stipulation. At the time when the stipulation was entered into, that is, in 1881, the law relating to abwabs was to be found in Sections 54 and 55 of Regulation VIII of 1793, Section 3 of Regulation V of 1812, and Section 11 of Bengal Act VIII of 1869; and since the repeal of those enactments by the Bengal Tenancy Act, the same provisions have in substance been re-enacted in Section 74 of the last-mentioned Act.
11. Section 54 of Regulation VIII of 1793 recommended the consolidation of existing abwabs with the rent proper or asul jama, within a certain time, and Section 55 prohibited the imposition of any new abwabs on ryots. These provisions related to ryots only, and could not affect intermediate tenure-holders like putnidars. Section 3 of Regulation V of 1812, which was the provision applicable to the stipulation now under consideration, after authorising proprietors of land to grant leases to their dependent talukdars, under farmers, and ryots in any form the contracting parties might think fit, prohibited the imposition of arbitrary or indefinite cesses, whether under the denomination of abwab, mathaut, or any other denomination, and declared 'all stipulations or reservations of that nature' to be null and void. And Section 11 of Bengal Act VIII of 1869 made a landlord exacting any abwab liable in damages not exceeding double the amount exacted. Section 74 of the Bengal Tenancy Act, which now in effect takes the place of these provisions, enacts that 'all impositions upon tenants under the denominations of abwab, mathaut, or other like appellations, in addition to the actual rent, shall be illegal, and all stipulations and reservations for the payment of such shall be void.'
12. It seems to us to be clear from these provisions of the law, that what they are intended to prohibit is the imposition upon tenants of abwabs and other cesses of a like nature in addition to the actual rent fixed by custom or contract. And the reason why the law prohibits these impositions, notwithstanding that they may be voluntarily agreed to, is (as may be gathered from the earlier provisions on the subject, that is, Regulation VIII of 1793, Sections 54, 55 and Regulation V of 1812, Section 3) that they are of an arbitrary and vexatious character, and have an indirect and insidious effect in raising the rent to an oppressive extent. It is well known that in the case of an existing tenancy at a rent fixed by contract or by custom, if the landlord wishes to raise the rent, and the tenant objects, the parties very often come to an arrangement by which the tenant agrees to pay something which is apparently only occasional and temporary, in addition to the rent, being deluded by the notion that the rent, which is the permanent, burden, remains unchanged, and the landlord agrees to accept the additional item, being encouraged by the hope that the increment once paid will be continued indefinitely. So also when a new tenancy is created, the landlord often finds it difficult to induce the tenant to accept a rate of rent higher than the customary rate, though he may be found willing to pay additional items as cesses. And it is matter of history, as we learn from the Revenue Records of the time of the Permanent Settlement from which extracts are given in the judgment of Mr. Justice 0' Kinealy in Radha Prosad Singh v. Balkowar Koeri I.L.R. 17 Cal. 726 at p. 740, that these arbitrary and indefinite impositions were found to have grown to such an oppressive extent as to call for the interference of the Legislature.
13. But neither the reasons nor the terms of these prohibitory rules, neither the spirit nor the letter of the law, can have any application to a case like the present, regard being had to the character of the tenancy and the nature of the so-called additional item of demand.
