Francis W. Maclean, C.J.
1. The question which we have to decide in this case is whether the sum of Rs. 38-4 mentioned in the lease executed between the parties, which, I understand, was executed so far back as the year 1860, is to be regarded as an abwab. According to the translation with which we have been furnished, the said sum of Rs. 38-4 represents 'the fixed collection charges blended with rent.' To my mind, each of these cases depends upon its own particular circumstances, and we must look at the contract to see whether the payment which the tenant agrees to make is, in reality, part of the rent as opposed to what is known as an abwab.
2. Let us for a moment consider what is the true construction of the lease itself and whether, upon such construction, the whole sum of Rs. 205 was or was not agreed between the parties as the rent for the land taken by the lessee and the true consideration for the granting of the lease. The lease purports to be a tahut kistbundi in favour of one Mathura Nath Bay, the father (SIC) the plaintiff, for rent payable in respect of the tenure in suit, and describes the jama as follows:
Rs. A.The jama of Howla Siddhessur Nag in thepossession of Jagat Chandra Ghose andothers according to dowl ... ... 166 12Mocurari Akhrajat Samit Khazna ... ... 38 4________Total ... 205 0'_________
3. If the translation placed before us be correct, the rent together with the fixed collection charges blended with rent gives a total of Rs. 205, which, to my mind, represents what was intended to be regarded as the rent, and this view is supported by the details of the kistbundi, which deals not with the kists to be paid in respect of Rs. 166-12 only as rent, but in respect of the entire sum of Rs. 205. The total of Rs. 205 is subsequently spoken of as the rent, and there is a stipulation to realize the aforesaid jama with interest, and not to make any objection to the payment of the said jama and, later on, the jama is described as the aforesaid jama of Rs. 205.' It seems to me that, upon the proper construction of the document, we must take this sum of Rs. 38-4, describe as collection charges, as forming part of the consideration for the lease, and as forming, in fact, part of the rent. If that be so, it is not an abwab and is a part of the rent. In point of fact the predecessors in title of the present defendants raised no objection to the payment of the Rs. 205 as rent. We understand that this amount has been paid for a large number of years without objection by the predecessor of the defendants and as rent. This, however, does not prevent the present respondents from raising the question, though the payment for a long series of years, at any rate, indicates that their predecessors did not regard the claim as an illegal one. The Full Bench case of Radha Prosad Singh v. Balkowar Koeri (1890) I.L.R. 17 Calc. 726, on which so much reliance has been placed by the respondents' vakil, is quite different from the present case. One has only to look to the nature of the payments in that case to appreciate that it has no application to the present circumstances. So far as authority goes, the present case would seem rather to fall within the ruling of this Court in the case of Mahomed Fayez Chowdhry v. Jamoo Gazee (1882) I.L.R. 8 Calc. 730. At any rate I can see nothing in the Full Bench case, which prevents us from taking, in the present case, the view I have indicated. It is said that the case of Mahomed Fayez Chowdhry v. Jamoo Gazee (1882) I.L.R. 8 Calc. 730 has been overruled by the Full Bench decision of Chultan Mahton v. Tilukdari Singh (1885) I.L.R. 11 Calc. 175, but I can find nothing in the latter case to support that contention. For these reasons I think that the decision of the first Court was correct and that that decision must be restored and the order of the Lower Appellate Court reversed with costs.