Narsing Rau, J.
1. This is an appeal by two of the defendants in a suit for recovery of arrears of rent in respect of a putni taluk. The suit was brought on 19th April 1938, by one Arabinda Kumar Pal for his 8 annaa share of the rent, Satyendra Nath Pal, the owner of the other 8 annas share, being made a party-defendant as required by Section 148A(1), Ben. Ten. Act. The annual rent of the entire a putni was stated to be Rs. 11,603 and the annual cess Rs. 3514-5-0. The suit was for arrears of four years, 1341 to 1344 B.S. inclusive, and the plaintiff laid the total claim in his 8 annas share at Rs. 33,881 odd, after giving credit for certain payments and adding damages at 25 per cent, of the arrears. On 6th June 1938, Shyamrangini Roy Chowdhurani and Pulin Krishna Roy, who on 27th April 1938, had purchased the 8 annas share of Satyendra Nath Pal at a sale in execution of a mortgage decree, applied to the Court to be substituted in his place. The application was rejected on 8th June 1988, on the ground that the mortgage sale had not yet been confirmed. Immediately there, after, on 8th June 1938 itself, Satyendra Nath Pal applied to be joined as a co-plaintiff for his share of the rent, presumably under Section 148A(3), Ben. Ten. Act. This application was allowed and he was added as a co-plaintiff on 21st June 1938. On 18th July 1938 the mortgage sale in favour of Shyamrangini Roy Chowdhurani and Pulin Krishna Roy was confirmed, and they applied again on 25th July 1938, for substitution in place of Satyendra Nath Pal. This time their prayer was allowed and they were accordingly substituted as co-plaintiffs in his place on 30th July 1938.
2. The suit was contested by defendants 1 to 3, of whom defendants 2 and 3 filed the present appeal, defendant 1 being their brother. Defendant 3 died after the filing of the appeal and his son is now continuing it. Five issues were raised at the trial, namely, (i) What is the yearly rent? (ii) Have the co-plaintiffs any right to realise arrears of rent on the strength of their sale certificate? (iii) Are the defendants entitled to claim abatement of rent on the ground of Diara and diluvion? If so, what amount? (iv) Is the plea of payment alleged by the defendant true? (v) What amount, if any, are the plaintiff and the co-plaintiffs entitled to claim on account of damages? The Subordinate Judge found against the defendants on all points and decreed the suit in full. Hence this appeal. We may mention at the outset that the appellants no longer question the rate of rent. The Court below has found that the annual rent of the whole of the Putni taluk is, as claimed in the plaint, Rs. 11,603. This is now conceded.
3. The first point raised before us on behalf of the appellants is as to the construction of the sale certificate, Ex. 2 upon which the co-plaintiffs Shyainrangini Roy Chowdhurani and Pulin Krishna Roy base their claim. This document certifies that on 27th April 1938, they purchased at a sale in execution of a certain mortgage decree an eight annas share of the zemindary bearing touzi No. 184 of the Rangpur Collectorate and touzi No. 712 of the Bogra Colleetorate, including all mouzas, Kismats, etc., 'together with all arrears of rents, royalties and cesses owing and payable by raiyats, tenants, tenure-holders and occupiers.' The dispute is as to the meaning of the words which we have underlined (here italicized). Do they refer to the arrears which were due at the date of the mortgage deed, that is to say, on 5th July 1927, or do they refer to the arrears which were due at the date of the sale? It is contended for the appellants that the former is the correct construction, and that the co-plaintiffs are, therefore, not entitled to the arrears of 1341 to 1344 B.S. (1934-35, 1935-36, 1936-37 and 1937-38). Giving the words their natural meaning, however, we have no doubt that they must refer to the arrears which were due at the date of the sale. The arrears that were due in July 1927 were of no value and could be of no concern to a purchaser in April 1938, and it would be an unnatural and unwarrantable construction of the words to hold that they refer to those arrears. Any doubt on this point is removed by the note at the end of the sale proceedings, Ex. 9 in which the Registrar who held the sale records the fact that when he was fixing a reserve price for the lot to be sold the mortgagor claimed that the property was worth Rs. 150,000 and that there were arrears of rent amounting to Rs. 50,000. This could only refer to the arrears due at the date of the sale. If the contention is that the sale of these arrears was not justified by the mortgage decree, the point might and ought to have been taken by the mortgagor in the execution proceedings in the mortgage suit. It cannot be raised by the appellants in the present suit. It follows from our construction of the sale certificate that the co-plaintiffs Shyamrangini and Pullin are entitled to Satyendra's eight annas share of putni rents which were in arrears at the date of the sale. This would include the rents concerned in the present suit.
