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Matangini Debi Vs. Mokrura Bibi - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Judge
Reported in(1902)ILR29Cal674
AppellantMatangini Debi
RespondentMokrura Bibi
DispositionAppeal dismissed
Cases ReferredBasanta Kumar Boy Chowdhry v. Promotha Nath Bhuttacharjee
Excerpt:
landlord and tenant - bengal tenancy act (viii of 1885), sections 67, 74, 178 (c) (h), 179--rate of interest--permanent tenure--interpretation of statute. - .....a permanent tenure in a permanently-settled area from granting a permanent mocurari lease on any terms agreed on between him and his tenant. it seems to me, however, that the words 'nothing in this act shall be deemed to prevent' such person 'from granting f a permanent mocurari lease on any terms'' agreed to between him and his tenant, really conclude the matter, though they are inconsistent with the terms of clause (h) of sub-section 3 of section 178 which precede that section.banerjee j.7. i am of the same opinion. the question which we have to determine in this case is, whether section 67 of the bengal tenancy act controls the provisions of section 179 of the same act: in other words, whether the contract for the payment of interest on arrears of rent at a higher rate than 12 per.....
Judgment:

Maclean, C.J.

1. If it had not been for the view entertained by my learned colleague, I should have thought that this was a reasonably clear case. The question submitted to us is whether the plaintiff in this case is entitled to interest at the rate specified in the kabuliat executed by the defendant, or whether Section 67 of the Bengal Tenancy Act controls the provisions of Sections 179 of the same Act. Construing the Act by the ordinary rules of construction applicable to statutory enactments, the case does not to my mind present any real difficulty. Section 67 is general: Section 179 is particular and specific, and by it the Legislature has thought fit to make special provision in relation to permanent tenures in permanently-settled areas.

2. The location of Section 179 is not without some importance in relation to the question we are now discussing; for it comes after Section 67 and after clause (h) of sub-Section 3 of Section 178, and the section says: 'Nothing in this Act'--I pause there for a moment to point out that 'nothing in this Act' must cover the provisions of Section 67--'shall be deemed to prevent the proprietor or holder of a permanent tenure in a permanently-settled area from granting a permanent mocurari lease on any terms that may be agreed on between himself and his tenant.' The language is clear and precise: why are we not to give its ordinary meaning to it? I can find no good reason nor have I heard any valid argument against our so doing. The provisions in the case before us as to payment of interest is, speaking with all respect to the view taken by the learned Judges who decided the case of Basanta Kumar Boy Chowdhry v. Promotha Nath Bhuttacharjee (1898) I. L. R. 26. Calc. 130. undoubtedly a term agreed upon between the landlord and his tenant, and I am quite unable to accept the subtle but unconvincing reasoning as to what the expression 'term' means, as suggested in the last-mentioned case. To my mind if We were to accept the view laid down in that case, and from which view, it is not unimportant to mention, that one of the learned Judges has already resiled, we might just as well strike Section 179 out of the Act.

3. The language of the section is plain and clear, and there is nothing in any other part of the Act to warrant us in qualifying it, or putting a construction upon it which the words, read in their ordinary acceptation, do not bear.

4. The question ought to be answered by saying that the plaintiff is entitled to the interest specified in the kabuliat; that Section 67 does not control the provisions of Section 179; and that the case of Basanta Kumar Boy Choivdhry v. Promotha Nath Bhuttacharjee (1898) I. L. R. 26. Calc. 130. has not been rightly decided.

5. The result is that the appeal must be dismissed with costs, including the costs of this reference.

Prinsep J.

6. The question submitted to the Full Bench in this case is whether, in granting a permanent lease, within the terms of Section 179 of the Bengal Tenancy Act, a condition that interest shall be payable at a higher rate than 12 per cent, per annum, as allowed by Section 67 of that Act, is permissible. It is strange that in Section 178 of the Act it should be declared in clause (h), sub-Section 3, that nothing in any contract made between a landlord and a tenant after the passing of the Act shall affect the provisions of Section 67 relating to interest payable on arrears of rent, and that following on that section, Section 179 should declare 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 mocurari lease on any terms agreed on between him and his tenant. It seems to me, however, that the words 'nothing in this Act shall be deemed to prevent' such person 'from granting f a permanent mocurari lease on any terms'' agreed to between him and his tenant, really conclude the matter, though they are inconsistent with the terms of clause (h) of sub-Section 3 of Section 178 which precede that section.

Banerjee J.

7. I am of the same opinion. The question which we have to determine in this case is, whether Section 67 of the Bengal Tenancy Act controls the provisions of Section 179 of the same Act: in other words, whether the contract for the payment of interest on arrears of rent at a higher rate than 12 per cent, per annum, entered into between a zemindar and a permanent tenure-holder under him, is enforceable by law.

8. The question has been referred to the Full Bench by reason of the conflict between the cases of Atulya Churn Bose v. Tulsi Das Sarkar (1895) 2 C. W. N. 543 and Basanta Kumar Moy Chowdhry v. Promotha Nath Bhuttaeharjee (1898) I. L. R.26 Calc. 130.

9. The determination of the question must depend upon the language of Section 179 of the Bengal Tenancy; Act. That section enacts that 'nothing in this Act shall be deemed to prevent a proprietor or holder of a permanent tenure in a permanently-settled area from granting a permanent mocurari lease on any terms agreed on between him and his tenant.'

