1. This is an appeal on behalf of the plaintiffs in an action for rent. The plaintiffs claim rent at the rate of Rs. 152-13-3 a year. The defendant asserts that the rent payable is only Rs. 111-3 a year. The sole point in controversy between the parties, therefore, relates to the amount of rent annually payable. The tenancy appears to have been created by a lease granted on the 11th January 1871 for a period of ten years. After the expiry of the term of this lease, another lease was granted on the 22nd August 1881, also for a term of 10 years. Since the termination of this period no fresh document has been executed, but the defendant has continued in occupation upon payment of the rent stated in the second lease. The determination of the liability of the defendant turns consequently upon the legal effect of these two documents. In the lease of 1871, the rent is stated to be Rs. 119-8-3 in the body of the document; but in the schedule attached thereto, there is an elaborate statement of the mode in which the rent had been ascertained. The different kinds of land are classified and rent is assessed upon the lands of each class at a certain rate. Upon this calculation the total rent is stated to be Rs. 152-13-3. Then follow two important words, which have given rise to the present controversy between the parties, these words are 'Bad hajat Rs. 33-5.' The balance is Rs. 119-8-3. In the second lease of 1881, in the body of the document the rent is stated to be Rs. 111-3, but in the schedule annexed, we have a calculation as to the mode in which the rent had been assessed similar to what is appended to the lease of 1871. The total rent is shown as Rs. 152-13-3, but there is a deduction allowed, with the result that the balance of rent actually payable is stated to be Rs. 111-3. Here also, the deduction is allowed under the description Bad hajat. The case for the plaintiffs is that the meaning of the expression 'Bad hajat' is 'deduction on account of rent in suspense or abeyance.' They explain that at the time when the lease of 1871 was granted, a portion of the land of the tenancy was covered by water and sand, and so really not fit for cultivation, that by reason of this circumstance the landlord agreed to allow the tenant a temporary deduction of the rent, but that it was expressly understood between the parties that as soon as the land improved in quality and became fit for cultivation, the rent temporarily kept in abeyance would be revived and would become payable by the tenant. They assert that since the execution of the leases of 1871 and 1881 the land has improved in quality and that the landlords have consequently become entitled to realise the full rent of Rs. 152-13-3. The defendant resists the claim on the ground that there was no such agreement, and that even if there was any such agreement, the plaintiffs are not entitled to prove it by oral evidence.
2. The original Court went into the merits of the case and decided against the plaintiffs. Upon appeal the Subordinate Judge has affirmed that decision, but on an entirely different ground. He has declined to adjudicate upon the truth or otherwise of the allegation of the plaintiffs, but has held that, as the term of the second lease has expired, the defendant is not bound by the alleged agreement for temporary suspension and subsequent revival of the rent. In this view, he has concluded that the claim is in substance one for enhancement of rent and as such claim cannot be sustained under the provisions of Sections 29 and 30 of the Bengal Tenancy Act, the plaintiffs are entitled to realise rent only at the rate of Rs. 111-3 a year.
3. The plaintiffs have now appealed to this Court and, on their behalf, the judgment of the Subordinate Judge has been assailed on two grounds, namely, first, that the decision is inconsistent inasmuch as, although the Subordinate Judge holds the defendant not bound by the terms of the lease of 1881,on the ground of the expiry of the period mentioned therein, yet he gives the defendant the benefit of the lease to hold the land upon payment of rent at the rate of Rs. 111-3, and, secondly, that the defendant is bound by the terms of the contracts of 1871 and 1881 and the plaintiffs are entitled, upon proof of the alleged agreement, to realise rent at the full rate of Rs. 152-13-3. In our opinion, both these contentions are clearly well-founded and must prevail.
