D.N. Mitter, J.
1. This is an appeal from a decision of the President of the Calcutta Improvement Tribunal dated 31st January 1935 and arises out of a dispute with regard to apportionment of the compensation money which has been awarded by reason of compulsory acquisition under the Calcutta Improvement Act of 1911. It appears that the land in question, which consists of about six bighas in area, was required for the purposes of a certain improvement scheme, and the value of the land, which is premises No. 25, Lake Road, was assessed at (including the statutory allowance) Rupees 1,12,700, and the value of the structures and trees in the premises in question with the statutory allowance was assessed at Rs. 1769-12-10. At the time of the declaration the tenant one Radhanath Maity who was claimant No. 2 before the Collector, was in poisession. The whole of the sum of Rupees 1,12,700 was awarded to the landlord claimants who are the respondents before us and the sum of Rs. 1,769-12-10 was given to Radhanath, the tenant. The tenant was dissatisfied with the award of the Collector and there was a reference both as regards valuation and apportionment. We are not now concerned with the question of the amount of compensation which has been awarded. The only dispute before us is with regard to the apportionment of the compensation awarded. The tenant claimed that he was occupancy raiyat on the land at the time of the acquisition and that therefore on the principle accepted by this Court he is entitled to half the compensation which has been awarded in favour of the landlord claimants..This position was not accepted by the learned President of the Tribunal who has confirmed the award of the Collector and has dismissed the reference made at the instance of Radhanath Maity, the appellant before us. Hence the present appeal by claimant No. 2.
2. In appeal before us Mr. Pugh who has appeared for claimant No. 2, has raised several contentions. He has contended in the first place that the land in question was agricultural land in the year 1906 when the kabuliat was executed in favour of the landlord by the present claimant, and that before the actual execution of the kabuliat, his case is, Radhanath or rather his predecessor-ininterest was for more than 12 years in occupation of this land and has acquired a right of occupancy to the same. Alternatively, the contention is that in any event Radhanath was before the execution of the lease in 1906 a non-occupancy raiyat on the land and that having regard to the provisions of Section 178, Ben. Ten. Act it was not permissible to the landlord to grant a lease or to take a kabuliat by which the rights of Radhanath Maity under the Bengal Tenancy Act could be jeopardized. His contention in substance is that by this document of 1906, to which reference will be made hereafter, it was not open to the respondents, the landlords, to defeat the rights of the appellant under the Bengal Tenancy Act and the document consequently being out of the way as Radhanath since the date of the lease in 1906 was in occupation of the land for more than 12 years he had acquired a right of occupancy in the land acquired and the apportionment of the compensation money should have been on that basis. The next argument is based on a clause in the kabuliat of 1914 which has been marked as Ex. B (see p. 63 of the second part of the paper-book), namely that in the case of the acquisition of the land by the Government or Municipality, the tenant would not be entitled to get any compensation in respect therefor. It is argued that in accordance with the terms of this kabuliat the tenant precluded himself from getting any portion of the compensation money in cases of acquisition being made only by the Government or by the Municipality, and as the acquisition was not made by the Government but by a board of trustees of the improvement of Calcutta this clause does not prevent the tenant, now appellant, from making a claim with regard to the compensation money. The first two contentions have been negatived by the learned President of the tribunal. With regard to the last contention, namely that the acquisition was not by the Government but by the board of trustees appointed under the Calcutta Improvement Act of 1911, it appears that no such ground was taken before the President of the tribunal nor is there any indication of such a ground in the memoranda of appeal before us. Mr. Pugh has however handed over to us the written argument which was supplied to the President by Mr. Shasmal, counsel for his client, which will show that this point was indicated in those notes which were presented to the learned President and which he afterwards returned to Mr. Pugh's client. The fourth point taken is with reference to the compensation which Mr. Pugh's client claims on account of the improvements which have been effected on the land since the taking of the kabuliat by Radhanath Maity. The learned President has noticed this point and has refused to give any compensation to the appellant on the ground that there is not even an iota of evidence to guide the Court in the assessment of such improvement of the land and also on the further ground that Radhanath himself had given up all rights with regard to the compensation for the land by Ex. B.
