1. This appeal arises out of a suit for recovery of rent in respect of a putni.
2. The property originally belonged to one Salimannessa, and on her death was inherited by her mother Raisannessa Begum, The latter sold it to the plaintiff who brought the suit for rent on the basis of a kabuliyat dated the 10th Assin 1312.
3. The Courts below have concurred in giving a decree to the plaintiff and the defendant has appealed to this Court.
4. Three contentions have been raised on behalf of the appellant. The first is, that the plaintiff cannot recover rent, because Raisannessa did not get her name registered in the Collectorate in respect of the revenue paying property as required by Section 78 of the Land Registration Act. But there was a written contract (kabuliyat) between Raisannessa and the defendant, and Section 81 of the Land Registration Act lays down that nothing contained in Section 78 shall be held to interfere with the conditions of any written contract.
5. It is true that in one case, Iswar Chandra Bera v. Kali Charan Santra 43 Ind. Cas. 726 : 27 C.L.J. 474, a restricted view was taken of the section, limiting it to the persons actually parties to the contract; but it has been held in some other cases that the provisions of the section are applicable to cases similar to the present (see Second Appeal No. 3276 of 1912 decided by Woodroffe and D. Chatterjee, JJ., on the 20th May 1914, reported as Surya Kanta Ghattak v. Ananda Mohan Chatterjee 24 Ind. Cas. 866; see also Second Appeal No. 1624 of 1919 decided on the 4th March 1921 (Probodh Chandra Mitter v. Harish Chandra Naskar 64, Ind. Cas. 58)]. We think, therefore, that this contention must fail.
6. The next contention is that Raisannessa not having applied under Section 15 of the Bengal Tenancy Act, she was precluded by the terms of Section 16 from suing to recover rent, and that the plaintiff, therefore, was also so precluded.
7. Now, Section 16 refers to rent payable to a person as the holder of a tenure and in the case of William Sheriff v. Jogemaya Dasi 27 C. 535 : 14 Ind. Dec. (N.S.)352 it was held by Banerjee and Stevens, JJ., that Section 16 of the Bengal Tenancy Act being a penal provision it should be strictly construed, and that it applies only to a person who claims the rent as a holder of the tenure, and not to a person who claims it by virtue of purchase from the person to whom the rent accrued due, as in the present case. It is no doubt anomalous that although Raisannessa could not sue the defendant for rent, a transferee from her would be so entitled. As pointed, however, by Banerji, J., 'Perhaps that may appear somewhat anomalous, but the opposite view would result in a greater anomaly and indeed in hardship and injustice. For it may so happen that a son succeeding his father may not comply with the requirements of Section 15 of the Bengal Tenancy Act immediately, but may expect to do so at any time within three years, that is, before his claim for rent is barred, and then he may die suddenly; and then if, Section 16 is to apply to the claim of his heir or successor for rent which accrued due during his lifetime, that claim would be irrecoverably lost, as his heir or successor could not possibly satisfy the requirements of Section 15 so far as he was concerned.' We think we may follow the said decision, and we accordingly hold that this contention must also fail.
8. The last contention is that there should be an apportionment of rent in respect of items Nos. 11 and 12 of the patta.
9. Now, the kabuliyat stated: 'You shall never be competent to enhance the said jama on any ground; nor shall we get abatement of the jama on the ground of diluvion or on any other ground.' The learned Judge was of opinion that the words 'on any other ground' contained a clear stipulation that the lessees shall not be entitled to have deduction of the rent on any account. It has been held, however, in some cases that these words would be taken as referring to cases of like nature as diluvion. [See the cases of Uma Sunkur Sirkar v. Tarini Chunder Singh 9 C. 571 : 11 C.L.R. 366 : 4 Ind. Dec. (N.S.) 1028, Watson & Co. v. Nistarini Gupta 10 C. 544 : 5 Ind. Dec. (N.S.) 364].
10. The principle no doubt is one in consonance with natural justice and equity that a person who has been deprived of possession of part of the demised premises should not be held liable for the whole rent for ever and this principle applies with greater force where the tenant is deprived of any portion of the leasehold property by any act on the part of the landlord himself.
11. But there are certain circumstances in the present case which ought to be taken into consideration. The first is, that the patta was executed as a settlement of family disputes, and, secondly, the 11th and 12th items in the schedule are described as Mahal Diara which indicates that they are temporary settled estates. The learned Subordinate Judge says: 'Probably they got some advantages from other properties comprised in the patni, and so they did not think it worth their while to keep any provision for abatement of rent in case of Salima's not taking fresh settlement of the Diara Mahal; had not that been the intention of the parties, patni lease of temporary settled estates would not have been taken, and the defendants would not have bound themselves to pay the entire jama for ever.' But it does not appear what the relative income or advantages of the other properties, and items Nos. 11 and 12 are. The Court of Appeal below has not gone into this matter fully nor has it considered the circumstances which led to the inclusion of these properties in the lease without there being any provision that the lessor would take any re-settlement from Government.
12. In these circumstances, we think that the case should go back to the lower Appellate Court in order that it may enquire into the matter, and consider all the surrounding circumstances and come to a decision whether it was intended that the rent should be paid even though the lessor did not apply to Government for renewal of the temporary settlement.
13. The first two questions we have already disposed of. The case is remanded only on the last point.
14. Costs to abide the result.