1. This appeal arises out of a suit for recovery of Rs. 547-5 principal and Rs. 93 as interest thereon under the following circumstances.
2. The defendants Nos. 1 to 6 were putnidars who obtained a decree for rent of a dar-patni against defendants Nos. 7 and 8. The taluk was sold in execution of the decree on the 2nd July 1912 and the sale was confirmed on the 8th March 1913. After satisfying the rent decree, there remained in deposit in Court Rs. 2,506 as surplus sale-proceeds. The patnidars applied for payment to them (out of the surplus sale-proceeds) of the rent which had fallen due in respect of the tenure between the institution of the suit and the date of the confirmation of sale, obtained an ex narts order and withdrew the sum of Rs. 547-5 for arrears up to the date of the confirmation of sale.
3. The present suit was instituted by the plaintiff on the allegation that the defendant No. 8, one of the dar-patnidars, had mortgaged his dar-patni interest to the plaintiff and the latter had obtained a mortgage decree which was partially satisfied by the sale of other properties, and that the mortgage lien over the property sold had been transferred to the surplus sale proceeds.
4. Two questions were in dispute in the Court below. The first is whether the defendants were entitled to arrears only up to the date of sale and not up to the date of confirmation of sale, and the second whether they were entitled to any interest on the rent which fell due between the date of the institution of the Suit and the date of sale.
5. The Court below has held that the patnidar was entitled to rent only up to the date of sale and having regard to the decision of this Court in the ease of Bejoy Chand v. Shashi Bhushan Bose 23 Ind. Cas. 101; 18 C. W. N. 136. the learned Pleader for the appellants could not press his objection on this point.
6. The only question which has been argued before us is whether under the provisions of Section 169, Clause (c) of the Bengal Tenancy Act, the landlord is entitled to interest on the rent.
7. Now, the word 'rent' is defined in Section 3 of the Act as whatever is lawfully payable or deliverable in money or kind by a tenant to his landlord on account of the use or occupation of the land held by the tenant', and sub Section 11 C. W. N. 1106. of Section 54 of the Act lays down: 'any instalment or part of an instalment of rent not duly paid at or before the time when it falls due shall be deemed an arrear.' Section 67 provides that 'an arrear of rent shall bear simple interest at the rate of 121/2 per cent, 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 the institution of the suit, whichever date is earlier.'
8. The question whether the word 'rent' in Section 169 includes interest has been considered in three cases in this Court. In the first case, Moharajadhiraj Bejoy Chand Mohatab Bahadur v. S. C, Mookherjee 11 C. W. N. 1106. decided by Ghose and Campers, JJ., the former observed: 'Speaking for myself, I may say that the Legislature could never have intended when using the word 'rent' in Section 169, Clause (c), to exclude the interest accruing thereupon and to put the decree-holder under the necessity of bringing a fresh suit for the interest only.'
9. In the next case, an unreported decision in Second Appeal No. 2260 of 1906 decided by Mr. Justice Brett on the 29th April 1908, the learned Judge held a contrary view.
10. In the third case of Profulla Nath Tagore v. Matabaddin Mandal 42 Ind. Cas. 881; 26 C. L. J. 322; 22 C. W. N. 323. Fletcher and Smither, J.J., following the case in Moharajadhiraj Bejoy Chand Mohatab Bahadur v. S. C, Mookherjee 11 C. W. N. 1106. held that rent would include interest. It is true that the learned Judges treated the observations of Ghose, J., in the case of Moharajadhiraj Bejoy Chand Mohatab Eahadur y. S. C. Mookerjee 11 C. W. N. 1106. as a decision of the Court and as clear authority in favour of the landlord. As a matter of fact, the case was decided upon an admission of the judgment-debtor that the claim of the landlord to the interest was a just one and Ghose, J., himself pointed out that upon the petition as presented by the judgment debtor admitting the justice of the plaintiff's demand, no question of the character that was raised by the Subordinate Judge should have been raised and discussed. Then he made the observation which we have quoted above; it was, therefore, an obiter: and Mr. Justice Brett in the unreported case, we have referred to, also pointed out that it was an obiter of Mr. Justice Ghose. But although that is so, we are inclined to accept the view taken by Ghose, J., in that case followed by Fletcher and Smither, JJ., in Prafulla hath Tagore's case 42 Ind. Cas. 881; 26 C. L. J. 322; 22 C. W. N. 323.
11. We have been referred to Section 161, Clause (c), which runs as follows: 'The terms 'arrears' and 'arrears of rent' shall be deemed to include interest decreed under Section 67 or damages awarded in lieu of interest under sub-section 23 Ind. Cas. 101; 18 C. W. N. 136 of Section 68.' It is contended that bad the word 'rent' included interest thereupon there would have been no necessity of aiding Clause (c) to Section 161. But as soon as rent falls due and is not paid, it becomes an arrear under Section 51 and carries interest under Section 67. The money payable as interest, therefore, becomes part of the rent. Clause (c) was probably added to Section 161 to make the point clear.
12. However that may be, we agree in the view taken by Ghose, J., that the Legislature could never have intended in Section 169 to exclude the interest according upon the rent and to pit the decree holder under the necessity of bringing a fresh suit for the interest only.
13. For these reasons, we think that the decision of the Court below is wrong. The appeal is allowed, The appellant will be entitled to full costs of this Court. There will be costs in proportion in the lower Court.
14. The cross-objection is not pressed and is dismissed.