1. The Maharaja of Burdwan held two villages Sundarpore and Char Bajramari in lakhiraj right. Before 1865 he settled 8 annas share of these villages in mukurari mourasi right with Bhairab Babu and the remaining 8 annas share with Amarchand Babu in the same right. Thus two mukurari mourasi tenures, each comprising an undivided 8 annas share in the lands of these two villages, were created. For the sake of convenience we will designate these two tenures as Mudafat Bhairab and Mudafat Amar Chand. The suc-cessors-in-interest of Bhairab Babu and Amar Chand Babu in their turn granted two dar-mukarari mourasi leases to Nobo Krishna Mukherjee by two separate pottas executed in the year 1865. The annual rent reserved by each potta was Rs. 2050. The pottas executed by Bhairab Babu's successors-in-interest is on the record (Ex. 1 (a) 1) but the other potta has not been produced. It is admitted by the parties that the two dar-mukarari mourasi pottas were on the same terms. The tenant agreed not to claim abatement of rent on account of diluvion and the landlord agreed not to claim increase of rent on account of accretion. In 1866 Nobokrishna Mukherjee instituted a suit against his landlords who were Bhairab Babu's successors for certain reliefs. That suit ended in a compromise on 2nd June 1867. The terms of compromise were embodied in a rajinamah (Ex. 2) executed by the tenant and a safinamah executed by the landlords (Ex. 2a). As a result of the compromise the annual rent was reduced from Rs. 2050 to Rs. 1700. There is, as in the original potta, an express stipulation that the rent would not be increased or reduced on account of alluvion and diluvion. The rent of the other darmukurari tenure which the successors-in-interest of Amar Chand Babu had granted, however, remained unchanged.
2. In 1897 Nimchand Babu, Hazari Mull Babu and Mohanlal Babu, who were descendants and successors-in-interest of Amar Chand Babu purchased one-half share of the tenure Mudafat Bhairab. They thus became owners of Mudafat Amar Chand and of one half share of Mudafat Bhairab. Thus they acquired an undivided twelve annas share in mukarari mourasi right in the lands of village Sundarpore and Char Bajramari. The defendants' father, Gopal Chandra Banerjee, purchased on 2nd April 1899, both the dar mukurari tenures which belonged to Nobo Krishna Mukherjee. He accordingly became the tenant of Nimchand Babu, Hazari Mull Babu and Mohanlal Babu and some of the descendants of Bhairab Babu in respect of dar mukurari held under Mudafat Bhairab, and the tenant under Nim Chand Babu, Hazarimull Babu and Mohanlal Babu in respect of the other darmukarari tenure. Nim Chand Babu, Hazarimull Babu and Mohanlal Babu thus became entitled to realise from Gopal Chandra Banerjee the whole rent of the dar mukarari held under Mudafat Amar Chand (Rs. 2050) and half of the rent of the darmukarari tenure held under Mudafat Bhairab (Rs. 850). The total was Rs. 2900. There was thereafter a kharij in the year 1900 and on 24th August 1900, a kharij dakhili potta was granted by Nimchand Babu, Hazarimull Babu and Mohanlal Babu in his favour. Forthe 12 annas undivided share which Nimchand Babu, Hazarimull Babu and, Mohanlal Babu then had in the lands in the said two villages in mukurari mourasi right, Gopal Chandra Banerjee agreed to pay an annual rent of Rs. 2900. Exhibit 1 is the kharij dakhili potta. There is also a stipulation in this potta that there would be no increase or reduction of rent on account of alluvion or diluvion. Presumably the other owners of the mokarari mudafat Bhairab agreed to the kharij. From the time of this kharij dakhili potta there were thus two darmukurari tenures-one comprising an undivided four annas share of the lands of the said two villages held at an annual rent of Rs. 850 under some of the descendants of Bhairab Babu, and the other comprising an undivided twelve annas share in those lands held at an annual rent of Rs. 2900 under Nimchand Babu, Hazarimull Babu and Mohanlal Babu, the descendants of Amur Chand Babu. Those two darmukarari tenures have been described in schedules kha and ka of the plaint and for brevity's sake will be designated respectively as the 4 annas darmukarari and 12 annas darmukarari tenure. At a partition effected between the sons of Nimchand Babu, Hazarimull Babu and Mohanlal Babu the landlords' interest of the 12 annas darmukarari tenure was allotted to the plaintiff's share, he being the son of Nimchand Babu. The plaintiff also acquired by purchase on 8th July 1931, the landlord's interest of the 4 annas darmukarari tenure. On 15th April 1940, he filed the suit in which this appeal arises. Therein he claimed arrears of rent and cesses for the years 1343 to 1346 B.S. in respect of the two darmukarari tenures described in Schedules. ka and kha at the rates of Rs. 2900 and Rs. 850 per year respectively together with interest at the rate of twelve per cent, per annum calculated on monthly kists in accordance with the stipulations in the darmukarari leases and the Kharij Dakhili potta of 1900.
