Skip to content


HamiduddIn Khan Vs. Ramani Kanta Roy - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Reported inAIR1933Cal321
AppellantHamiduddIn Khan
RespondentRamani Kanta Roy
Excerpt:
- .....mentioned in an unregistered kabuliyat dated 1861. the defendants challenge the validity of the decrees passed by the courts below as regards interest upon two grounds. the first contention that has been advanced on behalf of the appellants is to the effect that the decree as to interest should be set aside, inasmuch as, by reason of the amendment of section 178, ben. ton. act, introduced by act 4 of 1928, the plaintiff is no longer entitled to recover interest at anything more than that allowed by section 67 of the act. it is conceded that, at the date on which the suit was instituted, there was nothing in the act which would stand in the way of the plaintiff recovering interest at the kabuliyat rate and it is further conceded that, even at the date when the decree of the lower.....
Judgment:

M.N. Mukerji, J.

1. This appeal has arisen out of a suit for rent. Defendants 2, 3 and 4 are the appellants. Rent was claimed in the suit for the years 1327 to 1330 B.S. and the whole controversy in this appeal is with regard to the interest that has been awarded by the Courts below. The said Courts have decreed interest at the rate of 6 per cent per mensem which was the rate agreed to be paid and mentioned in an unregistered kabuliyat dated 1861. The defendants challenge the validity of the decrees passed by the Courts below as regards interest upon two grounds. The first contention that has been advanced on behalf of the appellants is to the effect that the decree as to interest should be set aside, inasmuch as, by reason of the amendment of Section 178, Ben. Ton. Act, introduced by Act 4 of 1928, the plaintiff is no longer entitled to recover interest at anything more than that allowed by Section 67 of the Act. It is conceded that, at the date on which the suit was instituted, there was nothing in the Act which would stand in the way of the plaintiff recovering interest at the kabuliyat rate and it is further conceded that, even at the date when the decree of the lower appellate Court was passed, the law would not disentitle him to recover interest at that rate. The decree therefore according to the appellants' contention, was a good and valid decree quite in accordance with law as it was at the date when it was passed, but it is said that, by reason of the subsequent amendment introduced by Act 4 of 1928, the decree has become bad.

2. This is a contention which I am not prepared to accept as well founded. The change made in the law by Act 4 of 1928 is to the effect that, while under the law as it stood before the amendment it was provided that nothing in any contract made between a landlord and a tenant after the passing of the Act should affect the provisions of Section 67 relating to interest payable on arrears of rent, by the amending Act it was provided that nothing in any contract between a landlord and a tenant made before or after the passing of that Act should affect the provisions of Section 67 relating to interest payable on arrears of rent. It is contended that this amendment should have retrospective effect. I do not find any word either in Section 178 or anywhere else in the amending Act which gives this amendment a retrospective operation; and, so long as it cannot be said that the decree was not in accordance with the law as it stood at the date when it was passed, the appellants, in my opinion, are not entitled to succeed in the present appeal so far as this contention is concerned.

3. The next ground upon which the decree as regards interest is challenged is to the effect that, as the defendants in the present case are auction-purchasers in respect of the tenancy and inasmuch as the terms of the kabuliyat and the rate of interest specified therein were not mentioned in the sale proclamation, they had no knowledge as regards the rate of interest and that therefore such a heavy rate of interest which is not one of the ordinary incidents of the tenancy is not a rate of interest which the defendant should be held liable to pay on the arrears. Now, there is some conflict of judicial opinion on the question as to whether in a case in which the defendants who are purchasers of a tenancy at an auction sale are or are not liable to pay the high rate of interest stipulated for in the kabuliyat when, in point of fact, the same was not brought to their notice either by the sale proclamation or in some other way. But, in the present case, the finding of the learned Subordinate Judge, as I read it, amounts to this: that the defendants or their predecessors purchased the jama under certain kobalas.

4. They thus acquired the tenancy, but they failed to obtain recognition from the landlord and therefore they purchased the tenancy again at the auction sale. This being the position, the case comes directly within the purview of those rulings in which it has been held that, in the case of a private transfer, the transferee can and should call for the title deed of the vendor; and, if there is a lease providing for interest at a high rate the purchaser shall be taken to have become aware of such a contract and, in the circumstances he must be taken to have had full knowledge of the terms of the lease and he cannot complain that the rate of interest is exorbitant. It is true that, in the present case, the defendants subsequently made an auction purchase of the tenancy. That however cannot alter their liability. In point of fact, they had come in, as it has been found by the learned Subordinate Judge, that they did under a private purchase from the previous tenants. This contention also, in my opinion, has no substance. The appeal accordingly, in my opinion, fails and is dismissed with costs.

Rankin, C.J.

5. I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //