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Dina Nath Pal and ors. Vs. Raja Sati Prasad Garga Bahadur and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1923Cal74,72Ind.Cas.663
AppellantDina Nath Pal and ors.
RespondentRaja Sati Prasad Garga Bahadur and ors.
Cases ReferredNilmani Kar v. Sati Prasad Garga Bahadur
Excerpt:
bengal tenancy act (viii of 1885), sections 3(5), 30 - 'rent' in section 50, if restricted to money rent--rent payable partly in cash and partly in kind--presumption, whether applicable-statutes, interpretation of--reference to history of statute, if permissible. - .....of the rent having been commuted, with the consent of both the raiyat and his landlord, to a fixed money rent.' (digest of the law of landlord and tenant prepared by c.d. field, section 38; bill prepared by the rent commission, 1880, section 16, exp. 1; bill submitted by the bengal government, 1881, section 15, exp. 1; bill as introduced in the legislative council, 1883, section 16; bill as amended by the select committee of the legislative council, 1884, section 64(3).7. this provision was omitted at the final stage, as appears from the following passage from the report of the select committee:we have omitted from the section, which enacts the well-known presumption arising from holding at a rent unchanged for twenty years, the sub-section which made the presumption applicable to.....
Judgment:

1. These six appeals have arisen out of as many suits, instituted by tenants, under Section 106 of the Bengal Tenancy Act, against their landlords, for the decision of disputes regarding entries which had been made in a finally published Record of Rights. The plaintiffs had been recorded as settled raiyats under the defendants; they claimed that they were raiyats at fixed rents. In support of their contention, they produced rent receipts which showed that each of them had held at a uniform rent for over 20 years. In each case, however, the rent consisted partly of CJPII and partly of the money value of a fixed quantity of paddy. To take ere illustration : in the ease of one tenancy, the amount of rent as shown in the tent receipts was Rs. 20-ia-12gds-2k; this amount is made up of Rs. 18-13a-18gds-2k as cash rent and Rs. 1-3as-14gds as the money value of two kuris 3 mans 1 khupi of paddy. These two items are shown separately in the receipts up to the year 1902, and, thereafter, the consolidated sum alone is shown as cash rent. Similar observations apply to each of the other cases. In these circumstances, the Revenue Officer who tried the suits in the Court of first instance held that Section 50 of the Bengal Tenancy Act was not applicable. In his opinion the term 'rent' in that section did not include rent in kind. The result was that the suits were dismissed. On appeal, the Special Judge adopted the same construction of Section 50 and confirmed the decision of the Revenue Officer. In this Court, the tenants have urged that Section 50 has not been correctly interpreted by the Courts below.

2. Section 50 of the Bengal Tenancy Act provides as follows:

50 (1). Where a tenure-holder or raiyat and his predecessors in-interest have held at a rent or rate of rent which has not been changed from the time of the Permanent Settlement, the rent or rate of rent shall not be liable to be increased except on the ground of an alteration in the area of the tenure or holding.

(2). If it is proved in any suit or other proceeding under this Act that either a tenure-holder or raiyat and his predecessors-in-interest have held at a rent or rate of rent which has not been changed during the twenty years immediately before the institution of the suit or proceeding, it shall be presumed, until the contrary is shown, that they have held at that lent or rate of rent from the time of the Permanent Settlement.

3. This section must he read along with Section 3(5) which provides that, unless there is something repugnant in the subject or context, rent means whatever is lawfully payable or deliverable in money or kind by a tenant to his landlord on account of the use or occupation of the land held by the tenant. This definition is in no way repugnant to the subject or context of Section 50, and the term 'rent' in that Section may well be replaced by its equivalent as given in Section 3(5). This leads inevitably to the conclusion that the substantive rule formulated in Section 50(1) and the presumption embodied in Section 50(2) do not become inapplicable because a tenure-holder or raiyat holds at a rent payable partly in cash and partly in kind or entirely in kind.