3. The defendants stated in their written statement that a good portion of the two villages had been engulfed by the river Hooghly and were in the river bed in the years in suit. They accordingly pleaded that they were entitled to proportionate reduction of rent. To determine the extent of the diluvion they prayed for a local investigation. The learned Subordinate Judge has refused their prayer for local investigation, holding that on the terms of their engagement with the landlords they are not entitled to claim reduction of rent on account of diluvion. The second defence that was taken was that the plaintiffs could not claim interest at a higher rate than 6 1/2 per cent, calculated quarterly. The learned Subordinate Judge has given the plaintiffs interest at the rate of 12 per cent, per annum up to Sraban 1345 B.S. (=August 1938) and thereafter at the rate of 6 1/4 per cent, per annum. He has omitted to grant post-decretal interest. In this appeal which has been preferred by the receiver of the defendants' properties he contends (1) that the defendants are entitled to claim reduction of rent on account of diluvion notwithstanding the stipulations in the pottas and (2) that the plaintiff cannot claim interest at more than 6 1/4 per cent, for the whole period and that the calculation of interest must be on the basis not of monthly kists, but interest has to be calculated on the arrears due at the end of each quarter of the year. Both these points have been argued before us with great ability by the advocates on both sides and we are indebted to them for the assistance they have given us. The first point has been urged by Mr. Gupta appearing for the appellants in the following manner: (1) that every tenant of agricultural land is entitled to proportionate reduction of rent on account of diluvion by reason of the provisions of Section 52, Ben. Ten. Act. He has a statutory right after the passing of the Bengal Tenancy Act which cannot be taken away from him by contract except only in those cases which fall within Section 179, Ben. Ten. Act; (2) that Section 179, Ben. Ten. Act, is not applicable to a permanent tenancy appertaining to a permanently settled estate where such tenancy had been created before the passing of the Bengal Tenancy Act; (3) that accordingly the defendants are entitled to get reduction of rent on account of diluvion, notwithstanding the contract between the landlord and tenant that there would be no reduction of rent on account of diluvion as both the tenures had been created before 1885 when the Bengal Tenancy Act was passed.
4. In our judgment the first point raised by him is academical so far as the 12 anna darmukarari tenure is concerned. In our judgment that tenure was created in 1900 by what has been called the kharij dakhili potta (Ex. 1). The effect of Ex. 1 was not merely to split up the darmukarari tenure under Mudafat Bhairab into two parts and to amalgamate one such part with the darmukarari tenure held under mudafat Amarchand. No doubt the rent reserved by Ex. 1 equals in amount half the rent payable for the first darmukurari tenure and the rent payable for the second darmukarari, but the terms and conditions of the kharij dakhili potta, Ex. 1 are in material particulars different from the terms and conditions of Ex. 1 (a), the darmukarari potta of 1865. As the 12 annas darmukarari tenure described in Schedule ka of the plaint was created after the passing of the Bengal Tenancy Act, Section 179 of that Act is applicable in any view of the matter and the contract as embodied in Ex. 1, which is that the tenant would not be entitled to claim reduction of rent on account of diluvion, must be given effect to. As, however, the other darmukarari tenure must be taken to have been created before the Bengal Act, as it continued to be governed by the terms expressed in Ex. 1 (a), the questions so raised by Mr. Gupta must be decided by us. The substantive part of Section 179-para. 1-is in the nature of a proviso to the other provisions of the Act dealing with the rights of landlords and tenants. It is thus a proviso to Sub- Section (1) of Section 52. That Sub-section enacts that every tenant, whatever may be the class to which he belongs-tenure-holder, under-tenure-holder, settled raiyat, occupancy raiyat, non-occupancy raiyat or under-raiyat would be entitled to reduction of rent on account of loss of or deficiency in area of his tenanc and the landlord of every class of tenant would be entitled to get additional rent for gain to or increase of area of the tenancy, and para. 1 of Section 179 enacts that those provisions are not to apply to permanent mukurari tenancies situated in a permanently settled area where there is a contract between the landlord and the tenant of such a tenure in modification of those provisions. The. language of that paragraph of Section 179 suggests that the Legislature was contemplating the cases of permanent mukarari leases in such an area to be granted after the Bengal Tenancy Act. It is, in our opinion, in this sense that the observations made in some decisions of this Court to the effect that that paragraph of Section 179 applies to permanent mukurari leases granted after the passing of the Bengal Tenancy Act roust be understood. We will notice some of these decisions hereafter.
