1. These two Appeals Nos. 2001 and 2125 of 1906 are appeals against the decision of Mr. K.N. Roy, District Judge of Jessore, dated the 30th July 1906, in which he disposed of two appeals in two analogous suits. The first suit, to which Appeal No. 2001 relates was a suit brought by Raja Promoda Nath Roy for arrears of rent due under a qabuliyat, dated the 29th Kartik 1302, executed in his favour by the 6 defendants, who are the sons and widows or one are Farajuddin Mollah deceased. The other Appeal No. 2125 relates to a suit brought by Abdul Rashid, one of the minor sons of Farajuddin Mollah through his next friend Basir Mollah for a declaration that the qabuliyat of 1302 is not binding on him, that it was extorted by false intimidation, force, fraud and collusion, and that a decree obtained by the Raja Promoda Nath Roy in 1901 in the Court of the Munsif of Narail on the basis of this qabuliyat is wholly void. To this suit, the minor plaintiff Abdul Rashid made the Raja Promoda Nath Roy, as well as the widows and other sons of his father Farajuddin Mollah parties defendant. The Subordinate Judge decreed the rent suit and dismissed the suit relating to the qabuliyat. The District Judge has reversed his decision in both cases. He has held that the qabuliyat of 1302 was obtained by coercion and fraud. He has, therefore, set it aside, declared the rent decree of 1901 void and has dismissed Raja Promoda Nath Roy's suit for rent.
2. Raja Promoda Nath Roy who was plaintiff in the suit for arrears of rent, and defendant No. 1 in the suit for the cancellation of the qabuliyat and previous rent decree, now appeals. His grounds of appeal are (1) that the District Judge could not set aside the previous decree for rent: (2) that in any case he could not set it aside except in favour of the plaintiff Abdul Rashid: 15 C. 533; 15 I.A. 119 that in the suit for the cancellation of the qabuliyat, the plaintiff should not have been allowed to set up inconsistent pleas of coercion and collusion, fraud and undue influence: (3) that in deciding this suit the District Judge has misplaced the burden of proof: (4) that he has not considered the effect of the previous rent decree: (5) that the facts found are not sufficient to sustain the findings of fraud and undue influence; (6) that the District Judge has misconstrued the terms of the lease; (7) that he is wrong in finding that the mother of Abdul Rashid had no authority to execute the lease on behalf of her minor sons; and (8) that the whole qabuliyat cannot be set aside at the instance of the plaintiff, Abdul Rashid.
3. A preliminary objection has been taken to the hearing of the Appeals No. 2001 and 2125 on the ground that the Appeal No. 2001 is barred by limitation as against the respondents Nos. 1, 4 and 6, and Appeal No. 2125 is barred as against the respondents Nos. 2 to 7. The appeals were filed on the 12th. November 1906, and these respondents were not added till the 8th July. I may deal with this preliminary objection at once. These respondents were obviously not added owing to a mistake of the clerk of the appellant's pleader, Babu Satish Chunder Ghose. I would, therefore, overrule the objection and admit the appeals against these respondents.
4. I will first dispose of the appeal in the suit for the cancellation of the qabuliyat or lease and the avoidance of the previous rent decree. The District Judge finds that under Section 2 of Act VI of 1899 the landlord Raja Promoda Nath Roy was in a position to dominate the will of the executants to the deed, who were his tenants, and hence that the burden of proving that such a contract as was made by the qabuliyat was not induced by undue influence lay on him. He then goes on to find that the terms of the qabuliyat are illegal and extortionate, that it was obtained by undue influence, and is, therefore, inoperative. He winds up by setting it aside not only in favour of the plaintiff, but in favour of all the other executants, who sought no relief from it, and who did not appeal against the Subordinate Judge's decree dismissing the suit for its cancellation. It would appear to me that in all these findings the learned District Judge is in error. In the first place, he should not have set aside the qabuliyat in favour of the defendants who did not seek for relief against it and who did not appeal to him. In the second place, the terms of the lease do not appear to me to be extortionate and illegal. Farajuddin, the father of the plaintiff and of the other male executants of the lease, had in 1295 executed in favour of the Land Mortgage Bank, the Raja's predecessor-in-title, a lease for 4 khadas 11 pakhies of land at a rental of Rs. 97-8. According to the Judge, 'Farajuddin died in 1297, and in 1293 the Land Mortgage Bank brought a suit for rent against his heirs, the present plaintiff and the tenant defendant, (Rent Suit No. 23 of 1891) in respect of 17 khadas and odd by accretion and claimed increased rent. The Civil Court Amin, who was deputed to make a local investigation, found the area to be 17 khadas and the Court passed a decree at Rs. 121 and odd. The appeal against this decision was dismissed on the 22nd September 1894. The defendant No. 1, Raja Promoda Nath Roy Bahadur, who purchased the right and interest of the Land Mortgage Bank then obtained the qabuliyat in question from the heirs of Farajuddin in respect of 17 khadas and 3 pakhies of land at the annual rent of Rs. 447 with a hajut of Rs. 103.'