4. A determined effort was successfully made in the Courts below on behalf of the landlords--and the attempt has been resolutely repeated here--to place a restricted construction on Section 50, by reference to the report of the Select Committee of the Legislative Council of the Governor-General which considered the draft of the Bengal Tenancy Bill at the final stage. It is well-kwnon that there was, at one time, some divergence of judicial opinion on the question, whether a produce rent, which, though varying annually with the varying amount of the yearly produce was yet fixed as to the proportion it was to bear to such produce, was a fixed rent for the purposes of Sections 4 and 16 of Act X of 1859 and Sections 4 ,and 17 of Act VIII of 1869 B. C. The question was answered in the affirmative in a long series of decisions; Thakooranee Dossee v. Bisheshur Mookerjee 3 W.R. Act X Rul. 29; Miterjeet Singh v. Toondun Singh 12 W.R. 14 : 3 B.L.R. App 88; Ram Dyal Singh v. Luchmee Narain 14 W.R. 388 : 6 B.L.R. App. 25; Jutto Moar v. Basmuttee Koer 15 W.R. 479; Hanuman Parshad v. Kaulesar Pandey 1 A 301, 1 Ind. Dec. (N.S.) 119. The contrary opinion, however, was maintained in Mahomed Yacoob Hossein v. Wahed Ali 4 W.R. Act X Rul. 23 : 1 Ind. Jur. (N.S.) 20 and Thakoor Pershad v. Nowab Syed Mahomed Baker 8 W.R. 170. But the decision in Yacoob Hossain v. Wahed Ali 4 W.R. Act X Rul. 23 : 1 Ind. Jur. (N.S.) 20 was disapproved in Miterjeet Singh v. Toondun Singh (2) and in Ram Dyal Singh v. Luchmee Narain 14 W.R. 388 : 6 B.L.R. App. 25, Jackson J., when pressed with the decisions in Yacoob Hossain v. Wahed Ali 4 W.R. Act X Rul. 23 : 1 Ind. Jur. (N.S.) 20 and Thakoor Pershad v. Nowab Syud Mahomed Baker 8 W.R. 170 described in graphic terms the injustice of the rule favoured therein : 'I confess I would have considerable difficulty in assenting to the rulings in these cases; because, if the rulings are correct, the Legislature must have intended that raiyats who have held land upon one principle, that is to say, upon one fixed ratio of division of the produce of their land with the landlord, from the time of the Permanent Settlement, would be entitled to no protection whatever, but would after these 80 or 90 years be subject to a suit for enhancement or for commutation of their rent at such money rates as the landlord might be enabled to prove. I cannot believe that the Legislature could have intended any such injustice to raiyats in those parts of the country where the bhaolee system is prevalent as it is in many parts of Behar. In those parts of the country, there being no such thing as a rate of rent in money, raiyats holding from the time of the Permanent Settlement would have no protection whatever, unless the Legislature meant to include under the words rate of rent the mode or principle of bhaolee payment. But it is net necessary for us to determine the case upon this point; if it had been so, I should have been inclined to propose a reference to a Full Bench.'

5. There can thus be no doubt that there was a marked preponderance of judicial opinion in favour of the view that raiyats who paid their rent in kind, partially, or entirely, were not disentitled to the benefit of the statutory presumption corresponding to the rule now embodied in Section 50 of the Bengal Tenancy Act.

6. But the respondents have invited our attention to the fact that while legislation, which ultimately culminated in the present Bengal Tenancy Act, was in hand, an attempt made to insert the following Clause, so as to give effect to the view adopted in the majority of judicial opinions, was abandoned:

When a raiyat has paid as rent a fixed share or the value of the fixed share of the produce of the land, the rent or rate of rent shall not be deemed to have been changed within the meaning of this section, merely by reason of the amount paid having varied from year to year, or by reason of the rent having been commuted, with the consent of both the raiyat and his landlord, to a fixed money rent.' (Digest of the Law of Landlord and Tenant prepared by C.D. Field, Section 38; Bill prepared by the Rent Commission, 1880, Section 16, Exp. 1; Bill submitted by the Bengal Government, 1881, Section 15, Exp. 1; Bill as introduced in the Legislative Council, 1883, Section 16; Bill as amended by the Select Committee of the Legislative Council, 1884, Section 64(3).

7. This provision was omitted at the final stage, as appears from the following passage from the Report of the Select Committee:

We have omitted from the section, which enacts the well-known presumption arising from holding at a rent unchanged for twenty years, the sub-section which made the presumption applicable to produce rents, as opinions generally were opposed to it.' Gazette of India, dated 21st February 1885, Part V, page 64).

