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Raja Bejoy Singh Dudhuria Vs. Krishna Behari Biswas and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in41Ind.Cas.561
AppellantRaja Bejoy Singh Dudhuria
RespondentKrishna Behari Biswas and anr.
Cases ReferredMahomed Fayez Chowdhry v. Jamoo Gazee
Excerpt:
abwab - regulation v of 1812, section 3, construction of--rent, meaning of. - lancelot sanderson, c.j.1. this is an appeal from the judgment of newbould, j., whereby he affirmed the judgment of the first appellate court.2. the plaintiff's claim was for rs. 3,330 as arrears of rent. the defendants pleaded that the rent was rs. 3,315 per annum and that the further sum of rs. 15 claimed by the plaintiff was in the nature of an abwab and was not recoverable.3. it appears that in 1883 a kabuliyat was executed by ram sharan biswas, the predecessor-in-interest of the defendants, in favour of one roy dhanapat singh bahadur, who subsequently sold the mahal to the plaintiff.4. in this kabuliyat the annual rental is stated to be rs. 3,315-4-0, but it was further provided by the document that the defendants' predecessor should pay in the month of bhadra every year the sum of.....
Judgment:

Lancelot Sanderson, C.J.

1. This is an appeal from the judgment of Newbould, J., whereby he affirmed the judgment of the first Appellate Court.

2. The plaintiff's claim was for Rs. 3,330 as arrears of rent. The defendants pleaded that the rent was Rs. 3,315 per annum and that the further sum of Rs. 15 claimed by the plaintiff was in the nature of an abwab and was not recoverable.

3. It appears that in 1883 a kabuliyat was executed by Ram Sharan Biswas, the predecessor-in-interest of the defendants, in favour of one Roy Dhanapat Singh Bahadur, who subsequently sold the mahal to the plaintiff.

4. In this kabuliyat the annual rental is stated to be Rs. 3,315-4-0, but it was further provided by the document that the defendants' predecessor should pay in the month of Bhadra every year the sum of Rs. 15 in respect of a Thakur. The words of the clause, according to a translation which was agreed upon by the learned Vakils who argued the case, were as follows.

5. 'Besides this I shall continue to pay in the month of Bhadra of every year the sum of Rs 15 as the mamuli (usual) for the Iswar Thakur at your house at Azimgunj. If I fail to pay the aforesaid sum amicably, then you shall deduct the same from the money remitted by me as the rent or sue for the amount along with or separately from the arrears of rent. I shall not take objections thereto.'

6. The clause relating to the annual rental was near to the beginning of this document, and the clause relating to the Rs. 15 was near the end of the kabuliyat.

7. A schedule setting out details of instalments' was attached to the kabuliyat. Therein the total jama was stated to be Rs. 3,315-4-0 and neither any of the monthly instalments nor the total included the payment of Rs. 15 in respect of the Thakur.

8. The learned Judge held that the sum of Rs. 15 could not be regarded as part of the rent but must be regarded as an irrecoverable 'abwab.' From this decision the appeal has been brought.

9. It was argued on behalf of the appellant that the learned Judge's decision was wrong and that the Rs 15 was recoverable because the liability to pay it was created at the same time as the putni, and in the same document, that the agreement to pay Rs. 15 was part of the consideration for the grant of the putni, that the said sum was neither an arbitrary nor an indefinite cess within the meaning of Section 3 of Regulation V of 1812 and that being so and the sum of Rs, 15 being part of the consideration for the putni it could not be an 'abwab'.

10. On the other hand, it was argued on behalf of the defendants that the sum of Rs. 15 was not part of the rent and was not money payable for the use and occupation of the land, but was a sum which was stipulated and understood by the parties as being additional to the rent and was, therefore, an abwab, even though the sum itself was not indefinite and though the clause relating to the payment thereof was definite.

11. The kabuliyat was executed in 1883 and it was agreed by both sides that the matter was governed by Section 3 of Regulation V of 1812. The words of the Section are as follows.

12. 'Such part of Regulation VIII of 1793, and of Regulation IV of 1794 as require that the proprietors of land shall prepare forms of pattas, 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 talukdars, under-farmers and ryots and to receive correspondent engagements for the payment of rent from each of those 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 legalise the imposition of arbitrary or indefinite cesses, whether under the denomination of abwab, mathat 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 Courts shall, notwithstanding, maintain and give effect to the definite clauses of the engagements contracted between the parties, or in other words, enforce payment of such sums as may have been specifically agreed upon between them.'