5. It was the common law of the country that every tenant of agricultural land was entitled to abatement of rent on account of diluvion. Section 18 of Act 10 of 1859 and Section 19 of Act 8 of 1869 gave it statutory recognition in the case of occupancy raiyats with the result that other classes of tenants still enjoyed the privilege under the common law. Those classes of tenants and even occupancy raiyats could contract themselves out of that right, before the passing of the Bengal Tenancy Act, for neither Act 10 of 1859 nor Act 8 of 1869 contain any provision which made a contract, by which the tenant agreed not to claim abatement of rent on the ground of diluvion, illegal-: Afsuroodeen v. Shorooshee Bala Dabie J Marsh. 558;Enayutoolah v. Elaheebuksh (1864) 1864 W. R. Act X . Rule. 42 and Arun Chandra v. Shamsul Huq ('31) 18 A.I.R. 1931 Cal. 537. A tenant of a permanent mukurari tenure, the lands whereof are within a permanently settled estate, could therefore enter into a contract with his landlord before the pasing of the Bengal Tenancy Act agreeing not to claim abatement of rent on the ground of diluvion, and on the basis of such a contract the landlord would have the right to resist the tenant's claim to abatement of rent on that ground if such a claim had been preferred before the Bengal Tenancy Act was passed. The question is whether such a valuable right of the landlord resting on a pre Bengal Tenancy Act contract has been taken away by the Bengal Tenancy Act. It was a vested right, and according to well established principles of construction of statutes it can only be taken away either expressly or by necessary implication.
6. Sub-section 1 (b) of Section 52, Ben. Ten. Act, has recognised and given definite shape to the common law right of every tenant to claim abatement of rent on account of diluvion. It has also provided for the case where reduction of rent can be claimed by the tenant where the area of land in his enjoyment is found by measurement to be less than the area originally let out. In this respect it is wider in scope than the provisions of Section 18 of Act 10 of 1859 and Section 19 of Act 8 of 1869. The Bengal Tenancy Act has also introduced a provision, Section 178, the like of which was not in those two Acts, which has made certain classes of contract between landlord and tenant illegal. That section is divided into three parts. Sub-section (1) deals with contracts between landlord and tenant made both before or after the passing of the Bengal Tenancy Act. Sub-section (2) deals with only one class of contracts made between 15th July 1880and the passing of the Bengal Tenancy Act. That subection is not material for this Sase. Sub-section (3) deals with contracts made after the passing of the Bengal Tenancy Act. If the provisions of Sub-sections (1) and (3) of that section be only taken into consideration and nothing else, the conclusion would follow that the agreement contained in pre Bengal Tenancy Act contracts between the landlord and all classes of tenants, in respect of any land, be the land within a permanently settled estate or not, by which the tenant agreed not to claim abatement of rent on account of diluvion, as also such an agreement contained in post Bengal Tenancy Act contracts between the landlord and the tenant of every class in respect of every class of land whether within a permanently settled estate or not, except raiyats, would be valid and enforceable after the passing of the Bengal Tenancy Act, but the decisions do not support this broad conclusion.
