1. This is an appeal by the plaintiffs in a suit for recovery of arrears of rent for the years 1312 to 1315 (B. S.) on the basis of a contract of. tenancy dated the 7th May 1877, under which the rent is payable partly in cash and partly in kind. The tenant undertook to pay Rs. 9 in cash and to deliver a specified quantity of paddy. The plaintiffs allege that rent has not been paid and seek to recover the cash rent as also the value of the paddy at the market rate thereof! The defendants resist the claim Substantially on two grounds namely, first, that the plaintiffs were not entitled to the market-value of the paddy but only to Rs. 39 annually as stated in the contract of tenancy; and, secondly, that the claim was barred in respect of the years 1312 to 1314, inasmuch as the suit had been instituted on the 14th April 1909, more than six months after a deposit had' been made in Court on the 20th March 1908 under Section 61 of the Bengal Tenancy Act. The Courts below have given effect to these contentions of the defendants. On the present appeal, two points have been urged on behalf of the plaintiffs, namely, first, that they were entitled to the price of the paddy according to the market rate, and secondly, that the suit is not barred by limitation tinder Schedule III, Article 2, Clause (a), of the Bengal Tenancy Act.
2. As regards the first point, the terms of the contract make it plain that there is no foundation for the contention of the appellants. The tenants agreed to pay Its. 9 in cash and to deliver a specified quantity of paddy. The contract then provided that if the tenants did not deliver the paddy,' they should, year by year, according to the instalments' specified, pay Rs. 39 as the value of the paddy; in a subsequent part of the document' it was stated that the tenants would pay Rs. 48 in all to the landlord namely, Rs. 9 in cash and Rs. 39 in lieu of the paddy, if it remained undelivered. It is plain that the parties contracted' that 'if the paddy' remained undelivered, ''the tenants' would 'be liable to pay to the landlords a fixed sum of 'Rs. 39 as its value. 'Reference' has been made to judicial decisions' on 'this' point, but the rights of the ' parties must clearly be determined upon the terms of the 'contract, and oral evidence is plainly not admissible to show that the parties really intended 'to enter into a contract different from what has been embodied in the instrument before us. The decisions to which reference has been made were all reviewed in the case of Afar alias Godai Moral v. Surja Kumar Ghosh 7 Ind. Cas. 842 : 12 C.L.J. 649 : 15 C.W.N. 249 and that decision clearly is of no assistance to the appellants. The first point consequently fails.
3. As regards the second point, it has not been disputed that on the 20th March 1908 the tenants deposited' in ' Court a sum of Rs. 249-10 under section' 61 of the Bengal Tenancy Act, on the allegation' that that was the full amount of money' 'then due by them to the 'landlords. After this deposit had been made, a receipt was granted to them as provided in Sub-section (1), Section 62, and a notice was also served upon the landlords on the 2nd June 1908. The suit was not commenced till the 14th April 1909. The plaintiffs contend that as the amount of money deposited was less than the full amount of money actually due at the time,' there was no valid deposit under ' Section '6.1, and that, consequently, the period of limitation prescribed in Schedule III, Article 2. clause(a), does not govern the case before us. In supporting this view, reliance has been placed upon the case of Sati Prasad Garga v. Manmatha Nath Kar 18 Ind. Cas. 442 : 18 C.W.N. 84. On behalf of the respondents, it has been argued that upon a true construction of Section 61, it follows that notwithstanding the fact now established that the amount deposited was less than the full amount actually due, the period of limitation prescribed by Schedule III, Article 2, Clause (a), is applicable. In support of this view, reliance has been placed upon the observation in the case of Sridhar Roy v. Rameswar Sing 15 C. 166. The question raised is not free from difficulty, due mainly to the obscurity of the language of the legislative provisions on the subject.