13. There is no definition of the term 'abwab' in the Regulation, but for the appellants it was argued that the accurate definition of the term 'abwab' was that which was approved by O'Kinealy, J., in his judgment in Radha Prosad Singh v. Bal Kowar Koeri 17 C. 726 at p. 758 : 8 Ind. Dec. (N.S) 1026 as follows.

14. 'The term is particularly used to distinguish the taxes imposed subsequently to the establishment of the asul, or original standard rent, in the nature of addition thereto, in many places they had been consolidated with the asul, and a new standard assumed as the basis of succeeding impositions.'

15. That being the meaning of the word, it was urged that it would not be applicable to the payment of Its. 15 in this case, for it was agreed between the parties at the time the original rent was agreed, and in the very document by which the rent was reserved: and that inasmuch as the sum in question is neither arbitrary nor indefinite, and was part of the consideration for the putni, it can be recovered even though it cannot strictly be said to be part of the 'rent' agreed upon.

16. To this argument the respondents reply that unless it was part of the 'rent' or understood and agreed by the parties to be part of the 'rent' properly so called it cannot be recovered, and they rely principally upon two cases---1st, a Full Bench decision in Chultan Mahton v. Tilukdari Singh 11 C. 175 Ind. Dec. (n. s ) 876 and a decision of the Judicial Committee of the Privy Council in the same case reported as Tilukdari Singh v. Chultan Mahton 17 C. 131 : 16 I. A. 152 : 13 Ind. Jur. 251 : 5 Sar. P. C. J. 408 : 8 Ind. Dec. (N.S) 625 (P. C.) and 2nd, Radha Prosad Singh v. Bal Kowar Koeri 17 C. 726 at p. 759 : 8 Ind. Dec. (N.S) 1026.

17. In my judgment the actual decisions in these cases do not cover this case, though expressions of opinion in some of the judgments of the learned Judges in this Court are certainly material.

18. In the case of Chultan Mahton v Tilukdari Singh 11 C. 175 : 5 Ind. Dec. (N.S) 876., the items in dispute were claimed as 'abwabs' and the Judicial Committee's decision was that the High Court was right in holding them to be 'abwabs' and that if they were payable at the time of the Permanent Settlement, they ought to have been consolidated with the rent under Section 54 of Regulation VIII of 1793 and not being so consolidated they could not be recovered: and if they were not payable at the time of the Permanent Settlement, they would come under the description of new 'abwabs' in Section 55 and so would be illegal.

19. There was no written agreement, as in this case, providing for the payment of a definite sum, made at the same time as the agreement for rent, and the Judicial Committee did not decide the point now before us.

20. In the Full Bench case reported as Radha Prosad Singh v. Bal Kowar Koeri 17 C. 726 at p. 759 : 8 Ind. Dec. (N.S) 1026. the reference was.

21. 'Whether the portions of the claim that are objected to as coming under the denomination sarak neg and khuruch are illegal cesses, or whether they are recoverable as rent by reason of their having been paid for a long time along with the rent and without any specification in the rent receipts?' and the Court held that the amounts sued for under the head of sarak neg and Munich were abwabs and not recoverable.

22. The point now before us was not involved in this decision.

23. In this case, however, the judgments were of an elaborate nature and entered upon a consideration of the subject of the recovery of abwabs, much of which was not necessary for the decision as was pointed out by O'Kinealy, J, at page 742.

24. The opinions of these learned Judges, however, even though not strictly necessary for the decision of the case, must carry great weight and the majority seem to have come to the conclusion that the last four lines of Section 3 of Regulation V of 1812 referred to the ground-rent of the Permanent Settlement, confirming in this respect Mitter, J.'s opinion in Chulton Mahton v. Tilukdari Singh 11 C. 175 : 5 Ind. Dec. (N.S) 876. where he said: 'This pro vision...refers only to the amount which is by the contract fixed as the rent payable to the landlord.'

25. This is the view as to the construction of the Section which seems to have been acted upon in this Court since 1885 and whatever one's own views might have been if the matter were free from judicial opinion, I do not think it would be right for us sitting in a Division Bench of this Court to depart from a construction which has been adopted for so many years.

