1. This is a rent suit, the rent being payable partly in cash and partly in kind, and the Question which we have to decide depends upon the true construction of the kabuliyat which is set out at page 11 of the paper book. The defendant, the present appellant, who is the tenant, says that under that document, if the paddy which he agreed to deliver were not delivered, the parties themselves put a value upon it namely, a value of Rs 30. The plaintiff's contention is, that if the paddy were not delivered, then that ha was entitled to gat the value of it at the market rate of the day. Now by the argument, the defendant, who, as I have just said, is the tenant, agreed to pay a rent which amounted to Rs. 59-10-0 and also to deliver to the plaintiff 11/2 bish of paddy 'which may be valued at Rs. 30 by guess', which I understand is by estimation, 'making a total of Rs. 89-10 as. the assessed rent, as also to offer a bonus of Rs. 15.' Then the document goes on to say that he 'would pay every year the rent fixed,' by that, I suppose, was meant the Rs. 59-10-0, and then the document goes on to say that the defendant should carry to the house the amount of paddy to which I have referred. Then if we look at the clause-at page 12, we find this 'if there be any negligence in the payment of rent or the delivery of paddy, an interest at the rate of 3 pies per rupee per month shall be charged till the day of payment or delivery. No plea of payment shall be put forth on the basis of any receipt or document, other than the dakhila, and if the rent is neglected to be paid, it shall be realized by taking legal measures.' The question is what effect, looking at the document as a whole, is to be given to the language used. If the plaintiff's contention is sound, it is difficult to see what real effect is given to the words 'paddy which may be valued at Rs. 30 by estimation, making a total of Rs. 89-10-0 the assessed rent.' It is suggested for the plaintiff that these words are adopted merely for stamp purposes for the purpose, that is, of estimating the stamp duty payable for the document. But that is a mere suggestion and I do not think that that is a suggestion which we can accept. It seems to me, taking the document as a whole, that what the parties intended was this, that the defendant was to pay so much rent in money and so much rent in kind but that in order to avoid disputes and the going into any question as to the value of the paddy in the event of its nondelivery, the parties agreed that it should be valued at Rs. 30 by estimation, and that view is supported by the word 'making a total of Rs. 89-10-0 as the assessed rent.' This view is also supported by the subsequent Clause at page 12, which provides for payment of interest in the event of nonpayment of rent and non-delivery of paddy; it says that it shall be charged till the date of payment and delivery. Charged upon what? I think that must mean upon the amount of rent and upon the amount at which they estimated the value of the paddy. The last Clause provides that the plaintiff shall be entitled to realize the rent, if it be not paid, by taking legal measures There is nothing said as to what the plaintiff is to do if the paddy is not delivered. That seems to me again to point to the conclusion that when they speak of 'rent' there, they mean not only the rent in cash but the rent in kind the value of which had been assessed as between the parties at Rs. 30. It may very well be that there were good reasons for this; the parties may have thought that it would be more prudent as between themselves to fix the amount which should be taken as the value of the paddy if it were not delivered rather than have a dispute upon each occasion as to the market value of the paddy at the time of the breach.
2. Locking at the document, as a whole, I hink the contention of the appellant is pound, and that the decree of the lower Appellate Court must be varied by reducing the amount decreed to the plaintiff, in accordance with our decision, and the appellant must have the costs of the appeal.
3. I concur with the learned Chief Justice in thinking that this appeal ought to be allowed. I only wish to add that whatever weight the explanation offered for the plaintiff, that the estimated value of the paddy is given in the kabuliyat for the purpose of determining the amount of stamp duty, might have bad if the kabuliyat had not contained the words, 'making a total of Rs, 89 100 only as the assessed rent,' in the presence of those words, that explanation loses all its force. The words in the original are 'ekuni 89 taka 10 ana jamma abadharita', and jamma abadharita' is a well known Bengali expression which means a great deal more than a provisional settlement of the rent for the incidental purpose of ascertaining the stamp duty. The lease was a mokarrari and mourasi lease; and when such a document mentions a certain sum of money as the 'jamma abadharita,' which words may well be rendered as 'the fixed rent,' the meaning of the document seems to be very clear, that the parties wanted to fix the value of the paddy, that is, the part of rent which was payable in kind.