1. I agree with my learned brother in the construction he has put upon the contract in this case. I only wish to refer to certain vernacular expressions on which the parties have attempted to put different constructions. The kabuliyat in suit is a mourashi mokararri kabuliyat. After describing the land leased under it, it recites : ukto jomir barshik gula ekbisa panah adi dhan jahar mulya panchas taka hoytechhe abdharitey. Translated literally the clause will stand thus : Of the aforesaid land the annual, paddy rent, 1 bishi and 5 aris of paddy, the price of which is Rs. 50, having been fixed or settled. The word abdharitey according to the context refers to gula or paddy rent which was settled at 1 bishi and 5 aris. The learned vakil for the respondent has laid great stress upon the word abdharitey and suggests that it should go, not with the paddy rent but with Rs. 50, the price of the paddy rent. He bases his argument on certain observations made by Banerjee, J., in the case of Dwarika Nath v. Dwijendra Nath  47 Cal. 139n. In that case there was cash rent and a portion of the rent was to be paid in kind, the value of the paddy in money was stated and the total amount of rent including the cash rent and the price of the paddy rent was also stated. Then followed the words ekune 89-10 jama abdharitey.
2. The learned Judge there interpreted the words jama abadharite as meaning the fixed jama which according to the context was Rs. 89-10-0 The words therefore were taken to mean the total amount of rent fixed. The word abadharitey has been used in this kabuliyat in quite a different context and has been placed in a different position. The jama has been fixed as paddy rent of 1 bishi 5 aris and the words jahar mulya 50 taka hoiteohhey are parenthetical mentioning the price of the paddy rent fixed as the rent for the tenure. As my learned brother has observed, the word (hoitechhey) in the sentence jahar mulya 50 taka hoitechhey is significant. It makes the sentence mean 'the price of which is Rs. 50' or' the price of which is at present Rs. 50.' In my judgment there can be no doubt that the word abadharitey refers only to the gula rent fixed and not to the price of the paddy. This sentence is followed by another which is san sari khajnar taka nimner kishti niato adai purbak orthat gular dhanya nimner kishti mato adai purbak jamir semana ohau hadda bajay rukhiya, etc. Rendered in literal English it means : 'Having paid every year the rent money according to the kist mentioned below, i.e., the qula paddy according to the kist, and keeping the boundaries of the land intact, etc. The learned vakil for the respondent has laid stress on the words talca khajnar taka. The sentence clearly shows that the words khajnir taka are used in place of rent or rental without reference to the kind of rent to be paid inasmuch as the words khajnar taka have been explained as meaning the gula or paddy rent. Thereafter, as my learned brother has observed, come expressions about the payment of the paddy rent only and there is nowhere stipulated any mode of payment of the equivalent money rent. In the sentence that I have quoted above it is stated the khajnar taka will be paid according to the kist at foot. The schedule which we find in the document states that 1 bishi 5 aria of paddy must be paid in tb.3 month of Magh every year.
3. There have been numerous cases dealing with contracts of this kind; but there can be no question that every case must depend upon its own particular facts and the particular terms of the contract which the Courts are called upon to interpret in that ease. But it may be useful to refer to some of the cases to show how the contracts have been interpreted though differently worded. The cases may be divided into two groups: one in which it was held that though the contract spoke of paddy rent and in lieu thereof a money rent, the intention of the parties was that in the event of failure of payment of paddy rent the landlord would be entitled only to recover the money rent. Under this head may be mentioned the cases of Bipro Charan v. Suahand Roy  12 C.L.J. 595, Afar Morole v. Surja Kumar Ghose  12 C.L.J. 649, Nil Madhab v. Keshab Lal  26 C.L.J. 94, Dwarika Nath v. Dwijendra Nath  47 Cal. 139n and Asutosh Mukhopadhya v. Haran Chandra Mukherji  47 Cal. 133.
