1. In these appeals preferred by the plaintiff in the Court below, the sole point in controversy between the parties relates to the amount of rent annually payable by the defendants in respect of their several holdings. The lands comprised in the tenancies are situated in Government khas mahal mouzah Baliachak in the District of Hooghly. The plaintiff is a settlement holder and as ijaradar he executed a kabuliat in favour of the Collector on the 13th December 1902. This lease was to continue for a term of 20 years from the 1st April 1901 to 31st March 1902. The document recited that the former would collect rents from the raiyats according to law and the terms of his engagement with Government. He also undertook not to raise the rents of the raiyats for the lands settled with them beyond the amounts entered in the settlement jamabandi which had been prepared on the 30th Jane, 1902, and admittedly furnished the basis on which the rent payable by the plaintiff to Government was calculated. The lease concluded with, a statement by the lessee that if he violated the conditions of the lease, the Collector would be at liberty to cancel the lease and take khas possession of the mahal. The defendants had been tenants in occupation of their respective holdings long before the settlement with the plaintiff made on the 13th December 1902, and the rents payable by them were duly entered in the settlement jamabandi. The plaintiff alleged in the Court below and his allegation has been accepted by the District Judge--that in 1901 the tenants agreed to an enhancement of their rents on the ground that the fertility of the lands had been increased by an alluvial deposit thereon. On the 17th April 1906, the plaintiff commenced these actions for a recovery of arrears of rent at the enhanced rates agreed upon by the parties. The defendants resisted the claim on the grounds that they had never agreed to any enhancement of the rent, and that even if they had decree so, the agreements were not enforceable, as under the terms of the settlement by Government, it was not competent to the plaintiff, to raise the rents beyond the amounts entered in the settlement jamabandi. They also stated that they had occupancy rights in the lands from a time long anterior to the settlement taken by the plaintiff. The Court of first instance stated the principal questions in controversy between the parties to be, whether the defendants had agreed to pay the enhanced rent as claimed against them, and whether they were liable to pay at higher rates than those settled by Government. Upon the first question, the Court of first instance found that the defendants had agreed to an enhancement of the rent. Upon the second question, it found that the rents had not been settled by the Government officers, but added that if the contrary view prevailed, the enhanced rates would be binding upon those tenants who had voluntarily agreed to them. The defendants appealed against this decision, and the District Judge has allowed their appeals. He has overruled their contention that they had never agreed to pay enhanced rents and has found expressly that they agreed in 1904 to pay higher rates than before. The learned District Judge, however, has found that the plaintiff is precluded by the terms of his engagement with Government from realising rent at rates higher than those mentioned in the settlement jamabandi. The plaintiff has appealed against this decision and on his behalf the decrees of the District Judge have been assailed substantially on two grounds: namely, first, that the tenants who were no parties to the engagement between the plaintiff and Government are not entitled to enforce any of its terms; and secondly, that upon a true construction of the purpose and effect of the particular covenant in the lease of the plaintiff, it does not invalidate any agreement voluntarily made by the tenants for enhancement of the rents, specially when such agreement is in settlement of a bona fide dispute as to the amount of rent payable by them. In answer to this argument, it has been contended on behalf of the defendants: first, that the tenants, though strangers to the contract between the plaintiff and the Government, are entitled to claim performance of a covenant inserted in the lease for their benefit and protection, and that in any view as the rights of the plaintiff are restricted by the terms of the settlement granted by Government, he cannot receive a wider measure of relief than what is indicated thereunder; and secondly, that as the defendants were occupancy raiyats, any enhancement in contravention of Section 29 of the Bengal Tenancy Act was inoperative in law.
