D.N. Mitter, J.
1. In this appeal which arises in a suit for arrears of rent a question of some importance has been raised. The question which we are to decide is really a question of first impression turning on the provisions of Regulation VIII of 1819, and also on the provisions of the Bengal Tenancy Act. it appears that the predecessors of respondents executed so far back as in the year 1869 a putni kabuliyat in favour of the predecessor of the present plaintiffs. In that kabuliyat one of the stipulations was that in case of default of any kist the lessee should pay interest at the rate of two per cent. per month and that the amount in arrears together with the said interest should be realized without any objection under Regulation VIII of 1819 and Act X of 1859 and under the provisions of other laws in force for the time. On the basis of that kabuliyat a suit was instituted by the present plaintiffs for the recovery of the arrears of rent in respect of the nutni for the whole of 1337 and 1338 B.S. and the Asar and Bhadra kists of 1339 B.S. The only defence which was taken in this suit was that the plaintiffs were not entitled to interest at the rate claimed. The defence in substance is that the plaintiffs were not entitled to interest at a rate exceeding 12 1/2 per cent. per annum having regard to the provisions of proviso to Section 179 of the Bengal Tenancy Act as amended by Act IV of 1928 read with Section 178 of the said Act. With regard to plaintiffs' claim the trial Court held that the plaintiffs were to recover rent and cess at the rate claimed together with interest at 12 1/2 per cent. per annum on the arrears of such rent and cess as they fell due.
2. In appeal to this Court by the plaintiffs it has been contended that the Subordinate Judge was wrong in cutting down the rate of interest and that he was in error in applying the provisions, of proviso to Sections 178 and 179 having regard to the provisions of Section 195 (e) of the Act. The argument on behalf of the appellants is that there is an express provision determining the incident of the putni in the Putni Regulation and consequently Bengal Tenancy Act will not apply to the provisions with regard to interest on the arrears of the putni rent which is one of the main incidents of relationship between the parties based on the putni. Section 195, Clause (e) is to the following effect:
Nothing in this Act shall affect any enactment relating to putni tenures in so far as it relates to those tenures, except that the expression khud kast raiyat or resident and hereditary cultivator in Sub-section (3) of Section 11 of the Bengal Patni Taluks Regulation, 1819, shall be deemed to include all raiyats having a right of occupancy.
3. It is contended that by virtue of Sections 2 and 3 of the Putni Regulation, Act VIII of 1819, the rights of the parties must be determined according to the terms under which the putni is held. Section 2 says this:
It is hereby declared that any leases or engagements for the fixing of rent now in existence, that may have been granted or concluded for a term of years or in perpetuity by a proprietor under engagements with Government or other person competent to grant the same, shall be deemed good and valid tenures according to the terms of the covenants or engagments interchanged, not withstanding that the same may have been executed before the passing or Regulation V, 1812.
4. The rest of the section is not material. Section 3 enacts that tenures known by the name of putni taluks, as described in the preamble to this Regulation shall be deemed to be valid tenures in perpetuity according to the terms of the enagements under which they are held. These two sections make it clear that the rights as between a zamindar and a putnidar who is entitled to the benefits of such provisions of the putni are to be regulated according to the terms of the engagement under which they are held, and one of the essential terms of the engagement is that in case of default of payment of the putni rent in time the arrear is to carry interest at the rate of 2 per cent. per mensem. We are, therefore, of opinion that having regard to Section 195 (e) the matter of interest is to be regulated by the terms of engagement in accordance with the provisions of Section 2 of the Regulation; and nothing in the Bengal Tenancy Act can effect this right which is created according to the engagements under which they are held, and which are held to be valid under Sections 2 and 3 of the Regulation. Dr. Mukerji who appears with Dr. Basak on behalf of the respondents contends that the Putni Regulation is silent on the question now in controversy and he has accordingly tried to rest his argument on the type of cases which hold that in matters in which the Putni Regulation as it now stands is silent, the Bengal Tenancy Act furnishes the rules of substantive law and procedure. There is no doubt a class of decisions to that effect, for instance in the cases of Gyanada Kantho Roy v. Bromomoyi Dassi 17 C 162, Mahomed Abbas Mondal v. Brojo Sundari Debia 18 C 360 and Kristo Bullav Ghost v. Lal Singh 16 C 642. He has, therefore, strenuously contended that Sections 2 and 3 of the Regulation to which reference has already been made refer only to one particular term of engagement, namely, the period for which the putni was to run. In other words it is stated that the whole object of Sections 2 and 3 was to validate such of the putni as had been granted in perpetuity in excess of the term of 10 years contrary to the law which existed before Regulation V of 1812 was passed. It is difficult to cut down the general effect of these sections in this way. Nothing can be clearer to us than that the terms of engagement under which the putni is held must refer to all the terms and it is difficult to pick and choose some of the terms to determine the terms of the engagement under which they are held within the meaning of Section 3 of the Regulation. Our attention has been drawn to the decision to which I was a party in the case of Ghundy Churn Law v. Rohini Kumar Sirkar : AIR1934Cal119 and it was pointed out in that case that the kabuliyat previous to the passing of the Bengal Tenancy Act provided that in case of default, the landlord might at his option proceed either under the putni sale rules, or may proceed under the general rules regulating realisation of rent obtaining for the time being, and notwithstanding that this Court held that the provisions of the proviso to Section 179 of the Bengal Tenancy Act prevented the landlord from realizing rent at a rate exceeding 12 1/2 per cent. per annum. We do not know the exact terms of the said kabuliyat and the question was argued before us on the footing that the kabuliyat was one to which the provisions of Putni Regulations did not apply and proviso to Section 179 was attracted. We think that the decision having proceeded on that basis cannot be said to be any authority in support of the respondent's contention. The legislature knew the distinction between an ordinary, permanent and mokarari tenure and a putni tenure and if it was the intention to make the provisions of proviso to Section 179 applicable to putni tenures, the incidents of which are somewhat of a different character from that of an ordinary permanent tenure, it would have said so. In our opinion the provisions of the proviso to Section 179 apply to tenures which are mokarari and permanent tenures simpliciter and not to permanent tenures which are governed by special incidents under Regulation VIII of 1819.
5. In this view we are of opinion that this appeal must be allowed and that the plaintiffs' claim must be decreed in full with interest at the rate of two per cent. per mensem according to the stipulation of the kabuliyat.
6. As the question in controversy was decided without any reference by the appellant to the provisions of Section 195 (e) of the Bengal Tenancy Act, we think there should be no order as to costs. The result is that the decree of the Subordinate Judge is varied by raising the rate of interest from 12 1/2 per cent. per annum to 2 per cent. per mensem. The order as to costs of the lower Court is also varied by-giving to the plaintiffs full costs instead of proportionate costs.
7. I agree.