26. In Radha Prasad Singh v. Bal Kowar Koeri 17 C. 726 at p. 759 : 8 Ind. Dec. (N.S) 1026. Petheram, C. J., however, went further and expressed the opinion as follows at page 739.

27. 'By this judgment I understand the Privy Council, while affirming that of the High Court, to go beyond it and to hold that under the Regulations nothing could be recovered for the occupation of land, except one sum which must include everything which was payable for such occupation arrived at either by agreement or by some judicial determination between the parties, and that any contract, whether express or implied, to pay anything beyond that sumt under any name whatever, for or in respec, of the occupation of the land, could not be enforced', and he emphasizes the point by declaring at page 740 that the judgment of the Privy Council decided that nothing can be recovered from the tenant except the one sum fixed as the rent of the land.'

28. On the other hand Ghose, J., at page 767, interpreted the decision of the Privy Council as follows.

29. 'I do not understand that they intended to go any way beyond what Mr. Justice Mitter said in his judgment, and to lay down, as it is said they did lay down, that nothing, save and except one sum, including every item of payment could be recovered as payable for the occupation of land; and that an agreement to pay anything beyond that sum, although it might be a lawful consideration for the lease, could not be enforced.

30. 'It appears to me that if in any given case the Court finds that any particular sum specified in the lease or agreed to be paid is a 'lawful consideration for the use and occupation of any land, that is to say, if it is really part of the rent, although not described as such, it would be justified in holding that it is not abwab, and is recoverable by the landlord.'

31. It is to be noticed that the interpretation placed upon the Privy Council's judgment by Petheram, C. J., has not been followed in this Court, as, for instance. Kalanand Singh v. Eastern Mortgage and Agency Co., Ld. 19 Ind. Cas. 701 : 18 C. L. J. 88. In that case it was agreed that the lessee should pay a fixed sum of Rs. 4,3 0, of which Rs. 4,300 was described as jama, Rs. 5 as selami towji and Rs. 5 as tehwari dasahra.

32. It is to be noticed that the sum fixed for rent was Rs. 4,300 and the other two sums could not be called rent in the strict sense, yet it was held that they could be recovered on the ground that the payment of the specific sums was provided for and agreed upon in the lease creating the tenancy and that the stipulation for such payment was not a stipulation or reservation for the payment of arbitrary or indefinite cesses but were, in the language of the Section 3 of Regulation V of 1812, 'a definite clause in the engagement contracted between the parties which should be maintained and given effect to: and that in fact the two sums then in question, though not described in the lease as rent, w ere in reality part of the consideration for which the tenancy was created and part of the rent agreed to be paid.' See the judgment in that case at page 85 page of 18 C. L. J.---Ed.

33. There are other cases in which the interpretation given by Petheram, C. J., to the decision of the Privy Council in Radha Prasad Singh v. Bal Kowar Koeri 17 C. 726 at p. 759 : 8 Ind. Dec. (N.S) 1026. has not been followed, e.g., Assanulla Khan Bahadur v. Tirthabashini 22 C. 680 at p. 688 : 11 Ind. Dec. (N.S) 453; Mathura Prasad v. Tota Singh 17 Ind. Cas. 177 : 16 C. L. J. 296 : 40 C. 806 and Upendra Lal v. Ataulla 36 Ind. Cas. 404 : 21 C. W. N. 108. In the first of these cases it was argued by the Vakil for the respondents that the mere fact of the amount claimed on account of chowkidari tax not being consolidated with what was called the patni rent but being kept separate, was enough to render it an abwab and, therefore, not recoverable and Tilukhdari Singh v. Chultan Mahton 17 C. 131 : 16 I. A. 152 : 13 Ind. Jur. 251 : 5 Sar. P. C. J. 408 : 8 Ind. Dec. (N.S) 625 (P. C.) and Radha Prosad Singh v. Bal Kowar Koeri 17 C. 726 at p. 759 : 8 Ind. Dec. (N.S) 1026. were cited as authorities for the proposition. The learned Judges, however, though they said that there were passages in some of the judgments delivered in these cases which, taken alone, might appear to lend support to the respondents' contention, did not adopt the argument.