4. It will be observed that in most of these cases there was a cash rent and also paddy rent. The equivalent of the paddy rent was mentioned in money and it was stated that the total amount of rent (the cash and the equivalent money rent together) was the rent of the tenure and was the amount recoverable on the failure of the tenant to pay the paddy rent. I have been relieved of the necessity of discussing every case in detail as almost all the cases on the point have been admirably analyzed and examined in the ease of Gurudas Sen. v. Gobinda Chandra Sinha  24 C.W.N. 85. In that ease too, on the particular wording of the kabuliyat, the learned Judges held that the landlord could only recover the equivalent money rent mentioned in the document. There is one point in that case which may be profitably referred to in construing the present contract. In that ease there was an express contract that if the tenant did not deliver the paddy, the landlord would be entitled to realize by suit the equivalent amount mentioned therein as the price of the paddy. In the present ease the kabuliyat says that if the tenant fails to deliver gula paddy according to the kist, he shall be dealt with according to law which I take to mean that the landlord will have the right to proceed in a Court of law and then claim damages for non-delivery of the stipulated quantity of paddy. If the intention of the parties was that on failure to deliver the paddy the landlord would be entitled only to recover Rs. 50 as the price thereof, nothing would have been easier than to mention the terms in plain language as it was mentioned in Gurudas's case.
5. The cases that have taken a different vii v and have interpreted the kabuliyats under consideration in those eases as meaning that the contract was for pay-men of paddy rent and not the equivalent hereof in money are the cases of Sohobut Ali v. Abdool Ali  3 C.W.N. 151, Akbar Ali v. Durga Kripa Sen  12 C.L.J. 589, Isaf v. Gopal Chandar  12 C.L.J. 593, Sarat Ghandra v. Abbas Ali  21 C.W.N. 140n and Hem Chandra Jelia v. Satya Kinkar Sen  43 C.L.J. 171. A similar view was taken in Baneswar Mukherji v. Umesh Chandra  37 Cal. 626. I mention this case last as it is an extreme case in support of the view that when paddy rent is mentioned the parties must be taken to mean that that rant should be paid in kind though the price of it in money is also given. The contract there was that the tenant should pay the annual rent of Rs. 12-14-0 in cash and 40 maunds of paddy of which the value was mentioned as Rs. 37, the total rent, Rs. 49-14-0 being settled in perpetuity. Jenkins, C.J., held, on the construction of the kabuliyat, that the landlord was entitled to recover 40 maunds of paddy and should not be compelled to recover annually on failure of payment of rent in kind the price mentioned in the kabuliyat. The view taken by the learned Chief Justice in that case is in conflict with that taken in the cases which I have mentioned above. But as the case before us does not go so far as the case of Baneswar Mukherji  37 Cal. 626, it is not necessary for us to consider the matter further. The nearest case to the case before us is the case of Rem Chandra Jelia v. Satya Kinkar Sen  43 C.L.J. 171. There the contract was almost in similar term3 It ran thus:
A jama of tan maps of sanja paddy measured...(the price whereof is Rs. 50) and tea pons of straw (the price whereof is Rs. 2) at a jama of the said sanja paddy...the total price being Rs. 52 per annum.
6. Then follow some other terms with respect to the delivery of paddy and straw and it is stated that in default of delivery of the paddy and straw the landlord will be entitled to claim bari or additional quantity of paddy.
7. It is not permissible to interpret one contract with the help of the wording of a different contract between different parties. I have no desire to quarrel with the decisions in the cases which have held that the landlord is entitled to recover only the money equivalent of the paddy rent fixed because on the contracts in those cases the decisions were probably justified.
8. I should like to say a word with reference to a remark made in the case of Afar Morole v. Prosonno Kumar Ghose  12 C.L.J. 649. There an attempt was made to prove by evidence that the price of the paddy given in the kabuliyat therein was mentioned for the purpose of fixing the proper stamp or for registration of the document. Mookerjee, J., very rightly held that such evidence is inadmissible under Section 92, Evidence Act, as the learned Judge observed:
We feel no doubt whatever that the case before us indicates an attempt on the part of the plaintiff to supersede the clear unambiguous provisions of the lease.... No question of interpretation of the language of the document arises here.
