P.N. Mookerjee, J.
1. Three quarters of a century back, on or about 20-8-1878, the appellants' predecessors took permanent settlement of the underground rights in the lands in suit from the respondents' predecessors. The relevant kabuliyat which was described as a 'Mokrari Taluka Kabuliyat' was duly registered in accordance with law and a certified copy thereof is Ext. 1 in the present case.
It appears from the kabuliyat (Ext. 1) that the lessees had also certain rights in the corresponding surface land. A selami of Rs. 5,039/8/- was paid at the time of the settlement and the annual rent or jama was fixed at 'Company's current sicca Rs. 503978/-'. This total rent was mentioned in the schedule of the kabuliyat as 'Rs. 5,039/8/-' and was payable in eleven kists or instalments of Rs. 420/- each in each of the months of Bhadra to Asar of each Bengali year and a twelfth monthly kist or instalment of Rs. 419/8/-in Sraban following.
The lessees stipulated for themselves and their heirs to pay the lessors and their heirs 'the fixed rent, year after year, month after month, according to the kists' stated above, with a further stipulation that 'on failure of the kists, we shall pay interest according to law and we shall pay the rent by the 30th Chaitra, the close of the year' and 'on failure to do so, you shall bring a suit for arrears of rent.'
There is no dispute that the appellants, the Apcar Collieries Limited, are the present tenants, and the respondent No. 1, Radhagobind Roy, and the other respondents are the present landlords; nor is there any dispute that the tenancy is held on the stipulations, as contained in Ext. 1, to the relevant terms whereof reference has already been made. It is also undisputed that in the c. s. kha-tian, published several years ago, the jama was recorded as 'Rs. 5039/8/- per annum.'
2. The relationship between the parties appears to have been fairly cordial for over half a century. But then trouble started near about 1935-36 over, presumably, the payment of cess and sometime in the year 1938, the matter came to Court in Rent Suit No. 4 of 1938 before the Subordinate Judge of Asansol at the instance of the plaintiffs landlords. The landlords' claim for cess was dis-allowed by the learned trial Judge, but on appeal to this Court (F. A. 9 of 1939), that decision was reversed and the matter was sent back for reconsideration in the light of certain directionsgiven in the appellate judgment.
At the rehearing also, the plaintiffs failed to get any relief and the appeal that followed, viz., F. A. 134 of 1943, also proved unsuccessful. These proceedings terminated sometime in May 1943. But fresh disputes cropped up between the parties, --this time with regard to the amount of the annual rent, payable under the kabuliyat Ext. 1, and the payment of interest, as stipulated therein, -- and the result was the present suit (M. S. No. 11 of 1946) which was instituted by the plaintiffs-landlords against the tenant-defendant, the appellant company, the Apcar Collieries Limited, before the learned Subordinate Judge at Asansol on 15-4-1946.
3. In the suit, the plaintiffs laid their claim for rent on the basis of Rs. 5375-7-9 gds., 1 kara and 1 kranti per annum their case being that, under the kabuliat Ext. 1, the annual jama was Rs. 5039/8/- in sicca coins equivalent to the above figure of Rs. 5,375-7-9 gds., 1 kara and 1 kranti in current coins, and they also claimed interest at the legal rate, as provided in the said kabuliat Ext. 1, on account of the defendant's default in the payment of the rent kists, as mentioned therein,the rate of interest claimed in the plaint, being Re. 1/- per cent. per month.
The defendant company contested the suit and in their written statement they denied that the rent was as claimed by the plaintiffs and they also repudiated the plaintiffs' claim for interest. According to their defence, the rent was Rs. 5039/8/- per annum in 'current coin of the realm' under the kabuliat Ext. 1, and 'not in sicca coin which was not in use at all at the time when the lease (in question) was executed' and, with regard to interest the averment was that there was no default on the company's part in the payment of rent, but that the rent had remained unpaid due to wrongful refusal on the plaintiffs' part to accept the same.
4. On the above pleadings, the two questions which really arose for consideration in the suitwere:
(1) What was the annual rent? Was it Rs. 5039787- in current coins or was it the same figure in sicca coins, equivalent to Rs. 5375-7-9 gds. 1 kara 1 kranti in current coins? And
(2) Whether, in the circumstances of this case, the defendant company had become liable to pay interest as provided in the kabuliat Ext. 1?
Both the above questions have been answered by the learned Subordinate Judge in the plaintiffs' favour. On an interpretation of the kabuliat Ext. 1 he has held that the rent was mentioned there in sicca rupees or, in other words, that the rent was Rs. 5039/8/- sicca equivalent to Rs 5375-7-9 gds 1 kara 1 kranti in current coins. The learned Judge also allowed the plaintiffs' claim for interest. Hence this appeal by the defendant.
