Richard Garth, C.J.
1. I think that the sums in question are not recoverable.
2. They are called abwabs by the plaintiff himself, and they are abwabs, as it seems to me, to all intents and purposes; and I consider that the Regulation of 1793, as well as the Rent Law of 1859, intended to put an end to the abwab system, and to render them illegal.
3. It has been argued that to abolish this system is contrary to the wishes of both landlords and ryots, and I believe that to be true.
4. Landlords often find it a convenient means of enhancing their rents in an irregular way; and the ryots, as a rule, would far rather submit to pay abwabs than have their assul rent increased.
5. But the system appears to me to be clearly illegal, and I consider that the Civil Courts should do their best to put an end to it.
6. The plaintiffs' suit will therefore be dismissed as regards the disputed items, with costs in the lower Appellate Court and in this Court, as well as with the costs of this reference.
Mitter, J. (Tottenham and Pigot, JJ., concurring).
7. I am of opinion that the question referred to us should be answered in the negative.
8. The plaintiffs claim the disputed items as 'old usual abwabs.' In the zamindari accounts they are also entered as abwabs. The defendant denied that he ever paid them. The District Judge, on appeal, awarded a decree in favour of the plaintiffs in respect of these items, on the ground that they had been realized by the plaintiffs and their predecessor in title from the defendant and other ryots in the estate for many years. In fact, the District Judge finds that, according to the custom of the estate of which the defendant's lands form part, these items have been paid by the defendant and his ancestor for many years.
9. On these findings of fact it has been contended before us on behalf of the plaintiffs that the liability relating to the payment of these abwabs flows from the incidents of the contract under which the lands were let to the defendant and his ancestors, such incidents, though not expressly mentioned in the contract, being still deducible from the usage or custom established on the evidence.
10. I am of opinion that this contention, so far as it goes, is sound; but the question is whether, having regard to the laws in force relating to abwabs, such a contract is enforceable. The solution of this question depends upon another question, namely, whether the imposition of such abwabs as these is prohibited and made unlawful hy any law in force in this country? If the affirmative be the correct answer of this latter question, it does not admit of any doubt that the plaintiffs are not entitled to enforce the contract and to recover the disputed items; 'because every contract made for or about any matter or thing which is prohibited and made unlawful by Statute is a void contract' (Section 23, Indian Contract Act).
11. Section 54, Regulation VIII of 1793, says: 'The imposition upon the ryots under the denomination abwab, mathoot, and other appellations, from their number and uncertainty having become intricate to adjust and a source of oppression to the ryots, all proprietors of land and dependant taluqdars shall revise the same in concert with the ryots and consolidate the whole with the assul into one specific sum.' Then the section in question fixes the end of the Fasli year 1198 in the Behar districts as the time within which the consolidation was to be effected. The next section provides: 'No actual proprietor of land, or dependent taluqdar, or farmer of land, of whatever description, shall impose any new abwab or mathoot upon the ryots under any pretence whatsoever.' This section further provides a penalty for the infraction of the aforesaid provision. Section 61 of the same Regulation has laid down that, 'in the event of any claims being preferred by proprietors of estates or dependent taluqdars, farmers or ryots on engagements wherein the consolidation of assul, abwab, etc., shall appear not to have been made, they are to be nonsuited with costs.' Section 3 of Regulation V of 1812 provides as follows: 'Such part of Regulation VIII of 1793 and of Regulation IV of 1794 as require that the proprietors of land shall prepare forms of pottahs, and that such forms shall be revised by the Collectors, and which declare that engagements for rent contracted in any other mode than that prescribed by the regulations in question shall be deemed to be invalid, are likewise hereby rescinded, and the proprietors of land shall henceforward be considered competent to grant leases to their dependent taluqdars, under-farmers, and ryots, and to receive correspondent engagements for the payment of rent from each of these classes or any other classes of tenants according to such form as the contracting parties may deem most convenient and most conducive to their respective interests, provided, however, that nothing herein contained shall be construed to sanction or legalize the imposition of arbitrary or indefinite cesses whether under the denomination of abwabs, mathoot, or any other denomination. All stipulations or reservations of that nature shall be adjudged by the Courts of Judicature to be null and void; but the Court shall notwithstanding maintain and give effect to the definite clauses of the engagements between the parties, or, in other words, enforce payment of such sum as may have been specifically agreed upon between them.' Section 10 of Act X of 1859, and Section 11 of Beng. Act VIII of 1869, declared the exaction of any sum in excess of the rent specified in the pottah of an under-tenant or a ryot, or payable under the provisions of the aforesaid Act as abwabs, etc., to be illegal.
12. Under the provisions of the Regulations and Acts cited above, it seems to me that a contract for the payment of abwabs is unlawful and is not enforceable by law. It has been contended before us that a claim for the recovery of the abwabs existing before the permanent settlement is enforceable notwithstanding these provisions, because Section 54 of Regulation VIII of 1793 contained only a direction for the consolidation of the abwabs with the assul jumma, but no penalty was attached to an omission on the part of the landholders to act according to that direction. But it seems to me that this contention is not correct, because Section 61 of the said Regulation, in my opinion, provided the penalty in question, that penalty being the non-suiting of the claim for the recovery of the abwabs. Even supposing that this contention is valid, still the plaintiffs cannot succeed in this case. There being this plain direction in the Regulation, if it was not complied with, it is for the landlord to prove that these abwabs existed at the time of the permanent settlement. The plaintiffs in this case have not established this fact.