3. In order to understand the contentions raised on behalf of the 'appellant it would be necessary to state a few salient facts relating to the history of this land prior to 1906. It appears that a kabuliat was executed by one Uday who is the father-in-law of the appellant Radhanath in favour of the landlord on 1st Magh 1304 B.S. corresponding to 22nd January 1898. This lease was for a term of three years: see Ex. G printed at p. 26 of the second part of the paperbook. It will appear from an examination of this kabuliat that it was in respect of Bastu land. The lessee states this:
I having applied to your Sarkar for being granted a settlement for the purpose of dwelling and residing as a temporary tenant at will, of one plot of about 6 B. 8 K. of land more or less, lying in holding No. 186, Division 6, Sub-Division Q, and within the boundaries given in schedule below out of the Lakheraj lands and Jamas which you have in Mouza. Panditia, Monoharpur village, appertaining to Dihi Panchannagram, within Pargana Khaspur, in District 24-Pargannas, Sub-District Alipore, under thana Tallygunge, you granted my prayers and settled Rs. 51 (fifty one rupees) as annual rent for the said 6 B. 8 K. of land and I give in writing this temporary kabuliat for the term of three years after accepting temporary patta to the effect that I shall pay the amount of rent into your Sarkar.
4. It is clear from this recital that this was a temporary lease which was given for the purpose of residence. It appears that Uday died in Asar 1305 corresponding to some time in 1899 and he was survived by his son Ganesh. On 21st December 1899 Ganesh executed a kabuliat in favour of the proprietor Khento Kali Deb and others: see Ex. H printed at p. 29 of the second part of the paper-book. Here again the recitals show that a temporary lease was being granted for the purpose of dwelling and residing as such. It appears from this document that there were certain trees on the land for there are some provisions with regard to the trees in this document. This kabuliat was taken for a term of five years and the effect of this kabuliat expired on 21st December 1901 corresponding to the 7th Pous 1311 B.S. It appears that in the meantime before the expiry of this lease Ganesh died in Chaitra 1306 leaving a son Ananta who was an infant at that time. It appears from the evidence that Radhanath Maity, the appellant in the present case, was looking after this infant son of Ganesh and the receipts show that the landlords granted receipts in respect of the tenancy which stood in the name of Ganesh and Radhanath was described as Sarbarakar: see Ex. D-8, D-11, which are printed at pp. 3 and 4 of the second part of the paper-book. Apparently, after the expiry of this lease on 22nd December 1904 Radhanath continued to be in occupation of the land which he claimed to be in his own account and in 'his own right. The contention in this behalf is that he was really inducted on this land without execution of any kabuliat, and evidence to this effect has been led, and reliance has been placed on some evidence which has been given on behalf of claimant No. 1 by witness 1: see p. 61 about p. 62, line 44 and p. 63, top of the first part of the paper-book. At this time, it is stated, the Bengal Tenancy Act was in operation in this area for it appears that the area on which this land is situated came to be included within the Municipality in the year 1907. The first kabuliat which was executed by Radhanath Maity the appellant in favour of the landlords Khento Kali Debe and others is dated 18th April 1906 corresponding to 5th Baisakh 1330 B. S: see Ex. A, page 60 of the second part of the paper-book. This was for a term of five years. It will be necessary to consider the provisions of this document as some of the questions which have been argued turn on the construction to be put on this kabuliat. It appears from the recitals to which we will just now refer that this kabuliat was taken for the purpose of dwelling and residence as Bharatia tenancy-at-will for a term of five years. There was a clause also to the effect that the tenant will not be competent to dig or sell earth, nor shall he be competent to allow anybody else to dig or sell earth. The clause is in the following term:
I shall not be competent to dig or sell earth, nor shall I be competent to allow anybody else to dig or sell earth. I shall be competent to enjoy the fruits only of the trees, etc., that are in existence now. I shall not be competent to cut down or sell them.