4. The next point urged on behalf of the appellants relates to the status of the co-plaintiffs with respect to the rents in suit. Even assuming, as we have held, that they acquired by their purchase at the mortgage Sale the right to the arrears in suit, nevertheless - so runs the argument - since they were not the landlords of the putni during the period in suit, they cannot sue for the arrears as landlords. They can only sue for them as for an ordinary debt and as assignees from the original creditor. In particular, it is said, they cannot avail themselves of the special period of limitation allowed by the Bengal Tenancy Act to a landlord suing for arrears of rent; in other words, they cannot be substituted as co-plaintiffs in place of Satyendra Nath Pal for the whole of the four years in suit, although they might be so substituted for the last three of the four years. Our attention has been drawn in this connexion to what are said to be the implications of the Privy Council decision in A.H. Forbes v. Maharaj Bahadur Singh ('14) 1 A.I.R. 1914 P.C. 111. The actual decision in that case does not go as far as we are now invited to go. There a zemindar to whom certain arrears were due sold his zemindary without the back rents and then sued for the back rents himself; it was held that the decree he obtained was merely a money decree, because he was no longer the landlord when he brought the suit, although he was the landlord when the arrears accrued. The present case is the converse of this: the co-plaintiffs were the landlords when they joined in the suit, but not when the arrears accrued. It is, however, contended that the Privy Council judgment implies that unless the plaintiff is the landlord both at the date of the suit and during the period when the arrears in suit accrued, he cannot sue as landlord. This contention would have the result that whenever a land-lord died, his heir would be unable to sue as landlord for any arrears of rent, and not only would they cease to be a first charge on the tenure or holding, but some of them might become time-barred as well. We can find no support for a contention with so startling a result either in any statutory provision or in any decided case. Indeed, in Sasi Kumar v. Sitanath Banerji ('08) 35 Cal. 744 a case of 1908, it was held that the person to whom the land the rent for which is claimed, as also the arrears of rent, are transferred is an assignee for the whole interest of the landlord and is a landlord within the meaning of the Bengal Tenancy Act. Again in Banga Chandra Pal v. Nabendra Kishore Roy ('11) 11 I.C. 496 (Cal.), the plaintiff had purchased a tenure in 1312 B.S. with the arrears of 1311 B.S. and it was held that although he was assignee of the rent for 1311 B.S. he was at the time when he brought the suit, the sole landlord in respect of the tenure for which the arrears were claimed. There is nothing in A.H. Forbes v. Maharaj Bahadur Singh ('14) 1 A.I.R. 1914 P.C. 111 which compels us to take a different view. The passage relied on by the appellants in the Privy Council judgment runs thus:
The governing idea throughout the multifarious provisions contained in Chap. 8, (of the Bengal Tenancy Act), to regulate the respective rights and obligations of landlords and tenants is the subsistence of the relationship that gives rise to those rights and obligations. (Page 100 ibid).
5. A later passage indicates, however, that this was intended to lay down no more than that the relationship of landlord and tenant must be subsisting at the time 'when the remedy provided by law is sought to be enforced,' i.e., when the landlord seeks to enforce his rights whether by suit or by proceedings in execution. In A.H. Forbes v. Maharaj Bahadur Singh ('14) 1 A.I.R. 1914 P.C. 111 the relationship was not subsisting when Dhanpat Singh brought his suit for back-rents after parting with his zernindary, nor when the assignees of Dhanpat Singh's decree sought to execute it. In the Special Bench case Krishnapada Chatterji v. Manada Sundari : AIR1932Cal321 , the relationship was subsisting when Yajncswar obtained his rent decree but not when his heirs sought to execute it, and so the rule laid down in A.H. Forbes v. Maharaj Bahadur Singh ('14) 1 A.I.R. 1914 P.C. 111 was applicable at the execution stage. The facts of the present case are materially different : here the co-plaintiffs were the landlords at the time when they joined in the suit for recovery of the arrears. The case is therefore not hit by that rule.
