N.R. Chatterjea, J.
1. The question involved in this appeal is whether the plaintiff is entitled to the market value of the paddy and straw reserved as rent in a kabuliyat, or to the price of the same stated in it.
2. The material portion of the kabuliyat is as follows: 'I having prayed to you for being granted a Permanent Settlement of about 7 bighas of land comprising jore, hasil and patit and described in the boundaries given in the Schedule out of the same and which is held in khas by you, you have been pleased to grant me in accordance with my prayer a Permanent Settlement at a jama of 10 (ten) maps of sanja paddy, measured with a Rajhati pai of full measure, (the price where of is Rs. 50) and 10 (ten) pons of straw (the price whereof is Rs. 2) at a jama of the said sanja paddy, etc., the total price being Rs. 52 per annum. Accordingly I give in writing this kabuliyat that I shall deliver the said sanja paddy and straw without variation every year in the month of Magh, to you and later on to your heirs and representatives and shall make the patit (fallow) lands culturable and cultivate the same along with the hasil (culturable) land in khas or have the same cultivated by letting out to tenants and shall go on holding and enjoying the same with great facility for ever down to my sons, son's sons and so on in succession. If I make any default in delivering the sanja paddy, then I shall deliver bari (addition) of 2 (two) salis of paddy for every map per every year. I shall not get any remission of the stipulated sanja on the grounds of drought, inundation and sand-drift and so forth. On no account there shall ever be any reduction or enhancement of the land and jama aforesaid' The learned District Judge held that the plaintiffs were entitled to the market value of paddy and straw. The defendant has appealed to this Court and it is contended that the plaintiffs are entitled only to the price of the paddy as mentioned in the kabuliyat.
3. Looking to the terms of the kabuliyat there can be no doubt that the rent stipulated to be paid was a sanja rent (paddy and straw). A Settlement was made of the 7 bighas of laud at a jama of 10 maps of paddy (measured with a certain measure) and ten pons of straw, the tenant agreed to deliver the sanja paddy and straw without variation in the month of Magh every year, and to pay bari (addition i.e., interest) at the rate of 2 salis for every map every year. There was to be no reduction of enhancement of the said jama. It is truth the price of the paddy is stated to be Rs. 50 and that of straw Rs. 2 total Rs. 52. But nowhere is it provided that on default of delivery of the paddy and straw the tenant would pay Rs. 52 as rent or that the landlord would realise the said sum of Rs. 52 as rent. Then again in default of payment of the paddy and straw in the month of Magh, the tenant is to pay bari (addition by way of interest) at 2 salis per map. No price is stated of the same, and although the price may be worked out, the kabuliyat doesnot state either that Rs. 52 was payable for the sanja rent or any money was payable for the bari.
4. Contracts for payment of rent in kind are very common and have come up for consideration to this Court in many cases. The decisions are not uniform. They were reviewed in the case of Gurudas Sen v. Gobinda Chandra Sinha 54 Ind. Cas. 914 : 24 C.W.N. 85, as pointed out in that case: 'Contracts for payment of bhag paddy as stated above are very common, and it is well known that middle class people, specially of the bhadra logue class who cannot cultivate lands themselves, let out their lands for getting paddy for the consumption of their family, and in-some cases the bhag paddy is the only means of subsistence of the family. A certain value has to be fixed for the paddy in the kabuliyat, not only for the ascertainment of the registration fee, but also (and specially for fixing the stamp duty payable, though it is not so expressly stated in the kabuliyat. It is said that the parties may agree as to the value the paddy in order to avoid disputes and the going into any question as to the value in the event of its non-delivery. But that would be a question of intention, and if it is clear from the kabuliyat (for instance where it; is provided that the paddy is to be delivered in a particular month or measured with a certain measure) that it is only paddy which the parties intended should be paid, it would be inconsistent with that intention to hold that a fixed sum (which might fee a wholly inadequate value of the paddy at the date of the suit) was agreed upon to be paid in the event of non-delivery of the paddy in order to avoid any question as to its value, in cases where the value is merely mentioned without any express stipulation to pay such value in the event of non-delivery of the paddy.
It is a matter of great hardship in such cases, as the value of the paddy at the date of the kabuliyat might be one rupee a maund, while at the date of the suit, it might be four rupees per maund, and if he is to get the value of the paddy mentioned in the kabuliyat, he would get only one fourth of the paddy agreed upon to be paid.