34. It seems, therefore, that the Rule which has been followed in this Court is that each case must depend upon the proper construction of the contract before the Court and if upon a fair interpretation of the contract it can be seen that a particular sum is specified in the contract or agreed to be paid as the lawful consideration for the use and occupation of the land, i. e., if it is really part of the rent although not described as such, the landlord can recover it, and I apply this Rule to the present case. It is necessary, therefore, to consider the nature of the payment which is in question.

35. It is a yearly payment for the Iswar Thakur at the lessor's house at Azimgunj, and the nature of it is shown by the fact that the plaintiff who is the assignee of the lessor has nothing to do with the Thakur at Azimgunj and does not maintain it in any way.

36. Further, the clause relating to the payment of the sum of Rs. 15 and to its recovery is couched in terms which led me to think that this payment cannot have been intended by the parties to be part of the rent or to be payable in respect of the use and occupation of the land: in addition to this there is the absence of any reference to this sum in the details of the instalments at the end of the document, and on the true construction of the terms of the lease I have come to the conclusion that this sum of Rs. 15 was not intended by the parties to be part of the consideration for the use and occupation of the land or as part of the rent and, therefore, is not recoverable. Consequently, in my judgment, this appeal should be dismissed with costs.

Chatterjea, J.

37. The question involved in this appeal is whether a sum of Rs. 15, which was agreed upon to be paid by a permanent tenure-holder under a kabuliyat as the 'mamuli for the Iswar Thakur at the house' of the zemindar is or is not an abwab. The kabuliyat was in respect of a patni tenure and was executed in the year 1882. The rent of the patni was fixed at Rs. 3,315-4-0. In a subsequent clause it was stipulated---'Besides this, I shall continue to pay in the month of Bhadru of every year the sum of Rs. 15 as the mamuli for the Iswar Thakur at your house at Azimgunj. In the details of instalment the total rent stated to be Rs. 3,315-4-0, which was distributed into twelve monthly instalments specified in the lease and did not include the said sum of Rs. 15 which was made payable only once, in the month of Bhadra every year. The sum of Rs. 3,315-40 is referred to throughout the kabuliyat as the rent, and the Rs. 15, as already stated, was neither described nor treated as part of the rent in any part of the kabuliyat. Then it was provided that if the patnidar failed to pay the said sum of Rs. 15 amicably, the zemindar would be entitled to deduct the said amount from the money which might be remitted by the patnidar as the rent, or realise the amount along with the arrears of rent, or separately, by instituting suits, thus clearly distinguishing the said sum of Rs. 15 from the rent. These provisions would have been wholly unnecessary, had the sum of Rs. 15 been part of the rent. There is no doubt, therefore, that the sum of Rs. 15 did not form part of the rent, nor was it treated as part of the rent.

38. It is contended on behalf of the appellant that the said sum of Rs. 15 formed part of the consideration for the patni lease and is, therefore, recoverable. But in the first place, I do not think the said sum is part of the consideration for the paint. The sum was agreed to be paid as the customary present to the deity at the house of the then zemindar, Dhanpat Singh. The plaintiff is an assignee of Dhanpat and he has nothing to do with the Thakur at Azimgunj which is maintained by the sons of Dhanpat, the original lessor. The 'mamuli for the Iswar Thakur,' I think, cannot be claimed by the plaintiff, as it was not money payable on account of the use and occupation of the land. In the next place, even assuming that it did form part of the consideration for the use and occupation of the land, I am of opinion that it cannot be recovered as it did not form part of the rent.

39. It is contended on behalf of the appellant that if a specific sum which is neither uncertain nor indefinite is agreed upon to be paid in the lease creating the tenancy as part of the consideration for the use and occupation of the land, the stipulation to pay such a sum is not void and must be given effect to, and reliance is placed on the provisions of Section 3 of Regulation V of 1812 (which is the law applicable to the present case) and certain decisions of this Court. Now Section 3 of that Regulation runs 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 pattas, 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 talukdars, under-farmers and ryots and to receive corresponding engagements for the payment of rent from each of those 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 legalise the imposition of arbitrary or indefinite cesses, whether under the denomination of 'abwab' or mathat' 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 contracted between the parties, or in other words, enforce payment of such sums as may have been specifically agreed upon between them.' It will be seen that the Section clearly prohibits the imposition of arbitrary or indefinite cesses, whether under the denomination of abwab, mahtut or any other denomination. It is true that the concluding portion of the Section says: The Court shall notwithstanding maintain and give effect to the definite clauses of the engagements contracted between the parties or, in other words, enforce payment of such sums as may have been specifically agreed upon between them.' But I think that does not mean that the Court is to enforce payment of every sum which is not indefinite and which may have been specifically agreed upon between the parties. If that is the meaning of the section, a stipulation to pay a fixed sum (in addition to the rent) expressly described as abwab or mahtut, if specifically agreed upon in the contract creating the tenancy, must be enforced. It may be said that an abwab or mahtut is an arbitrary cess and is expressly prohibited by the section, and, therefore, cannot be recovered even if specifically agreed upon. But the Section prohibits the imposition of cesses not only under the denominations of abwab or mahtut, but of any arbitrary or indefinite cess under any other denomination.

