1. The substantial question in controversy in this appeal is whether Rs. 28 mentioned in the respondents' kabuliyat or the price of two he goats which are annually deliverable at the time of the Dusserah puja is an abwab.
2. The relevant provisions of the statute are the following : Section 54, Regulation 8, 1793, laid down that all existing abwabs should be consolidated with the asil jama into one specific sum; Section 55 prohibited the imposition of any new abwab or mahtut upon the raiyats upon any pretence whatever upon pain of a penalty of three times the amount imposed for the entire period of the imposition; and Section 61 enacted that in the event of any claim being preferred by proprietors of estates.... On engagements wherein the consolidation of asil, abwab etc., shall appear not to have been effected they are to be nonsuited with costs. Section 3, Regulation 5, 1812, which altered some of the provisions of Regulation 8, 1793, declared that nothing therein contained should be construed as sanctioning or legalizing the imposition of arbitrary or indefinite cesses whether, under the denomination of abwab, mahtut or any other denomination. By Act 10, 1859, Section 10, and Act 8 (B.C.), 1869, Section 11, exactions beyond the rent specified in the patta subject the landlord to damages not exceeding double the amount of such taxation. Section 61, Regulation 8, 1793, and Section 3, Regulation 5, 1812, were repealed by Section 1, Act 16, 1874. Section 74, Act 8, 1885 says:
All impositions upon tenants under the denomination of abwab, mahtut or other like appellations in addition to the actual rent shall be illegal, and all stipulations and reservations for the payment of such shall be void.
3. It should be remembered that this Act repeals Sections 54 and 55, Regulation 8, 1793 (vide Schedule 1), without enacting any provision about the consolidation of rent of the whole with the asil into one entire sum. The position then, apart from authorities, is that now in all cases about illegal cesses, the question will primarily turn about the meaning of the words 'actual rent' used in Section 74.
4. The authorities bearing upon the point are too numerous and varied and are far from being reconcilable, but it is not impossible to deduce from them one consistent principle which, however does not take us beyond the words of Section 74 itself.
5. The law assumed a somewhat settled state under the Full Bench decision of this Court in the case of Chultan Mahton v. Tilukdhari Singh  11 Cal. 175 (F.B.). There were formerly decisions in which the stringent provisions of the regulations were not strictly given effect to : e.g., Jeeatoollah Paramanick v. Jugodindro Narain Roy  22 W.R. 12, where the demand was of a case over and above the original rent and the ryot consented and contracted to pay it : Juggodish v. Turrikoollah  24 W.R. 12, which was the case of a parabi : Budhna Orawan Mahton v. Juggessur Doyal Singh  24 W.R. 4, where the payments were not so much in the nature of cesses as of rent in kind, and which were fixed and uniform and had been paid by the ryot from the beginning according to local custom; Nabin Chunder Roy Chowdhry v. Gooroo Gobind Mojoomdar  25 W.R. 8, which was the case of bhika or payments made over and above the rents due. but paid voluntarily and not exacted; Serajgunge Jute Co. Ltd. v. Torabdee Akoond  25 W.R. 252, where a talab beshi of two annas in the rupee had been paid for many years in addition to the asil jama and had been in course of time incorporated with the asil jama and one receipt used to be given for the consolidated amount, it being found that it was paid for the purpose of preventing disputes with the landlord and for securing the ryot's own interest and that the ryot had agreed to make a definite payment in addition to his rent; Mahomed Fayez Chowdhury v. Jamoo Gazee  8 Cal. 730, in which a condition in a lease that a certain sum was to be paid as collection charges was held to be a part of the rent and not an abwab and was capable of enforcement if the condition was certain and definite in its nature and formed part of the consideration for the lease.
6. In the Full 11 Bench case of Chultan Mahton v. Tilukdhari Singh  11 Cal. 175 (F.B.), certain items were claimed as 'old usual abwabs' and in the zamindari papers they were described as abwabs. The question referred to the Full Bench was:
Whether assuming that the abwabs in question have, by the custom of the estate of which the lands form part, been paid by the defendant and his ancestors for a good many years, they are legally recoverable by the plaintiffs, although they are not actually proved to have been paid or payable before the permanent settlement.