14. The tenancy here is a putni of a mouza, and from the very nature of the tenure and by the terms of the settlement, the tenant becomes entitled to all the future profits of the mouza, whether by enhancement of the rents of tenants, or by extension of cultivation by reclaiming waste lands, and the landlord practically turns himself into an annuitant upon his zemindari receiving a fixed sum from the putnidar as his annual income from the zemindari. This amount is called the fixed jama or rent in the kabuliat and it includes the Government revenue (which is itself a fixed sum) payable by the zemindar on account of his mouza. But besides the Government revenue, the zemindar has to pay other dues to the Government or to its officers, amongst which the chowkidari tax, the item in dispute, is one, and with a view to leave the zemindars clear profit from the mouza settled in putni unaffected by his liability to pay these dues, the arrangement is that the putnidar shall also pay to the zemindar the amount of this tax among others. And this amount is not consolidated with the fixed jama for this obviously harmless reason; that it is not itself fixed, being liable to variation, not by the will of the zemindar, but under the provisions of the law by which it is imposed [Bengal Act VI of 1870.] There is nothing unfair or improper in this arrangement, nothing that contravenes the policy of the law in prohibiting the imposition of abwabs. The zemindar, who transfers to the putnidar all his rights to future increase of profits from the mouza, may justly require the putnidar to pay him money enough to enable him to pay all taxes or cesses imposed upon him on account of his owning the zemindari, and the putnidar naturally agrees to this. The amount he agrees to pay to the zemindar on account of the chowkidari tax is paid quite as much on account of the occupation of the land of the mouza by him as that which is expressly called the rent, and is part of the ground rent quite as much as the latter. Though the one is kept separate from, it is no subsequent addition to, the other. They are both simultaneously fixed as parts of the return to be made by the tenant for holding the tenure, and the reason for their being kept separate, as stated above, is one that does not offend against the principle of the law upon which the prohibition of abwabs is based. A stipulation for the payment of such an amount cannot, we think, be regarded as one for the 'imposition of an arbitrary or indefinite cess,' within the meaning of Section 3 of Regulation V of 1812, or for an imposition 'under the denomination of abwab, mathaut, or other like appellation in addition to the actual rent,' within the meaning of Section 74 of the Bengal Tenancy Act, for this simple reason, that the imposition here depends primarily, not upon the will of the zemindar, but upon law of the land [Bengal Act VI of 1870]. It is this Act which imposes the liability on the zemindar, and the zemindar merely stipulates with the putnidar when granting the putni that the latter should, among other sums, regularly pay him the amount levied from him under the Act. Of course, if the Act contained any prohibition against such stipulations as the English Property Tax Act (5 and 6 Vict., c. 35, Section 103) does, they would have been void. But in the absence of any such prohibition, there can be no reason for saying that the stipulation is illegal. See Surnomoyee Dabee v. Koomar Purresh Narain Roy I.L.R. 4 Cal. 576.
15. It was contended by the learned vakil for the respondents that the mere fact of the amount claimed on account of chowkidari tax not being consolidated with what is called the fixed putni jama or rent in the kabuliat, but being kept separate, was enough to render it an abwab, and therefore illegal and not recoverable; and in support of this broad proposition the cases of Tilukdhari Singh v. Chultan Mahton I.L.R. 17 Cal. 131) and Radha Prosad Singh v. Balkoiuar Koeri I.L.R. 17 Cal. 726 were relied upon. No doubt there are passages in some of the judgments delivered in these cases which, taken alone, might appear to lend support to the respondent's contention. But upon a careful consideration of those cases, we think they are clearly distinguishable from the present, and do not touch the question now before us (sic) in the case of Chultan Mahton I.L.R. 11 Cal. 175 : I.L.R. 17 Cal. 131, the question referred to the Full Bench was whether certain items, which were admitted by the plaintiff himself to be abwabs, were legally recoverable by reason of their having been paid for a good many years, and both the Full Bench and the Privy Council, before which the case was taken up in appeal, answered that question in the negative. MITTER, J., in his judgment, which was concurred in by the majority of the Full Bench, no doubt says that the only thing recoverable under Regulation V of 1812 'is the amount which is by the contract fixed as the rent payable to the landlord,' But in an earlier part of the judgment he has taken care to premise that the Regulations do not define an abwab; and that the question, whether any particular item is an abwab, is left to be determined by the Court in each case. The Privy Council affirmed the decision of the Full Bench, simply on the ground that the amounts claimed being old abwabs, and not having been consolidated, were not recoverable under Regulation VIII of 1793.