7. In Khetramani Dassi v. Jiban Krishna ('21) 8 A.I.R. 1921 P.C. 33 there was such an agreement between the landlord and the tenant of a permanent tenure covering lands in a non-permanently settled estate in a contract entered into after the passing of the Bengal Tenancy Act. That agreement was held to be invalid although Section 178, Sub- Section (3), Clause (f) (=Clause (e) as it now stands) refers only to raiyats and not tenure holders. In the High Court, Woodroffe and Chaudhury JJ. held that notwithstanding the fact that Clause (f) of Sub- Section (3) (=Clause (e) ) of Section 178 made such a post Bengal Tenancy Act agreement invalid only in respect of a raiyat, Section 52 was not subject to agreement except as regards one particular class of tenants in permanently settled areas mentioned in Section 179. That view was accepted by the Privy Council and the claim of the tenant to abatement of rent, in spite of his contract, was allowed on the ground that though he was a permanent tenure holder his tenure comprised lands in a non-permanently settled area. The decision of the Judicial Committee has affected the decision in Secy, of State v. Kamal Krishna ('18) 22 C.W.N. 56n if in that case the contract was after the passing of the Bengal Tenancy Act. Khetramani Dassi v. Jiban Krishna ('21) 8 A.I.R. 1921 P.C. 33 is a direct authority for the proposition that an agreement that the tenant would not claim abatement of rent on grounds which fall within Section 52, Sub- Section (1), Clause (b) contained in a contract made after the Bengal Tenancy Act is invalid except in one class of cases, namely where the tenancy is a permanent mukurari tenure and comprises lands in a permanently settled area. In that case the effect of such an agreement in a pre Bengal Tenancy Act contract was not under consideration. The learned advocate for the appellants, however, asks us to consider the implications of that judgment in relation to a pre Bengal Tenancy Act contract. According to him those implications are: (1) that the absence of a Clause in Sub- Section (1) of Section 178, to the effect that nothing in a pre Bengal Tenancy Act contract shall take away the right of a tenant to apply for reduction of rent under Section 52, is not material from the point of view of the tenant; (ii) that after the Bengal Tenancy Act and from the date of its passing the tenant had a statutory right to claim abatement of rent, where the case fulfils the requirements of Section 52, and (iii) that that statutory right is not subject to contract that is to say (a) if the contract be made after the passing of the Bengal Tenancy Act, it is void ab initio unless the case comes within Section 179, and (b), if made before the passing of the Act, it ceases to be binding from the moment the Bengal Tenancy Act came into force.
8. The second proposition and the first part of the third proposition (No. (iii) (a)) are sound. The first proposition would follow from the manner in which the contention of the landlord based on Section 178 Sub- Section 3 Clause (f), as it then stood (=Clause (e) of the Act as in force now), and on the principle of expressio unius exclusio alterius was negatived, but in our judgment what we have enumerated as proposition No. (iii) (b) does not necessarily follow from either the decision of this Court or of the Privy Council in that case. In that case a post Bengal Tenancy Act contract was under consideration,. a contract which was admittedly within the purview of the Bengal Tenancy Act, and the observations of the Judges of this Court, which met with tacit approval of their Lordships of the Judicial Committee, must be taken in reference to that fact. The intention of the Legislature that can be gathered from Section 52 and 179 is, in our judgment, as follows: The Legislature embodied the common law of the land, so far as it related to diluvion in Section 52 Sub-section (1) (b). In that sense what was common law before became statutory law. It further stated that the rights so defined in that section are not to be curtailed or modified by any contract between the landlord and tenant except in one class of cases precisely defined in Section 179. In that section (S. 179) the Legislature contemplated futurity. In a series of cases decided by this Court it has been held that Section 179 contemplates contracts made after the passing of the Bengal Tenancy Act; Afiladdi v. Satish Chandra ('19) 6 A.I.R. 1919 Cal. 722;Jogesh Chandra v. Asaba Khatun : AIR1927Cal41 ; Chundi Churn v. Rohini Kumar : AIR1934Cal119 Chundi Churn v. Abbas Ali : AIR1934Cal213 . That also is the basis of the decision in Chundi Churn v. Abbas Ali : AIR1934Cal213 . So a contract, if made after the passing of the Bengal Tenancy Act between the landlord and any class of tenant of agricultural land in a permanently settled area other than a mourasi mukurari tenant, and a contract between the landlord and every class of tenant of agricultural land in a non-permanently settled area, is to be regarded as illegal if such a contract precluded the tenant from claiming abatement of rent on any ground mentioned in Section 52 of the Act. But contracts of that.nature between landlords and tenants which were in existence at the time of the passing of the Bengal Tenancy Act are outside the purview of the Sengal Tenancy Act, and would not be affected by Section 52 of that Act. If the Legislature had intended otherwise, it would have expressed its intention by adding a Clause in Sub-section (1) of Section 178 similar to Clause (e) of Sub-section (3).