7. To answer this question two important questions were considered (vide judgment of Mitter, J.) : - 1st whether the imposition of abwab is prohibited and made unlawful by any law in force in this country, because if it is, Section 23, Contract Act, would make the contract to pay the same void; secondly whether, if there was a contract between the parties for payment of abwabs, under the latter part of Section 3, Regulation 5, 1812, the contract was enforceable.
8. As regards the first question, on reference to Sections 54, 55 and 61, Regulation 8, 1793, and Section 3, Regulation 5, 1812, Section 10, Act 10, 1859, Section 11, Bengal Act 8, 1869, it was held that a contract for the imposition of abwabs is unlawful and is not enforceable by law. To decide this question a construction of the fatter part of Section 3, Regulation 5, 1812, was necessary. This portion is worded thus:
But the Court shall notwithstanding maintain and give effect to the definite classes of the engagements between the parties, or in other words, enforce payments of such sum as may have specifically agreed upon between them.
9. Mitter, J., (Tottenham and Pigot, JJ., concurring) held that the words 'such sum, etc.' refer to the amount of the rent specified. On the second question it was held that the abwab not having been consolidated with the asil jama as required by Section 54, Regulation 8, 1793, a claim for recovery thereof would be nonsuited by Section 61 of that regulation. The case went up to the Judicial Committee, Tilukdari Singh v. Chulhan Mahton  17 Cal. 131. The Judicial Committee held that the High Court was right in holding that the items in question were abwabs, and that if they were payable at the time of the permanent settlement, they ought to have been consolidated with the rent under Section 54, Regulation 8, 1793, and not being so consolidated they could not be recovered; and if they were not payable at the time of the permanent settlement they would come under the description of new abwabs in Section 55 of that regulation and their imposition would be illegal.
10. In the meantime another case came up before the High Court, viz. the case of Pudmanund Singh Bahadur v. Baij Nath Singh  15 Cal. 828. In this case certain items designated 'silam' and 'tehwari' were claimed in addition to a fixed rent on the basis of a kabuiiyat which created a permanent tenure and in which the tenant had agreed to pay the same. The learned Judges (Tottenham and Ghose JJ.,) held that the Full Bench decision in Chultan Mahton v. Tilukdari Singh  17 Cal. 131, did not mean
to exclude the operation of Regulation 5, 1812,. where that regulation could apply,
and the items in question were not illegal cesses within the meaning of the Full Bench decision not being uncertain and arbitrary in their character, but specific sums which the tenants had agreed to pay to the landlords and the payment of which, no less than the payment of rent itself, formed part of the consideration upon, which the tenancy was created, and which are in fact part of the rent agreed to be paid although not so described, they were recoverable under Regulation 5, 1812. There was another Full Bench decision in the case of Radha Prosad Singh v. Bal Kowar Koeri  17 Cal. 726 (F.B.). There the question was whether certain cesses designated as 'sarak,' 'batta,' 'neg' and 'kharach' (without any specification of its nature) were realizable. The findings were that the rental was Rs. 18-10-6, that the difference between this rental and Rs. 22-2-0 which was claimed was made up of these items, and that they used to be realized and one receipt for the total amount, that is to say, the rent and these items, used to be given without any separate specification of them. The argument was that the plaintiff was entitled to recover at the rate of Rs. 22-2-0 as though the rent was Rs. 18-10-6 only, the balance was made up of items which were neither uncertain nor arbitrary and which the defendant had agreed to pay as part of the consideration for his holding the land.
11. This argument received support from the case of Pudmanund Singh v. Baij Nath Singh  15 Cal. 828, which, according to referring Judges had put a wrong interpretation upon the Full Bench decision in Chultan Mahton v. Tilukdari Singh  11 Cal. 175 (F.B.). When the case was heard by the Full Bench, Radha Prosad Singh v. Bal Kowar Koeri  17 Cal. 726 (F.B.), Petheram, C.J., was of opinion that Pudmanund Singh v. Baij Nath Singh  15 Cal. 828 must be held to have been overruled by the decision of the Judicial Committee in Tilukhdari Singh v. Chultan Mahton  17 Cal. 131, and expressed his opinion as fellows:
By this judgment I understand the Privy Council, while affirming that of the High Court, to go beyond it and to hold that under the regulations nothing could be recovered for the occupation of the land, except one sum which must include everything which was payable for such occupation arrived at either by agreement or by some judicial determination between the parties, and that any contract, whether express or implied, to pay anything beyond that sum, under any name whatever for or in respect of the occupation of the land, could not be enforced.