6. From another point of view also the proposition contended for by the appellants appear to go too far. Take the case where the landlord transfers his interest in the land and at the same time assigns to the transferee a decree which he, the transferor, has already obtained for four years' arrear rent. In such a case the effect of Sections 143(2), 148(a) and 148(c), Ben. Ten. Act, is to make Order 21, Rule 16, Civil P.C., applicable to the execution of the decree, so that in the language of that rule, the decree may be executed in the same manner and subject to the same conditions as if the application were made by the decree-holder. Now, if prior to the transfer the decree-holder had applied for execution, the decree would have been executable as a rent decree and for the full four years' dues. Therefore in the hands of the transferee also in the case put, it is executable in the same manner and to the same extent, although he was not the landlord during the period when the arrears accrued due. This shows that in order to be entitled to the benefits of a rent decree it is not always essential that the claimant should himself have been the land, lord during the period of accrual of the rents.
7. Following the decisions of this Court in Sasi Kumar v. Sitanath Banerji ('08) 35 Cal. 744 and Banga Chandra Pal v. Nabendra Kishore Roy ('11) 11 I.C. 496 (Cal.) cited above, we think that the co-plaintiffs in the present case, though not the actual landlords during the period in suit, were entitled to sue as if they were the landlords and to obtain a rent decree in the same manner and to the same extent as Satyendra Nath Pal before the mortgage decree. Another point raised before us is that the appellants are entitled to a reduction of the rent by reason of diluvion. A number of tenants were examined in the suit to show that their holdings under the appellants have been washed away by the river and that they have not been paying any rent to the appellants for some 10 years. The plaintiffs have however put in evidence a petition of compromise dated 22nd January 1935, filed in a previous rent suit between the zemindars and the patni talukdars (Ex. 1). That suit was for arrears of 1338 B.S., 1339 B.S. and the first half of 1340 B.S. The first two paragraphs of the terms of compromise run thus:
(1) The defendants admit that the annual rent for the patni taluka in suit is Rs. 11,603 and according to the recent valuation the annual cesses amount to Rs. 3514-6-0 and so 'as' in the paper book appears to be a mistake for 'so' the defendants, remain bound to pay rent and cesses to the two plaintiffs and the defendants admit that they would be bound to pay such cesses as may be fixed by the Government at any time in future.
(2) With regard to the said Jama of Rs. 11,603 of the patni mahal in suit the defendants admit - 'admit' seems to be a more accurate translation of the original than 'agree,' which is the word used in the paper book - that they will not be entitled to raise any objection or make any claim for variation of the rent on the plea of waste, abandonment, diluvion, alluvion, settlement in Diara or being covered with sand or on any other ground, nor will the rent or can the rent for the aforesaid patni be increased or decreased on any account at any time. The defendants do admit this.
8. We may observe at the outset that although under Section 52(1)(b), Ben. Ten. Act, every tenant is entitled to a reduction of rent in respect of any deficiency in the area of his tenure or holding, the provision is alterable by con-tract, except only in the case of raiyats. This will appear from Section 178(3)(e) of the Act and is further borne out by Section 179. It is significant that when the Legislature made some of the provisions of Section 178 applicable to putni tenures, it applied only those of Clause (i) of Sub-section (1) and left out the others, in particular it left out Clause (e) of Sub-section (3) : see Section 195(e)(i) of the Act. There is, therefore, no doubt that a zemindar and a patnidar can contract themselves out of the provisions of Section 52, and, in the present case, they did purport to do so by para. 2 of the aforesaid compromise. In the trial Court, the defendants attempted to make out a case of undue influence; but the attempt failed, and their advocate before us has conceded, with his usual fairness, that the evidence does not bear out the plea. It is said, however, that the solenama is invalid for want of registration. But as the solenama was followed by a decree in the same terms and as it did not comprise any immovable property other than that which was the subject-matter of the suit, the decree did not require registration Sunder Section 17(1)(b), Registration Act, (see Section 17(2)(vi), Registration Act). Nor can it be argued at this stage that the decree or the solenama was a lease so as to require registration under Section 17(1)(d).