13. It has been next contended that, although the disputed items in the plaintiffs' claim are described in the plaint as 'old usual abwabs,' and in the zamindari accounts also they are designated as abwabs separate and distinct from the specified rent, yet they are not abwabs but part of the rent. This contention is mainly based upon the ground that anything which is certain and definite does not come under the class of abwabs, the imposition of which is prohibited by the Regulations. Although the Regulations did not clearly define what an abwab is, still I think that it cannot be maintained that anything which is definite and certain is not an abwab under the Regulations, although the parties to the contract may call it so. It seems to me that the Regulations, without defining accurately what an abwab is, left this question for the determination by the Court in each case upon the evidence. I cannot find anywhere in the Regulation the precise definition of the word abwab which would justify me to treat the disputed items of claim as part of the specified rent, although the plaintiffs claim them in the plaint and entered them in the zamindari accounts as 'abwabs.'
14. It has been further said that as there is a contract between the parties for the payment of these dues under the latter portion of Section 3, Regulation V of 1812, the plaintiffs are entitled to recover them. But the language of that section does not, in my opinion, support this contention; on the other hand, it provides 'that nothing therein contained shall be construed to sanction or legalize the imposition of arbitrary or indefinite cesses whether under the denomination of abwabs, mathoot, or any other denomination.' The last four lines of the section in question provide that the engagement for the payment of any sum as may have been specifically agreed upon between the parties shall be enforced. This provision, it seems to me, refers only to the amount which is by the contract fixed as the rent payable to the landlord. The section in question provides mainly that the proprietors of land shall thenceforth be competent to grant leases to ryots, etc., and to receive corresponding engagements for the payment of rent from them. Having regard to the words of the section in question italicized, I think the words ' sum specified ' refer to the amount of the rent specified.
15. I do not think it necessary to notice in detail the decided cases on this point. There is a clear conflict in these decisions, some of them supporting the view which I take. Those in which a contrary view has been taken have been decided either upon the ground that the abwabs claimed in them, not being indefinite and uncertain, did not come within the class of abwabs prohibited by the Regulations, or, upon the ground that there were clear contracts between the parties for the payment. The last-mentioned ground is evidently based upon the construction of Section 3, Regulation V of 1812, for which the learned Counsel for the plaintiffs contended.
16. For the reasons given above I am unable to adopt this construction. The view which I take of the section in question is supported by the decision of Sudder Dewanny Adawlut in Radha Mohun Serma Chowdhry v. Gunga pershad Chucherbuttee 7 Sel. Rep. 142 (o. e.) 166 (n.e.). As regards the other ground, viz., that anything which is not uncertain or indefinite is not an abwab within the meaning of the Regulations, I have already dealt with it.
17. I am of opinion that the plaintiffs' suit, so far as the disputed abwabs are concerned, should be dismissed.
18. I agree in the judgment delivered by Mitter, J. The moneys claimed beyond the assul jumma, or actual rent, are clearly abwabs, and if exacted by the landlord would, under Section 11 of Beng. Act VIII of 1869, entitle the tenant to recover as damages double the sum so exacted.
19. In determining the matter referred to us by the Division Bench it has been necessary to trace the course of legislation from the permanent settlement, and for this purpose to make use of the edition of the Regulations and Acts of the Legislature recently published by and under the authority of the Legislative Department. This publication reproduces the Regulations and Acts as they now stand on the Statute Book with full effect given to all the amendments and repeals. Attention is nowhere drawn to any alteration in any particular Regulation or Act as it was originally passed. We have been consequently much embarrassed, and might have been misled, in determining the meaning and object of the law, and our time, during the course of the argument, has been wasted in understanding a section of Regulation V of 1812. which, as it is represented in the recent publication by the Legislative Department, contains only a fragment of the section as it was originally enacted. In order to understand Section 2, Regulation V of 1812, it is absolutely necessary that the entire section should be read, and from this it will appeal that its object was to withdraw the restriction previously placed on the power of zamindars to grant leases for a period exceeding ten years. The first portion of that section has been repealed, and, if I may venture to express an opinion, inconsiderately repealed. The mutilated section which is now alone law has been republished by the Legislative Department, and if read by itself would reasonably imply that in 1812 the Legislature, for some reason not stated, declared that proprietors of land were competent to grant leases for any period which may seem most convenient to themselves and their tenants, and most conducive to the improvement of their estates.
20. Other similar instances may doubtless be adduced in which great inconvenience, and probably mischief, will result from the danger of implicitly relying on a mutilated publication of the law emanating from so high an authority as the Legislative Department. I, therefore, desire to draw attention to this matter, that those whose duty it is to interpret the law may be warned, and I hope also that the Legislative Department may, on a suitable opportunity, remedy this inconvenience in such manner as may seem most conducive to the public interests involved.