5. There was a clause that on the expiry of the term it will be open to the landlord to let out and to make fresh settlements. After the expiry of the term of this kabuliat in 1911 it appears that Radhanath Maity continued to occupy this land and he executed a second kabuliyat in favour of Benoy Kumar Mukherjee on 30th June 1914 corresponding to 16th Asar 1321 B.S. This lease has been marked as Ex. B, see p. 63 of the second part of the paperbook. The kabuliat also recites that this was a temporary Bharatia tenancy at will in respect of 6 bighas 8 cottas of rent-paying land. It contains further an important clause about which there has been some discussion as to the question as to whether having regard to that clause the appellant is entitled to any compensation. That clause runs as follows:
Further be it mentioned that if the Municipality or the Government acquires the said land at any time for any purpose, then you shall got the compensation awarded therefor. I shall not have any concern therewith, and if some portion of the said land be acquired then I shall not get abatement of rent therefor. After the expiry of the term, I shall give up (the said land) without any notice and without any objection.
6. The third kabuliat was executed in favour of Benoy Krishna Mukherjee on 22nd April 1916 by Radhanath and the terms of this kabuliat, which has been marked as Ex. 2 and printed at p. 67 of the second part of the paper-book, are similar to the terms of the previous kabuliat of 1914. It contains the same clause about the tenant not being entitled to get any compensation in case of acquisition by either Government or Municipality. It is said, however, that this kabuliat was not acted upon. The rent stated in this kabuliat was a sum of Rs. 300, per year and it seems to be the case of both parties that no effect was given to this kabuliat. So it appears clear that Radhanath clearly continued to occupy this land after the expiry of the effective kabuliat, Ex. B, the terms of which expired on 30th June 1919.
7. We have no doubt, having regard to the object and purpose for which these kabuliats were executed by the tenant in favour of the landlord, that the lease was given for dwelling and residential purposes. It is undoubtedly true that some evidence was given on behalf of the landlord which would go to show that even after the granting of the first lease in favour of Uday a portion of the land in question was being cultivated and paddy was being grown as also other vegetables; and it is argued on the basis of this evidence on behalf of the appellant that having regard to the fact that a large portion of the land was cultivated with paddy and other vegetables by the tenant who for the time being was occupying this land it must be taken that the lease was taken for agricultural purposes, and that this land was agricultural land. It is not possible to accede to this contention. The terms of the different kabuliats to which reference will be made are absolutely clear on the point, namely, that the lease was for dwelling and residential purpose and that the terms of these leases cannot possibly make the tenancy of a raiyat within the meaning of the Bengal Tenancy Act. The word 'raiyat' has been defined in Section 5 of the Act and the word means primarily a person who has acquired a right to hold land for the purposes of cultivating it either by himself or by members of his family or by servants or labourers or with the aid of partners, and includes also the successors-in-interest of persons who have acquired such right.
8. The relevant kabuliats show that these kabuliats were taken not for the purpose of cultivating the land in the various ways mentioned in Section 5 (2), Ben. Ten. Act. Mr. Pugh realized the difficulty of his position having regard to the terms of this kabuliat and the case which was put forward before us therefore was that between the expiration of the lease of Ganesh in 1904 and the actual execution of the kabuliat by Radhanath in 1906. Radhanath was really holding these lands as a non-occupancy raiyat, the land apparently being according to his contention agricultural land, and he wanted to support this position by the evidence of Bhabataran Basu, the agent of the landlords, that excepting 10 or 12 cottas of land, which was not under cultivation the rest was under cultivation. It is difficult to accept the position taken up in this Court, namely, that Radhanath was really a non-occupancy raiyat seeing; that it is in direct conflict with the admission made in the kabuliyat which was executed in 1906, and which must be taken or at least presumed to be correct in the absence of evidence to the contrary, for it is now well established that what a man admits to be true must reasonably be presumed to be so. See the observations of their Lordships in Chandra Kunwar v. Narpat Singh (1907) 29 All 184. The admission is undoubtedly not conclusive and may be shown to be wrong But the mere fact that the land to the extent of major part of it was under cultivation does not shift the burden on to the other side of showing that notwithstanding the admission the land was given for cultivating purposes. Very strong evidence would be necessary for the purpose of showing that the tenancy was of a kind different from that indicated in the several kabuliats to which reference has been made.
