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Mohitkrishna Kundu Vs. Mahendranath Guha - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1931Cal468
AppellantMohitkrishna Kundu
RespondentMahendranath Guha
Cases ReferredBangshiram Mandal v. Prasannomoyi Debi
Excerpt:
- .....1905. it describes the holding as consisting of an area of 23 bighas 10' cottas, with an annual cash rent of rs. 27-12-0 and (according to a certain measure) 10 arhis of gula paddy, 'the price of which is rs. 10.' the total, including the price of the paddy, is fixed' at a jama (dharya) of rs. 37-12-0. the document further recites that the lease, which is created out of a pre-existing lease of 1889, will form a mokarari mourasi kayemi tenancy and 'rs. 27-12-0 in cash rent and the paddy rent of 10 arhis will not be enhanced.' there is a selami of rs. 150 and two kinds of penalties are provided for, namely for default of cash rent interest will be realizable and for default of paddy rent barhi or damages will be realizable, and there are the usual provisions that the paddy will be.....
Judgment:

S.K. Ghose, J.

1. Plaintiffs sue to recover arrears of rent in respect of a jama of Rs. 27-12 0 in cash and 10 arhis in gula paddy. The defence is that, under the terms of the kabuliyat, plaintiffs are entitled only to a consolidated rent of Rs. 37-12-0. The Courts below have construed the kabuliyat and agreed in holding against the defence. They have held that the defendant is liable to pay Rs. 27-12-0 and 10 arhis of gula paddy, according to the current market value, which is found to be Rs. 50 a bish. The present second appeal is by the defendant.

2. The decision will turn on the construction of the patta, Ex. A, which is of the year 1905. It describes the holding as consisting of an area of 23 bighas 10' cottas, with an annual cash rent of Rs. 27-12-0 and (according to a certain measure) 10 arhis of gula paddy, 'the price of which is Rs. 10.' The total, including the price of the paddy, is fixed' at a jama (dharya) of Rs. 37-12-0. The document further recites that the lease, which is created out of a pre-existing lease of 1889, will form a mokarari mourasi kayemi tenancy and 'Rs. 27-12-0 in cash rent and the paddy rent of 10 arhis will not be enhanced.' There is a selami of Rs. 150 and two kinds of penalties are provided for, namely for default of cash rent interest will be realizable and for default of paddy rent barhi or damages will be realizable, and there are the usual provisions that the paddy will be carried to the house of the landlord and so fourth. As I read the patta, it is clear that it was intended that' the cash rent of Rs. 27-12-0 and the paddy rent of 10 arhis of gula paddy should be kept separate, and the schedule also provides that the paddy is to be delivered in Falgun and cash rent is to be paid in four kists. In 1922 there was a compromise between the parties in an execution-proceeding and the solenama describes the tenancy in similar terms, namely that the rent is Rs. 27-12-0 and '10 arhis of paddy of the value of Rs. 10,' the total rent being Rs. 37-12-0 in a mourasi mokarari jama. From this also, it is clear that the paddy rent was meant to be a real rent, that is to say, the tenant was liable to deliver paddy in addition to paying cash rent. Now, the question has arisen as to what would be the value of the paddy so payable, in case of failure to deliver it. The Courts below have taken the contract to mean that the paddy would be valued at the current market rate. But the document itself puts the value at Rs. 10 and I prefer to follow the authority of the case of Asutosh Mukerjee v. Haran Chandra Mukerjee [1920] 47 Cal. 133, and hold that the parties intended that Rs. 10 should be fixed as the value of the paddy rent. In that case, Sanderson, C. J., remarks as follows:

In the next place, the parties should be held to that which they have said in the contract and I do not see why the Court should speculate and as a result of that speculation arrive at the conclusion that the important provision to which I have referred had been inserted merely for the purpose of determining the registration fee. I think there might be very good reason for the parties having fixed the rent- the parties may have thought that it would be more prudent, as between themselves, to fix the amount which should be taken as the value of the paddy rather than have a dispute upon each occasion as to the market value of it, in case it were not delivered.

3. I consider that these remarks apply to the terms of the present contract and I take it that the parties fixed Rs. 10 as the amount to be payable in case of non-delivery of the paddy rent.

4. But this does not conclude the question which is at issue between the parties, because, although the paddy rent has been valued at a certain figure, it does not follow from the contract that the tenant may, at his sweet will, dispense with the payment of paddy rent and pay only the money value mentioned in the patta. In that case, the paddy rent will be illusory, and the tenant need never pay paddy rent, but may go on paying Rs. 10 as provided for. I discern some indication of this principle in the remarks of N.R. Chatterjea, J., in the case of Hem Chandra Jelia v. Satya Kinkar Sen [1926] 91 I. C. 935, where he sought to distinguish the case of Asutosh Mukerjee [1920] 47 Cal. 133 by saying that:

Rs. 52 is not stated to be payable in the event of nondelivery of the paddy.

5. In the present case also, there is no provision in the patta that Rs. 10 will be payable in the event of nondelivery of the paddy. On the contrary, the paddy rent is meant to be a real rent, as I have mentioned already. The learned advocate for the appellant relied on the case of Official Trustee of Bengal v. Be-node Behari Ghose, : AIR1925Cal114 . But there the distinctive feature of the contract was the word 'or' which seems to have made all the difference. There is another case Bangshiram Mandal v. Prasannomoyi Debi : AIR1928Cal166 . In that case, there is a stipulation in the patta that, if, for unavoidable reasons, the tenant is unable to pay the paddy, he is to pay its market price at a certain rate. It was held that this stipulation was too vague to be acted upon. In the present case I am unable to say that the contract goes so far as to give the tenant an option to pay 10 arhis of gula paddy or Rs. 10 in cash, just as he likes. The primary liability is to pay 10 arhis of gula paddy, and only if he can show that he is unable for any reason to deliver the paddy, he is then liable to pay Rs. 10.

6. The question of interpretation of agricultural leases in terms of paddy rent has been a vexed one, and decisions have not been uniform, for the simple reason that each such contract has got to be interpreted on its own merits. But, when dealing with such leases drawn up in the mufussil, it is a good rule that, in case of difficulty, one should try to get at the real intention of the parties by taking a reasonable view of the contract as a whole, rather than follow some artificial doctrine of construction. There is no charm in the words 'mokarari mourasi kayemi' or 'jama dharya,' when whole passages occur setting forth the nature of the stipulation. In the present case, the difficulty has been, as is very often the case, with regard to the cash value of the paddy rent and the liability of the tenant to pay either of them. On both points the view above taken seems to be the most reasonable, as being the most in consonance with the requirements, 1 might say, the equities, on both sides for surely it was not intended that the tenant should escape ability when he was in a position to have paddy, or that he should be liable to, pay its cash value at the current market rate when, owing to scarcity for instance, there was dearth of paddy and the price would be high.

7. In this view it seems to me that the proper decree will be that the plaintiff will be entitled to realize cash rent of Rs. 27-12-0 and paddy rent of 10 arhis for the years 1329 to 1332 B.S. If it be found that the defendant has no paddy to deliver, or there is no paddy to be attached, the defendant will be liable at the rate of Rs. 10 a year in default of paddy rent. The decree of the lower appellate Court will be modified accordingly. The plaintiffs will get their costs in all Courts.


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