16. In Radha Prosad Singh v. Balkowar Koeri I.L.R. 17 Cal. 726, the question referred to the Full Bench was whether certain portions of the claim denominated sarak, neg and khuruch, were illegal cesses or whether they were recoverable as rent by reason of their having been paid for a long time. The Full Bench answered the first part of the question in the affirmative, and the second in the negative; and the majority of the learned Judges took the same view of Regulation V of 1812 that the Full Bench in Chultan Mahton's case I.L.R. 11 Cal. 175 : I.L.R. 17 Cal. 131 did. The fact of the Full Bench having overruled the decision in the case of Pudmanund Sing v. Baij Nath Singh I.L.R. 15 Cal. 828, which was in some, but not all, respects similar to the present case, no doubt furnishes an argument in favour of the respondent; but that argument is not conclusive, because the majority of the Full Bench base their conclusion that Pudmanund Singh's case I.L.R. 15 Cal. 828 was wrongly decided, not upon the ground that the items there claimed and allowed, were kept separate from the amount styled the rent, and were therefore not recoverable, but upon the ground that they were from their very nature no part of the ground rent, the items being salami and tehwari. And Mr. Justice O'KlNEALY, whose judgment appears to be the one that was concurred in by the majority of the Full Bench, adopts the following as the correct definition of the term abwab:
This term is particularly used to distinguish the taxes imposed subsequently to the establishment of the asul or original standard rent in the nature of addition thereto.' Such a definition, as we have pointed out above, would be wholly inapplicable to the present claim. The learned Chief Justice, it is true, says in his judgment that, according to the decision of the Privy Council in Chultan Mahton's case I.L.R. 11 Cal. 175 : I. L. R. 17 Cal. 131 under the Regulations, nothing could be recovered for the occupation of land, except one sum, which must include everything which was payable for such occupation, arrived at, either by agreement or by some judicial determination between the parties; but this observation must, we think, be taken to be limited in its application to the class of cases which his Lordship and the Judicial Committee were then dealing with, which were cases in which the disputed items were either admittedly, or in their nature, abwabs, and could be legalized only on the ground of being consolidated with the asul or ground rent. That, however, is not the nature of the item now in dispute.
17. These cases do not, therefore, in any way decide the question now before us, which is whether an amount agreed to be paid by a putnidar to the zemindar on account of chowkidari tax is an abwab, though there are no doubt dicta laid down in the judgments of some of the learned Judges which might be construed to bear upon that question. We are not aware of any case in which a claim like the present has been considered illegal and untenable. On the contrary, a claim similar to the one now under consideration, was allowed as legal in the case of Surnomoyee Dabee v. Koomar Purresh Narain Roy I.L.R. 4 Cal. 576 already referred to. That case seems to us to be quite in point and fully supports the view we have taken above.
18. In the above view of the case it becomes unnecessary to consider the effect of Section 179 of the Bengal Tenancy Act, which enacts that 'nothing in this Act shall be deemed to prevent a proprietor or a holder of a permanent tenure in a permanently settled area from granting a permanent mokurari lease on any terms agreed on between him and his tenant.' There is, no doubt, some repugnancy between this section and Section 74 of the Act, but whether, following the principle enunciated by Lord Justice James in Ebbs v. Boulnois L.R. 10 Ch. App. 479 (484), we regard the latter, which is a special provision, as a qualification of the former, which is a general one, or, adopting the rule stated by Keating, J., in Wood v. Riley L.R. 3 C.P. 26 (27), that of two repugnant clauses in a Statute the last must prevail, give effect to the latter, there seems to be good reason for thinking that Section 179 is not controlled by Section 74. But, as we have said above, we need not discuss this point any further.
19. For the foregoing reasons, we think the decision of the Lower Appellate Court that the amount claimed is in the nature of an abwab, and therefore not recoverable, is wrong in law. But as we hold that the claim is one for rent, part of it, namely, that for 1294, must be held to be barred by limitation. Moreover, as we gather from the plaint that there was a previous suit for rent, so much of the amount now claimed as had accrued due at the date of the institution of that suit, must be held to be barred by Section 43 of the Code of Civil Procedure.
20. The result is that the decree of the Lower Appellate Court must be set aside, and the case remanded to that Court to determine how much of the claim is barred for the two reasons indicated above, and to decide the other points raised in the appeal before it.