4. In so far as the first of the grounds urged on behalf of the appellant is concerned, it is clearly well-founded on principle. Section 116 of the Transfer of Property Act describes the effect of holding over on the part of a tenant, the term of whose lease has expired. It provides that if the landlord accepts rent from the lessee and assents to his continuing in possession, the lease is, in the absence of an agreement to the contrary, renewed from year to year or from month to month according to the purpose for which the property is leased. The section, however, does not expressly provide that the terms and conditions contained in the original lease are to be treated as part of the renewed lease and consequently does not directly assist the plaintiffs. Bat the contention of the appellants is borne oat by a long series of decisions of this Court reviewed in the case of Administrator-General of Bengal v. Asraf Ali 28 C. 227. In that case it was pointed out that according to the previous decisions of this Court, amongst which may be mentioned Jumant Ali v. Chowdhry Chuthurdharee Singh 16 W.R. 185 ; Sheo Sahoy Singh v. Bechun Singh 22 W.R. 31 ; Tara Chunder Banerjee v. Ameer Mundul 22 W.R. 394 and Allah Bibee v. Joogul Mundul 25 W.R. 234, where a tenant holds over upon the expiration of the term of his lease and pays rent, the tenancy is renewed upon the same conditions as those contained in the expired lease. This rule, however, is subject to the qualification that if statutory provisions have in the meanwhile come into operation the terms of the renewed lease may be affected thereby. But no such special considerations arise in the present case, and it must consequently be taken as governed by the general rule, which accords with the principle recognized in Bishop v. Howard (1823) 2 B. and C. 100 : 28 R.R. 291 : 3 D. and R. 293 : 1 L.J. (O.S.) K.B. 243 and Hyatt v. Griffiths (1851) 85 R.R. 549 : 17 Q.B. 505. The view, therefore, taken by the Subordinate Judge cannot be supported. The mere circumstance that the term of the lease of 1881 has expired does not entitle the defendant to contend successfully that he has been absolved from the obligation he is alleged to have undertaken at that time.
5. In so far as the second ground urged on behalf of the appellants is concerned, it is clearly well sustained. No doubt, neither the lease of 1871 nor that of 1881 expressly provides what is to happen if the conditions, under which the tenancy was created, altered in course of time. But it is asserted on behalf of the plaintiffs that the agreement was that the rent in suspense would be revived as soon as the quality of the land improved, that is, as soon as the deterioration of the land, due to temporary causes, ceased to exist. The question arises whether it is open to the appellant to adduce oral evidence in support of this agreement. In our opinion, the case is not governed by the principal rule laid down in Section 92 of the Indian Evidence Act, but falls within the second proviso to that section. That proviso enacts that the existence of any separate oral agreement as to any matter, on which a document is silent and which is not inconsistent with its terms, may be proved; and in considering whether or not this proviso applies, the Court shall have regard to the degree of formality of the document. Now, the separate oral agreement, which the plaintiffs seek to prove, obviously relates to a matter in which the document is silent. The schedule to the lease merely recites that a portion of the rent is kept in suspense, but it is silent on two very material points; first, it does not state for what reasons the rent is kept in suspense; and, secondly, it omits to specify the period during which the rent is to continue in abeyance. As the document is silent with regard to these two important matters, it is open to the plaintiffs to give evidence of the circumstances under which the rent was kept in abeyance It may be further added that the agreement mentioned is not only not inconsistent with, but is really in aid of, the terms of the lease. No doubt, the body of the document states that the rent payable was Rs. 111-13 but it must be taken along with the schedule which shows that the full rent was Rs. 152-13-3, a portion of which was kept in suspense. Clearly, it is open to the plaintiffs to explain the circumstances under which the rent was kept in suspense and to establish that the contingency upon which the rent was agreed to be revived has happened [Lala Himmat Sahai v. Llewhellen 11 C. 486 ; Sowdamonee Debya v. Spalding 12 C.L.R. 163 and Umesh Chunder Baneya v. Mohini Mohan Dass 9 C.L.R. 301]. In the last two cases, it was ruled that in suits upon promissory-notes, which make no mention of any agreement to pay interest, the parties may prove that there was an oral agreement for the payment of interest. We feel no doubt, therefore, that it is open to the plaintiffs to prove the alleged agreement and if they establish that the contingency contemplated by the parties in 1871 and 1881 has actually happened, they are clearly entitled to succeed.
6. The result is that this appeal is allowed, the decree of the Subordinate Judge discharged and the case remanded to him in order that he may re-consider the questions in controversy between the parties. The costs of this appeal will abide the result.