1. This is an appeal by the plaintiff and relates to a sum of Rs. 2-3-6 interest on the cess payable for the Assin hist, 1320. Defendantsare tenure-holders under the plaintiff and their rent is payable in three kists under their kabuliyat which is dated 1&79 before the passing of the Bengal Tenancy Act or the Cess Act. In that kabuliyat they undertook to pay any cesses which might be imposed by Government. The cess for the Assin kist admittedly amounts to Rs. 424-7-6. It became due on 1st Kartic 1320 (18th October 1913). On that day the Courts were closed. There had been correspondence between the parties and there had also been previous trouble in the matter of the acceptance of the rent-Defendants accordingly informed the plaintiff that they would pay the amount into Court on the day the Court re-opened, which was 1st November 1913 (15th Kartic 1320). On that day the defendants made the deposit now in question, and later on the same day the plaintiff filed his suit for rent and cesses. The question is whether the deposit should have been made with interest at 12 1/2 per cent, per annum for the few days which transpired between the cess becoming due and the deposit being made.
2. The kabuliyat provided in the case of rent that no interest should be chargeable on arrears of rent until the end of the Bengali year, the close of the month of Cheyt. It was argued for the defendants and has been found by the learned District Judge, that the same would apply to the cess and that no interest would be payable until the end of Cheyt, that is to say, the defendants might be in arrears with their payment of cesses without penalty until the end of the Bengali year. We do not think that this is the right reading of the provisions of the Bengal Cess Act. Section 42 (3) provides: 'Every holder of a rent-paying tenure and every cultivating raiyat shall pay the amount of road cess and public works cess due by him in instalments in the proportion of the instalments of rent payable in respect of the tenure or holding of such tenure-holder or raiyat.'' That means that in this case, the cess would be paid in the same three instalments as the rent under the kabuliyat. Section 47 says: 'Every holder of an estate or tenure to whom any sum may be payable under the provisions of this Act may recover the same with interestat the rate of twelve and a half per cent, per annum in the same manner and under the same penalties as if the same were arrears of rent due to him.' For the defendants it is argued that this means that cesses are not to carry interest until the end of the year and that the provisions of Section 47 must be subject to the special contract between the parties made in the kabuliyat. That is not how we read the section. We think that in the same manner and under the same penalties as if the same were arrears of rent due to him has reference only to the procedure to be adopted and the consequences to follow in the recovery of rent; that is to say, the remedy would be by suit, the penalties would be possibly the sale of the holding or damages at 25 per cent, under. Section 68 of the Bengal Tenancy Act. The provisions of Section 47 of the Cess Act cannot be restricted in this way by reason of the contract between the parties in the matter of rent. We are of opinion that in this case the cesses became due at the dates of the three kids in which the rent was payable under the kabuliyat and that interest upon such cesses would be recoverable under Section 47 from the dates on which they fell due.
3. At the same time in this particular case it was found that there had been for several years past trouble between the parties in the matter of granting receipts for the rent; and the Courts have held that the defendants were justified in making the deposit in Court. If this were so, they admittedly made the deposit on the first day possible after the cess had become due. They should not therefore, in equity, be saddled with the further payment of interest because the Court was closed and so they were unable to make the deposit earlier.
4. We accordingly disagree with the opinion expressed by the learned District Judge with regard to the liabiliiy to pay interest under Section 47 but, in the circumstances of this case, we consider that, the deposit having been made as it was on the first possible day, no interest was payable. We accordingly dismiss the appeal but without costs.