9. It cannot be contended having regard to the authorities that the mere fact that, notwithstanding the terms of the kabuliyat the lands were put to a different use, namely, that they were cultivated, would render the lands agricultural lands in which the person in occupation would acquire either a non-occupancy right or a right of occupancy by occupying the same for more than 12 years. We have to consider for the purpose of judging as to whether the tenants on the land were raiyats, whether or not the object, with which these kabuliyats were executed or leases granted was one which brings them within the meaning of Section 5, Ben. Ten. Act. After a careful consideration of the question we are of opinion that the express object with which the lease was given was for dwelling and residential purpose, and these tenancies therefore are governed by the Transfer of Property Act and not by the Bengal Tenancy Act.
10. An attempt was made in this Court to show that even during the continuance of the lease in favour of Ganesh after Ganesh's death Radhanath was holding the lands in his own rights and it is pointed out that he was paying rent to the gomostha before the execution of the kabu liyat in 1906. It is argued that the tenancy being shown to be in the name of the deceased person Ganesh Chandra Mandal it must be taken on the authorities that he was being recognized as a tenant in his own rights, and we are referred to an unauthorized report reporting the case of Bali Mahammad v. Janati Nath 1924 Cal 535 1924 Cal 5,35. This case lays down the proposition that where rent receipts are issued in the name of another person after the death of the last tenant and rent is accepted from him the person from whom the rent is accepted should be regarded as a tenant. The distinction between the facts of that case and the facts of the present case is obvious. It appears from the evidence which has been given by Bhabataran that Radhanath was looking after the infant son of. Ganesh and it was really in that capacity, namely, as the de facto guardian of the infant son, that Radhanath was allowed to occupy this land. This witness Bhabataran says this:
Ganesh was in possession for two or three years after Ganesh's death, and during the subsistence of Ganesh's lease, Radhanath came to us with Ganesh's son, Ananta and said that as Ganesh was dead, and he had to look after Ananta the land should be given to him and therefore the maliks, namely, Krishna Babu, Benoy Babu and Anath Babu said that till the remaining period of Ganesh's lease, Radhanath could be in possession of the land.
11. Looking closely to this evidence there can be no doubt that Radhanath was occupying this land in the character of de facto guardian of Ganesh's son Ananta. This distinguishes the present case from the case reported in All India Reporter 1924, Calcutta. We are referred by the respondents to two cases with regard to the question as to whether the terms regarding compensation money in the lease, the kabuliat of 1914 could be effective if the position be accepted that the tenancy is governed by the Bengal Tenancy Act. In the face of what we have stated it is not necessary to deal with the question, but as the matter has been argued before us we may state here that even in the case of an occupancy raiyat the clause with regard to the tenant abandoning any claim to compensation money has been held to be effective and not to be hit in any way by the provisions of Section 178, Ben. Ten. Act. We may refer in this connexion to the case of Asutosh Chandra v. Haripada Ganguli 1922 Cal 187, where Asutosh Mukerjee and Buckland, JJ., held that an agreement that an occupancy raiyat will not in the event of acquisition by the Crown, claim a share of the compensation money is legal and enforceable. It is further held that such a covenant not affecting the title or status of the raiyat is not affected by Clause (a), Section 178, Ben. Ten. Act. The question which we have to decide in the first instance is as to whether having regard to this clause about compensation to which we have already referred (Ex. B) the tenant is entitled to get any compensation in respect of this land. The argument on this head falls under two distinct categories.