9. So far I agree with the learned Judge, but he goes on to observe that in the case of Sohobut Ali v. Abdool Ali  3 C.W.N. 151, Akbar Ali v. Durga Kripa Sen  12 C.L.J. 589, and Shaikh Isaf v. Gopal Chunder Dey  12 C.L.J. 593, Section 92, Evidence Act was not brought to the notice of the learned Judges and the suggestion therein made is that if the Court was invited to consider the effect; of Section 92, Evidence Act, the result of those decisions might have been different. I cannot persuade myself that Section 92, Evidence Act, has any reference to the interpretation of the terms of a contract. Where, as Mookerji, J., has observed, the terms are unambiguous and clear, there can be no question that the evidence to prove that the terms of the contract were used in a different sense must be excluded under Section 92, Evidence Act; nor is the Court in such a case entitled to speculate as to the meaning of words in the contract. But where the wording of the contract is capable of different interpretations the Court is justified, and in my judgment it is its duty, to pat a proper construction upon the terms of the contract and is justified in finding with what intention a particular expression was used as a matter of pure construction. Now in the present case the words the price whereof is Rs. 50 were to my mind used for the purpose of stamp duty to be put upon the kabuliyat and might also be for the purpose of registration. In a kabuliyat, which even in the plainest lauguage expresses that the rent is to be paid in paddy, it is necessary in order to complete the document to put a money value for the purpose of stamp, just as in the case of a simple gift where the value of the property given away is immaterial, it is necessary to mention some value, however fanciful, of the property dealt with under the document for the purposes of stamp and registration. Against putting such a construction upon the wording of a lease I do not think that Section 92, Evidence Act, presents a bar. After giving my careful consideration to the terms of the contract in the present case I agree with my learned brother that the intention of the parties was that rent should be paid in paddy. The penalty clause I understand to mean that on failure of the tenant to pay the stipulated quantity of paddy in la particular year the landlord is entitled to damages. It is not necessary for me to say that damages must be the market price of the paddy at the time when the contract is sought to be enforced, for there may be other considerations which are likely to influence the Court-in assessing damages though ordinarily the market price is the measure of damages. I accordingly agree in allowing the appeal and making the order which my learned brother has made.
10. This appeal by the plaintiff arises out of a suit to recover the price of paddy for the years 1326 to 1328 B.S. The father of the defendants had executed a kabuliyat in favour of the plaintiff's vendor, and the defendants contended that according to the terms thereof they were liable to pay Rs. 50 only per year, the price mentioned in the kabuliyat, and not the market value of the paddy prevailing during the years in question. The decision of the case turns upon the construction of the kabuliyat (Ex. 2) which was admitted by both parties. Suits of this nature have formed the subject matter of numerous reported decisions and those decisions have been far from uniform. This much, however, emerges from a consideration of these cases that nothing in the nature of a general rule can be laid down for their determination, and that the decision in each instance must depend upon the particular facts proved, and in the main upon the terms of the particular kabuliyat under consideration. The material passages in the kabuliyat, which we are now called upon to construe, are to the following effect:
After settling a quantity of 1 bishi 5 aris of paddy, the price of which is Rs. 50, as annual gula rent (paddy rent), and Rs. 25 as selami. I execute this mourashi mokarrari kabuliyat to the following effect. 'I shall pay the rent, that is, deliver the gula paddy according to the kists noted below, year after year,... There shall not be any variation as regards the jama and area settled at any time. If I fail to deliver the gula paddy according to the kists, I shall be dealt with according to law.... I shall deliver the said paddy measuring it out with a five seer dou after drying and winnowing it and makitfg it fit for being stored in a gola.
11. The schedule which is appended to the kabuliyat contains the following:
Instalment of rent - one bishi, five aris of paddy in the month of Magh.
12. There can be no possible doubt, reading this document as a whole, that the primary intention of the parties was that the rent should be paid in kind. That much seems to be clear not only from the manner in which the promise to pay gula paddy is thrice reiterated, but also from the terms of the schedule.