4. Sub-section (1) of Section 61 provides that in the four cases specified therein, the tenant may present to the Court having jurisdiction to entertain a suit for the rent of his, tenure or holding an application in writing for permission to deposit in the Court the full amount of the money then due. Sub-section (2) provides that the application shall contain a statement of the grounds on which it is made and shall be signed and verified in the manner prescribed in Order IV, Rule 13, of the Code of Civil Procedure. On behalf of the plaintiffs stress has been laid upon the words 'the full amount of the money due' to support the argument that if it subsequently turns out that what has been deposited is less than the full amount due at the time of the deposit, the deposit, though made ostensibly under Section 61, does not operate as a valid deposit. This view is supported to some extent by an observation in the case of Sati Prasad Garga v. Manmatha Nath Kar 18 Ind. Cas. 442 : 18 C.W.N. 84. In that case, the tenant had under Section 61 deposited a sum which was ultimately proved to be much less than the amount really due. The landlord ignored the deposit and brought a suit for recovery of what he considered to be the whole amount due. The question, consequently, arose whether the tenant was liable to pay interest on the amount previously deposited, which the landlord had ignored and had not withdrawn from Court. This Court held that the landlord was entitled to claim interest upon this sum, on the ground that as the money was not all that was due and was not anything like what was due, the deposit was not a good deposit under Section 61 of the Bengal Tenancy Act. As regards this, statement, it must be observed, in the first place, that the point is assumed; and we have ascertained from the learned Vakil who argued that case on behalf of the appellant that the question of the true meaning of Section 61 was not raised. In the second place, it cannot be overlooked that no reasons are assigned for the conclusion reached. In the third place, it is possible to hold, upon the special circumstances of that case, that there was no bona fide deposit under Section 61 of the Bengal Tenancy Act, inasmuch as while a sum of more than Rs. 2,000 was actually due the tenant had deposited less than. Rs. 1,000, and no suggestion appears to have been made that this was attributable to a bona fide dispute between the parties as to what was due at the time. In the fourth place, it is worthy of note that the earlier decision in Sridhur Roy v. Ramesivar Singh 15 C. 166 was not brought to the notice of the Court. Under these circumstances, we do not feel pressed by the observation in Sati Prasad Gorga v. Manmatha Nath Kar 18 Ind. Cas. 442 : 18 C.W.N. 84 upon which much reliance has been placed on behalf of the appellants. As regards the decision m Sridhur Roy v. Rameswar Singh, 15 C. 166 we may observe that although the observations contained' therein assist the respondent, they must be regarded as obiter dicta. The question in controversy in that case was, whether the landlord was competent to intervene when an application had been made by a tenant for leave to make a deposit under Section 61 of the Bengal Tenancy Act. The Court held that the Bengal Tenancy Act did not provide any machinery for the intervention of the landlord at that stage. This view was sufficient for the disposal of the case and it was not necessary to consider the effect of a deposit for a smaller amount than what was actually due, The position, consequently, is that the question raised' before us must be treated as one of first impression and decided upon a construction of the language of the statutory provisions on the subject.
5. We have already referred to the words used in Sub-section (1) of Section 61, of which the most material are that the full amount of the money then due is to be deposited by the tenant.' Had these words stood by themselves, the contention of the appellant would carry considerable weight. But the provisions of Section 61 mast be taken along with these of Section 62. Sab-section 2 of Section 62 provides that a receipt given under that section shall operate as an acceptance for the amount of rent payable by the tenant and deposited as aforesaid in the same manner and to the same extent as if the amount of rent had been received by the landlord or the person entitled to receive it. This provision has obviously an important bearing upon the question raised before us. The Legislature has provide 1 that once a receipt has been given by the Court after a deposit has been made, the receipt operates as an acquittance, not for the whole amount duo, bat for the amount of rent payable by the tenant and deposited as aforesaid, in the same manner and to the same extent as if that amount of rant had been received by the landlord. The effect clearly is to make the amount deposited operate as a part payment of the sum actually due. Our attention has been drawn to Section 43 of Act VIII of 1883 (B. C), in which provision was made for the deposit of rant by tanants. It was laid down that a tenant might tender payment of what ha considered to. be the full amount of rent due from him on the date of the tender to his landlord, and if the tendar was not accepted and a receipt in full not forthwith granted, the tenant was at liberty to deposit such amount in Court, that is, the amount which