1. These are three appeals before us: Appeals Nos. 988, 989 and 990 of 1931. These appeals have arisen out of three suits. Appeal No. 988 arises out of Suit No. 232 of 1929 and the corresponding appeal to the lower appellate Court was appeal No. 17 of 193Order Appeal No. 989 arises out of Suit No. 107 of 1929 and the corresponding appeal in the lower appellate Court was Appeal No. 24 of 1930. Appeal No. 990 arises out of Suit No. 109 of 1929 and the corresponding appeal in the lower appellate Court was Appeal No. 25 of 1930.
2. In appeal No. 988 there is no appearance on behalf of the respondents. In Appeals Nos. 989 and 990 some of the respondents are represented by the learned Advocate Mr. Amarendra Mohan Mitter. The learned Advocate has pointed out to us that respondent 6, Ansar Ali, died some time ago and no substitution having been effected on the record of his legal representatives within time the appeals so far as he is concerned abated. He has also pointed out to us that in the last mentioned suits corresponding to appeals Nos. 989 and 990 there was a minor defendant who was defendant 7 and her name was Sm. Badarennessa Bibi. It does not appear from the record that in any of the Courts below was the minor represented by a guardian.ad-litem and it does not appear also what steps have been taken for the representation of this minor defendant in this Court. So far as this minor defendant is concerned the decrees made in the Courts below are nullities and so far as this Court is concerned there are no proper appeals against the defendant Sm. Badarennessa Bibi. Her rights remain unaffected. Now, as regards the respondent Ansar Ali who died and in respect of whom the appeals have abated, the learned advocate has taken this point that the entire Appeals Nos. 989 and 990 are now incompetent. We are unable to agree with the learned Advocate's contention because the suits are for rent and rent was payable jointly and severally by the body of the tenants who had executed the kabuliyats or who were representatives of the people who had executed the kabuliyats in favour of the landlord. The position therefore is that as regards the respondent Ansar Ali the decrees of the lower appellate Court will stand and there will be no order against his representatives in this Court; but that does not in any way prevent the appellant from proceeding with his appeals as regards the remaining respondents and obtaining judgment against them. We do not think that the preliminary objection has any substance and we now proceed to deal with the question of the merits of these three appeals.
3. In all these three appeals the suits are based on kabuliyats executed between 1865 and 1867, i.e., long prior to the introduction of the Bengal Tenancy Act. 1885. The rents are claimed for the years 1382 to Magh 1335 B. S. The leases created by these kabuliyats were all mourashi mokarrari leases. It appears from the kabuliyats that the rent reserved was payable in ten monthly kists, that is to say, in kists ranging between Baisakh and Magh of each year. It was also agreed by and between the parties to the kabuliyats that in default of payment of the money due on each kist interest would run at the rate of 2 per cent per month. It was also agreed that damages at the rate of 25 percent over and above the interest payable by the tenants would have to be paid by the tenants in case the institution of suit for recovery of rent and interest became necessary. Now, the questions involved in these appeals are really, first, question of the construction of the kabuliyats and, secondly, whether or not certain provisions of the Bengal Tenancy Act have application to the facts and circumstances of the three eases out of which these appeals have arisen. The main points which have been taken on behalf of the tenants are these: It is argued in the first instance that interest and damages are not payable together; in other words, the contention is that the landlord would have to be content either with interest or with damages; that is to say, the provisions as regards the payment of interest and damages are exclusive of each other. In the second place it has been contended that Section 67, Ben. Ten. Act, applies and also Section 68 Ben. Ten. Act, applies and that the application of these two sections along with the application of Section 179 as it stands now in the Bengal Tenancy Act, would have the effect of restricting the plaintiff landlord to a claim for interest on the arrears of rent not exceeding 12 per cent as provided for by Section 67, Ben. Ten. Act. In particular, the contention is that having regard to the terms of the proviso to Section 179 the landlord is incompetent t,o claim anything more in the way of interest than what is allowed by Section 67, Ben. Ten. Act.