13. The question then arises as to what is to happen in the event of the lessee failing for some reason whether from inability or otherwise, to deliver the paddy. In that eventuality is the plaintiff to be held to be entitled to recover the price, of the paddy at the market rate, or is he-only entitled to recover the sum of Rs. 50 as price thereof as contended by the defendants?
14. The Courts below have taken the view that the intention of the parties was to fix Rs. 50 per annum as the money equivalent of the bhag paddy for all time, and that their object in so doing was to avoid future disputes. The lease being a mokarrari lease there is something to be. said for this interpretation, and in somewhat similar reported cases this view has found favour. Speaking for myself I must admit that I was at first very much impressed with it, and I should certainly hesitate ordinarily to differ in opinion upon the construction of a vernacular document from two Indian Judges both of whom are well versed in their own language and therefore eminently-competent to come to a right conclusion.
15. Upon careful consideration, however, I cannot persuade myself that that conclusion is correct. The point that first occurs to me is that nowhere in this-document is any intention revealed, much less-expressly stated, that the method of paying the rent should be an alternative at the option of the lessee; in other words, that it was left open to him to pay either in kind, or in cash, as he pleased. On the contrary it is reiterated several times, as already mentioned above, that the rent is to be paid in paddy, and in order that there may be a possible doubt upon the point it is stated in the schedule) that the paddy is to be delivered in one instalment annually in the month of Magh. Such contracts for the payment of bhag rent are very common, and the object in view, there can be little doubt, is to make sure of obtaining a certain quantity of paddy for the consumption of the family independent of, and unaffected by, fluctuations in the price. If the kabuliyat is construed as giving an option to pay in cash or in kind, and as fixing the price at Rs. 50 in perpetuity this object will be 'defeated since a rise in the price of paddy would result in less paddy being obtained for the family consumption. For the defendants great stress was laid on the words 'the price (or value) of which is Rs. 50.' It is to be observed, however, that the verb is used in the present tense which would seem merely to mean that the price or value at that time was Rs. 50. If the intension had been that the price should be Rs. 50 for all time that intention could easily have been expressed. But, as I have already said, there is nothing in ?this particular kabuliyat to suggest that it was ever contemplated that the payment should be other than in kind.
16. The position then is this : The parties mutually agree for payment in kind. The lessee, through inability or from wilful default, fails to deliver the paddy. The plaintiff then naturally asks to be put in the same position as he would have been if the default had not occurred; in other words, that he should get such a price as will enable him to purchase the paddy in the market. To this the defendants reply that the plaintiff can in no circumstances recover more than the sum of Rs. 50 mentioned in the kabuliyat. It seems to me that it was never intended that this was to be regarded as the fixed-price of the paddy. It is perhaps not permissible to speculate whether this figure was so inserted for the purpose of ascertaining the registration fee or fixing the stamp duty payable. This much, however, can be said that it does not in plain terms fix Rs. 50 as the price for all future time of the paddy. On the contrary the word 'haitechhe' seems to preclude such a construction.
17. If we place upon the kabuliyat the construction which the defendant-respondents seek to put upon it, then it is obvious that in the easiest way possible the lessee can always defeat the original indention of the parties by the simple device of withholding delivery of the paddy and insisting on payment of the money equivalent of Rs. 50. But that was certainly never intended in this case as is clear inter alia from the emphasis laid in the document on the delivery of the paddy and the clause which says that in the event of failure to deliver the gula paddy the defendants would be dealt with according to law. The meaning of this clause, and of the document taken as a whole is, I think, this that the rent was to be paid in paddy and not in cash, and, that, in the event of failure to deliver it, the plaintiff would be entitled to damages by recourse to the Court.
18. For these reasons I would allow the appeal, set aside the decrees of the Courts below, and send the case back to the trial Court for a determination of the amount due to the plaintiff as damages and for making a decree in accordance therewith. The appellant is entitled to his costs in all the Courts. The costs of the further hearing in the Court of first instance will be at the discretion of that Court.