he considered to be, the full amount due from him at the time. It has been suggested with some plausibility that the omission of the words, what he considers to be the full amount of rent duo' and the substitution, in lieu thereof, of the words, the fall amount of money then due,' indicates an alteration in the law, and that the tenant who makes the deposit under Section 61 does so at his peril; in other words, if in a suit brought by the landlord, it ultimately transpires that what has been deposited is less than the amount due, the tenant loses the benefit of Section 62. In our opinion, this argument should not prevail and the apparent variation of language does not really indicate a change in the law. Under Act VIII of 1839, Schedule A, a, tenant had to state on oath that he desired to pay in Court the full amount which he owed to the landlord and under Section 61, Sub-section (2), of the Bengal Tenancy Act he has to verify his application for leave to make the deposit. In fact the words omitted from Section 51 are superfluous, and their omission does not consequently indicate that the law in this respect has been altered; this, indeed, was the view taken in Sridhur Roy v. Rameswar Singh 15 C. 166. It has been strenuously urged, however, on behalf of the appellant that this view of the law will enable an unscrupulous tenant to avail himself of the provisions of Section 61 to reduce the period of limitation ordinarily available to a landlord for the institution of a suit for rent by a deposit of a smaller amount than what is really due to him. This consequence, no doubt, follows from the interpretation we have placed upon Section 61, but this is no disadvantage to the landlord. The tenant, who makes a short deposit under Section 61 and thereby drives the landlord to a suit earlier than would otherwise be the case, may, on the other hand, find, himself at a disadvantage. The Legislature may well have intended that when there is a dispute as to the amount of rent and a deposit has been made by the tenant, the controversy should be settled as speedily as practicable, and from this point of view may have assigned the comparatively brief period of limitation mentioned in Article 2, Clause (a), of Schedule III of the Bangal Tenancy Act.
6. It has finally been urged that the effect of the view we take is to compel the landlord in a manner to accept part payment of rent, whereas he is not ordinarily bound to accept rent unless the whole amount due is tendered. This also may be a possible consequence of the interpretation we have adopted, if it be assumed that the landlord is not bound to accept part payment, as to which we express no opinion. Bat this, again, is not a disadvantage to the landlord. As soon as a deposit has been made under Section 61 on the allegation that the amount deposited represents the whole amount due from the tenant to the landlord, and a notice has been served upon the latter, it is open to him to withdraw the money from Court and to institute a suit for the recovery of the balance which ho considers to be due from the tenant. On these grounds, we are of opinion that the provisions of Sections 61 and 62, taken. as a whole, support the view that the period of limitation prescribed in Article 2, Clause (a), of Schedule III of the Bengal Tenancy Act is applicable to a suit for rent wherever rent has been deposited under Section 61, even though the allegation of the tenant that what he had deposited was the full amount due at the time may ultimately prove to be incorrect.
7. It has finally been very forcibly argued on behalf of the respondents that if the view were not adopted, there would be no occasion for the application of the special period of limitation prescribed in Article 2, Clause (at), of Schedule III of the Bengal Tenancy Act. For if the view be maintained that a deposit of a smaller amount than the full amount actually due is not a valid deposit under Section 61 and does not attract the operation of the special period of limitation, a suit by the landlord instituted for the recovery of the sum claimed by him would be defeated, not because it was barred by limitation, but because there was no foundation for his claim. On the other hand, it is a reasonable view of the possible intention of the Legislature that when a deposit has been made under Section 61, the landlord' should come into Court within six months of the receipt of notice of the deposit. If he does so, the question of the amount, if any, still due to him would be determined by the Court. If he comes after the expiry of the prescribed period the question must be deemed as no longer open to controversy. In this view, the second contention of the appellants cannot be supported.
8. We may state that it was faintly suggested for the appellants at one stage of the argument that Section 61 has no application to the present case, because rent was payable partly in cash and partly in kind. It may be conceded that no deposit can be made of rent in kind under Section 61 of the Bengal Tenancy Act. Bat where, as here, the parties nave agreed that upon failure to deliver the rant payable in kind a fixed sum is to be paid in lieu thereof, the entire rent is payable in cash, and in a case of this description the provisions of Section 61 are clearly applicable.
9. The result is that the decree of the Subordinate Judge is affirmed and the appeal dismissed with costs.