40. The concluding portion of Section 3 of Regulation V of 1812 came up for consideration before the Full Bench in the case of Chultan Mahton v. Tilukdari Singh 11 C. 175 : 5 Ind. Dec. (N.S) 876. and Mitter, J., (Tottenham and Pigot, JJ., concurring with him) referring to the last four lines of the Section observed at page 184 of the report:---'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 italicised, I think the words 'sum specified' refer to the amount of the rent specified.' It is true the question referred to the Full Bench was whether certain items over and above the rent described in the zemindari papers and in the plaint as abwabs were legally recoverable. One of the arguments, however, before the Court was that as there was a contract between the patties for the payment of the sums claimed in that case, under the latter portion of Section 3 of Regulation V of 1812, the plaintiffs were entitled to recover them. So that the construction of that Section came up for consideration before the Full Bench. On appeal the Judicial Committee, no doubt, affirmed the decision in that case upon a consideration of the provisions of Sections 54 and 55 of Regulation VIII of 1793, and held that if the abwabs claimed existed at the time of the Permanent Settlement, they ought to have been consolidated with the rent under Section 54 of that Regulation, and if they were not payable at that time they would come under the descriptions of new abwabs under Section 55, and, therefore, could not be recovered, But their Lordships did not disapprove of the view taken by the Full Bench as to the construction to be placed on Section 3 of Regulation V of 1812.

41. A similar view was taken by the Full Bench in the case of Radha Prosad Singh v. Bal Kowar Koeri 17 C. 726 at p. 759 : 8 Ind. Dec. (N.S) 1026. The question in that case was whether certain cesses under the denomination of sarak neg and khuruch, which had been paid for a long time along with the rent and without specification in the rent receipts, were recoverable. They were not agreed upon to be paid by any written engagement at the creation of the tenancy or as part of the rent, and appear to have been subsequent impositions. But the correctness of the decision in Pudmanund Singh v. Baij Nath Singh 15 C. 828 : 7 Ind. Dec. (N.S) 1135 having been questioned in the order of reference the provisions of Section 3 of the Regulation V of 1812 were considered by the Full Bench in dealing with the question of abwabs, and the opinion of the learned Judges is certainly entitled to great weight. O'Kinealy, J., (Prinsep and Pigot, JJ., agreeing with him) observed at page 752: 'By Section 2 of the Regulation XVIII of 1812, the proprietors were empowered to grant leases of any form for rent, and by Section 3 of Regulation V of 1812 they were empowered to receive from the tenants corresponding engagements for the payment of rent' and it only. No further power was given. And as if to mark the distinction between cesses and rent, the former are referred to as paid under stipulations or reservations, the latter under engagements, and it was the engagements for the payment of rent, and not the stipulations for cesses, that were to be enforced. It was not the intention of the framers of this Regulation to allow the parties to contract for anything in money or in kind not then known as rent, and when they described abwabs and mahtuts as arbitrary or indefinite they were only using words applied to these assessments from 1772, Bearing this in mind, a comparison of the latter portion of this Section with Sections 54 and 57 of Regulation VIII of 1793 shows that the words 'specifically agreed' in Regulation V of 1812 are the same as specifically stated in Section 57, and refer to the one specific sum of Section 54 in the Permanent Settlement. They have no reference to cesses. This is the view taken by the Full Bench in Chultan Mahton's case 11 C. 175 : 5 Ind. Dec. (N.S) 876., where it is said that the last four lines of Section 3 of Regulation' V of 1812 refer to the ground rent in the Permanent Settlement.'