9. The solenama sets out certain stipulations regarding an existing putni taluk. Some of these stipulations profess to be merely admissions of the original terms and since the original putni kabuliyat has not been put in; evidence, we cannot tell for certain to what extent the stipulations in the solenama amount to a variation of the original engagements. The fact is that this plea was not taken in the lower Court at all and the necessary foundation for it was not laid. We are, therefore, unable to accept it at the present stage and we must hold that the defendants appellants are not entitled in this suit to any reduction of rent on account of diluvion. The fourth point taken on behalf of the appellants is that damages ought not to have been awarded at 25 per cent, of the arrears, since Section 68, Ben. Ten. Act, as amended by Bengal Act 2 of 1939, (which came into force on 6th April 1939) has fixed the maximum rate for damages at 121/2 per cent. This raises the preliminary question whether Section 68 of the Act is at all applicable to putni tenures, a question the decision of which has in some respects been complicated by the fact that since the institution of this suit there have been numerous amendments of the Bengal Tenancy Act as well as of the Putni Taluks Regulation at different dates. We notice, first of all, that Section 195(e) of the Act, whether in the form in which it stood at the date of the present suit, or after its amendment by Bengal Act 6 of 1938 (which came into force on 18th August 1938), provides that with certain specified exceptions nothing e in the Act shall affect any enactment relating to putni tenures, in so far as it relates to those tenures. The specified exceptions were slightly enlarged by the Amending Act 6 of 1938, Section 67 and certain provisions of Section 178 being expressly made applicable to putni tenures; but Section 68 has never yet been made so applicable. The result is that if Section 68, Ben. Ten. Act, is found to conflict with the Putni Taluks Regulation it cannot be applied to putni taluks. We notice, in the next place, that by Bengal Act 10 of 1941 (which came into force on 23rd October 1941), that is to say, after the decision of the present suit by the Subordinate Judge and during the pendency of this appeal, a fourth clause was added to Section 3, Putni Taluks Regulation, in the following terms:
Subject to the provisions of Section 14A of this Regulation an arrear of rent shall, notwithstanding anything contained in any other section of this Regulation or in any engagement between the zemindar and the talukdar whether entered into before or after the commencement of the Bengal Patni Taluks Regulation (Amendment) Act, 1941, bear simple interest at the rate of six and a quarter per centum per annum from the expiration of that quarter of the agricultural year in which the instalment falls due to the date of payment or of sale of the tenure under this Regulation or of the institution of a suit for arrears of rent whichever is earlier.
10. Assuming for the moment that although this amendment was made after the case had been disposed of by the trial Court, it is nevertheless binding upon us in this appeal, what is the result? The result is that we must allow interest on the arrears in suit at 61/2 per cent, per annum according to the added clause. Now Section 68, Ben. Ten. Act, contains a proviso that when damages are awarded under the section, interest shall not be decreed, and a further proviso that the amount of such damages shall not be less than the interest accruing upto the date of the institution of the suit. The result of applying Section 68 would, therefore, be to violate the new clause of the Regulation which in effect requires that in a suit for putni rent interest must be decreed at six and a quarter per centum per annum up to the date of the institution of the suit. The effect of Section 195(e) is therefore to make Section 68 inapplicable to putni taluks after the aforesaid amendment of the regulation. It is not with out significance that whereas Section 67, Ben. Ten. Act, has been specifically mentioned in Section 195 as applying to putni taluks and whereas by way of removing all doubt its provisions have now been incorporated in the Putni Taluks Regulation itself, Section 68, which provides for damages as an alternative to interest in certain circumstances, has been left out in both places. It may well be that in view of the stringent provisions of the Patni Taluks Regulation, which inter alia entitles the zemindar to demand substantial security from every incoming talukdar to the amount of half the yearly rent and to bring the tenure to sale twice a year before the Collector for arrears of rent, any further remedy by way of damages to the zamindar for the patnidar's default in the payment of rent was considered unnecessary. Whatever may be the reason, the effect seems clear : Section 68, Ben. Ten. Act, is not applicable to putni taluks as the law now stands. It may be mentioned that we have not been able to find any reported case to show that Section 68 was ever applied to putni taluks since it was first enacted.