5. Now, the Judge says, the rent was pushed up from original rent of Rs. 121 and odd per year to Rs. 550. But this would seem not to be necessarily an enhancement, but was due to increased rent being payable for additional land added to the subject of the lease. The original rent was Rs. 97-8 for 4 khadas 11 pakhies subject to a hajut of about 30. The Land Mortgage Bank got a decree for Rs. 121, being unable to prove the increase in the area alleged by it. Then, the land was measured and found to be 17 khadas; so the rent was increased. But there is nothing to show that the increased rent of Rs. 550, with a hajut of Rs. 103 was an excessive rent or in any way contravened the provisions of the rent law. Then, the Judge has said: 'while the first qabuliyat conferred a permanent tenure with a right of transfer to Farajuddin, the Raja's qabuliyat confers on his heirs only a right-of-occupancy without a right of transfer; secondly, while in the first full rate of Rs. 2 per pakhi was to be charged, when the land would be fit for all kinds of crop and Rs. 1-10 was to be charged, when it is fit only for cultivation of some crop, in the Raja's qabuliyat these rates are to be charged whenever the land is measured. There are many other conditions inserted in the Raja's qabuliyat which are either illegal or extortionate. It is not likely that if all these terms had been clearly explained to the executants, and a free will left to them that they would execute the qabuliyat. But the first qabuliyat did not make the tenure permanent or transferable. It only made it enjoyable from generation to generation, i.e., hereditary. It could not make it permanent, and, therefore, transferable for the rent was always enhanceable and the tenants subject to eviction.
6. I am further of opinion that the onus of proof has been misplaced. It seems to me most unreasonable to say, as the Judge has said that a landlord is in a position to dominate the will of the tenant. If this were so, then the onus would always be on the landlord to show that every lease executed in his favour was not extorted by means of force or undue influence. It may be doubted too, if there were sufficient grounds for concluding that the widows of Farajuddin were in such a state of fear, ignorance and helplessness at the time of the execution of the lease as not to know what they were doing. But whether or not they were in such a state, this can only apply to the execution of the lease by Abejunnissa on behalf of Abdul Rashid. The other executants were either adults, or do not sue to set it aside. It is true that the finding of the Judge that the execution of the lease by Abdul Rashid's mother is void owing to coercion is a finding of fact, with which we cannot ordinarily interfere in second appeal, but I consider that this finding is vitiated by the misplacement of the burden of proof which, in my opinion, has been erroneously placed on the defendant, the Raja Promoda Nath Roy. On the whole, then, I consider the lease to be binding on all the executants except Abdul Rashid, who alone sued to have it set aside. As regards the others, the contract appears to me to be a joint and several one, binding the executants of it who are in occupation of the land. It would be unreasonable to allow the executants to escape from their liability to pay rent under the lease, while they continue to hold and enjoy the profits of the land.
7. The lease must, therefore, I think, be held to bind all but Abdul Rashid. As for the finding of fact in the case of Abdul Rashid, as the finding was wrongly arrived at, the case should, I think, go back to the lower appellate Court for a fresh finding on this issue after placing the onus of proof on the plaintiff.