12. O' Kicealy J., (Prinsep and Pigot, JJ., agreeing) also observed that it is only one, sum being the 'ground rent' of the permanent settlement which could be recovered. Ghose, J., on the other hand interpreted the decision of the Judicial Committee as follows (5):
I do not understand that they intended to go any way beyond what Mr. Justice Mitter said in his judgment, and to lay down, as it is said that they did lay down, that nothing, save and except one sum, including every item of payment could be recovered as payable for the occupation of land; and that an agreement to pay anything beyond that sum, although it might be a lawful consideration for the lease could not be enforced. It appears to me that if in any case the Court finds that any particular sum specified in the lease or agreed to be paid, is a lawful consideration for the use and occupation of any land, that is to say, if it is really paid out of the rent, although not described as such it would be justified in holding that it is not abwab, and is recoverable by the landlord.
13. The learned Judge proceeded to observe with regard to the case of Pudmanund Singh  15 Cal. 828 that, although in point of fact on a reconsideration of the matter he was of opinion that salami and tehwari were abwabs, it was not intended in that case to hold that anything that is not arbitrary and indefinite is recoverable although it may not be part of the rent; that in that case both the elements were supposed (though wrongly, it afterwards appeared) to be present, viz. : first that the items in question were not of an arbitrary or indefinite character, and secondly, that they formed part of the rent agreed to be paid.
14. The opinion expressed by Petheram, C.J. in Radha Prosad Singh v. Bal Kowar Koeri  17 Cal. 726 (F.B.) as to the interpretation to be given to the deoision of the Judicial Committee has not been followed in several cases : e.g., Kalanand Singh v. Eastern Mortgage Agency Co. Ltd.  18 C.L.J. 83; Assanulla Khan Bahadur v. Tirthabashini  22 Cal. 680; Mathura Prasad v. Tata Singh  40 Cal. 806 Upendra Lal Gupta v. Ataullah  21 C.W.N. 108.
15. Cases of this Court after the aforesaid decisions of the Full Bench and of the Judicial Committee referred to above, are many and varied and it would be too tedious to deal with them. Many of them have been referred to and dealt with in detail in the judgments of Sanderson, C.J. and N.R. Chatterjea, J. in the case of Bejoy Singh v. Krishna Behari Biswas  45 Cal. 259. The numerous oases that were cited at the Bar at the hearing of this appeal are all discussed in the judgments in that case. The position has been accurately stated by both the learned Judges in that decision. Sanderson, C.J., observed there:
The rule that has been followed in this Court is that each case must depend upon the proper construction of the contract before the Court and if upon a fair interpretation of the contract it can be seen that a particular sum is specified in the contract or agreed to be paid as the lawful consideration for the use and occupation of the land i.e., if it is really part of the rent although not described as such the landlord can recover it.
16. N.K. Chatterjea, J. observed thus:
It is contended that the mere fact that a certain item is dealt with in the kabuliyat in a separate clause or that it is not included in the instalments of rent ought not to make any difference in determining whether the item is or is not rent. But these facts have an important bearing upon the question of intention of the parties to the contract. They show whether the parties intended to treat a particular item as part of the raut agreed upon to be paid or as something different from the rant, and those facts have accordingly been taken into consideration in all the cases decided since the Pall Bench. The question whether a particular item is or is not rent, no doubt, depends upon the construction of the lease in each case. But once it is held that a particular item has not been agreed upon by the parties as 'the rent' nor described in the lease as such the further question whether such sum, although it may not form part of the consideration mentioned in the contract is recoverable or not must depend upon the law as laid down in the Regulations and Acts on the point.
17. With the above observations of the learned Judges I entirely agree. Applying these principles to the kabuliyat in the present case there is no doubt whatever that the intention of the parties was that the total rental of the jota would be Rs. 106-1-6 made up of Rs. 97-8-0 in cash, two he-goats or their price Rs. 2-8-0 and Rs. 6-1-6 as cesses. It appears that the bhet was deliverable at the time of the Dusserah puja and if not so deliverable its price is to be paid at the September kist along with the cash due to be paid at that kist. It also appears that the cesses payable are also calculated on the cash and the price of the bhet taken together. There are no indications in the kabuliyat which may incline us to take a contrary view. The Courts below appear to have been in error in the view they Have taken. The-appeal accordingly fallowed and the decrees of the Court of appeal below will be varied. The appellants will be allowed a decree taking the annual rental to be of Rs. 100 and cesses Rs. 6-1-6 as mentioned in the kabuliyat. In other respects, the decree, as passed will stand. The appellant will be entitled to his costs in this Court.
