Ernest Fletcher, J.
1. This appeal is preferred by the plaintiff against a decision of the learned District Judge of Noakhali, dated 31st March 1917, affirming a decision of the Munsif of Sudharam. The plaintiff brought a suit for recovery of rent of certain land in a town to which the pro visions of the Transfer of Property Act, and not those of the Bengal Tenancy Act, apply.
2. The only question raised in this appeal is this. The defendants stated that they had tendered the rent due to the plaintiff. The plaintiff stated that the tender was not valid, as it was not an unconditional one within the meaning of Section 38 of the Indian Contract Act. What was found is this. When the defendants tendered the money, they demanded a receipt and to have it mentioned therein that the holding that they held under the plaintiff was a kaimi raiyati holding and that as the Tahsildar of the plaintiff refused to give them such a receipt, they declined to pay and, therefore, the present suit was brought.
3. The only question was, 'were the defendants entitled to a receipt from the Tahsildar to describe the holding as a kaimi raiyati holding'? The law is not open to doubt in the matter. The law as stated in Leake on Contract, 6th Edition, at page 633 is as follows: 'An offer to pay the money upon condition of the creditor giving a receipt is not a good tender but a mere request for a receipt is not a condition,' and the learned author cites various authorities. That a mere request for a receipt does not impose a condition is well illustrated in the case of Jones v. Arthur (1840) 8 Dowl. P.C. 442 ; 4 Jur 859 ; 59 R.R. 833. There a tender was made by a cheque contained in a letter requesting a receipt in return, and it was held that the defendant put the cheque entirely out of his power by sending it in a letter and he merely requested the plaintiff to send him a receipt, which was not a condition. That case is, however, quite different from the present one. In the present case what was found in fact was that the defendants stated that they would not pay unless they would get a receipt in a particular form. That obviously, in my opinion, makes the tender a conditional one. Therefore, the plaintiff was entitled to sue for rent and interest, and the consequences imposed on the failure to accept a valid tender by Section 38 of the Indian Contract Act did not follow in the present case. There is nothing to show in the present case that the plaintiff was not entitled to interest on account of the holding being described as a kaimi raiyati holding. That disposes of the whole dispute and the defendants were wrong in refusing to pay except on the footing that they would get a receipt.
4. In that view of the case I must set aside the judgment and decree of the lower Appellate Court and direct the plaintiff to recover the amount of rent together with interest provided in the kabuliyat for the period sued for.
5. It has been suggested that the interest allowed in the kabuliyat was penal. I do not think that it was penal. It was certainly contractual and if it was contractual and was entered into without coercion or undue influence, I do not see why the defendants should not pay the rate of interest which they had contracted to pay. The point was not, however, raised in the lower Courts and it cannot be allowed to be raised in the present state of the suit.
6. The appeal must, therefore, be allowed with costs both here and in the lower Appellate Court.