9. The view that pre Bengal Tenancy Act contracts between landlord and tenant are outside the purview of the Bengal Tenancy Act is the view which Prihsep J. expressed in Tejendra Narain v. Bakai Singh ('95) 22 Cal. 658. That view apparently had the concurrence of Ghose and Rampini JJ. for if they had held the opinion that the contract in that case (which was made in 1881) was within the purview of the Bengal Tenancy Act, Section 29, Clause (b) would have been a complete answer to the landlords' claim for rent at the rate of Rs. 4 per bigha. It is a Rule of construction that the Legislature is to be presumed not to take away vested rights, and that presumption would yield only if a clear intention to the contrary is expressed or can be gathered by necessary implication from its enactments. There is no express provision and we do not find any provision in the Bengal Tenancy Act which by necessary implication has taken away the rights of the landlord under a pre Bengal Tenancy Act contract to realise the full rent in spite of diluvion. Paragraph 1 of Section 179, Ben. Ten. Act has not done it. That part of the section, as we have already noticed, contemplates agreements between landlord and tenant made after the passing of the Bengal Tenancy Act and so the only necessary implication of that part of that section is that an agreement, by which the tenant abandons his right to claim abatement of rent on the ground of diluvion of the lands of his tenancy, if made after the passing of the Bengal Tenancy Act, between a landlord and a learnt, other than a mourasi mukurari tenant, is void, as also such an agreement between a landlord and mourasi mukurari tenant, where the land is not within permanently settled area. Though the case was not argued as before us and no express decision was given, the effect of the decision in Tejendra Narain v. Bakai Singh ('95) 22 Cal. 658 was that an agreement of the year 1884 (pre Bengal Tenancy Act agreement) of the nature which we have before us is valid and enforceable after the passing of the Bengal Tenancy Act. In that case the tenant got no abatement for diluvion. The decision in Tejendra Narain v. Bakai Singh ('95) 22 Cal. 658 also supports the view we are taking. We accordingly hold that the defendants are precluded by contract from claiming reduction of rent on account of diluvion.
10. For considering the question about interest, the amandments of three sections of the Bengal Tenancy Act are material. They are Section 67, 178 and 179. Section 67 of the Act as originally framed enacted that arrears of rent shall bear simple interest at the rate of 12 per cent, per annum from the end of the quarter of the agricultural year in which the instalment fell due. By the amendment 9f 1908, the rate was increased to 12J percent. and by a further amendment in 1938 (Act 6 of 1938 B. C.) the rate was reduced to 6 1/4 per cent. Clause (1) was added to Sub-section (1) of Section 178 by an amendment in the year 1928. In the original Act a similar provision was under Sub-section (3) of that section and the amendment of 1928 transposed it from Sub-section (3) to Sub-section (1). The result was that stipulation to pay interest at a higher rate than that provided for in Section 67 contained in leases executed before the passing of the Bengal Act became unenforceable after that amendment in those cases where that section was applicable. Section 179 was also amended in 1928 by the addition of the proviso. Though the four annas darmukurari tenure is governed by a contract made before the passing of the Bengal Tenancy Act, and the twelve annas darmukurari tenure is governed by a contract made after the Bengal Tenancy Act had come into force, the question relating to interest in respect of both the tenancies involved in the appeal would, by reason of the said amendment of Section 178, depend upon the same considerations. The kabuliats of both the darmukurari tenures provide for payment of rent in monthly kists and both contain the stipulation for payment of interest on the arrears at the rate of 12 per cent, per annum from the first day of the following month. The first question is whether the contract for payment of interest in the aforesaid manner affects the provisions of Section 67, Ben. Ten. Act. If it does the stipulation about interest contained in the kabuliat Ex. 1 (a) became illegal from 1928, the date when Section 178, Sub-section (1) was amended by the addition of Clause (1), and the stipulation about interest in Ex. (1) was void from the beginning. If however the stipulations about interest contained in Exs. 1 and 1 (a) do not affect Section 67, the plaintiff would be entitled to claim interest on the monthly arrears from the beginning of the succeeding month and not from the end of the quarter of the agricultural year in which the instalment of rent fell due, and if the proviso to Section 179 is inapplicable he would also be entitled to claim interest at 12 per cent, for the whole period up to the date of the decree. The question as to whether the contract about interest contained in those two kabuliats affects Section 67 depends upon the precise effect of the decision of the Judicial Committee in Tejendra Narain v. Bakai Singh ('95) 22 Cal. 658Tejendra Narain v. Bakai Singh ('95) 22 Cal. 658. The observations made by Lord Macnaghten at p. 134 of the report 'that the provisions of Section 67 only apply to cases where rent is payable quarterly' have raised apparent, difficulties in the path of the tenant, which the decisions of this Court have sought to resolve in different manners at different times. In that case the tenant had been paying interest at 12 per cent, per annum on monthly arrears from a very long time, long before the passing of the Bengal Tenancy Act. In the suit the landlord claimed interest at 12 per cent. The rate therefore did not exceed what was then mentioned in Section 67. But he claimed interest on monthly kists. The tenant contended that after passing of the Bengal Tenancy Act the landlord was only entitled to calculate interest not from the first day of the succeeding month but from the end of the quarter of the agricultural year in which the instalments fell due. The High Court upheld the tenant's contention.