18. I entirely agree with what my learned brother has said. An abwab, as defined in Section 74, Bengal Tenancy Act, is whatever is recovered from the tenant in addition to the actual rent : and rent is denned in Section 3, Sub-section (5) as 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. In each case it is to be determined whether or not the item called in question as an abwab is covered by the definition of the term rent. To put it in other words, it must be found that the item is part of the consideration agreed to be paid or delivered by the tenant for the use and occupation of the land, provided that such consideration is lawful. The consideration may be wholly monetary or wholly one in kind or it may be partly in money and partly in kind. The statute does not restrict consideration in kind to grain or other produce of the soil. The consideration may be a cartload of paddy or a cartload of money; and in either case it would be perfectly lawful. There is nothing in the law prohibiting a stipulation such as the one in the present case, that two he goats are to be delivered as part of the consideration for the use and occupation of the land. The he goats in such a case do not come within the definition of 'abwab.' The payments in money or the deliveries in kind at which the law strikes are such as are not payable or deliverable under the terms of the contract between the landlord and the tenant. Real abwabs are payments or deliveries, sometimes fixed and customary and sometimes arbitrary and uncertain which were not agreed upon between the parties as consideration for the use and occupation of the land. The reports of the various surveys and settlements in Bengal show a large number of levies of various kinds made from the tenants on the occasion of marriages, sradhs, first-rice ceremony, sacred thread ceremony, pujas, journeys etc., performed by the, landlord's family or on the occasion of certain ceremonies in the families of the tenants. These are survivals of the times when the relations between landlord and tenant were governed by custom and not by contract, and when also the landlords, however petty, considered themselves the overlord of their tenants. Mr. Jameson, in his report of the Midnapur settlement operations, divides the abwabs he found there into three classes:
1. Those connected with the holding of land and payment of rent.
2. Miscellaneous collections for various purposes.
3. Impositions of the nature of fines for breach of caste rules of offence against the social law.
19. He says this rough division indicates the three capacities in which the zamindar stood in relation to the tenants, and in virtue of which he demanded the payments, namely, as owner of the soil, as feudal overlord to whom special services are due and as 'censor morum.'
20. The same Settlement Officer has mentioned in his report that in the same district certain chhars or remissions of rent were made by the landlords. He found four kinds of remissions, one made to artisans, another to village headman, a third to bhadralok and a fourth, termed mamuli, which was unexplained.
21. Landlords thought more of the abwabs they collected than of what they were legally entitled to collect under the terms of the contract between them and their tenants. The result has been that Settlement Officers throughout Bengal have reported that the vast majority of the tenancies to which the presumption laid down in Section 50, Sub-section (2), have been applied were not really mukurari tenancies, Mr. J.C. Jack in his report of the Bakarganj settlement has said that tenants preferred abwabs to enhancements of rent, because the latter are permanent additions to the rent, whereas the former being illegal, could be repudiated in better times. Agreements such as the one before us do not belong to the class of arrangements last described.
22. In some of the cases that have come before this Court, the payments which were found to be abwabs had been voluntarily made for a long time and were even fixed in amount; but the amounts levied had never actually formed part of the rent agreed to be paid and had never been treated as such. There are, however, certain oases in which it has been held that because a certain amount of money was mentioned in the written lease as khazana, the stipulation for the delivery of certain movables was not one for rent. The assumption conveyed is that the term 'khazana' is equivalent to the term 'rent.' This can hardly be correct in view of the definition of the term 'rent' in the Act. By the word 'khazana' is meant what is payable in money. Bent includes also what is deliverable in kind under the terms of the contract.
23. In the present case, the contract expressly provides for the payment of money and the delivery of two he-goats. The goats are part of the rent. It is perfectly immaterial that no cess is assessed on the value of the goats. That circumstance in no way affects the nature of the stipulation for the delivery of goats. I, therefore, agree with my learned brother that this appeal must be decreed.