1. The only question raised in this appeal is whether the period of limitation for a portion of the claim is governed by Article 2 of Schedule III of the Bengal Tenancy Act or Article 116 of the Indian Limitation Act. The suit was brought to recover arrears of rent due under two kabtdiats. The first kabuliat was dated the 23rd of May 1902 and was given in respect of certain properties leased to the defendant for a term of four years (1310-13-3) at a rent of Rs. 1,200, per annum. The second kabuliat was dated the 15th of January 1906 and was given in respect of certain other properties leased to the defendant for a term of eight years (1313-1320) at a rent of Rs. 438 a year.
2. The rent that was in arrears and was sued for was for the year 1313 under the first kabuliat and under the second kabuliat for the years 1313 to 1318. The defendant's estate was taken charge of by the Court of Wards on the llth November 1908, and whilst his estate was under their charge the Collector gave an acknowledgment in writing on the 20th September 1910 with respect to the rent now sued for.
3. The only question, therefore, that arises is with reference to the rent due for the year 1313, for if the period of limitation applicable to the present suit is that provided under Article 2 of Schedule III to the Bengal Tenancy Act then when the Collector gave the acknowledgment in writing on the 20th September 1910, the rent for the year 1313 was already barred by limitation. The leases in the present cases are expressed to be mustajiri leases. Although a mustagiri lease is sometimes and perhaps usually a lease to middleman, yet in Behar the term is applied frequently to temporary leases instead of the word thika (see Land Law of Bengal by S.C.Mitra). The two clauses in the lease that are chiefly relied upon are first the words: 'I the mustajir shall enjoy the parti land which may be converted into culturable land in the jamabandi of the mouza, which may be increased till the terms of this Settlement.' The translation is not a very happy one, but the meaning seems to be that the tenant may either cultivate the waste land or letit out to tenants and enjoy the increased rental.
4. The words relied on by the respondent to this appeal are: 'Be it known tltat in the said mouzas you the proprietors have no kamat land,' that is, lands in the possession of the zemindars.
5. Now the Bengal Tenancy Act does not define the classes of leases to which the Act applies. The local extent of the Act is given in Section 1 (3) of the Act. It has, however, always been held that the Act only applies to agricultural land. A class of cases, however, lias grown up in the Courts to the effect that the Act does not apply to leases of agricultural land which are not for agricultural purposes see Umrao Bibi v. Mahomedw Rojabi 27 C. 205 : 4 C.W.N. 76.
6. The case of Promotho Nath Mitter v. Kali Prasanna Chowdhry 28 C. 744 was much relied on in argument. The remarks of Maclean, C.J., in that case are only to the effect that a putni was not a lease for agricultural purposes, and, therefore, the provisions of the Transfer of Property Act applied as to the merger of the putni on its being purchased. That some of the provisions of the Bengal Tenancy Act, viz., those as to the period of limitation provided by the Act for recovering arrears of rent from the patnidar, apply had already been decided in this Court in the case of Burna Moyi Dasee v. Burna Moyi Chowdhurani 23 C. 191. That case remains unaffected by any subsequent decision of this Court. If the period of limitation provided by the Bengal Tenancy Act applies to arrears of putni rent, it must also apply to the leases in the present suit even if we accept the construction placed on those leases by the Vakil for the plaintiffs. I think, however, that the leases in the present case, even apart from the decision in Burna Moyi Dassee's case 23 C. 191, come under the Bengal Tenancy Act. One of the purposes for which the leases were granted was to authorise the defendant to bring under cultivation the waste land which, I think, is obviously an agricultural purpose.
7. That being so, I think that the rent sued for the year 1313 is barred by limitation. The decree of the lower Court must be varied by deducting from the decretal amount the amount of rent and interest thereon for the year. Subject to that modification the decree appealed against will be affirmed.
8. As the appellant has only succeeded as regards the rent for 1313 there will be no order as to the costs of this appeal.
9. The order of the lower Court as to the costs in that Court will remain unaffected.
Richardson, J.--I agree. It is not always easy to ascertain precisely what the purposes of a lease are and in the present case I doubt whether it is necessary to determine, whether the lease in question is or is not a lease for agricultural purposes within the meaning of Section 117 of the Transfer of Property Act. Under Clause (3) of Section 1 of the Bengal Tenancy Act, that Act extends to the whole of Bengal with the exception of certain specified areas, with which we are not now concerned. The lease covers land to prima facie extends. It however, that there are lands outside the excepted areas to which the provisions of the Act according to their true construction have no application Raniganj Coal Association Ltd. v. Judoonath Ghose 39 C. 489; Umrao Bibi v. Mahomed Rajabi 27 C. 205 : 4 C.W.N. 76; Hedayet Ali v. Kalanand Singh 20 Ind. cas. 332 : 17 C.L.J. 411. But the land here is admittedly agricultural land and these authorities, therefore, are not pertinent. On the other hand where a lease relates to agricultural land but is not a lease for agricultural purposes, it is clearly governed by the Transfer of Property Act, which is an Imperial Act, in respect of matters within the scope of that Act (so far as its operation is not excluded by anything in its Section 2). By way of illustration reference may be made to Promotho Nath Mitter v. Kali Prasanna Chowdhry 28 C. 744. Such a lease again can only be made under section. 107 by a registered instrument. In these and other cases the Transfer of Property Act has been held to apply. In other respects, however, the relationship between the parties to such a lease may still be subject to the provisions of the Bengal Tenancy Act. Durga Prosad Bundopadhya v. Brindabun Roy 19 C. 504; Peary Mohan Mukhopadhya v. Sreeram Chandra Bose 6 C.W.N.794; Burna Moyi Dassee v. Burna Moyi Chowdhurani 23 C. 191. The Government have not found it necessary to issue any notification in exercise of the power conferred by Section 117 of the Transfer of Property Act and so far as lam aware, the position gives rise to no practical difficulty, except the initial difficulty in some cases of determining whether a particular lease is or is not a lease for agricultural purposes, that is to say, where the question is whether some provision in the Transfer of Property Act is or is not applicable. That question does not really arise in the present case. The lease hero appears to me to be in substance a temporary lease granted to a rent-farmer or middleman. It relates, as I have said, to agricultural lands. There is no question of any conflict betw.een the Tenancy Act and the Transfer of Property Act or of applying any provision of the latter Act. The point is whether the period of Limitation applicable to a suit for arrears of rent due under the lease is that prescribed by the Limitation Act or that prescribed by the Tenancy Act. The argument for the respondents is that the lease is not a lease for agricultural purposes, and is, therefore, subject only to the Transfer of Property Act, and is not governed in any respect by the Tenancy Act. But in the view of the cases cited and of the terms of Section 117 Itself, that conclusion by no means follows from the premise. There is no dispute that if the Tenancy Act applies for any purpose the period of limitation is three years as provided in Article 2 of the Schedule III of the Tenancy Act. Section 29 of the Limitation Act contains a saving clause in regard to special and local laws, In my opinion whether this lease is or is not a lease for agricultural purposes, the Tenancy Act applies and the period of limitation applicable is that provided by that Act.