K.C. Das Gupta, J.
1. The principal question in this appeal is whether the tenancy for which a kabuliat was executed in 13-7-1920, remained after the amendment of Section 191, Bengal Tenancy Act in 1928 a raiyati at a fixed rent or fixed rate of rent. The kabuliat was executed by Nara Mandal, predecessor-in-interest of the present appellant, in favour of the predecessor-in-interest of the plaintiffs. There was a clause therein that if there was a sale of the land comprised in the kabuliat or any part thereof, the lessor would be entitled to a quarter of the consideration money and if that money was not paid by the purchaser, the lessor would be entitled to refuse to recognise the purchaser as a tenant and also to take khas possession of the land without notice. Nara Mandal sold the disputed land to defendant 8 on 13-9-1941 for a sum of Rs. 1500/-. It appears that thereafter the plaintiffs' father instituted a suit for his share of the chouth and the suit was decreed on contest. On 14-12-1943 defendant 8 sold the disputed plots to defendants 1 to 6 for Rs. 6000/-. Shortly thereafter on 24-6-1944, these defendants 1 to 6 in their turn sold these lands to defendant 7 for Rs. 6500. The plaintiffs claim Rs. 1300 as one-fourth of the consideration money for these two transactions with interest at 10 per cent. per annum.
2. The defence was that the status of the tenant was that of an occupancy raiyat and not a raiyat at fixed rent and the necessary consequence of that was that the term as regards payment of chouth was not enforceable in view of the provisions of Section 178(1)(g), Bengal Tenancy Act. It was further contended that in any case defendants 1 to 6 would be liable for the chouth with respect to the sale in December 1943, and defendant 7 would be liable for the chouth only as regards the sale of June 1944.
3. The trial Court rejected the defence contention and held that the term as regards chouth was enforceable. He decreed the suit on contest against defendant 7 and ex parte against the other defendants for a sum of Rs. 1171/14 but ordered that the plaintiffs would recover this sum as chouth from defendant 7 and get corresponding costs from him. There was no order as regards recovery of any sum from defendants 1 to 6.
4. On appeal the learned District Judge agreed with the trial Court that the term as regards chouth was enforceable, his conclusion being that the status of the tenant was that of a raiyat at fixed rate of rent and not an occupancy raiyat. In modification of the decree passed by the trial Court, however, he directed defendants 1 to 6 to deposit in Court Rs. 562/8 and defendant 7, Rs. 609/6 within the period fixed in the judgment and further ordered that if defendants 1 to 6 failed to deposit this amount within the period fixed defendant 7 will have to deposit this amount within 30 days thereafter. In default of these payments it was ordered that the landlord will be entitled to khas possession.
5. The main contention raised by Mr. Ghose on behalf of the appellant is that in view of the provisions of Section 191, Bengal Tenancy Act after the amendment in 1928, the status of the tenant is now that of an occupancy raiyat and no longer that of a raiyat at a fixed rate of rent. Looking at the Kabuliat itself I have no hesitation in holding that the tenancy as then created was that of a raiyat at a fixed rate of rent. The position, however, is that this was in a temporarily settled estate. Section 191 after the amendment in 1928 is in these words:
'Where the area comprised in a tenure or holding is situate in an estate and subject to a subsisting permanent settlement and when,
(a) land-revenue is for the first time made payable in respect of the land, or
(b) land-revenue having been previously payable in respect of it, a fresh settlement of land-revenue is made.
Nothing in this Act or in any lease or contract made after the passing of the Bengal Tenancy Act, 1885, shall entitle any tenant to hold his tenancy free of rent or at a particular rent, unless in the case of a fresh settlement made under Clause (b) the right so to hold beyond the term of the previous settlement by a Revenue authority empowered by the Provincial Government to make definitely or confirm settlements and the Revenue officer may notwithstanding anything in the contract between the parties, by order, on the application of the landlord or of the tenant, or of his own motion, fix a fair and equitable rent for all grades of tenants in accordance with the principles laid down in Sections 6, 7, 8, 9, 27 to 36, 38, 39, 43, 50 to 52 and 180'.
Provided that, notwithstanding anything contained in Sub-section (3) of Section 7 he may divide the minimum profit of ten per centum provided for in that Sub-section among two or more grades of tenure-holders if such exists.'
It is argued by Mr. Ghose that the necessary consequence of these provisions is that though the rate of rent was by the kabuliat fixed for perpetuity that fixity ceased to be operative in law.
