Banerjee and Stevens, JJ.
1. This appeal arises out of a suit brought by the plaintiff-respondents, who are putnidars of a certain share in a zemindari to recover arrears of rent due from the defendants in respect of durputni held by them under the plaintiffs.
2. The defence, so far as it is necessary to be considered for the purposes of the present appeal, was to the effect that, as neither the plaintiffs nor their predecessor, their mother, Nistarini Dasi, had complied with the requirements of Section 15 of the Bengal Tenancy Act, they were debarred by Section 16 of that Act from maintaining this suit.
3. The first Court gave effect to the defendant's objection and dismissed the suit. On appeal by the plaintiffs the Lower Appellate Court has given them a decree in respect of a part of their claim, namely, that portion of it which i relates to the rent that fell due during the lifetime of the plaintiffs mother, except the rent for 1299, which was held to be barred by limitation. Against this decree the defendants have appealed, and the plaintiffs have preferred a cross-appeal.
4. The contention of the defendant in his appeal is that the Lower Appellate Court is wrong in holding that the claim for the rent that fell due during the plaintiffs' mother's lifetime was not barred by Section 16 of the Bengal Tenancy Act. In the cross-appeal it is urged that the Lower Appellate Court is wrong in holding that the claim for the rent for 1299 was barred by limitation, and a further ground is urged on behalf of the plaintiffs, namely, that the decree of the Lower Appellate Court has, without any reason, omitted to allow interest upon the arrears decreed.
5. In support of the appeal of the defendant it is argued that as the plaintiffs' mother, who succeeded her husband, but who did not comply with the requirements of Section 15 of the Bengal Tenancy Act, could not, by reason of the provisions of Section 16 of that Act, have maintained a suit for rent if she had brought such a suit in her lifetime, the plaintiffs, who claimed as her representatives, ought to have been held to be similarly barred. We are of opinion that this contention ought not to succeed. Section 16 of the Bengal Tenancy Act is a penal provision, and should be strictly construed. What that section says is that a person becoming entitled to a permanent tenure by succession shall not be entitled to recover by suit (we refer to so much of the section as bears upon the present question), any rent payable to him as the holder of the tenure until the Collector has received the notice and fees referred to in the last foregoing section. Now can it be said that the plaintiffs are claiming the rent that fell due during their mother's time as the holders of the tenure? We think not. They are claiming that rent as the representatives of the holder of the tenure for the time being, or as the representatives of their father, entitled to the rent which accrued due during his widow's lifetime, but which was not recovered by her, and which, therefore, became part of their father's estate. But upon neither view can it be said strictly that they are entitled to this rent as the holders of the tenure. If that is so, Section 16 of the Bengal Tenancy Act cannot bar their claim so far as that portion of it is concerned. The view we take is in accordance with that taken by this Court in the case of Nogendra Nath Bose v. Satadul Bashini Bose (1899) 3 C.W.N., 294, upon the construction of a somewhat similar provision of the law, namely, Section 78 of Act VII of 1876, Bengal Council. It is true that the name of the predecessor in interest in that case had been registered under Act VII of 1876, whereas in this case the name of the lady, Nistarini Dasi, was not registered, but that does not make any difference so far as the determination of the present question goes. Moreover upon the view that the plaintiffs are entitled to the rent that accrued due during their mother's lifetime not merely as their mother's heirs, but as reversionary heirs entitled to whatever became an increment to the estate of their father, the fact of the non-registration of Nistiarini's name or of non-compliance by her with the requirements of Section 15 of the Bengal Tenancy Act would be wholly immaterial.
6. It was argued that it would be anomalous to hold that although, if Nistarini Dasi had brought a suit for this rent she could not have maintained it, the plaintiffs may nevertheless maintain this suit notwithstanding that neither her name nor the names of the plaintiffs have been registered. Perhaps that may appear somewhat anomalous, but the opposite view would result in a greater anomaly and indeed in hardship and injustice; for it may so happen that a son succeeding his father may not comply with the requirements of Section 15 of the Bengal Tenancy Act immediately, but may expect to do so at any time within three years, that is before his claim for rent is barred, and then he may die suddenly; and then if Section 16 is to apply to the claim of his heir or successor for rent, which accrued due during his lifetime, that claim would be irrecoverably lost, as his heir or successor could not possibly satisfy the requirements of Section 15 so far as he was concerned.
7. We are therefore of opinion that the Lower Appellate Court was right in decreeing the portion of the claim that relates to the rent which fell due during the plaintiffs' mother's lifetime.
8. Turning now to the cross appeal, we find that the first ground, namely, that relating to limitation is based upon a misconception of facts. This is conceded by the learned vakil for the respondents.
9. As to the second ground, namely, that the decree has without reason omitted to award interest, we think that the respondent's contention is sound.
10. The decree of the Lower Appellate Court will, therefore, be modified by allowing interest at the rate of twelve per cent, per annum upon the amount decreed up to the date of the decree, and interest at the rate of six per cent, per annum from the date of the decree until realization.
11. The appeal is dismissed, and the cross-appeal decreed in part with costs.