8. As to the authority of the mother of Abdul Rashid to execute the qabuliyat for him, this need not be determined until it is decided whether the execution of the lease was obtained by coercion or fraud. But, on this point, I would call the attention of the lower appellate Court to the cases of Watson & Co. v. Sham Lal Mitter 14 I.A. 178; 15 C. 8 and of Mahomed Hossain v. Based Sheikh 11 C.W.N. 71; 34 C. 36; 4 C.L.J. 485. In the lease itself it is said that the lease is being executed for the benefit of the executants. The District Judge is also, in my opinion, in error in his views with regard to the previous decree of 1901 for it is clear that this decree should not, as the Judge says, fare the same fate as the qabuliyat. There was no question of fraud or coercion set up or proved in the suit in which this decree was obtained. No fraud was practised on the Court. Whatever the decision of the Judge as to the validity of the qabuliyat, so far as Abdul Rashid is concerned, this decree of 1901 must stand good and cannot be declared void, even as against Abdul Rashid. It is to be noted that the Subordinate Judge finds that rent under the qabuliyat was previously paid by the. defendants. He says: 'It is in evidence that rent was paid by Faraj's heirs in terms of the qabuliyat Ex. A and the rent decrees (both original and appellate) have been admittedly satisfied. Plaintiff's mother, (defendant No. 6) and step-brothers paid rent to defendant No. 1 in accordance with Ex.--A for a number of years and defendant No. 1 got rent down to the second quarter of 1307 at the full jama mentioned in Ex.--A. It is too late for plaintiff and his co-sharers to have the decrees cancelled.'
9. I now turn to the case of the rent suit to which Appeal No. 2001 relates.
10. The grounds of appeal urged in this case are that as the defendants Nos. 1, 4 and 6 did not appeal to the District Judge against the decree of the 1st Court, the decree of that Court should not have been reversed as against them, and the contract being a joint and several one, and as Abdul Rashid is the only executant who sues to set it aside all but Abdul Rashid must be bound by it. This would appear to be the case. As against Abdul Rashid, whether he is liable for the rent sued for, or not, depends on whether he is bound by the qabuliyat or not, and must abide the result of the finding for which that suit has been remanded.
11. I would, therefore, decree both appeals against all respondents, except Abdul Rashid with costs in proportion. As regards Abdul Rashid, in the suit to which Appeal No. 2125 relates, the case is remanded for determination of the question whether he is bound by the lease or not. Costs in proportion to follow the result.
12. The rent suit, to which appeal No. 2001 relates, is similarly remanded, so far as Abdul Rashid is concerned, to be disposed of in accordance with the determination of the question of Abdul Rashid's liability under the lease. Costs in proportion to abide the result.
13. The history of this litigation is as follows:
14. Second Appeal No. 2001 of 1906 arises out of a suit brought by Raja Promoda Nath Roy as zemindar against 6 persons of whom one is Abdul Rashid Mollah, a minor, on the allegation that these defendants were his tenants of the land in suit under a qabuliyat, dated the 29th Kartik 1302 and, at the date of the suit, owed him Rs. 1800-11-3. This suit was numbered 15 of 1904.
15. Second Appeal No. 2125 arises out of a suit brought by Abdul Rashid Mollah, the minor, above-mentioned, through his guardian ad litem, against the Raja, defendant Nos. 1, and 6 other persons, his co-sharers, namely, his 3 brothers, his mother, his father's second widow, and the widow of a deceased co-sharer as pro forma defendants in which he sought to set aside the qabuliyat of the 29th Kartik 1302 and also to set aside a decree for arrears of rent which the Raja, defendant No. 1, had obtained on the footing of that qabuliyat in suit No. 19 1901 and which had been confirmed by the appellate Court and had been duly executed. This suit was numbered 339 of 1904.
16. Both suits were filed in the Court of the Subordinate Judge of Jessore and were tried together. The Court of first instance decreed the suit No. 15 and dismissed the suit No. 339. All the defendants with the exception of defendants Nos. 1, 4 and 6 in suit No. 15 appealed to the District Judge but, in suit No. 339, Abdul Rashid Mollah alone appealed. Both appeals were decided by one judgment and both were decreed. From these decrees, two appeals have been preferred to this Court in both of which the Raja is the appellant.