42. We have been referred to certain observavations of Banerjee, J., in the case of Assanulla Khan Bahadur v. Thirthabashini 22 C. 680 at p. 688 : 11 Ind. Dec. (N.S) 453. in support of the appellant's contention. The amount objected to in that case was chowkidari cess, which the patnidar agreed to pay to the zemindar. The agreement to pay chowkidari tax by a patnidar, as pointed out in that case, could not possibly be considered as a stipulation to pay an arbitrary or indefinite cess in the nature of an abwab within the meaning of Section 3 of the Regulation, It is true Banerjee, J., [in referring to the fact that the majority of the learned Judges in the Full Bench case of Radha Prosad Singh v. Bal Kowar Koeri 17 C. 726 at p. 759 : 8 Ind. Dec. (N.S) 1026. took the same view of Regulation V of 1812 as was taken by the Full Bench in Chultan, Mahton's case 11 C. 175 : 5 Ind. Dec. (N.S) 876.] observed that 'the majority of the Full Bench in the former ease based their conclusion that Pudmanund's case 15 C. 828 : 7 Ind. Dec. (N.S) 1135. was wrongly decided, not upon the ground that the items them claimed...were kept separate from the amount styled the rent, and were, therefore, not recoverable; but upon the ground that they were from their very nature no part of the ground-rent, the items being selami and tehwari.' But that involves a distinction between rent and cesses; and Banerjee, J., himself in the case of Sree Kanta Pershad v. Irshad Ali Sarkar 17 Ind. Cas. 173 : 16 C. L. J. 225 disallowed the 'price of presents and unpaid labour' in addition to the rent stipulated for in the kabuliyat, on the ground (among others) that they were dealt with separately from the actual rent in the kabuliyat.

43. The construction of Section 3 of Regulation V of 1812 now put forward on behalf of the appellant was distinctly set up in the case of Pudmanund Singh v. Baij Nath Singh 15 C. 828 : 7 Ind. Dec. (N.S) 1135. That was also a case of a permanent tenure and the tenant agreed to pay a certain fixed sum as rent and also certain other items designated selami and teh wari in the contract creating the tenancy. Tottenham and Ghose, JJ., held that they were not illegal cesses within the Full Bench ruling of Chultan Mahton v. Tilukdari Singh 11 C. 175 : 5 Ind. Dec. (N.S) 876. not being uncertain and arbitrary in their character, but specific sums which the tenants agreed to pay to the landlords and the payment of which, no less than the payment of rent itself, formed part of the consideration upon which the tenancy was created, and which were in fact part of the rent agreed to be paid, although not so described; they were recoverable, therefore, under Regulation V of 18 2.' In the Full Bench case of Badha Prosad Singh v. Bal Kowar Koeri 17 C. 726 at p. 759 : 8 Ind. Dec. (N.S) 1026. however, Ghose, J., although he repeated the same observations, said at page 763 with reference to the opinion expressed in Pudmanund's case 15 C. 828 : 7 Ind. Dec. (N.S) 1135. as follows: 'And I may here observe that it was not intended thereby to hold that anything that is not arbitrary and indefinite is recoverable, although it may not be part of the rent. In that case, both the elements were supposed to be present, viz., that the items in question were not of an arbitrary or indefinite character; and secondly, they formed part of the rent agreed to be paid. I am, however bound to say that having since more carefully considared the subject, I have come to the opinion that we were not right in holding that the items of tehwari and selami were part of the rent stipulated to be paid under the lease. They were, I now think, abwabs.' So that according to the opinion of Judges in the two Full Bench cases (including Ghose, J., himself) it is only the rent, and not any other item though neither indefinite nor arbitrary and though agreed upon to be paid in the written engagement, which can be recovered under the Regulation and the contrary view taken in Pudmanund's case 15 C. 828 : 7 Ind. Dec. (N.S) 1135. was dissented from.