5. The question of interest does not require much discussion. There is hardly anything to be said against the learned Subordinate Judge's decision on this point. He has held that the plaintiffs are entitled to interest at the rate of 12 per cent per annum on the unpaid rent and his conclusion is certainly correct. The kabuliat (Ext. 1) shows that the tenant is liable to pay interest at the rate of Re. 1/- per cent. per month on the rent in arrears. That is not disputed. Nor is there any dispute that the rent has actually remained unpaid since 1349 B. S. Admittedly also, interest was decreed in the previous suit between the parties, viz. Rent Suit No. 4 of 1938.
On this point of interest the defendant's only case in their written statement was that they had duly offered or tendered their rent to the plaintiffs landlords but that the latter had wrongfully refused to accept the same, and hence they were not entitled to interest. In evidence, however, there was no suggestion to the above effect to the plaintiffs' Karmachari P. W. 1, during his cross-examination; nor was any such case put forward even by the defendants Naib D. W. 1 who was their only witness. (After narrating the relevant portion of the evidence of D. W. 1 his Lordship proceeded). The learned Subordinate Judge was, therefore, right in rejecting the defence contention under this head, and allowing the plaintiffs interest at the kabuliat rate. The appellants' argument against this part of the learned Judge's decision is, therefore, overruled.
6. On the other point, however, this appeal must succeed. In the record-of-rights, the rent is recorded as Rs. 5039-8, obviously in current coins. This raises a presumption in the appellant's favour. But this presumption may be rebutted by other evidence. For this purpose, the plaintiffs relied upon the kabuliyat Ext. 1. In the said kabuliat the annual rent is fixed at Rs. 5039/8/- annas inCompany's current sicca coins. (Here follow a Bengali quotation -- Ed.). The kabuiiat (Ext. 1) is dated 20-8-1878. Admittedly, no Company's sicca coin was then in use. This position is accepted by Dr. sen Gupta who appears for the plaintiffs respondents, although he disputes the correctness of the statement in the case of -- 'Maharaj Bahadur Singh v. Jadab Chandra Ghosh Hazra', AIR 1919 Cal 692 (A), that there was no 'Company's sicca coin' at any time .
Tracing the history of coinage from the year 1773 when the 'sicca rupee' was first introduced, Dr. Sen Gupta has contended that as this coin was struck for 'the territories subject to the Company' and eventually minted only at the Company's as the 'Sicca rupee' and, latterally, as the 'Calcutta Sicca rupee' when minted at Calcutta it was also popularly known as the 'Company's Sicca rupee or coin'.
This submission of the learned Advocate may or may not be correct, but, as the 'Calcutta Sicca mint, although it came to be designated, officially rupee' or for the matter of that, the 'sicca rupee' even assuming that it was popularly known also as the 'Company's sicca rupee or coin' came to be finally abolished in or about 1838, or from 1-1-1838, to be precise, (Vide Governor-General's Act, 13 of 1838), its coinage having already ceased or become prohibited since about 1836 under Governor General's Act, 17 of 1835 which introduced the 'Company's rupee' in its place, and, as, thenceforth, that is, since about 1838 the Company's rupee' became current as the only legal tender and remained so at the date of the kabuiiat, Ext. 1 and was thus the company's current coin on that date, the reference in the kabuiiat to the 'Company's current sicca rupee or coin' was at best ambiguous.
It might mean and this seems to be its proper meaning the Company's current coin that is the 'Company's rupee' which was then in force, the word 'sicca' being rather loosely used, or, being possibly just a loose expression, to denote a 'stamped coin' or the authorised coin of the realm, or it might mean, although this meaning does not seem to be quite happy or apposite, the 'Calcutta Sicca rupee' popularly known also, as submitted by Dr. Sen Gupta, assuming that submission to be correct, as the 'Company's Sicca rupee or coin' which was in vogue or use before, the words 'current' meaning, though not very appropriately, 'which was current', that is, 'current at that past period'.
The expression, used in the kabuiiat (Ext. 1) to denote the unit of payment in the matter of rent, namely, '(Benagli quotation -- Ed.)' ('Company's current sicca rupee or coin') is thus at best ambiguous, even upon the most favourable view of the plaintiffs' case on the point, the reference being either to the old 'sicca' rupee or coin, or, to the current rupee or coin in use or vogue at the date of the document (Ext. 1), that is, the 'Company's rupee' or the present rupee or coin, and, that being so, extrinsic evidence is admissible to prove which of the two coins was really meant. It seems to me, therefore, that the learned Subordinate Judge was not right in ruling out such evidence on this point, and his approach, therefore, to the issue before him was not correct.