11. We have made one assumption in the foregoing discussion, namely, that although the Act of 1941, amending the Putni Taluks Regulation, was passed after the decision of the present suit by the Court of first instance, we have to give effect to it in this appeal. The effect of a change in the law made at the appellate stage of an action was considered in a recent House of Lords' case New Brunswick Railway Co. v. British and French Trust Corporation Ltd. (1939) 1939 A.C. 1. The decision appears to have been that in each case it is a question whether the new Act by which the law is changed is to be construed with retrospective effect so as to affect pending actions : see Lord Wright's speech at p. 33 etc., ibid. Now the words notwithstanding anything contained in any other section of this Regulation or in any engagement between the zemindar and the talukdar whether entered into before or after the commencement of the Bengal Patni Taluks Regulation (Amendment) Act, 1941, occurring in the added clause make it perfectly clear that this clause was intended to have retrospective effect and to govern even a pending case. If we were to hold otherwise, it would follow that in suits which were pending when the new Act was passed, interest was to be regulated by the engagements between the parties, although according to the language of the Act all such engagements without any qualification are to be regarded as superseded. It seems clear, therefore, that the new clause was intended to govern even pending actions and we must give effect to it even in this appeal.
12. Towards the end of his argument, Dr. Basak for the respondents contended that even if damages under Section 68, Ben. Ten. Act, were held inadmissible, he could nevertheless claim damages under paragraph 5 of the compromise of 1935 (Ex. 1). The paragraph provides that in the event of default in the payment of the stipulated instalments the plaintiffs would be entitled to get a decree 'with interest or damages' a phrase which Dr. Basak would interpret to mean 'with interest or damages, whichever is more.' Such a contention, if upheld, would provide an easy means of circumventing the new clause in the Putni Taluks Regulation. All though the new clause limits the interest on arrears to six and a quarter per centum per annum notwithstanding anything contained in any engagement between the parties, the zemindar would on this contention still be free to stipulate for more by calling it damages. Had the Legislature contemplated the award of damages in excess of the interest prescribed in the new clause, it would doubtless have inserted, along with the new clause, a provision on the lines of Section 68, Ben. Ten. Act, specifically allowing damages as an alternative to interest in suitable cases. It has not done so. We do not, therefore, think that damages can be claimed even on the strength of the engagement between the parties contained in the petition of compromise of 1935. In any event, there are no materials in the present suit to support an award of damages whether on the lines of Section 68 or otherwise. Such evidence as there is on the record indicates that the default of the patnidars was due, at least in part, to the fact that a number of tenants in the putni have been withholding their rents for several years, because their holdings have been washed away. In these circumstances we do not think that this is a proper case for damages in addition to the interest under the regulation.
13. Accordingly, the part of the decree relating to damages must be varied by substituting for the amount so awarded interest at six and a quarter per centum per annum calculated according to Clause (4) of Section 3 of the Patni Taluks Regulation as amended by the Act of 1941. The amount to be so substituted works out to Rs. 2247 in each 8 annas' share, allowing interest up to the date of the suit. In the absence of full details in the plaint, we can only regard the rents mentioned as outstanding in each Bengali year as falling due on last day of that year.
14. Finally, the appellants represent that the order for costs passed by the learned Subordinate Judge is excessive, inasmuch as two sets of pleader's fees have been decreed, namely Rs. 689 to the plaintiffs and again Rs. 689 to the co-plaintiffs. It is true that of the five issues framed in the suit the second one was special to the co-plaintiffs but the others were common. It seems to us therefore that the costs awarded are excessive. We shall meet the appellants on this point by directing that the parties to this appeal will bear their own costs, although the appeal has for the most part been unsuccessful. The decree of the Sub-ordinate Judge will therefore be modified so far as it relates to the award of damages in the manner indicated above. In, other respects the appeal is dismissed. Each party will bear its own costs in this Court.
15. I agree.