1. These appeals are directed against two appellate decrees of the Subordinate Judge made in a suit for arrears of rent. The plaintiff seeks to recover rent from the tenant defendants at the rate of Rs. 38 a year on the strength of a kabulyat executed on the 27th March 1898. The defendants contend that the kabulyat was obtained under circumstances which make it inoperative, and, that at any rate, it is void because it enhances the rent contrary to the provisions of Section 29 of the Bengal Tenancy Act. The Courts below have overruled the objection that the kabulyat was executed by the tenant defendants under coercion. The Courts have also concurrently held that the kabulyat was in contravention of Section 29 of the Bengal Tenancy Act, but they have taken divergent views upon the question of the extent of the relief to which the plaintiff is entitled. The primary Court gave the plaintiff a decree on the footing that the defendants were liable to pay rent at the rate of Rs. 29. Against this decree, both the plaintiff and the defendants appealed. The Subordinate Judge has dismissed the appeal of the plaintiff and allowed the appeal of the defendants, with the result that he has held that the defendants are liable to pay rent only at the rate of Rs. 20 a year; The question in controversy consequently is, whether the kabulyat, which is the foundation of the suit, is binding upon the defendants.
2. It appears that the predecessor of the defendants executed a kabulyat in favour of the plaintiff on the 13th May 1885 in respect of 7 bighas of land. The total rent was fixed at Rs. 15; but the different kinds of lands were assessed at different rates namely, 4 bighas at Rs. 3 per bigha and 3 bighas at Re. 1 per bigha. The kabulyat further recited that 4 bighas out of the 7 bighas were included within the khamar lands of the landlord's and would be surrendered whenever required by the landlord. In 1898, the landlord took steps for resumption of these 4 bighas. It was found at the same time that the tenants were in occupation of one bigha of land in excess of what was comprised in the kabulyat. The tenants also expressly desired to take settlement of an additional 4 bighas of land not included in the original kabulyat. Under these circumstances, the kabulyat of the 27th March 1898 was executed. The aggregate rent was fixed at Rs. 38 for 12 bighas; but the parties agreed that the whole of this sum was not to be payable at once; the rent was, consequently, made progressive, beginning with Rs. 22 a year in 1304 and reaching the maximum of Rs. 38 a year in 1309. The details of the calculation by which the rent was assessed were also set out in the kabulyat, and the rates for the land originally comprised in the holding, for the excess land and for the new land taken by the tenants were specified. It so happens that the figure mentioned for the original 7 bighas, exceeds by more than two annas in the rupee the sum previously payable as rent. Under these circumstances it is argued that the kabulyat was in contravention of Section 29 of the Bengal Tenancy Act. In our opinion, there is no force in this contention.
3. Section 29 provides that the money-rent of an occupancy raiyat may be enhanced by contact, subject to the condition that the rent must not be enhanced so as to exceed by more than two annas in the rupee the rent previously payable by the raiyat. This clearly implies that the land held by the occupancy raiyat remains unchanged; the only variation is in the amount of money-rent paid by him in respect of the land comprised in his holding. Where, as here, the rent is assessed for excess land as also for new lands taken by the tenant, and one consolidated rent is assessed for all the lands, there is in essence a new holding created and no question arises as to the enhancement of rent payable by the tenant. It has been argued, however, on behalf of the respondents that this view is opposed to the decision of this Court in the cases of Kristodhone Ghose v. Brojo Gobindo Roy 24 C. 895 : 1 C.W.N. 442 and Mothura Mohun Lahiri v. Mati Sarkar 25 C. 781. The first of these cases is of no assistance to the respondents. The only principle enunciated in that decision was, that where the rent of an occupancy raiyat has been enhanced by more than two annas in the rupee, the entire contract is void and it is not open to the landlord to ask for a decree up to the extent of two annas in the rupee. There is, however, an observation in the case of Mothura Mohun Lahiri v. Mati Sarkar 25 C. 781 which apparently favours the contention of the respondent. The question arose in that case, whether rent had been increased by reason of an increase in the area of the holding. This Court remanded the case for determination of this question of fact, and then went on to add that supposing it be found that the said rent was partly enhanced rent and partly increased rent, the plaintiff would not be entitled to recover the increased rent, for the contract as evidence by the kabulyat could not be divided into parts, one part referable to a valid transaction and the other part to an invalid transaction. In support of this view reference was made to the case of Kristodhone Ghose v. Brojo Gobindo Roy 24 C. 895 : 1 C.W.N. 442. But the decision last mentioned has no bearing upon the question raised. It may be pointed out that if one consolidated rent has been fixed for the new-holding, no question arises as to the division of the contract into two parts, one referable to a valid transaction and the other to an invalid transaction. It has been urged, however, that the view we take may render possible an evasion of the provisions of Section 29 by the addition of a nominal quantity of land to the original holding. There is no ground for this apprehension. Whether there has been, in substance, a new holding created, in super session of the original holding, is a question which must be answered with reference to the circum stances of the individual case; the matter is one of substance, not of form; the Court must determine whether a new holding has been created though it may include the land of the original holding, or whether the parties had recourse to a colourable device to evade the provisions of Section 29. If the Court comes to the conclusion, that a new holding has been constituted by the substantial addition of new lands to those of the original holding, Section 29 has no application to the new consolidated rental. In the case before us, five bighas of new lands were added to the original seven bighas, and a consolidated rent was Fettled by the contract of the 27th March 1898. A new holding was clearly created by that instrument and the new rental is plainly not an enhancement of the original rental: Satish Chandra Giri v. Kabiruddin Mallick 26 C. 233. We are not prepared to accept the view of the Subordinate Judge that the new rental was vitiated by Section 29, and that the tenants were liable to pay only at the original rate; nor can we adopt the course taken by the Court of first instance, namely, assess the rent at the original rate in respect of the original lands and at the rate settled by the parties in respect of the excess and of the new lands taken by the tenants; to do so would be clearly to make a new contract for the parties.
4. The result is that these appeals are allowed, the decrees of the Subordinate Judge set aside and decrees made in favour of the plaintiff for his share of the rent on the footing that rent is payable at the contract rate of Rs. 38 a year. The plaintiff is entitled to his costs in all the Courts in both the appeals. The hearing fee in this Court will be allowed only in one of the appeals.