8. We shall presently consider whether reference is premissible to the Report of a Select Committee in aid of the interpretation of a statutory provision. But, even if we assume for a moment that such reference is legitimate, it is plainly of no assistance in the present case. The omission of the clause left the Bill as it was, and that Bill, it cannot be overlooked, contain a comprehensive definition of the term 'rent'. Act X of 1859 did not contain a definition of the term 'rent', and this opened up, as is well known, various opportunities for controversies of a recondite character. The Legislature remedied this defect by the insertion of a definition of the term 'rent', in Section 3(5) of the Bengal Tenancy Act--a definition which, as Sir Arthur Wilson observed in Jotindra Mohan Tagore v. Jarao Kumari 33 C. 140 at p. 149 : 3 C.L.J. 7 : 10 C.W.N. 201 : 1 M.L.T. 8 : 33 I.A. 30 (P.C.) 'seems to express very clearly the meaning of the word 'rent' as it would be understood without any satutory definition.' We need not speculate whether the members of the Select Committee fully realised the effect of this definition on the other provisions of the Bill they had then under consideration. But this much is clear that if they intended to alter the current of judicial opinion under the old Law, they unquestionably failed to achieve their purpose by the mere omission of the clause we have mentioned. The result might have been different, if the term 'rent' in Section 50 had been replaced by the phrase 'money rent' which makes its appearance in Sections 28, 29, 30, 53 and 61. We may add that the decision of Jenkins, C.J., in Baneswar Mukherji v. Umesh Chandra Chakrabarti 7 Ind. Cas. 875 : 37 C. 626, which was mentioned in the course of argument, does not assist us in the solution of the question raised before us. That case turned upon the construction of a document then before the Court though, no doubt, it implies the opinion that rent payable partly in money and partly in kind cannot be regarded as fixed in amount. It may further be pointed out that the actual decision in that case has not been accepted in later decisions, which will be found reviewed in Nilmadhab Mahapatra v. Keshab Lal 40 Ind. Cas. 819 : 26 C.L.J. 94; Asutosh Mukhopadhya v. Haran Chandra Mukherji 53 Ind. Cas. 382 : 30 C.L.J. 41 : 23 C.W.N. 1021 : 47 C. 133; Gurudas Sen v. Gobinda Chandra Sinha 54 Ind. Cas. 914 : 24 C.W.N. 85; Basiruddi Chowdhuri v. Afsarannessa Bibi 40 Ind. Cas. 833 : 21 C.W. N. 860. We are, however, of opinion that reference is not permissible to the Report of the Select Committee. The Judicial Committee ruled in Administrator-General of Bengal v. Premlal Mullick 22 I.A. 107 : 22 C. 788 : 6 Sar.P.C.J. 603 : 11 Ind. Dec. (N.S.) 522 (P.C.), which reversed the decision of this Court in Administrator-General of Bengal v. Prem Lall Mullick 21 C 732 : 10 Ind. Dec. (N.S.) 1118, that reference is not permissible to the proceedings of the legislature which result in the provisions of an Act as legitimate aids to its construction, and Lord Watson observed that the same reasons which exclude their consideration when the clauses of an Act of the British Legislature are under construction, are equally cogent in the case of an Indian Statute. In that case, reference had been made by Petheram, C.J., and Prinsep, J., to the Report of a Select Committee when the Bill, which subsequently became the Administrator-General's Act, was before the legislative Council; Trevelyan, J., had, on the other hand, hesitated to adopt such a course, even though there was precedent in its favour in the Full Bench decision in Queen-Empress v. Kartick Chunder Das 14 C. 721 : 7 Ind. Dec. (N.S.) 478 (F.B.). The Judicial Committee cannot be deemed to have departed from the rule enunciated by them in Administrator-General of Bengal v. Premlal Mullick 22 I.A. 107 : 22 C. 788 : 6 Sar.P.C.J. 603 : 11 Ind. Dec. (N.S.) 522 (P.C.), merely because they did not again express their disapproval of a similar method of interpretation adopted by a Full Bench of the Allahabad High Court in the case of In the matter of Parbati Charan Chatterji 22 I.A. 193 : 17 A. 498 : 6 Sar. P.C.J. 635 : 8 Ind. Dec. (N.S.) 644 (P.C.). Lord Watson and Sir Richard Couch were members of the Board on each occasion, and there is no indication that the Judicial Committee had, in the course of a few months, altered their opinion on the subject.