6. Mr. Mitter appearing for the respondents has argued that Section 191 will have no application to this case. According to Mr. Mitter Section 191 can have application only to cases where the terms of the tenancy have transgressed some rights. I am unable to find any justification in principle or authority for limiting the plain words of Section 191 in this manner. It seems clear to me that so long as a fresh land revenue is not being made, the old term of fixed rate of rent will continue to be operative. The result of Section 191, Bengal Tenancy Act is that as soon as a fresh settlement of land revenue is made nothing in the kabuliat which is executed after the passing of the Bengal Tenancy Act should entitle the tenant to hold the tenancy at the particular rate of rent unless the right so to hold beyond the term of previous settlement was recognised at the previous settlement by the Revenue authority.
7. Mr. Mitter has then argued that in any case so long as a fresh settlement is not made, the tenant should be held in law to be a raiyat at a fixed rate of rent. Section 4, Bengal Tenancy Act which mentions the different classes of tenants recognised by the Act, mentions three classes of raiyats:
'(a) raiyats holding at fixed rates, which expression means raiyats holding either at a rent fixed in perpetuity or at a rate of rent fixed in perpetuity,
(b) occupancy raiyats, that is to say, raiyats having a right of occupancy in the land held by them, and
(c) non-occupancy raiyats, that is to say, raiyats not having such a right of occupancy'.
The law does not recognise any class of raiyat holding at a fixed rate for a limited period. A raiyat holding at fixed rate as understood by Section 4, is a raiyat who holds at a rent which is fixed in perpetuity'. As soon as it is recognised that the rent win be fixed not in perpetuity but for a limited period, the conclusion is inescapable that the raiyat is not a raiyat holding at fixed rates as defined in Section 4 of the Bengal Tenancy Act.
8. Mr. Mitter drew our attention to a decision of this Court by Mukherjea J. in the case of --'Srikanta Mridna v. Prafullya Chandra', 74 Cal. L. J. 139. The lease in that case was created by a kabuliat executed in 1294 and it was decided by the Court that the provisions of Section 191, Bengal Tenancy Act were applicable. A stipulation as regards interest was held to be enforceable in spite of Section 178 (1) (i), Bengal Tenancy Act because it was held that proviso (i) to Section 178 was applicable to the circumstances of the case and so the provisions of Section 178 (1) (i) had no application. An argument that the proviso should be attached only to Sub-section (3) of the section was rejected. I am unable to see how this is of any assistance to Mr. Mitter for his contention that Section 191, Bengal Tenancy Act will have no application to the present case.
9. Nor can I get any assistance from the other decision cited by Mr. Mitter, -- 'Mohendra Nath v. Syam Lal', 19 Cal. L. J. 308, in which following, the authority of the Privy Council decision in the case of -- 'Pria Nath Das v. Ramtaran', 30 Cal. 811 (P. C.) it was held that the effect of the resettlement by the Government with the original settlement holders was to keep alive the contractual obligation of the subordinate holders as amongst themselves. It is important to notice that that was a case in which the lease was of a period prior to the Bengal Tenancy Act.
10. In my judgment the contention of Mr. Ghose that in consequence of the amendment of Section 191, Bengal Tenancy Act, the status of the tenant has been altered from that of a raiyat at a fixed rate of rent must prevail. It is not disputed that if he is not a raiyat at fixed rate of rent, he is certainly a settled raiyat with a right of occupancy. The next question is whether the status of the tenant being that of an occupancy raiyat, the stipulation as regards payment of chouth has ceased to be enforceable. Mr. Ghose relied on Section 178 (1) (g), Bengal Tenancy Act under which
'Nothing in any contract between a landlord and a tenant made before the passing or after the passing of the Act * * * shall take away or limit the right of an accupancy raiyat to transfer his holding or any share or portion thereof in accordance with the provisions of Sections 26B-to 26G'.
The question is whether the stipulation as regards the chouth limits the right to transfer. Mr. Mitter says that it does not limit the right; that the right remains but only a condition is created for the exercise of the right. In my judgment the existence of such a condition to the transfer cannot but be held to limit the right to transfer. But for the condition the occupancy raiyat would have an unlimited right to transfer his holding. The stipulation of payment of chouth, therefore, certainly puts a limit to that right. My conclusion, therefore, is that this stipulation being against the provisions of Section 178, Bengal Tenancy Act is not enforceable in law.
11. My conclusion, therefore, is that the plaintiffs' suit should fail.
12. I would, therefore, allow the appeal, set aside the orders passed by the Courts below and order that the suit be dismissed.
13. The appellant is entitled to his costs in all the courts.
14. I agree.