2. In support of the first contention of the appellant, reliance has been placed upon the cases of Zamir Mandal v. Gopi Sundari Dasi 32 C. 463 (note); Gour Chandra Saha v. Mani Mohan Sen 32 C. 463 and Zamir v. Tarini Charan 11 C.L.J. 60 : 5 Ind. Cas. 296. On behalf of the respondents, on the other hand, reliance has been placed upon the cases of Tapanidhi Raghunath v. Pitambar Gajendra Mahapaty 5 C.L.J. 67 and Chandramani Mohanti v. Manmatha Nath 11 C.L.J. 68 : 5 Ind. Cas. 301. The learned Vakil for the appellant has suggested that there is a conflict between the two sets of decisions and that a reference to a Full Bench should be made upon the question, whether a stranger to a contract is entitled to claim performance thereof, in so far as it is for his benefit. It may be conceded that at first sight there does appear to be a conflict between the two sets of cases; but a closer examination of the judgments shows that the apparent divergence is due to a fundamental difference between the circumstances which led to the two series of litigations. In the first class of cases upon which reliance is placed by the appellant, the landlord sought to enforce a contract for payment of enhanced rent into which the tenant had voluntarily entered, although the terms of engagement between the landlord and Government provided that the former would not collect rent from the tenants at a rate higher than that mentioned in the settlement papers. The true question, therefore, which required decision was whether the tenant, after he had voluntarily agreed to pay enhanced rent, could question the validity of the contract on the ground that it was in contravention of the terms of the engagement between his landlord and Government. The learned Judges held that Section 9 of Regulation VII of 1822 did not render illegal an agreement by a tenant to pay a higher rent than what is specified in the settlement papers. No doubt there are isolated sentences in the judgment of Sir Francis Maclean in the case of Zamir Mandal v. Gopi Sundari Dasi 32 C. 463 (note) in which the learned Chief Justice observes that quite apart from authority, it is difficult to see how upon principle the existence of the contract between the plaintiff and Government can prevent him from enforcing the contract which the defendants have entered into with him. The additional reason thus indicated appears to be based on the doctrine that where two persons make a contract in which one of them promises to confer a benefit upon a third party, the latter cannot seek to enforce the contract. It is clear, however, that the principal reason for the decision is the one already stated. In the second class of cases upon which the defendants before us rely, the landlord sought to eject the tenant in contravention of the terms of his engagement with Government. In this class of cases, therefore, the landlord did not seek to enforce an agreement voluntarily entered into by the tenant in contravention of the terms of the engagement between himself and Government but he merely claimed to exercise a right of ejectment which he did not possess under the terms of the lease obtained by him from Government. In this second class of cases, therefore, the question does really arise, whether a stranger to a contract is entitled to claim performance of a covenant inserted therein for his benefit or protection. If this question did really arise in the cases before us, the matter would require careful consideration, because, as is well known, there has been considerable divergence of judicial opinion upon the question of the right of a third person to enforce performance of a contract made for his benefit between others and to the consideration of which he is a stranger. In England, the rule is well-settled that, subject to certain exceptions, which may briefly be described as cases of trust Gregory v. Williams 3 Mer. 582; Touche v. Metropolitan Railway L.R. 6 Ch. App. 671, Gandy v. Gandy 30 Ch. D. 67 : 53 L.T. 306 : 33 W.R. 803 : 54 L.J. Ch. 1154, quasi contract Williams v. Everett 144 East 582 : 13 R.R. 315 or near relationship Button v. Poole 2 Levinz 210 : 1 Vent. 318; Bourne v. Masen 1 Ventries 6 where two persons make a contract in which one of them promises to confer benefits upon a third party the latter cannot enforce performance thereof. [Laws of England edited by Lord Halisbury, Vol. VII, page 342, Section 705, Price v. Easton 4 B. & Ad. 433 : 2 L.J.K.B. 51 : 1 N. & M. 303, Tweddle v. Atkinson 1 B. & S. 393 at p. 398, Eley v. Positive Assurance 1 Ex. D. 88 : 45 L.J. Ex. 451 : 34 L.T. 190 : 24 W.R. 338, Fleming v. Bank of New Zealand (1900) A.C. 577 : 69 L.J.P.C. 120 : 83 L.T. 1 : 16 T.L.R. 468, Keighley v. Durant (1901) A.C. 240 : 1 S.E.C. (N.S.) 48 : 70 L.J.K.B. 662 : 84 L.T. 777 : 17 T.L.R. 527, Cavelier v. Pope (1906) A.C. 428 : 4 S.E.C. (N.S.) 199 : 75 L.J.K.B. 609 : 95 L.T. 65 : 22 T.L.R. 648, Cameron v. Young (1908) A.C. 240 : 6 S.B.C. (N.S.) 148. In America on the other hand, the rule is more elastic and on General Principles of Law, it has been held that subject to certain exceptions, a person may maintain an action on a contract made for his benefit, although not a party to the contract, if he is a party to the consideration or has some legal or equitable interest in its performance Hendrick v. Lindsay 93 U.S. 143 : 23 Law Ed. 855 : 3 Otto. 143, Davis v. Patrick 122 U.S. 138 : Reporter's Ed. p. 138 : 30 Law Ed, St. Louis v. Grand Lodge 98 U.S. 123 : 8 Otto. 559 : 25 Law Ed. 222. If, therefore, the question did require decision in the present cases and the matter was discussed as one of principle, it would