1. In this case the plaintiff has appealed. He sued for the rent of a durpatni mehal at the rate of Rs. 69. The defendants admitted rent at the rate of Rs. 64, and said that it was divided into halves each defendant being liable for Rs. 32. The lower Courts passed a decree for the plaintiff on these terms.
2. It appears that the tenancy was created in September 1866 by a kabuliat which, no doubt, stated the annual jama to be at Rs. 69. But we find a letter on the record within a few days after (Exhibit B) in which it is expressly stated that the jama should be reduced to Rs. 64: It has been found by the lower Courts that the rent was paid at the rate of Rs. 64 per annum for over 30 years. In 1871 there was an alienation of the tenant's interest and the purchasers applied to the landlord for mutation of their names (Exhibit C). Five years later in 1876 we find the document, Exhibit D, a letter, showing that the jama was then recorded at Rs. 64 The plaintiff purchased the landlord's interest in 1904 and he now claims after all these years at the higher rate. I do not think that he can do so.
3. The point taken by the learned Vakil for the appellant is that oral evidence cannot be taken to vary a written contract which has also been registered and he relies upon proviso 4 to Section 92 of the Indian Evidence Act. The short answer to that is that the agreement by which the original contract in this case was varied was not a mere verbal agreement, as the Pleaders suggest, but an agreement in writing, by which the parties can always vary, rescind or modify a contract.
4. As to the second point, it is said that the jama could not be split up, and that the Courts below are wrong in giving a separate decree against each defendant for Rs. 82. It is argued that the division of the tenure could not take place without the consent in writing of the landlord. We find in this case a number of dakhilas which were signed by the am-mukhtar of the landlord. That would amount to a consent in writing, as has been held by the Full Bench in the case of Pyari Mohun Muhhopadhya v. Gopal Paik 25 C. 531 : 2 C.W.N. 375.
5. For these reasons we dismiss the appeal with costs.
D. Chatterjee, J.
6. The disputed kabuliat is dated sometime in Bhadra 1273 and one of its terms is that the lessee was given to understand that no settlement had been made by a reduction of the jama. A few days after, on the 15th Assin 1273, the lessor said that the jama of Rs. 69 not being supported by the state of things in the Mofuesil, he made a reduction of Rs. 5 and would take Rs. 64 as jama. This was by a letter sealed and signed by the lessor, and ever since the rent has been paid at the reduced rate notwithstanding transfers and subdivisions. One of the defendants deposed that the jama was reduced, as the assets found on the Mofussil inquiry were not sufficient for making up the jama in the lease. The plaintiff who is a new purchaser claims at the kabuliat rate.
7. It is contended by the learned Vakil for the appellants, that neither the letter nor the other evidence in the case is admissible, for it must be for varying the contract, and he relies upon proviso 4 to Section 92 of the Evidence Act, and says that the reduction of rent can be proved only by a registered document. I think the contention is wrong. In the first place, the original kabuliat contemplated that the assets were sufficient and the contract was not complete until the lessee had satisfied himself of the same: until such time it could not be said that the contract was complete. So that the existing state of things and the contemporaneous acts of the parties are admissible to show what the ultimate contract was; and in the second place, I should think that the first proviso to the Section would entitle the lessee to show want or failure of consideration or mistake of fact so that he would be entitled to prove that the assets not being sufficient there was a failure of consideration leading to a final settlement at a lower rent. Evidence of conduct where relevant has always been held as admissible and the books are full of cases in which a kobala has been proved to be a mortgage see the cases of Preonath Shaha v. Madhu Sudan Bhuiya 25 C. 603 : 2 C.W.N. 562; Khankar Abdur Rahman v. Ali Hafez 28 C. 256; Mohomed Ali Hossein v. Nazar Ali 28 C. 289. In the case of Ismil Mussajee Mookerdum v. Hafiz Boo of 10 C.W.N. 570 : 3 A.L.J. 353 : 3 C.L.J. 484 : 8 Bom. L.R. 279 : 16 M.L.J. 166 : 1 M.L.T. 137 : 33 C. 773 the Privy Council held that a transaction that was on the face of it a sale was a gift. In the same way, there are lots of cases in which it is held that although consideration is written as paid in a registered document, evidence is allowed to show that no consideration was paid. In this case the conduct of the lessor and of the lessee has been uniform and unchanged for a period of more than 40 years. There have been several transfers in the meantime and the rent has always been considered to be Rs. 64 for the whole, and Rs. 32 for the half. So that I think it does not now lie in the mouth of the plaintiff who is a private purchaser from the lessor to say that there ought to be a different state of things in his relations with the defendants. In this view of the case the learned Vakil for the appellants is wrong in his first contention.
8. As regards the second contention that the tenure ought not to have been held as validly sub-divided, I find that when the two purchasers of the two eight-annas shares made an application for registration of their names in the sheresta of the lessor, the lessor gave them a roka in which it is stated that these two purchasers put in two separate ekrarnamas agreeing to pay the rent in two halves in different kists. These ekrarnamas are not before Rs. One would expect that the plaintiff being a private purchaser would be in a position to produce these documents. However, they are not on the record, and the documents that are on the record show that the lessors have uniformly and steadily given receipt for the 8-annas of the durpatni jama at Rs. 32 instead of giving the same as Rs. 32 oat of Rs. 64. So that upon the evidence it was quite competent for the lower Courts to come to the conclusion that the durpatni had been sub-divided. The result, therefore, is that these contentions taken by the learned Vakil for the appellant fail and this appeal is accordingly dismissed with costs.