44. The question, therefore, is what is the rent which is recoverable under the Regulations. Is it the single item which may be called the rent proper, or does it include any other item which is consolidated with it, and agreed upon by the parties as the rent. In Radha Prosad's case 17 C. 726 at p. 759 : 8 Ind. Dec. (N.S) 1026., Petheram, C. J., was of opinion that the Judicial Committee in Tilukhdari Singh v. Chulhan Mahton 17 C. 131 : 16 I. A. 152 : 13 Ind. Jur. 251 : 5 Sar. P. C. J. 408 : 8 Ind. Dec. (N.S) 625 (P. C.). while affirming the judgment of the High Court went beyond it, and held that 'under the Regulations nothing could be recovered except one sum, which must include everything which was payable for such occupation arrived at either by agreement or by some judicial determination, between the parties, and that any contract to pay anything beyond that sum under any name whatever for or in respect of the occupation of the land could not be enforced.' O'Kinealy, J., also (as stated above) observed with the concurrence of two other Judges that it is only one specific sum being the ground rent' of the Permanent Settlement which can be recovered. The view, however, that nothing beyond 'one sum' can be recovered has not been followed in the subsequent cases, unless the expression 'one sum' was meant to include a consolidated sum agreed upon as 'the rent' though consisting of more items than one. In all the subsequent cases the only distinction which has been drawn is that, between the sum agreed upon as the rent (i.e., the amount which is fixed by the contract as the rent) and sums not so agreed upon, and the decisions proceed upon the view that more items than one may constitute the rent, if it appears from the lease that more items than one have been treated by the parties as part of and, included in the 'rent' and described as such in the lease. It is unnecessary to go into all these oases in detail. Where a lease provides for payment of a fixed sum as rent and also provides for the payment of certain other fixed sums apart from the rent (for instance as the price of certain articles), such amount has been held to be an abwab though stipulated to be paid by the written contract creating the tenancy and though the amount payable is not indefinite; and in determining whether such item did or did not form part of the rent, the fact that it has been stipulated be paid separately from the rent, and also the fact that it is not included in the instalments of the rent, have been considered as having a material bearing on the question. For instance, in the case of Badha Charan Bay Chowdhry v. Golak Chandra Ghose 31 C. 834 : 8 C. W. N. 529. a fixed amount mentioned in the lease as payable annually for collection charges, which together with the rent was described as the jama and which was included in the kistbandi, the total being referred to as the rent, was held not to be an abwab. On the other hand a certain sum stipulated to be paid for Iswar puja Narendra Kumar Ghose v. Gora Chand Poddar 33 C. 683 : 3 C. L. J. 391. or as holi selami Bipin Behary Mitter v. Sarat Chandra Sirkar 7 Ind. Cas. 760 : 13 C. L. J. 148. or as the price of presents and unpaid labour' Sree Kanta Pershad v. Irshad Ali Sarkar 17 Ind. Cas. 173 : 16 C. L. J. 225. or as price of husk Mathura Prasad v. Tota Singh 17 Ind. Cas. 177 : 16 C. L. J. 296 : 40 C. 806. and Kalar Singh v. Mathura Prosad 25 Ind. Cas. 547 : 19 C. L. J. 402. where the sum was treated in the kabuliyat separately from the rent or was not included in the kistbandi, was held to be an abwab. In all these cases, there was a written engagement at the creation of the tenancy, and there was express stipulation to pay a specific sum of money which was not uncertain or indefinite, and yet it was held that the sum did net form part of the rent but was an abwab and could not be recovered. Some of these cases relate to raiyati holdings and not to permanent tenures. But so far as the question whether the additional sum claimed under the kabuliyat was or was not an abwab, is concerned, there is no difference between a raiyati holding and a permanent tenure.