require careful examination, specially when we find that there is no direct statutory provision on the subject. In the view, however, which we propose to take, the decision of this question becomes unnecessary. A covenant of the description now before us by which the landlord, lessee under Government, is made to undertake not to collect rent at a higher rate than what is specified in the settlement papers, may be assumed to have been inserted for two-fold reasons, namely, first, for protection of the Government revenue and, secondly, for the protection of the tenantry. The revenue payable by the settlement holder is based upon the amount of rent realisable from the tenants in actual occupation of the land. Again so far as these latter are concerned, the Government, who has settled their rents, may be desirous that they should not be pressed by an enhanced rent daring the currency of a particular settlement. Now, so far as, the first of the two reasons is concerned, the matter is manifestly one between Government and the lessee; if the latter succeeds in his endeavour to in crease the collections, the Government may cancel the engagement with him (as provided in his lease) or may possibly enhance the revenue payable by him. In so far as the second reason is concerned, if the covenant has been deliberately inserted for the protection of the tenant, it may be argued with considerable force that it is not a matter of indifference to him, whether it is obeyed or ignored. But here, another consideration obviously arises. In so far as the covenant is for his benefit, he may surely waive it, for it is an elementary principle that every one may forego a right introduced for his own benefit, if it can be relinquished without prejudice to the community at large Yaw v. Kerr 11 Wright 333. If, therefore, a party deliberately waives a legal right to which he is entitled and no question of contravention of public policy or morality arises, such waiver is operative. In other words, if the waiver is supported by an agreement founded on a valuable consideration or is of such a character as to estop the party from insisting on the right claimed to have been relinquished, the party who has waived his right cannot subsequently turn round and claim to enforce the right he has deliberately waived. This is the principle which underlies the decision in Zamir Mandal v. Gopi Sundari Dasi 32 C. 463 (note) and which clearly applies to the circumstances of the present case. According to the facts found by the Courts below, in July 1904, the defendant voluntarily agreed to an enhancement of the rents previously payable by them; their denial to the contrary is false. Apart, there fore, from the question, whether to a possible action for enhancement of rent, the defendantsmight successfully have urged the particular covenant in the terms of engagement between their landlord and the Government, it is manifest that as they have deliberately waived the benefit of that covenant, they cannot impeach the validity of their own agreement on this particular ground. We must consequently hold, upon the first ground urged by the appellant, that the agreements for enhancement of rent are binding upon the tenant; if they are not illegal on any other ground. This leads us to the consideration of the second ground urged by the appellant and the answer thereto suggested on behalf of the respondent. So far as this second point is concerned, it is clear from the pleadings in the Court of first instance, that the defendants set up a right of occupancy in their holdings. It must be conceded, however, that the question does not appear to have been expressly, raised as to whether the agreements for payment of enhanced rents were in contravention of the statutory provisions on the subject. On behalf of the respondents, it has been suggested that under Section 20, Clause 7, of the Bengal Tenancy Act, the presumption is that they had been in occupation for twelve years continuously and had thus acquired the status of occupancy raiyats. This contention, however, is obviously fallacious. In the first place, the presumption mentioned in Clause 7 of Section 20, arises only in proceedings under the Act and as ruled by this Court in Mulluck Chand v. Satis Chandra 3 Ind. Cas. 306 : 11 C.L.J. 56 upon the authority of the decision of the Judicial Committee in Raja Pramada Nath Roy v. Ramani Kanta Roy 35 C. 331 : 7 C.L.J. 139 : 12 C.W.N. 249 : 10 Bom. L.R. 66 : 3 M.L.T. 151 : 18 M.L.J. 43, a suit for rent is not a proceeding under the Bengal Tenancy Act. In the second place, even if Clause 7 were applicable it would be of no avail to the defendants, because the only presumption would be that they were occupancy raiyats at the date of the commencement of the suits, whereas, to make Section 29 applicable to the particular contracts for enhancement of the rent, it must be established that the respondents were occupancy raiyats on the dates when the respective agreements were made. Under these circumstances the learned Vakil for the appellant has contended that no further opportunity should be given to the defendants to establish their objection. After anxious consideration of the circumstances of the cases, we are not prepared to fall in with this suggestion. If there has been in fact an enhancement of the rent in contravention of the law, it is clear that the position of the defendants may, be seriously and permanently prejudiced. A full investigation, therefore, of the question is desirable, especially as the materials on the record are not sufficient for a proper adjudication of the matter in controversy.