9. As regards the principles which, as indicated by Lord Watson in Administrator-General of Bengal v. Premlal Mullick 22 I.A. 107 : 22 C. 788 : 6 Sar.P.C.J. 603 : 11 Ind. Dec. (N.S.) 522 (P.C.), (at page 118*), exclude the consideration of proceedings of the Legislature when the clauses of an Act of the British Legislature are under construction, it may be taken as well-settled that, although light may be thrown on the scope of a Statute by looking at what Parliament was doing contemporaneously and at the history of the-Statute : Hawkins v. Gathercole (1855) 6 De G.M. & G. 1 at p. 22 : 106 R.R. 1 : 24 L.J. Ch. 332 : 1 Jur. (N.S.) 481 : 3 W.R. 194 : 3 Eq. Rep. 348 : 43 E.R. 1129; yet even when words in a Statute are so ambiguous that they may be construed in more than one sense, regard may not be had to the Bill by which it was introduced. Herron v. Rathmines Commissioners (1892) A.C. 498 : 67 L.T. 658, nor to what has been said in Parliament: Miller v. Taylor (1769) 4 Burr. 2303 : 98 E.R. 201; South Eastern Railway Co. v. Ry. Commissioners (1881) 50 L.J.Q.B. 201 : 6. Q.B.D. 586 : 44 L.T. 203 : 45 J.P. 388; Rex v. West Riding of Yorkshire County Council (1906) 2 K.B. 676 at p. 716 : 75 L.J.K.B. 933; or elsewhere: Martin v. Hemming (1854) 10 Ex. 478 : 102 R.R. 686 : 24 L.J. Ex. 3 : 18 Jur. 1002 : 3 W.R. 29 : 156 E.R. 526; Ewart v. Williams (1854) 3 Drew. 21 : 61 E.R. 808 affirmed on appeal (1855) 7 De G. M. & G. 68 : 109 R.R. 32 : 44 E.R. 27. The view has been consistently maintained that the Court cannot look at the history of a clause or of the introduction of a proviso: Barbat v. Allen (1852) 7 Ex. 609 at p. 616 : 21 L.J. Ex. 155 : 16 Jur. 339 : 155 E.R. 1093; R. v. Capel (1840) 12 A. & E. 382 at p. 411, 54 R.R. 580 : 4 P. & D. 87 : 2 L.J. (N.s.) M.C. 65 : 4 Jur. (N.S.) 886 : 113 E.R. 857; nor at debates in Parliament, R. v. Whittaker (1848) 2 C. & K. 636 at p. 640; Gorham v. Bishop of Exeter (1850) 5 Ex. 630 at p. 667 : 82 R.R. 797 : 19 L.J. Ex. 376 : 14 Jur. 876 : 155 B.R. 276 nor at amendments and alterations made in Committees: Donegall v. Layard (1860) 8 H.L.C. 460 at pp. 465, 472, 473 133 R.R. 39 : 11 E.R. 308; Attorney-General v. Sillem (1863) 2 H. & C. 431 at pp. 321, 522 133 R.R. 731 : 33 L.J. Ex. 93 : 10 Jur. (N.S.) 262 9 L.T. (N.S.) 261 : 12 W.R. 257 : 159 E.R. 178 affirmed on appeal (1864) 10 H.L.C. 704 : 10 Jur. (N.S.) 446 : 10 L.T. (N.S.) 434 : 4 N.R. 29 : 13 W.R. 641 : 133 R.R. 382 : 11 B.R. 1200; In Marquis of Donegall v. Layard (1860) 8 H.L.C. 460 at pp. 465, 472, 473 133 R.R. 39 : 11 E.R. 308 at page 472, Lord Campbell observed:

I must lament that his (Smith, M.R., Ireland) zeal to do justice has led him into enquiries respecting this Act of Parliament which could not legitimately assist him in construing it, and which I think unfortunately induced him to change the sound construction which he had twice before put upon it. Surely, the fifth section ought to receive the same construction, whether it was first introduced in the House of Commons or in the House of Lords, and whether it was introduced in the Committee or on the third reading, and whether it was or was not altered after it was introduced. Nor could the rejection of the clauses moved by Lord Beaumont on behalf of the Marquis of Donegall in any way affect the construction of the clauses which were allowed to form part of the Act when it became law.