7. The extrinsic evidence which would be relevant and admissible to resolve the ambiguity, I have pointed out above, may be furnished by surrounding circumstances and contemporaneous or subsequent conduct of the parties. . There is no direct evidence of any surrounding circumstance except that the sicca coin had ceased to be inforce or to be legal tender long before the date of the lease or kabuliyat, Ext. 1; nor is there any direct evidence of any contemporaneous conduct which would furnish any definite clue in the matter.
But as to subsequent conduct of the parties, the evidence is decidedly in the defendant's favour (vide previous Rent Suit papers, viz., Exts. A, B, B(1), C and C(l) and the deposition of the two witnesses, P. W. 1 and D. W. 1) and it points unmistakably to demand and realisation of rent by the plain-tiffs at the rate of Rs. 5039-8 in current coins and when this evidence is read along with the admitted case of realisation of rents on the basis of the entry in the record of rights, to which reference has been made above, and the pleadings of the parties, the inference is fairly deducible that, all along, from the beginning of the tenancy in suit, rent had been paid and received at that rate.
8. Much was sought to be made of the non-production of the defendant's records or papers to show payment of rent at the rate of Rs. 5039/8/-in current coins. But these were not called for from the defendant and the plaintiffs also have not produced their own papers relating to realisation of the rent. No adverse inference should, therefore, be drawn against the defendants-appellants from the non-production of their records.
9. It thus appears that the extrinsic evidence overwhelmingly leads to the conclusion that the monetary unit, referred to in the kabuliyat Ext. 1, in relation to the rent, was the current coin at the date of the said kabuiiat, that is the company's rupee and not the sicca rupee, and the kabuliyat Ext. 1 thus supports the entry in the record of rights and confirms its correctness and, far from rebutting the presumption, it distinctly aids the same. I hold, therefore, that the disputed rent is Rs. 5039/8/- in current coin and not in sicca rupee and the learned Judge's interpretation of the kabuliyat Ext. 1 on this point and his finding to the contrary were wrong.
9a. The decree for rent passed by the learned Subordinate Judge must, therefore, be varied by allowing annual rent at the rate of Bs. 5039-8 in-current coins, instead of Rs. 5375-7-9 gds. 1 kara 1 kranti, as claimed by the plaintiffs and found by the learned Subordinate Judge and the decree for interest, passed by the learned Judge, will also be modified accordingly.
10. In the result, this appeal succeeds in part. The judgment and decree, passed by the learned Subordinate Judge, is modified by reducing the rate of rent to Rs. 5039/8/- per annum from Rs, 5375-7-9 gds. 1 kara, 1 kranti, as allowed by the learned Judge, with corresponding reduction, of the amount decreed by him for interest, -- the rate allowed by him in this respect, viz., 12 per cent, per annum being, however, confirmed, -- and corresponding variation of the decree for costs, passed by the learned trial Judge.
11. The appellants will have proportionate costs in this Court from the plaintiffs-respondents, the same to be set off against an equal amount of the latter's decretal dues. The learned Subordinate Judge will draw up a fresh decree in the case in the light of this judgment.
12. I agree. I should only like to add that in my opinion, taken in the light of the history of coinage in India, there is no ambiguity in interpreting the term 'Company's Chalan or current sicca' used in the kabuliyat Ext. 1. The word 'Chalan' or 'current' can only mean current at the time when the document was written and itcannot mean that which was current at the time of the Company whose regime has ceased long before the execution of the document.
13. In the case cited by my learned brother -- 'AIR 1919 Cal 692 (A)' there was no use of the term 'chalan' or 'current' in the kabuliat. There the stipulated rent was only described in terms of Company's sicca coins. It was held by their Lordships that the term 'Company's sicca' was ambiguous, because there was no coin known as 'Company's sicca'. There were only Company's rupees which were minted in accordance with the Governor General's Act 17 of 1835, and there were Calcutta sicca rupees which were sicca rupees minted in Calcutta before 1-9-1835, from which time Company's rupees came to be minted.
In spite of the absence of the term 'Chalan' or current in the Kabuliat with which their Lordships were concerned in -- 'AIR 1919 Cal 692 (A)' their Lordships came to the conclusion that by the term 'Company's sicca' Company's current coins were meant and the parties could not have meant the non-current old coin, viz., Calcutta, sicca rupee.
In the present case, the use of the word 'chalan'or current, in my opinion, concludes the matter.The parties could only have meant current Company's coins and the word 'sicca' must have beenused loosely in the sense of stamped coin as surmised by my learned brother. If the parties hadreally wanted to describe the stipulated rent interms of the old coin which had ceased to be current for about half a century they would havebeen careful to give its corresponding value in thecoinage then current. The absence of such corresponding value in current coin in the kabuliyatconfirms the interpretation that the parties couldonly have meant current coin and the word 'sicca'was used loosely.