5. 'A distinction may perhaps be drawn between such cases, and cases where there is an express stipulation to pay the sum mentioned in the kabuliyat as the value of the paddy in the event of its non-delivery. But as stated above, even where there is such an express stipulation to pay the value mentioned in the kabuliyat in the event of non-delivery of the paddy, it has been held upon a construction of the contract in some cases, that the value mentioned was the value of the paddy at the date of the contract or stated for the purposes of registration, while a contrary view has been taken in some other cases'. It may be pointed out that the expression bhag meant sanja in the above judgment.
6. The case of Asutosh Mukhopadhya v. Haran Chandra Mukerjee 53 Ind. Cas. 352 : 23 C.W.N. 1021 : 33 C.L.J. 41 : 47 C. 133 is relied upon on behalf of the appellants. In that case the kabuliyat stipulated to pay cash rent at the rate of Re. 1-6-8 and 7 aris of paddy. It further stated that the market value of the paddy was Rs. 15 and that the total rent was Rs. 16-6-8 obtained by the addition of the rent in cash and the money value of the rent in kind. The learned Chief Justice (Sanderson C.J., and Mookerjee, J.,) held that the rent was fixed at Rs. 16-6-8 if the tenant should fail to deliver the paddy under the terms of the contract. In the case of Dwarika Nath v. Dwijendra Nath 53 Ind. Cas. 103 : 30 C.L.J. 37 : 47 C. 139n also, upon which reliance was placed in the above case, the kabuliyat provided for rent Rs. 59-10 and also the payment of 1-bish of paddy which 'may be valued at Rs. 30 by guess' making a total of Rs. 89-10 as the assessed rent. The total rent was described as abadharita jama (fixed rent) in the lease which was a mourasi mokarari lease, and the learned Judges (Maclean, C.J., and Banerji, J.) held that the rent was fixed at Rs. 8910, and that, though the parties intended to pay so much in kind and so much in money, in order to avoid disputes and going into any question as to the value of the paddy in the event of its non-delivery the parties agreed that it should be valued at Rs. 30 by estimation and that view was supported by the words 'making a total of Rs. 89-10 as the assessed rent'.
7. There are no such provisions in the present case, no money rent is fixed nor is Rs. 52 stated to be payable in the event of the non-delivery of the paddy nor the cash rent for the bari. Although as pointed out in the case of Gurudas Sen v. Gobinda Chandra Sinha 54 Ind. Cas. 914 : 24 C.W.N. 85 some observations in the case of Afar v. Surja Kumar Ghose 7 Ind. Cas. 842 : 15 C.W.N. 249 : 12 C.L.J. 649 and some recent decisions also, affect the class of decisions where a money value is merely stated without any agreement to pay such value, and it is desirable that the question should be settled by a Full Bench, the terms of the contract in the present case are materially different from those in Asutosh Mukhopadhya v. Haran Chandra Mukerjee 53 Ind. Cas. 352 : 23 C.W.N. 1021 : 33 C.L.J. 41 : 47 C. 133 (a decision of three Judges Newbould, J., dissenting), and Dwarka Nath v. Dwijendra Nath 53 Ind. Cas. 103 : 30 C.L.J. 37 : 47 C. 139n. We do not think, therefore, that the case should be referred to a Full Bench.
8. It may be pointed out that in Afar's case 7 Ind. Cas. 842 : 15 C.W.N. 249 : 12 C.L.J. 649 the plaintiff attempted to prove by oral evidence that the value of the paddy was mentioned in the lease for the purpose of the registration fee; and Mookerjee, J., accordingly held that it was not competent to the plaintiff to do so having regard to the provisions of Section 92 of the Evidence Act. But there is no question of adducing oral evidence in the present case. The Court has to construe the contract, and the question is whether the price of the paddy and straw was stated in the kabuliyat for the purpose of fixing the rent at Rs. 52 or it was so stated as a price must be mentioned in every case for fixing the stamp duty and the registration fee payable.
9. That is a matter of construction and having regard to all the terms of the kabuliyat there can be no doubt that Rs. 52 the price of the paddy and straw was not the rent agreed upon as payable upon non-delivery of the paddy.
10. The Settlement is a mokarrari one, and there is to be no variation in the jama. But the mokarrari rent is 10 maps of paddy and 10 pons of straw. That remains fixed whatever fluctuation there may be in the market price of the paddy and straw.
11. We were referred to a recent case decided on the 9th July 1924. In that case at the end of the kabuliyat it was stated 'The present market price of the said paddy and straw is Rs 59', and the learned Judges held that, that was the sum fixed as rent by the contract. There was no stipulation to pay bari at so much per map as in the present and the case is distinguishable. As we have said, each case must be decided upon the terms of the contract, and having regard to the terms of the contract in the present case we think that the decision of the Court below is correct. The appeal is accordingly dismissed with costs.
12. I agree.