17. The facts areas follows: Farajuddin Mollah held a lease of some 4 khadas of chur land from the Land Mortgage Bank on a qabuliyat executed by him in Assar 1295. He died in 1297 and was succeeded by the respondents as his heirs. The Land Mortgage Bank, in 1298, i.e., 1891, brought a suit against these heirs of Farajuddin for rent in respect of 17 khadas odd, added, it was alleged, by accretion and claimed increased rent but, being unable to prove the increase in the area, as alleged, obtained a decree for Rs. 121. The Bank appealed. Pending the appeal, the Raja acquired the Bank's right and title in the property and was substituted in the appeal as an appellant. The appeal was dismissed. Subsequently, the lands in the occupation of the respondents were measured and found to be 17 khadas odd and, on the basis that this was the correct area, the qabuliyat in 1302 was executed by the two adult sons of Farajuddin, his widows on their own behalf and as guardians of the minor sons of Farajuddin of whom Abdul Rashid Mollah was one. It appears that the respondents for some years paid rent to the Raja according to the qabuliyat and, as stated above, the Raja had also successfully sued for rent in terms of the qabuliyat and had executed his decree against all the respondents.
18. To the hearing of these appeals, a preliminary objection was raised on the ground that Appeal No. 2001 is barred by limitation as against the respondents Nos. 1, 4 and 6 and appeal No. 2125 is similarly barred against respondents Nos. 2 to 7 inasmuch as their names were not brought on the record of the appeals which were filed on the 12th November, 1906, until the 8th of July 1907. We, however, are satisfied by the affidavits filed on behalf of the appellant that the omission to enter the names of these respondents was due to a clerical error or a mistake of the clerk of the learned pleader for the appellant, and was not intentional. We, therefore, overruled the objection and allowed the appeals to be heard against all the respondents.
19. It will be convenient to deal, first, with appeal No. 2125. The plaintiff in the suit to which this appeal relates stated in his plaint that the Raja (defendant No. 1, appellant) by his 'Mofussil agents began to cause loss to the plaintiff and his mother in various ways and then having brought the plaintiff's mother and other co-sharers to their side by means of false intimidation (sic), force, fraud and improper inducements and having colluded and joined with the defendants Nos. 2, 3, 5 and 6 got them to execute a qabuliyat on the 29th of Kartik 1302 in favour of defendant No. 1.' In my opinion, the plaint in this form should not have been received by the Court of first instance. Not only are some of these allegations inconsistent with each other but no particulars are set forth on which any of these allegations which are really inferences of law could be based, It has repeatedly been held that it is incumbent on a party, be he plaintiff or defendant, who seeks to avoid a contract on the ground of fraud or undue influence, to give in his pleadings full particulars of the circumstances on which he relies as the basis of his plea. it is not enough to boldly assert that fraud or the like vitiated the contract. If authority is required for this proposition, see Gunga Narain Gupta v. Tiluckram Chowdhry 15 C. 533; 15 I.A. 119. The pleadings in this case were most unfair The defendant No. 1 had no knowledge of the case he had to meet. All he could do under the circumstances was to deny, as boldly, the truth of the plaintiff's allegations. The Court, however, on these pleadings, fixed the issue: 'Whether the qabuliyat was taken by coercion and misrepresentation by the officers of defendant No. 1?' Strictly speaking, that was not the proper form in which to frame the issue. The Court should have ascertained the circumstances alleged by the plaintiff on which he relied showing coercion and misrepresentation and then found whether those circumstances had been proved and, if proved, whether in law they amounted to coercion and misrepresentation such as would justify the setting aside of the contract. The Court of first instance, however, took the evidence tendered by the parties and, although it laid the onus (as I think wrongly) of proving that the qabuliytat was not obtained by coercion or misrepresentation on the defendant No. 1, it held that he had discharged it and dismissed the suit. On appeal, the lower Court seems to have approached the question in this way. The learned Judge says, the defendant No. 1 is an influential landlord [though apparently an absentee landlord as he lives in the District of Rajshaye] and the plaintiff is a tenant, therefore, the defendant was in a