45. The latest cases on the point are Kalanand Singh v. Eastern Mortgage and Agency Co., Ltd. 19 Ind. Cas. 701 : 18 C. L. J. 88. and Upendra Lal v. Ataulla 36 Ind. Cas. 404 : 21 C. W. N. 108. In the first case a permanent tenure was created by a lease dated 31st January 1874, and in the lease it was specifically provided that the lessee should pay to the lessor year by year a fixed sum of Rs. 4,310, of which the sum of Rs. 4,300 was described as jama and Rs. 10 as selami and tehwari. Chitty and Teunon, JJ., held that they were not abwabs as they were specific sums provided and agreed upon in the lease creating the tenancy, and such stipulation was not for the payment of arbitrary or indefinite cesses, but in the language of Section 3 of Regulation V of 1812 is a definite clause in the engagement contracted between the parties' which should be maintained and given effect to.' The learned Judges were of opinion that the two sums in question, though not described in the lease as rent, were in reality part of the consideration for which the tenancy was created and part of the rent agreed to be paid. In Upendra Lai v. Ataulla 36 Ind. Cas. 404 : 21 C. W. N. 108. a sum of Rs. 3-1 0 described as enhanced rent for collection charges together with the rent proper was fixed as the total rent, the details of the kistbandi dealt with the whole amount including the said sum of Rs. 3-1-0, and the total amount was throughout referred to as the rent. It was under these circumstances that the amount was held to be part of the rent and not an abwab, in accordance with the view taken in the previous decisions on the point since Badha 'Prosad's case 17 C. 726 at p. 759 : 8 Ind. Dec. (N.S) 1026. The case of Kalan nd Singh v. Eastern Mortgage and Agency Co., Ltd. 19 Ind. Cas. 701 : 18 C. L. J. 88. was referred to in the judgment (to which I was a party) as the learned Judges in that case had held, upon a construction of the kabuliyat (the terms of which were not fully set out in the report), that the two items were part of the rent agreed upon to be paid. If, however, the learned Judges took the same view as had been taken by Tottenham and Ghose, JJ., in Pudmanund's case 15 C. 828 : 7 Ind. Dec. (N.S) 1135. (in which the very same items selami and tehwari were in dispute), it is opposed to the view taken not only by the majority of the Full Bench (and in a manner by Ghose, J., himself as stated above) in Radha Prasad's case 17 C. 726 at p. 759 : 8 Ind. Dec. (N.S) 1026. and in Chultan Mahton's case 11 C. 175 : 5 Ind. Dec. (N.S) 876. but in all the cases decided subsequently.

46. The actual decision in Upendra Lal's case 36 Ind. Cas. 404 : 21 C. W. N. 108. proceeded upon the ground that the sum objected to was part of the rent. The expression consideration for the lease' used in the judgment was qualified by the words and part of the rent,' and these words were repeated more than once in our judgment. It was not meant that any consideration for the lease mentioned in the kabuliyat creating the tenancy is rent and not an abwab. Any sum agreed upon to be paid as 'rent' is consideration for a lease, but for the purpose of deciding the present question every consideration for a lease is not necessarily 'rent' within the meaning of Section 3 of the Regulation, and anything which is prohibited by Statute cannot be said to be lawfully payable. In fact the distinction between what upon a construction of a lease is rent and a sum not treated nor described as rent but which may have been agreed upon to be paid by the kabuliyat was recognised in that judgment, as the references to the several cases cited show [though the fact that such a distinction was not observed by Garth, C. J., in Mahomed Fayez Chowdhry v. Jamoo Gazee 25 Ind. Cas. 547 : 19 C. L. J. 402. was overlooked in citing that case], and the judgment was in fact founded upon the distinction, though not clearly expressed. The observation that since the Full Bench decision, the question has been treated as one of construction, 'although more items than one are described as constituting the rent, was made with reference to the view taken by some of the Judges in Radha Prosad's case 17 C. 726 at p. 759 : 8 Ind. Dec. (N.S) 1026. that only one sum is rent and the rest are abwabs. What was meant to be said was that if the item other than the rent proper is consolidated with it and appears from a construction of the lease to have been included in and treated as part of the rent, so that the two items constitute the 'rent' agreed upon at the creation of the tenancy, then the mere fact that there are two items would not make the item other than the rent proper an abwab.

47. It is contended that the mere fact that a certain item is dealt with in the kabuliyat in a separate clause or that it is not included in the instalments of rent ought not to make any difference in determining whether the item is or is not rent. But those facts have an important bearing upon the question of intention of the parties to the contract. They show whether the parties intended to treat a particular item as part of the rent agreed upon to be paid or as something different from the rent, and those facts have accordingly been taken into consideration in all the cases decided since the Full Bench.

48. The question whether a particular item is or is not rent, no doubt depends upon the construction of the lease in each case. But once it is held that a particular item has not been agreed upon by the parties as the 'rent' nor described in the lease as such, the further question whether such sum, although it may form part of the consideration mentioned in the contract, is recoverable or not must depend upon the law as laid down in the Regulations and Acts on the point. So far as the construction of the lease in the present case is concerned, the sum of Rs. 15 as Thakurbari mamuli is not, for the reasons already stated, part of the rent. The sum, therefore, cannot be recovered, having regard to the provisions of Regulation V of 1812, and the cases decided on the point. I, accordingly, agree in dismissing the appeal.


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