1. These are appeals by the plaintiff in a suit for recovery of arrears of rent. The claim is based on a kabuliyat executed on the 11th February 1898 by the tenants in favour of the plaintiff and his co-sharers, who have been joined as defendants in the suit. The tenants contend that the kabuliyat was in contravention of Section 29 of the Bengal Tenancy Act and that they are consequently not liable to pay rent at the rate mentioned therein. In our opinion this contention is well founded and must prevail.
2. The kabuliyat recites that the tenants held an ancestral jama of 10 bighas at an annual rent of Rs. 6-15 under the plaintiff, his co-sharers and a lady named Jadumonee Dasi. The tenants agreed by the kabuliyat that from the date thereof they would hold the land in the share of the plaintiff and his co-sharers at the rate of Rs. 18-6. This was clearly in contravention of Section 29 of the Bengal Tenancy Act. It cannot be maintained that a new tenancy was created by the kabuliyat. The land remained the same as before, and yet the defendants undertook to pay to the plaintiff and his co-sharers a much larger sum than what they used to pay to these persons and Jadumonee. In fact, if they had by this contract agreed to pay Rs. 18-6 to the plaintiff, his co-sharers and Jadumonee, the contract would have been in contravention of Section 29 and consequently unenforceable. The position may be made obvious by a concrete illustration. If A holds; 6 bighas under X and Y for Rs. 16 a year, the maximum enhancement to which he can consent is R'. 2. If he executes a fresh kabuliyat in favour of X and agrees to pay him for his share of the land more than Rs. 9, the agreement is void. If this view were not taken wherever land is held under several landlords jointly, the object of Section 29 may be defeated by the device of fresh distinct kabuliyats in favour of the different landlords. We hold, accordingly, in concurrence with the Courts below, that the plaintiff and his co-sharers are not entitled to claim rent at the rate of Rs. 18-6 from the defendants on the basis of the kabuliyat of the 11th February 1898.
3. We have next to consider another point on which the Courts below have taken divergent views.
4. The Court of first instance held that although Jadumonee had not been joined as a party to this litigation, the plaintiff was entitled to a decree for his share of the rent at the original rate. The Subordinate Judge has held that as the contract of the 11th February 1898 for payment of increased rent was void under Section 29, it was inoperative for all purposes and could not be deemed a valid agreement to pay rent separately thenceforward to the persons in whose favour the kabuliyat was executed. In our opinion, this view is unsound. The kabuliyat had a two-fold purpose, namely, to make the rent payable thereafter separately to the different landlords, and, secondly, to enhance the rate of rent; the second object may not have been achieved; but that is no reason why the first purpose should be defeated. We hold accordingly that the kabuliyat may be used as evidence of an agreement that the defendants would from the date thereof pay rent to the plaintiff and his co-sharers separately from Jadumonee. In this view, the plaintiff and his co-sharers are entitled to two-thirds of the rent, because, according to the defendants, Jadumonee was interested in the property only to the extent of one-third. The plaintiff, however, in this suit claims rent in respect of his share only, and as no objection appears to have been taken to that course by his co-sharer, a decree may be made in his favour to that extent. The Court of first instance held erroneously that the plaintiff was entitled to one-half, Rs. 6-15; he is really entitled only to one-third of that sum.
5. 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 rent at the rate of Rs. 2-5 a year. Each party will be entitled to proportionate costs in all the Courts on the basis of the amount now decreed. A self-contained decree will be drawn up in this Court.