position to dominate the will of the tenants and he lays down the law as follows: Under Section 2 of Act VI of 1899, the defendant No. 1 being the landlord and the plaintiff and the other defendants being his tenants, he was in a position to dominate the will of the others and the burden of proving that such a contract as was made by the qabuliyat was not induced by undue influence lay on him. Here, I think he has gone much too far. There cannot be any such broad or general presumption that a landlord, even an influential one, can so dominate the will of his tenants as to induce them to make unconscionable bargain in his favour. The learned Judge has, in arriving at the conclusion that the contract of lease evidenced by the qabuliyat was unfair, relied mainly on the terms of the qabuliyat itself. First he says that the rent has been greatly enhanced. He says 'the rent was pushed up from the original rent of Rs. 121 odd per year to Rs. 550.' The learned Judge, however, has omitted to notice the fact mentioned in the opening of this judgment that the original lease covered an area of only some 4 khadas at a rental of Rs. 97-8 and the reason why the Land Mortgage Bank obtained a decree for only Rs. 121 was because they failed to prove in their suit that the area held by the respondents had been increased by accretion. When the land was measured at the time of the execution of this qabuliyat, it was found to be over 17 khadas in area. Consequently it does not follow that the increased rent of Rs. 550 was an unfair enhancement, seeing that the area of the land had been increased fourfold.
20. The next circumstance on which the learned Judge relies as showing unfairness is expressed in the following words: 'While the first qabuliyat conferred a permanent tenure with a right of transfer to Farajuddin, the Raja's qabuliyat confers on his heirs only a right of occupancy without a right of transfer.' In my opinion, the learned Judge has misconstrued the first qabuliyat. As pointed out by the learned Chief Justice it did not make the tenure permanent or transferable. It only made it enjoyable from generation to generation, that is hereditary. It did not and could not make it permanent and, therefore, transferable, for the rent was always enhanceable and the tenants were subject to eviction. As I have said above, the leaned Judge, in coming to the finding of fact that the qabuliyat had been obtained by the Raja unfairly, has relied mainly on the inferences he has drawn from the terms of the two qubuliyats. It is open to us to construe those documents ourselves to see whether they could bear the interpretation put on them by the learned Judge. As pointed out above, I do not think they do. When, then, the main foundation of this finding proves on examination to be non-existent, it seems to me the finding itself cannot stand. If it goes, there does not seem to be anything else on the record to show that the bargain was so 'unconscionable' as to raise the presumption that the landlord has abused his position as landlord to dominate the tenants to his own unfair advantage so as to place the burden of proving the fairness of the contract on him. Whether there is any other evidence, apart from the terms of the qabuliyat, upon which such a conclusion is tenable, it is for the District Judge to say. If there is not, then the onus of proving his case affirmatively lies on the plaintiff. I think, therefore, that the case must be remanded to the District Judge for a finding whether or not the qabuliyat was unfairly obtained, the onus of proving which lies on the plaintiff. These observations cover the main contentions of the learned pleader for the appellant.
21. The next finding attacked is couched in the following words: 'The widows were not certificated guardians of the minors as stated in the qabuliyat and had no authority to execute a qabuliyat in favour of the minors and change the character of the tenure.' Now, Abdul Rashid Mollah alone brought the suit to set aside the qabuliyat as against him and, in my opinion, the lower Court should have limited the issue to the question whether the mother of Abdul Rashid Mollah had authority to execute the qabuliyat on behalf of Abdul Rashid Mollah and should not have included the case of the other defendants who had not set up any such case for themselves. I think, therefore, that this issue, namely, whether Abejunnessa had authority to execute the qabuliyat on behalf of the plaintiff must be remitted to the lower Court for decision and, in this connection, I would call the attention of the lower Court to the cases of Robert Watson & Co. v. Sham Lall Mitter 14 I.A. 178; 15 C. 8 and Mahomed Hussain v. Based Sheikh 11 C.W.N. 71; 34 C. 36; 4 C.L.J. 485.