11. The Judicial Committee of the Privy Council held that the landlord was entitled to calculate interest monthly. In Tejendra Narain v. Bakai Singh ('95) 22 Cal. 658 and Chundi Churn v. Rohini Kumar : AIR1934Cal119 tthe Judges of this Court dissected Section 67 into two parts and observed that the Judicial Committee had interpreted only the second part of the section. In their view the landlord could not claim interest at a higher rate than that mentioned in Section 67 on the basis of a stipulation if that stipulation was hit by Section 178. The result of those decisions is that if there was a contract to pay rent not in quarterly instalments but in other instalments-say monthly and to pay interest at the rate of say 24 per cent, per annum and the contract is affected by Section 178, Sub-section (1) Clause (1), the rate only would be cut down to what is mentioned in Section 67, but interes would still have to be calculated not quarterly but monthly. This conclusion would go against the plain language of Section 178, Sub-section (1), Clause (1) which destroys the whole contract concerning interest. We accordingly prefer to follow the interpretation of Lord Macnaghten's judgment as given by Jenkins C. J. and Ray J. in Jasimuddin v. Beni Madhav ('13) 17 C.W.N. 881. In Hemanta Kumari v. Jagadindra 21 I.A.131 (P.C.) the obligation on which the payment of interest rested was a pre-Bengal Tenancy Act one, and so was unaffected by Section 178 as it then stood. It was therefore upheld by the Judicial Committee of the Privy Council. Our view is that if a contract to pay interest in terms which are inconsistent with the provisions of Section 67 is affected by Section 178, Sub-section (1), Clause (1) the whole contract, the rate and the term relating to the calculation of interest would be void, and the landlord would be entitled to claim interest only in terms of Section 67. But there is great force in the observations of the learned Judges in Saheb Mean v. Lalit Mohan : AIR1939Cal582 that the substantive part of Section 179 (that is to say para. 1 of that section) creates an exception to Section 178, Sub-section (1), Clause (1) also. The result would be that a contract to pay interest in terms which impose a burden on the tenant greater than that provided for in Section 67 would still be valid in spile of Section 178, Sub-section (1) Clause (1), if the contract had been made after the passing of the Bengal Tenancy Act. To what extent such a post-Bengal Tenancy Act contract would be affected by the proviso to Section 179, is however, a different question. As the substantive part of Section 179 does not relate to pre Bengal Tenancy Act contracts, pre Bengal Tenancy Act contracts relating to interest would not be saved by that section, but would be hit by Section 178, Sub-section (1), Clause (1), as there is no other provi-sion of the Bengal Tenancy Act which saves them. The whole of such contracts would go, the rate of interest and terms relating to the mode of calculation of interest-and the landlord would be entitled to claim interest only in terms of Section 67.
12. For the reasons given above we agree with the conclusion arrived at in Chundi Churn v. Rohini Kumar : AIR1934Cal119 to this extent only, namely, that the landlord in that case was only entitled to claim interest at the rate mentioned in Section 67, but dissent from the other conclusion that he was entitled to calculate interest monthly. We also agree with the view expressed in Chundi Churn v. Abbas Ali : AIR1934Cal213 that the proviso to Section 179 operates only on contracts made after the passing of the Bengal Tenancy Act, as the Rule of construction formulated there to support that view appears to us to have been rightly applied. The conclusions arrived at in that case may be justified on the ground that Clause (1) of Sub-section (1) of Section 178, so far as it relates to pre Bengal Tenancy Act contracts, was not applicable in that case on the ground that the cause of action of that suit arose before that Clause was added by the amendment of 1928, the claim for arrears of rent being up to the year 1335 B.S. (=April 1928). In the case before us no such consideration arises. That Clause applies and the stipulation about interest in Ex. 1 (a), which was executed in 1865, became illegal and so interest only in terms of Section 67 can be recovered in respect of the four anna durmukarari tenure. The stipulation about interest contained in Ex. 1, which was executed in 1900 is not affected by Clause (1) of Section 178, Sub-section (1), but by the proviso to Section 179. The scope of that proviso has therelore to be determined.