10. Now Section 67 of the Act, which provides that 'an arrear of rent shall bear simple interest at the rate of 12 per cent, per annum,' * * * is a provision of the Act, and so also is clause (h) of sub-Section 3 of Section 178, which enacts that 'nothing in any contract made between a landlord and a tenant after the passing of this Act shall affect the provisions of Section 67 relating to interest payable on arrears of rent.' And these are the provisions in the Act which, if they stood alone, would have prevented a proprietor or a holder of a permanent tenure from recovering from his under-tenant interest otherwise than in accordance with the provisions of Section 67. But Section 179 expressly enacts that nothing in the Act shall be deemed to prevent the landlord from granting a permanent mocurari lease on any terms agreed on between him and his tenant. It was, therefore, competent to the parties in this case to enter into a contract stipulating for the payment of interest on arrears of rent at any rate agreed upon between them, even if it was higher than that mentioned in Section 67.

11. It was argued that, if this be the true effect of Section 179, it would render nugatory the provisions of Section 67, and clause (h) of sub-Section 3 of Section 178. But that does not at all follow. The last-mentioned provisions relate to tenants generally; Section 179 relates to a particular class of tenants, namely, the holders of permanent tenures or under-tenures; and it is a general rule of construction that of two clauses, one having a general application and the other applying only to a particular class of cases, the latter shall control the former, and not the reverse. The opposite view would render Section 179 nugatory.

12. It was next contended that, in construing Section 179 of the Bengal Tenancy Act, we must bear in mind the reason for its insertion in the Act, and if we bear that in mind, we shall find reason for holding that it was not intended to control any of the earlier provisions of the Act. And the reason for the enactment of Section 179, according to the argument of the learned Vakeel for the appellant, was this that the Tenancy Act repealed Regulation V of 1812, which authorized proprietors of estates to grant permanent leases, and having repealed that Regulation, the Legislature thought it necessary to re-enact the provisions of the repealed Regulation in Section 179 of the Tenancy Act, which was an amending and consolidating enactment. But although that may account for the existence in the Tenancy Act of some provision authorizing proprietors and holders of permanent tenures to create permanent under-tenures, there was no reason why Section 179 of the Tenancy Act should contain the words 'on any terms agreed on between him and his tenant,' if the Legislature did not intend to authorize the granting of permanent leases on any terms agreed upon.

13. It was lastly argued that, if Section 179 be construed in the way we are construing it, it would render nugatory a salutary provision of the law intended for the protection of tenants--the provision 'namely, that interest upon arrears of rent shall not be allowed at a higher rate than 12 per cent, per annum. I think that it is a sufficient answer to this argument to say that, although the Legislature might have thought this provision necessary to protect certain classes of tenants, chiefly raiyats, it might not have felt that the same necessity existed for the protection of the interest of a different class of tenants, namely, permanent tenure-holders.

Ameer Ali J.

14. The question which has been referred to us is one purely of interpretation.

15. When the case of Basanta Kumar Roy Ghowdhry v. Promotha Nath Bhuttacharjee (1898) I. L. R 26. Calc. 190 came before me and Mr. Justice Pratt, we dealt with it as res Integra, and in construing Section 179 of the Bengal Tenancy Act expressed ourselves with reserve, as will appear from the concluding words of our judgment, which' are as follows:

For these reasons, as at present advised, we think that the conclusion arrived at by the Subordinate Judge in this case is correct, and this appeal must be dismissed with costs.'

16. Having regard to the arguments of learned Counsel for the respondent, speaking for myself, I should have liked to have had-some opportunity of considering the matter further. Although the judgments of my learned colleagues make me feel some doubt regarding the view I then expressed, it seems to me that Section 179 of the Tenancy Act requires to be reconciled with the other provisions of the Tenancy Act. As I have ventured to point out in my judgment in Basanta Kumar Boy Chowdhry: 'It is a well-recognized principle in the Interpretation of Statutes that an Act of the Legislature should be so construed as to give effect, so far as possible, to all its enactments, nor must it be so construed as to allow one provision to stultify another.' I have not heard any argument to-day to induce me to alter that opinion. Section 179 of the Bengal Tenancy Act therefore has to be reconciled with the provisions of clause (h) of the third proviso of Section 178, and I think the only way in which we can reconcile them is by reading Section 179, as suggested by Dr. Bash Behari Grhose: in other words, Section 179 should be read as follows:

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 mocurari lease on any terms agreed on between him and his tenant, so far as they are not in conflict with the provisions of this Act.

Rampini J.

17. I think it is sufficient for me to say that I agree with the views of the majority of the learned Judges constituting this Bench, and I would accordingly answer the first part of the question referred to us in the affirmative, that is to say, I consider that the plaintiff is entitled to recover interest at the rate specified in the kabuliat executed by the defendant, and I would answer the second part of the question in the negative, that is to say, I do not consider that Section 67 of the Bengal Tenancy Act controls the provisions of Section 179 of that Act, but, on the contrary, that Section 179 controls the provisions of Section 67. I also consider that the case of Basanta Kumar Boy Chowdhry v. Promotha Nath Bhuttacharjee (1898) I. L. R.26 Calc. 130. has not been rightly decided.


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