12. It is argued in the first place that the clause cannot affect the tenant in the present case as the tenancy is not acquired either by the Government or by the Municipality, within the meaning of the clause, and under the second category or head it has been argued that even assuming that this clause would cover the case of acquisition made by the Board of Trustees for the improvement of Calcutta this, not being an ordinary incident of the holding, cannot be a stipulation which will be binding on a tenant who holds over after the expiry of the lease it being argued that the agreement as to the taking of compensation money is in the nature of a collateral agreement. With regard to the first contention we think that this contention cannot be given effect to if we keep in view the object with which this land was acquired, namely for the purpose of the improvement of the town of Calcutta. Having regard to the provisions of the Calcutta Improvement Act and the Land Acquisition Act as amended by the Act of 1911 it appears clear that the acquisition was really made by the Government. The Calcutta Improvement Act was an Act to provide for the improvement and expansion of the town of Calcutta, and it appears from the preamble that whereas it was expedient to make provision for the improvement and expansion of Calcutta by opening up congested areas, laying out or altering streets, providing open spaces for purposes of ventilation or recreation, demolishing or constructing buildings, acquiring land for the said purposes and for the re-housing of persons of the poorer and working classes displaced by the execution of improvement schemes, and otherwise, and whereas it was expedient that a Board of Trustees should be constituted and invested with special powers for carrying out the objects of this Act that the enactment of the Calcutta Improvement Act was passed. The Board of Trustees for the improvement of Calcutta was a body which was a statutory body appointed under the provision of the Calcutta Improvement Act. The method of acquisition is stated in Section 69, Calcutta Improvement Act, which states that the Board may with the previous sanction of the Local Government, acquire land under the provisions of the Land Acquisition Act, 1894 for carrying out any of the purposes of this Act. Under Section 16, Land Acquisition Act, the land, after the award is made, vests absolutely in the Government free from all encumbrances. Section 16 runs as follows: 'When the Collector has made an award under Section 11, he may take possession of the land, which shall thereupon vest absolutely in the Government, free from all encumbrances.' Under Section 17-A, Land Acquisition Act of 1894, which is the result of the amendment by Act 5 of 1911 it is enacted as follows:
In every case referred to in Section 16 or Section 17 the Collector shall, upon payment of the cost of acquisition, make over charge of the land to the Board (meaning apparently the Board of Trustees for Improvement of Calcutta) and the land shall thereupon vest in the Board, subject to the liability of the Board to pay any further costs which may be incurred on account of its acquisition.
13. Having regard to the clear principles of Section 16, Land Acquisition Act, which has been made applicable to the acquisition for the expansion and improvement of Calcutta we have no doubt that this is an acquisition by Government and therefore under the clause in question the tenant is not bound to be given any compensation which is offered on the acquisition for the improvement of Calcutta. When we say any compensation we mean any compensation which is due to the value of the land in its unimproved state. We shall have to develop this a little when we deal with the question of the value of the improvement, which is raised in the fourth ground before us. This disposes of the first ground with regard to the clause about compensation. The second head of the argument is this: that the clause with regard to compensation cannot bind a tenant and that when a tenant holds over after the expiry of the lease he does so on the same terms and stipulations meaning them thereby to be such stipulations as are the ordinary incidents of the holding. After the expiry of the lease it appears that the possession of Radhanath was that of a tenant from month to month, and he is undoubtedly bound by such stipulations after the expiry of the lease as are consistent with the stipulations of a monthly tenancy. As is put in the very well-known book of Woodfall on Landlord and Tenant, third edition (1934) at p. 275:
When a tenant for a term of years holds over after the expiration of his lease, he becomes a tenant on sufferance, but when he pays or expressly agrees to pay any subsequent rent, at the previous rate, a new tenancy from year to year is thereby created upon the same terms and conditions as those contained in the expired lease so far as the same are applicable to and not inconsistent with a yearly tenancy.
