1. This appeal arises out of a suit for arrears of rent. The holding in Question, it appears, was created by a kabuliyat executed on the 10th January 1879 in favour of one Bindubashini, who was then the holder of the superior interest, that interest being that of a tenure-holder. The holding created by the kabuliyat of 10th January 1879 is, it appears, that of a raiyat at fixed rates. The kabuliyat provides inter alia that rent shall be payable in monthly instalments and that on arrears in accordance with such instalments--interest shall be payable at the rate of one anna per rupee per month, that is at the rate of 75 per cent. In the Court of first instance the plaintiffs succeeded in obtaining a decree for arrears with interest at the rate stated and in accordance with the terms of the kabuliyat. On appeal to the Court of the Subordinate Judge of Alipur, they were allowed interest only at the usual rate of 12 1/2 per cent. on arrears in accordance with the usual four equal kists.
2. It appears that at some date not stated but before the 8th January 1897 the original tenant mortgaged his holding in favour of the present defendant No. 2. The defendant No. 2 sued upon his mortgage, obtained a decree and on the 15th July 1906 himself became the purchaser at an auction-sale held in execution of that decree. Bindubashini or rather her successors in interest were parties to that suit and judgment debtors under the decree. The defendant No. 3 again is the purchaser of the interest of defendant No. 2 and it is in his hands that the holding now is.
3. The question in the appeal then is whether in the hands of defendant No. 3 the holding is subject to the incidents imposed upon it by the kabuliyat by which it was created or whether in the matter of interest and instalments of rent it is subject only to the usual provisions of the Bengal Tenancy Act. The contention of the respondent that the contract evidenced by the original kabuliyat is no longer subsisting is based upon the purchase by Bindubashini herself on the 8th June 1897. She then purchased this holding as created by the kabuliyat by private sale from the original tenant. It, is contended that on this purchase the holding created by the original kabuliyat merged in the superior interest and that the holding purchased by defendant No. 2 and from him by defendant No. 3 is subject only to the ordinary incidents imposed upon holdings by the Bengal Tenancy Act. This question of merger and the further question whether by reason of the purchase by the landlord on the 8th June 1897 the contract by which the tenancy was created was no longer subsisting were raised for, the first time in the Court of Appeal. The real character of the sale of the 8th June 1897 has, therefore, not been investigated nor has the state of things continuing from 1897 down to the purchase in execution of the mortgage decree on the 19th July 1906. If there had been in fast a merger and the question investigated, it might have been open to the plaintiffs-appellants to show that in fact the holding had been re-created on the original terms. However that may be, it is quite clear that the mortgage decree and the mortgage sale took place on the footing that there was an existing holding and that that holding existed in the condition in which it was mortgaged to the defendant No. 2. When the mortgage was taken, there can be no question that the original kabuliyat or contract of tenancy was subsisting. There is in fast nothing to show that it ceased to exist before the mortgage suit and the decree and the sale took place on the footing that that contract was still subsisting.
4. It has been suggested that, even if that were so, still the auction-purchaser must be taken to have bought the holding as one subject merely to the ordinary incidents. In support of this contention reference is made to the case reported as Alim v. Satis Chandra 24 C. 37 : 12 Ind. Dec. (N.S.) 690. But the present case is essentially different. In that case the purchaser, it appears, was a stranger to whom the incidents of the particular kabuliyat had not been disclosed. Here the purchaser is himself the mortgagee and be must be taken to have known the nature of the holding on which he had advanced money and the terms of the contract on which that tenancy had been created. In support of this view we may refer to the case of the Full Bench reported as Lal Gopal Dutt Chowdhury v. Manmatha Lal Dutt 32 C. 258 : 9 C.W.N. 175 (F.B.). That being so, we hold that the contract by which the tenancy was created still subsists and that the defendants must pay interest at the rate and pay rent in accordance with the instalments provided for in the kabuliyat.
5. The second contention is that the interest of 75 per cent. is penal and unconscionable, and it is suggested that we should affirm the Subordinate Judge's decision by which he reduced the interest to the ordinary rate of 12 1/2 per cent. In support of this contention he refers us to the case reported as Upendra Lal v. Ataulla 36 Ind. Cas. 404 : 21 C.W.N. 108. But it is sufficient in answer to this contention to say that there is no evidence that any undue advantage was taken by the landlord of his position, and thereafter we may refer to the decision of the Judicial Committee reported as Balla Mal v. Ahad Shah 48 Ind. Cas. 1 : 23 C.W.N. 238 : 35 M.L.J. 614 : 16 A.L.J. 905 : 124 P.R. 1918 : 25 M.L.T. 55 : 180 P.W.R. 1918 : 29 C.L.T. 165 : 1 U.P.L.R. (P.C.) 25 : 2l Bom. L.R. 558 (P.C.), Aziz Khan v. Duni Chand 48 Ind Cas. 933 : 23 C.W.N. 130 : 101 P.R. 1913 : 165 P.W.R. 1918 (P.C.) and also to the decision of this Court in Bejoy Kumar v. Satish Chandra Ghose 51 Ind. Cas. 1007 : 24 C.W.N. 444, in which it was pointed out that the decision reported as Nabakumar Chakraburtty v. Abdul Jabbar Mian 36 Ind. Cas. 721 : 21 C.W.N. 112 and other decisions relied on by the Subordinate Judge have all been overruled by these decisions of their Lordships of the Judicial Committee.
6. For these reasons this appeal must be decreed with costs and the decree of the Munsif restored, with this modification that the defendant No. 2 having died while the appeal was pending in this Court, the decree will now be against the estate of the defendant No. 2 in the hands of his heirs and legal representatives who have been brought on the record of this appeal.