10. In Attorney-General v. Sillem (1863) 2 H. & C. 431 at pp. 321, 522 133 R.R. 731 : 33 L.J. Ex. 93 : 10 Jur. (N.S.) 262 9 L.T. (N.S.) 261 : 12 W.R. 257 : 159 E.R. 178 affirmed on appeal (1864) 10 H.L.C. 704 : 10 Jur. (N.S.) 446 : 10 L.T. (N.S.) 434 : 4 N.R. 29 : 13 W.R. 641 : 133 R.R. 382 : 11 B.R. 1200, Pollock, C.B., said : 'No Court can construe any Statute, and least of all a criminal Statute, by what Counsel are pleased to suggest were alterations made in Committee by a member of Parliament, who was 'no friend to the Bill', even though the Journals of the House should give some sanction to the proposition. This is not one of the modes of discovering the meaning of an Act of Parliament recommended by Plowden or sanctioned by Lord Coke or Blackstone.'

11. Reference may also be made to the decision of the Supreme Court of the United States in In re Trans-Missouri Freight Association (1896) 166 U.S. 290 : 41 Law. Ed. 1007, of the Supreme Court of Canada in Gosselin v. R. (1903) 33 Canada S.C. 255 at p. 364 and of the High Court of Australia in Sydney Municipal Council v. Commonwealth (1904) 1 Com. L.R. 208 at p. 213. We may also usefully recall the observations of Lord Halsbury in Hilder v. Dexter (1902) A.C. 474 at p. 476 : 71 L.J. Ch. 781 : 87 L.T. 311 : 51 W.R. 225 : 7 Com. Cas. 258 : 9 Manson 378 : 18 T.L.R. 800.

12. 'I have more than once had occasion to say that, in construing a Statute, I believe the worst person to construe it is the person who is responsible for its drafting. He is very much disposed to confuse what he intended to do with the effect of the language which, in fact, has been employed. At the time he drafted the Statute, at all events, he may have been under the impression that he had given full effect to what was intended, but he may be mistaken in construing it afterwards, just because what was in his mind was what was intended, though, perhaps, it was not done.'

13. We must further remember that, as pointed out by Farwell, L.J., in Rex v. West Riding of Yorkshire County Council (1906) 2 K.B. 676 at p. 716 : 75 L.J.K.B. 933, we have only to deal with the construction of the Act as printed and published, that is the final word of the legislature as a whole, and the antecedent debates and subsequent statements of opinion or belief are not admissible. But they would be quite untrustworthy in any case. In the case of an Act dealing with a controversial subject, ambiguous phrases are often used designedly, each side hoping to have thereby, expressed its own view, and the belief of each that it has succeeded is more often due to the wish than to any effort of reason. The generality of public understanding is quite incapable of proof and is beside the mark, unless as an appeal to timidity. The principles of construction applicable to Acts of Parliament are well settled; they will be found stated in Stradling v. Morgan (1858) 1 Plowden 199 at p. 204 : 95 E.R. 305, which received the approval of Turner, L.J., in Hawkins v. Gathercole (1855) 6 De G.M. & G. 1 at p. 22 : 106 R.R. 1 : 24 L.J. Ch. 332 : 1 Jur. (N.S.) 481 : 3 W.R. 194 : 3 Eq. Rep. 348 : 43 E.R. 1129, of Lord Hals bury in Eastman Photographic Materials Co. v. Comptroller General of Patents, Designs and Trade Marks (1898) A.C. 571 at p. 575 : 67 L.J. Ch. 628 : 79 L.T. 195 : 47 W.R. 152 : 15 R.P.C. 476 : 14 T.L.R. 527, and were quoted with approval by the Full Bench in Nilmani Kar v. Sati Prasad Garga Bahadur 61 Ind. Cas. 82 : 48 C. 556 : 32 C.L.J. 302 : 25 C.W.N. 230 (F.B.); they certainly do not admit of any such considerations. We hold accordingly that reference could not be made to the Report of the Select Committee, and that even if reference were permissible, the contention of the landlords would not be advanced thereby.

14. Our conclusion is that in Section 50, the terra 'rent' cannot be restricted to 'money-rent' and that it bears the meaning attributed to it in Section 3, Clause (5). The result is that these appeals are allowed and the suits decreed with costs in all the Courts. The hearing fee in this Court will be assessed at one gold mohur in each appeal.


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