3. We are further informed that in these cases there were no registered agreements for enhancement of rent and that the tenants merely signed their names to what is called the bilabandi papers of the plaintiff. Consequently, if the defendants are proved to have acquired a right of occupancy at the date of the alleged agreement for enhancement of rent, Section 29 could render such agreement wholly inoperative. Again, if the defendants are proved to have been non-occupancy raiyat to whom the provisions of Chapter VI apply, the agreements for enhancement would be equally inoperative under Section 43. The learned Vakil for the plaintiff-appellant has, however, contended that Section 43 is not applicable by reason of the provisions of Section 180. That section, we quote only so much of it as applies to the cases before us, provides as follows:
Notwithstanding anything in this Act, a raiyat who holds land of the kind known as chur or dearah shall not acquire a right of occupancy in the chur or dearah land, until he has held the land in question for twelve continuous years; and until he acquires a right of occupancy in the land, he shall be liable to pay such rent for his holding as may be agreed on between him and his landlord.' On behalf of the appellant it has been contended that the lands in respect of which enhanced rent is claimed are chur lands within the meaning of Section 180. This has been disputed on the side of the respondents and it has further been urged, on their behalf, that Section 180 does not affect the applicability of Section 43. An attempt has been made to induce us to come to a determination upon the question of the character of the lands. In our opinion, this matter requires further investigation upon evidence to be adduced by both the parties; but if it is proved that the lands are really chur lands, the question arises for decision, how far Section 43 is affected by Section 180. This question appears to be one of first impression, and the language of Section 180 Sub-section (1) is not altogether free from ambiguity. But after careful consideration of the arguments addressed to us, we are of opinion that the introductory, words 'Notwithstanding anything in this Act' govern the whole of the remainder of the sub-section, including the clause about payment of rent during the period preceding the acquisition of a right of occupancy. It has been suggested on behalf of the respondents that if this interpretation were adopted, Sub-section 2 might be deemed to be superfluous. To this two answers may be given, namely, first, that Sub-section 2 might have been introduced by reason of excessive caution and secondly, that while Sub-section 2 makes the whole of Chapter VI inapplicable to utbandi tenants, Sub-section 1 makes only such portion of Chapter VI inapplicable to utbandi tenants and dearah tenants as relates to the payment of rent before the lapse of twelve years. In our opinion it is fairly clear that during the twelve years which must elapse before a right of occupancy is acquired, the tenant is liable to pay the rent agreed upon irrespective of the provisions of Section 43.
4. The result, therefore, is that these appeals must be allowed, the decrees of the District Judge set aside, and the cases remanded to him. He will first determine whether the lands of the disputed holdings are chur lands within the meaning of Section 180. If it is found that the lands are not chur lands, the agreements for enhancement of rent must be held inoperative, because whether the defendants had or had not acquired a right of occupancy at the time of the agreements they are inoperative under Section 29 or Section 43. If on the other hand it is established that the lands are chur lands within the meaning of Section 180, the question will arise whether at the dates of the agreements, the tenants had acquired a right of occupancy by possession for twelve continuous years. If they had attained the status of occupancy raiyats at that time, the agreement for enhancement of rent must be treated as inoperative under Section 29. If it is found that the tenants at that time had not acquired a right of occupancy, the agreements must be treated as valid under Section 180. It will not be necessary to determine the truth or otherwise of the allegation of the plaintiff that the enhancement was in settlement of a bona fide dispute, because if the agreement is inoperative by reason of Section 29 Clause (a) no question arises as to the applicability of the principle recognised in Kedarnath Hazra v. Manindra Chandra 11 C.L.J. 106 : 5 Ind. Cas. 309 as controlling the operation of Section 29 Clause (b). As the questions to be investigated by the District Judge do not appear to have been directly raised and tried in the Court of the first instance, the parties will be at liberty to adduce evidence, in support of their respective allegations. The District Judge will direct such evidence, to be taken by the Court of first instance under Order 41, Rule 25, and, when the findings are returned by that Court, will proceed to decide the appeals in accordance with the directions given in our judgment. The costs of these appeals will abide the results.