13. The proviso says that interest cannot be recovered at a rate higher than that mentioned in Section 67. It therefore touches the rate only if it is higher than that mentioned in Section 67, but does not touch the agreement relating to the mode of calculating interest. The second part of Section 67 is not imported into the proviso. There is thus an anomaly, namely, that whereas in pre-Bengal Tenancy Act contracts both the rate of interest and the mode of calculation of interest as agreed upon by the parties are affected, in post-Bengal Tenancy Act contract only the first is affected but not the second. This amomaly results from the words used by the Legisla ture in the proviso and so cannot be avoided. The other point depends upon the meaning of the word 'recover'. It means 'secure by legal process.' The date when the arrears fell due is therefore of no importance. The landlord can get a decree for interest at that rate which was mentioned in Section 67, Bengal Tenancy Act, at the time when the decree is to be passed. This view which commends itself to us is supported by the decision in Taraprasanna v. Motaher Ali : AIR1933Cal703 . The result of our conclusions on this part of the case is that the plaintiff is entitled to interest at 6 1/2 per cent, per annum in respect of the arrears of rent of both the tenures. With regard to the four anna dar mukarrari interest is to be calculated at the end of each quarter of the agricultural year in which the instalment falls due in terms of the last mentioned in Ex. 1 (a), but with regard to the 12 anna darmukurari tenure interest would have to be calculated monthly. These conclusions would have reduced the amount of the decree passed by the lower Court, but for the reasons mentioned in the next following paragraphs we do not reduce the same. As the merits would not be affected by our conclusions we do not consider it necessary to refer the questions relating to interest to a Full Bench, though we have dissented from some decisions of Division Benches.
14. The learned Subordinate Judge has not given any post decretal interest. If interest at the usual court rate be given from the date of the decree of the learned Subordinate Judge, the amount calculated up to date would exceed the amount by which the decree of the learned Judge would be reduced as a result of our conclusions mentioned in the last paragraph. The plaintiff has not filed an appeal or a memorandum of cross-objections against that part of the decree of the learned Subordinate Judge but tries to maintain the decree as made by urging that he ought to be given interest up to the date of our decree. The question is whether it is competent to us to give him that relief. It would depend upon the question as to whether we would apply Order 41, Rule. 33, Civil P.C. Here the decree as made by the learned Subordinate Judge will have to be modified in the appellant's favour as a result of our conclusions. The first condition laid down in Saheb Mean v. Lalit Mohan : AIR1939Cal582 has thus been fulfilled. The further question therefore is whether further interference is required to adjust the rights of parties in accordance with justice, equity and good conscience. This further question must depend upon the facts of each case. No hard and fast Rule can be laid down. So far as the facts of this case are concerned we think that such interference is necessary. After the decree had been passed by the learned Subordinate Judge the appellant applied for stay of execution of that decree. His prayer was allowed on the condition that he would furnish adequate security to the satisfaction of the lower Court for carrying out the final decree of this Court. A security bond was executed, but the terms of the bond did not carry out the Order of this Court. The learned Subordinate Judge in approving the bond had committed a sad mistake. By the bond the surety made himself liable only if the decree of the lower Court was affirmed. It should have been a bond to carry out the final decree of this Court. If we reduce the amount of the decree by a single rupee, that bond would probably be ineffective and the appellant would naturally avoid giving at this stage adequate security. This Court must on accepted principles relieve a party for the prejudicial consequences which would result from mistakes committed by the Court. The plaintiff is also justly entitled to post decretal interest. In these circumstances we invoke our powers under Order 41, Rule. 33 and maintain the amount mentioned in the decree of the learned Subordinate Judge. The result is that the decree of the learned Subordinate Judge is affirmed. The appellant must pay half the costs of this Court to the plaintiff-respondent.