14. The clause that a tenant is not to receive any compensation in case the acquisition is made by Government or a Municipality is not inconsistent with the nature of the tenancy, namely the tenancy being one from month to month. The clause regarding the non-taking of compensation cannot be said to be a clause which is collateral to the ordinary incidents of the holding. The real test is as to whether this is a clause which has really the effect of affecting the tenancy so long as it exists. We do not see anything inconsistent in this clause with the precarious nature of the tenancy. In the books are to be found clauses which have been held to be collateral to the ordinary incidents of the holding. As for instance the option of the lessee to purchase the reversion has been held to be a provision outside the terms which regulate the relations between the landlord as landlord and the tenant as tenant, and is not one of the terms of the original tenancy which bound the tenant holding over after the expiration of the lease. As has been put in some of the English cases such an option really is inconsistent with the existence of the tenancy but is consistent with the destruction of the tenancy. See the case of Bradbury v. Grimble and Co. (1920) 2 Ch D 548 and the case of Sherwood v. Tucker (1924) 2 Ch D 440. In the first mentioned case Peterson, J., observed:
An option contained in a lease to purchase the reversion and so destroy the tenancy is not one of the terms of the tenancy. It is a provision outside of the terms which regulated the relations between the landlord as landlord and the tenant as tenant, and is not one of the terms of the original tenancy which will be incorporated into the terms of the yearly tenancy created by the tenant holding over after the expiration of the lease.
15. Having regard to the true test as laid down in the case which we have just mentioned we are of opinion that this clause regarding the abandonment of compensation money is not in any way inconsistent with the condition under which the tenancy was held under the previous kabuliyat of 1906. This clause does disentitle a tenant to claim any compensation which might be given on the acquisition of the land; subject to this the clause does not preclude the tenant from claiming such part of the compensation as has been the result of the improvements on the land made by the tenant; in other words such part of the compensation as has been the result of improvements which has enhanced the market value of the land. This disposes of the first three grounds taken on behalf of the appellant. It remains to consider now the last ground taken, namely that the president of the tribunal has gone wrong in not awarding any sum of the compensation which has been awarded in this case for the improvements which have been effected by the tenant. The learned president says that the tenant has not put before him an iota of evidence to guide the Court in assessment of such improvements on the land.
16. It is not exactly right to say that there is no evidence because Radhanath himself deposed in the case and he states that he spent a large sum of money which is about Rs. 25,000 for the improvement. That undoubtedly is a very exaggerated estimate of costs which he had to incur for effecting the improvements, which have been admitted on the side of the landlords, on the land. Indeed it is difficult to accept this statement with regard to the large sum that is said to have been spent for these improvements in the absence of books of account. The only tangible evidence which we have got in regard to this matter from the side of the landlords is that an area of about 2frac12; bighas was improved in this sense that its level was raised to a considerable height, and that must have meant surely some expenditure. It is true that this is a lacuna or defect of material on which to assess the compensation, but we can proceed by accepting the position as has been admitted on behalf of the landlords. Our attention has been drawn to the statement that 2frac12; bighas were improved by having the level raised to some height and that circumstance must have influenced the Land Acquisition Authorities in giving a higher value in respect of this piece of land. The Court can certainly arrive at a figure and we think that a little over Rs. 500 per bigha should be awarded to the tenant appellant on this head. We assess the compensation which the appellant is entitled to at Rs. 1,350, with 15 per cent. as the statutory allowance which amounts to Rs. 202-8-0. The appellant is thus entitled to Rs. 1,350 plus Rs. 202-8-0, that is Rs. 1,552-8-0 over and above the compensation which has been awarded to him in this case by the Court below on account of trees and huts. The landlords are entitled to withdraw the compensation money awarded to them by the Court below less the sum of Rs. 1,552-8-0. Each party is to bear its own costs throughout. Let the record be sent down to the Court below as early as possible.
17. I agree.