22. The next point taken in this appeal is that the lower appellate Court should not have set aside the qabuliyat and the decree as against all the respondents. Four of the executants were adults of whom two were the widows of Farajuddin. They have not attacked the qabuliyat. In fact, as mentioned above, they have acquiesced in it and paid rent according to its terms. It does not follow, even if the qabuliyat is held not to bind Abdul Rashid Mollah, that it does not bind the other executants who have been in occupation and enjoyment of the land. The transaction is either a joint one, as I prefer to think, or a joint and several one, as argued on behalf of the appellant. If the latter, the respondents other than Abdul Rashid Mollah are responsible for the full rent as tenants. If it is a joint-tenancy and it is found that Abdul Rashid Mollah is entitled to repudiate it as against himself the result would seem to be that the remaining respondents are jointly liable for their proportionate shares of the rent as tenants and, for the portion vacated by Abdul Rashid Mollah, they are responsible to the Raja for his share of the rent as his agents are quasi trustees, so long as they are in occupation and enjoyment of the whole of the land covered by the qabuliyat. As against all the other respondents who, it may be remarked, did not appeal to the lower appellate Court from the decree of the Subordinate Judge which dismissed Abdul Rashid Mollah's suit, this appeal must, therefore, succeed and the Raja will be entitled to proportionate costs of this appeal from them.
23. It is next urged that the lower appellate Court was wrong in setting aside the rent-decree as a whole, not only against Abdul Rashid Mollah but also against all the other respondents. For the reasons just given, it is clear that the lower Court should not have set aside that decree as against the other respondents and, further, I do not think it should have set aside the decree even against Abdul Rashid Mollah. In the plaint, it is alleged that the decree in question was obtained on 'insufficient grounds.' It is then said: 'In this case the plaintiff's mother was appointed guardian on behalf of the plaintiff, but being an illiterate purdahnashin woman with no knowledge of business matters she could not properly look after the case in the first Court. Afterwards, although against the decision of the said suit an appeal was preferred in the Judge's Court of this place, but the appellants were obliged to withdraw that appeal and not to carry on the same by reason of inducements and false hopes held out by the defendant No. 1 and his agents.' It is quite clear that that case was fully litigated in the rent Court in which two of the defendants were the adult sons of Farajuddin and who were jointly interested with Abdul Rashid Mollah in resisting the claim. The appeal was withdrawn and there is no evidence on the record to substantiate the allegations of the plaintiff Abdul Rashid Mollah. There was no fraud practised on the Court. If that decree was wrong, it should have been appealed against. It has been executed and it is too late now to set it aside even as against Abdul Rashid Mollah.
24. To turn now to the rent suit, Appeal No. 2001. In that suit, all the six respondents were made defendants but only two persons filed written statements, namely, Abejunnessa and Kinoo Mollah. Abejunnessa pleaded that she was an illiterate purdahnashin woman and did not understand the qabuliyat which she had executed. Kinnoo Mollah pleaded that his mother Tarfonnessa Bibee had no power to execute the qabuliyat on his behalf, that advantage was taken of her being an illiterate and purdahnashin woman, that she was misled, and finally that he does not believe that she in fact executed the qabuliyat at all.
25. The first Court found all the issues against the defendants and decreed the suit against all. Of these the defendants Nos. 1, 4 and 6 did not appeal against that decree. I do not think, therefore, that as against them the learned Judge could set aside the decree. As regards the others--and it must be remembered that they have acquiesced in the qabuliyat for a large number of years and in a former suit brought against them for rent there was no objection of the kind, now set up by them for the first time--as Abdul Rashid Mollah alone has sued for the cancellation of the qabuliyat, I do not think, even if he succeeds in establishing that, as against him, the qabuliyat is void, that that finding can benefit the other executants of it. Whether Abdul Rashid Mollah is liable for rent under the decree must depend on the findings on the issues which we have remitted to the lower Court. As against the others, for more detailed reasons given in the earlier part of this judgment, I think the appeal should be decreed.
26. The result is that both appeals are decreed as against all the respondents other than Abdul Rashid Mollah with proportionate costs. As regards Abdul Rashid Mollah, both cases are remanded to the lower Court for a finding whether he is bound by the lease or not. Costs in proportion to follow the result.