4. As regards the contention that both interest and damages are not payable and that the landlord must be content with one or the other we are of opinion that it is negatived by the decision of this Court in Chandi Charan Law v. Rohini Kumar : AIR1934Cal119 where the judgment was pronounced on 21st June 1933, by Mitter and Henderson, JJ. The kabuliyat in that case was in exactly the same terms as the kabuliyats in the present cases and having regard to the view taken by their Lordships and the view taken in the cases which are referred, to in the judgment of their Lordships on this point, we are unable to hold that the provisions as regards interest and damages are exclusive of each other and that the landlord must be content with one or the other We think the landlord is entitled to interest as well as damages and that interest should be calculated on the monthly kist as provided for by the contract between the parties. As regards the other question, it has to be considered from these points of view-first, whether Sections 178 and 179 apply to permanent leases created before the Bengal Tenancy Act, and, secondly, whether Section 179 as it stands now with the proviso is applicable to the facts and circumstances of the present cases notwithstanding the fact that the leases in question were executed before the Bengal Tenancy Act, 1885, came into operation. It has been held in a long series of cases beginning with Aparan Charan v. Karam Ali (1906) 4 CLJ 527 and ending with Jogesh Chandra v. Asuba Khatun : AIR1927Cal41 as it stood at the date of the cases referred to above was not applicable to permanent mokarrari leases created before the Bengal Tenancy Act, 1885, came into operation. So far so good. But now the question has been argued that whatever might have been the state of the law, having regard to the existing provisions as embodied in Section 179 of the present Bengal Tenancy Act as amended, the proviso must have operation even though the permanent mokarrari leases in question were executed before the Bengal Tenancy Act, 1885, came into operation.
5. On the other hand, Mr. Narendra Chandra Bose's contention is that if the main Section 179 has undergone no change notwithstanding Act 4 (B.C.) 1928, and if it was held that the words of the main section which have remained unaltered were not applicable to permanent mokarrari leases, then the proviso to section which was not applicable would not have effect in the circumstances of the present cases and in this connexion our attention has been drawn to a judgment of this Court delivered by Mukerji, J., and reported in Tara Prasanna Roy v. Motaherali Mir : AIR1933Cal703 . Mukerji, J., has held that, having regard to the language of this proviso, it must have operation even in cases where the contract between the parties was executed before the introduction of the Bengal Tenancy Act, 1885. In the case before Mukerji, J , however it was held that the circumstances of the case satisfied the requirements of Section 179 so far as the status of the parties and the character oE the lease were concerned. In the case before Mitter and Henderson, JJ., likewise there was no question as to the applicability of the substantive part of Section 179, nor as to the period of time at which the cause of action arose. In the present case the point to be considered is, when did the cause of action arise? If the cause of action arose before the amendment by which the proviso was incorporated in Section 179 came into operation, the proviso, notwithstanding its language, would have no restrospectjve effect in a case in which the main part of that section itself would not apply. As the main section which has undergone no alteration has been held in a series of cases to be not applicable to permanent mokarrari leases created before the Bengal Tenancy Act, the proviso would not have any effect whatsoever in such oases and the proviso would have effect only in cases where leases-although permanent and mokarrari in nature-had been created after the Bengal Tenancy Act came into operation. If that be the correct conclusion of the applicability of Section 179 with the proviso added thereto, then it follows that Section 67 would have no operation in the ciroumstances of the present cases where the kabuliyats were executed long before, and the arrears are claimed for periods also before the introduction of the present Act.
6. The result therefore is that the plaintiff landlord will be entitled to recover interests on the kists mentioned at the rate stipulated by the parties and embodied in the kabuliyats. He will also be entitled to recover damages as provided for in the kabuliyats and that judgment must be entered in his favour accordingly. The plaintiff will not get any costs in the appeal in which there is no appearance on behalf of the respondents, but he will be entitled to his costs in the other two appeals.