1. Two questions have been submitted to us by the Munsif, Central Court, Comilla, Under Order 46, Rule 1, Civil PC. The circumstances under which this reference arises and the nature of the documents which require to be considered have been accurately stated in the letter of reference addressed to the Registrar of this Court.
(A) With reference to the interpretation of the kabuliat (Ex. l) our view is that on a proper construction of the kabuliat which was executed long before the enactment of the Bengal Tenancy-Act of 1885 there can be no doubt that the plaintiff is entitled to realize both interest and damages. This view is in consonance with construction of similar Kabuliats which came up for consideration in this Court in appeals from appellate decrees Nos. 1347-50 of 1928, 1867-68 of 1929, 1930 of 1929 and 2767, 2768 of 1929. In appeal from appellate decree No. 584 of 1932 a contrary view was not taken seeing that the words 'mai sud' which occur in the other kabuliats do not occur in the kabuliat filed in the unreported case decided on 2nd June 1924. We are therefore of opinion that the landlord is entitled to recover both interest and damages. Section 68, Ben. Ten. Act, does not apply to permanent mokarari leases, and cannot affect the terms of the contract. (See Section 179 of the Act.)
(B) With regard to question B we are of opinion that for all the years in suit plaintiff is not entitled to recover intrest at a rate exceeding that mentioned in Section 67, Ben. Ten. Act. The kists are monthly kists. The interest however is to be calculated from the time that it falls due and not from the expiration of the quarter of the agricultural year in which it falls due, as is suggested by the Munsif. This view is supported by the decision of the Judicial Committee of the Privy Council in Hemanta Kumari Debi v. Jagadindra nath Roy (1895) 22 Cal 214, as explained by the case of Narendra v. Gorachand (1906) 33 Cal 683. The Privy Council laid it down that Section 67 in so far as it defines the time from which interest is to run applies only to cases where the rent is payable quarterly. Here the rent is payable by monthly kists. So this portion of Section 67 will not apply. The answer is based on the following reasons: The lease in this case being a permanent mokarari lease is not touched by the provisions of Section 178, Ben. Ten. Act; for in our view Section 179 forms an exception to Section 178. Notwithstanding the change in Section 178 by Act 4 of 1928 (Bengal Council) that nothing in any contract between a landlord and tenant made before or after the passing of this Act shall affect the provisions of Section 67 relating to interest payable on Errears of rent, permanent mokarari leases are governed by Section 179 which forms an exception to Section 178, for Section 179 enacts, nothing in any act shall be deemed to prevent a proprietor or holder of a permanent tenure in a permanently settled area from granting a permanent mokarari lease on any terms agreed on between him and his tenants.
2. Section 178 is a part of the Act ; and Section 179 excepts Section 178 in relation to permanent mokarari leases ; in other words, it makes the provision of Section 178 inapplicable to the case of permanent mokarari leases. But Section 179 is burdened with the following provison:
Provided that such proprietor or holder shall not be entitled to recover interest at a rate exceeding that set forth in Section 67 or anything that is an abwab or the recovery of which is illegal under the provisions of Section 74 or Sub-section (3) of Section 77.
3. The use of the words 'shall not be entitled to recover' makes it clear that the landlord is not entitled to recover by suit interest at a rate exceeding the rate given in Section 67 notwithstanding any agreement to pay at a higher rate. The proviso in our opinion disentitles him from recovering such interest. This is the view which has been taken by my learned brother Mukerji, J., in an unreported decision in Appeal from appellate Decree No. 2592 of 1930. It has however been argued by Mr. Bose, who appears for the landlord that the new proviso to Section 179 applies to future leases, i.e. to leases executed after the passing of the amended Bengal Tenancy Act (Act 4 of 1928 B.C.). The Munsif has referred to the object of the proviso as explained in the notes on clauses; but it is not a right method of interpretation of statutes to refer to proceedings of the legislature as aids to the construction of a statute: see Administrator General of Bengal v. Premlal Mullik (1895)22 Cal 788. On the other hand while the legislature has made the proviso in so far as it relates to abwab (Section 74) inapplicable to leases registered before the commencement of the Bengal Tenancy Amendment Act 1928 (Section 74, Clause 3) it has made no such provision with reference to the applicability of Section 67 of the Act. This shows that the provision of Section 67 applies to leases created both before or after the Bengal Tenancy Act. We are of opinion that the proviso to Section 179 as amended by Act 4 of 1928 applies to leases created before the Bengal Tenancy Act, 1885, came into operation, and makes it impossible for the landlord to recover by suit interest exceeding that mentioned in Section 67 even in respect of tenancies created before the Bengal Tenancy Act came into force. Let a copy of this judgment be sent to the Court by which this reference was made under the signature of the Registrar.
4. I agree.