1. This appeal arises out of a suit for arrears of rent. The plaintiff claimed interest on the arrears of rent at the rate of 150 per sent, per annum. The Courts below disallowed the high rate of interest on the ground that it was exorbitant and awarded damages at 25 per sent. The land was held under a lease for a term of three years from Magh 1285 to Pous 1288. The lease expired before the passing of the Bengal Tenancy Act; there was no fresh lease and the tenant was holding over.
2. There is divergence of judicial opinion upon the question as to the effect of holding over. In the case of Kishore Lal Dey v. The Adminsitrator-General of Bengal 2 C.W. N. 303. Ghose and Wilkins, JJ., were of opinion that when a tenant holds over, after the expiration of his lease, he does so on the terms of the lease, on the same rent and on the same stipulations as are mentioned in the lease until the parties come to a fresh settlement; that there is no general rule of law to the effect that the lease of an agricultural tenant in this country who holds over, must be taken as renewed from year to year, and that if any contract is to be implied, it should be taken to have been entered into so noon as the term of the lease expired rather than at the beginning of each year. In that case the suit was brought on the basis of a kabuliyat which was for a term of five years, the interest stipulated to be paid was 75 per sent, and the lease expired before the passing of the Bengal Tenancy Act. The learned Judges held that the tenant was bound to pay interest at the rate stipulated in the kabuliyat, and that the tenancy was unaffected by the provisions of the Bengal Tenancy Act. On the other hand, in the Case of Administrator General of Bengal v. Asraf Ali 28 C. 227 a contrary view was taken. There also, the land was held by an agricultural tenant under a lease for a term of six years, which expired in 1881; the tenant had been holding over ever since, and the rate of interest specified in the lease was 75 per cent, per annum, The landlord sued for rent for the years 1893 to 1895 and part of (sic) with interest at the rate specified in the lease. It was held that under the provisions of the Bengal Tenancy Act, the plaintiff could not recover interest at a rate higher than 12 per cent. per annum and that when an agricultural tenant holds over, his tenancy is renewed from year to year.
3. Ameer Ali and Brett, JJ., in deciding the case referred to a number of cases including the case of Kishore Lal Dey v. The Administrator-General of Bengal 2 C.W. N. 303. and also to Ali Mamud Pramanick v. Bhagabati Debya 2 C.W.N. 525. where it was held by Rampini and Henderson, JJ., that where a tenant was holding over on the expiration of a lease which had been exesuted before the passing of the Tenancy Act, but which expired after it came into force, the landlord was not entitled to interest beyond that provided by Section 67 of the Act. Ameer Ali and Brett, JJ., observed that a distinction had been drawn between the latter case and that of Kishore Lal Dey v. The Administrator-General of Bengal 2 C.W. N. 303. on the ground that the lease had expired after the Tenancy Act came into operation, but that fact did not appear to them to affect the general principle, Then the learned Judges, referring to the decision in the case of Kishore Lal Dey v. The Administrator-General of Bengal 2 C.W. N. 303. that a tenant who holds over with the consent of the landlord does so upon the same conditions as those set out in his time expired lease, and that if any contract is to be implied, as contended for on behalf of the appellants, it should be taken to have been entered into so soon as the term of the lease expired rather than at the beginning of each year, 'observed:' If this means that the implied contract is for the same term of years as in the lease (of course it could not be for an indefinite period), we venture to think the correctness of the dictum is open to Question. We consider that when an agricultural tenant holds over his tenancy is from year to year.' There appears, therefore, to be some conflict between these two cases.
4. In other cases which have been urged before us, the question was whether the purchaser of a raiyati holding at a sale held for arrears of rent is liable to pay interest stipulated in the kabuliyat, and it was held that the purchaser was not bound, on the ground that a very high rate of interest is not an ordinary incident of such a tenancy and that there was a new contract with the purchaser at the sale. For instance see Alim v. Satish Chandra 24 C. 37 : 12 Ind. Dec. (N.S.) 690 and Kali Nath Sen v. Trailokhya Nath Roy 26 C. 315 : 3 C.W.N. 194 : 13 Ind. Dec. (N.S.) 805. In these cases, however, the lease had expired the tenant was holding over and the sale took place after the passing of the Bengal Tenancy Act. In Lal Gopal Dutt Chowdhry V. Monmatha Lal Dutt 32 C. 258 : 9 C.W.N. 175. the Full Bench held that the purchaser at a sale in execution of a rent decree was bound by the stipulation as to interest in the kabuliyat, as it was a subsisting lease, There is no doubt that where there is a subsisting lease granted before the passing of the Bengal Tenancy Act, the tenant will be bound, as in the case of a permanent tenancy, by the stipulation as to the interest payable.
5. The question, however, is whether in a case where the lease had expired before the passing of the Tenancy Act and where the tenant had been holding over, he is liable to pay interest as stipulated in the kabuliyat, however high the rate may be. As stated above, there is some difference of judicial opinions on the point. We think, under the circumstances, we should follow the decision of Ameer Ali and Brett, JJ. in Administrator-General of Bengal v. Asraf Ali 28 C. 227. that being the latest decision on the point. There it was pointed out by the learned Judges: ' Supposing the contract was expressly renewed after the passing of the Act and the stipulation as to interest was embodied in a new lease, the tenant would not be bound by it and the stipulation would not be enforceable under the law. It would be anomalous to hold that what cannot be (sic) by a lease may be done by allowing the tenant simply to hold over.' It was further observed: 'it is unnecessary to decide in this case whether the contract implied from the holding over is from year to year or not, for assuming it should be taken to have been entered into so soon as the term of the lease expired rather than at the beginning of each year,' and that this contract is for the same term as in the lease, even then, in our opinion, the present claim for interest beyond that allowed by Section 67 would not be maintainable. For the terms of six years under the 'implied contract' would end in 1886 whilst the Tenancy Act came into force in March 1885. The fresh contract implied by the fresh holding over, according to the learned Judges in the case of Kishore Lal Dey v. The Administrator-General of Bengal 2 C.W. N. 303. would begin from 1886, when the Tenancy Act was in operation, and must necessarily be subject to and governed by the provisions and restrictions of the Tenancy Act,' If the effect of holding over is that the tenant holds for the same term of years as in the original lease, the second renewal of the contract implied by the second holding over, in the present case, took place after the passing of the Bengal Tenancy Act. The observations made in the case of Administrator-General of Bengal v. Asraf Ali 28 C. 227. will, therefore, apply to the facts of the present case.
6. The rate of interest, as stated above, is 150 per cent There is no doubt that it is an exorbitant rate. In the case of Kali Nath Sen V. Trailokhya Nath Roy 26 C. 315 : 3 C.W.N. 194 : 13 Ind. Dec. (N.S.) 805. Banerjee, J., referring to a similar contract where the rate of interest was 225 per cent. per annum, observed that the contract was entered into between the landlord and a cultivating raiyat, that is, a person belonging to a section of the community that has been considered entitled to some special protection, not only by the Legislature, as is evident from the provisions of the Bengal Tenancy Act, Section 67 and Section 178, Sub-section (3), Clause (sic), but also by Courts of Justice, as will be seen from the observations of Mr, Justice Mahmood in the case of Lalli v. Ram Prasad 9 A. 74 : A.W.N. (1886) 313 : 5 Ind. Dec. (N.S.) 480.
7. We are of opinion that the decision of the Court below is right and this appeal is dismissed with costs.