1. The subject-matter of this litigation is a putni taluk created on the 31st December 1844 by Maharaja Srish Chandra Deb of Nadia in favour of Kaligatee Mookerjee. The interest of the Zemindar is now held by Nasimannessa Bibi, the defendant in this suit, 'while the interest of the pulnidar has, by devolution, vested in Majidannessa Bibi. The plaintiff Behari Lal Biswas is a dar-putniddr who obtained possession of the putni in 1909, under the provisions of Section 13 of the Putni Regulation, on payment of the dues of the then Zemindar, and he has since then been in occupation in order to recover the amount advanced by him. On the 15th May 1916 the putni taluk was brought to sale by the Zemindar for realisation of arrears due and was purchased by the Zenvndar herself. On the 27th May 1916, the plaintiff instituted the present suit for declaration that the sale was null and void, inasmuch as no arrears were due at that time. The Court of first instance dismissed the suit on the ground that rent was in arrears, and that decision has been affirmed by the District Judge on appeal. On the present appeal, the plaintiff has urged that there had been a valid tender of the sums due, which had been improperly refused by the landlord. The facts material for the determination of the question of law thus raised are really not in controversy and may be briefly recited at this stage.
2. On the 18th October 1915, the plaintiff sent to the defendant a sum of Rs. 647-0-9 through the Post Office, by what is known as rent-money order. As under the rules of the Postal Department the maximum amount which can be remitted by a single money order is Rs. 600, the amount mentioned was included in two money orders one for Rs.600, the other for Rs. 47-0-9. The money order for Rs. 600 stated that the amount was remitted as rent due on the putni for the six months from Baisakh to Aswin 1322. The money order for Rs. 47-0-9 stated that Rs. 10-8-0 was interest on rent in arreras, Rs. 35-13-9 was road and public works cesses, and annas 11 was interest due on cesses. The money orders were tendered to the defendant by the Postal peon and were refused. On the 22nd November 1915, the plaintiff deposited the amount in Court under Section 61 of the Bengal Tenancy Act. On the 6th April 1916, the plaintiff sent to the defendant Rs. 654-2-0 by rent-money order. There were two money orders as on the previous occasion, namely, one for Rs. 600 and the other for Rs. 54-2-0. The money order for Rs. 600 stated that the amount remitted was rent due for the six months from Kartic to Chait 1322. The money order for Rs. 54-2-0 stated that Rs. 17-4-3 was interest in rent in arrears, Rs. 35-13-9 was road and public works cesses, and annas 6 was interest on cesses. The money orders were taken to the defendant by the Postal peon but were refused. On the 18th April 1916, the plaintiff deposited the sum in Court under Section 61 of the Bengal Tenancy Act. The question in controversy is, whether there was a valid tender on either or both of the occasions mentioned. The defendant urges that what was. tendered on each occasion was really less than the amount actually due and did not constitute a valid tender.
3. The putni lease fixed the annual rent at Rs. 1,200, payable in twelve monthly instalments, namely, Rs. 50 in Baisakh, Rs. 50 in Jaistha, Rs. 50 in Assar, Rs. 100 in Saravan Rs. 250 in Bhadra, Rs. 100 in Aswin, Rs. 100 in Kartic, Rs. 100 in Aghrayan, Rs. 200 in Pous, Rs. 100 in Magh, Rs. 60 in Falgun and Rs. 40 in Chaitra. The lease contained a covenant that on default of payment of the instalments, the lessee would pay interest according to law. It was further provided that on default, the rights and interests of the lessee would be sold under Regulation VIII of 1819 m order that the arrears of rent with interest might be realised. It is plain from the terms of the lease that Rs. 600 was the aggregate amount of rent in arrears for the first half of the year endingin Aswin and another sum of Rs. 600 the aggregate amount of rent in arrears for the second half of the year ending in Chait. Consequently, when on the 18th October 1915, the plaintiff sent to the defendant the sum of Rs. 647-0-9 by rent-money order the rent in arrears was Rs. 600 as correctly stated in the first money order, the question in controversy is, whether Rs. 10-8-0 was the amount of interest due on rent in arrears, Rs. 35-13-9 the amount due on account of cesses, and annas eleven the amount due as interest on cesses in arrears. The Courts below have answered this question against the plaintiff. The three items require separate examination.
4. The putni lease, as already stated, provided that in the event of default in the payment of rent according to the prescribed instalments, the lessee would pay interest according to law. This clearly refers to the law that might prevail at the time when the default should be made and the liability to pay interest might accrue. Regulation XV of 1793, which was repealed by Act VIII of 1868, fixed the maximum rate of interest on money due at twelve percent, per annum subject to the reservation that interest would be decreed at a lower rate if so stipulated between the parties. The Regulation further provided that the amountdecreed as interest would not exceed the principal sum, and that compound interest would not be allowed on intermediate adjustments of accounts. These provisions were reproduced in Regulation XXXIV of 1803 which was repealed by Act XV of 1874. Regulation VIII of 1805, which was repealed by Act XIX of 1873, and Regulation XIV of 1805 which was repealed by Act XII of 1876, contained similar provisions, and their application was extended by Regulation XVII of 1806 which was repealed by Act IV of 1882. These were followed by Act XXXII of 1839 which authorised the Courts to allow interest, in certain specified cases, at a rate not exceeding the current rate of interest. Next came Act XXVIII of 1855 which repealed the Usury Laws. Under Section 21 of Act X of 1859 (Bengal Rent Act), interest was made payable on arrears of rent at 12 per cent. per annum from the date of each instalment, to a similar effect was the provision in Section 21 of Act VIII of 1869 B.C. and this was reproduced in Section 67 of the Bengal Tenancy Act, 1885. The low was altered, however, bv Act I of 1907 (B.C.) and Act I of 1908 (E.B. & A.C.) and interest was made payable on arrears of rent at twelve-and-a-half per centum per annum. Section 67 thus modified stands as follows:
An arrear of rent shall bear simplp interest at the rate of twelve-and-a-half per centum per annum from the expiration of that quarter of the agricultural year in which the instalment falls due, to the date of payment or of the institution of the suit, whichever date is earlier.' This has to be read with Section 53 which provides that' subject to agreement or established usage, a money rent payable by a tenant shall be paid in four equal instalments, falling due on the last day of each quarter of the agricultural year. The introductory words of the section indicate that there may be an agreement in modification of the provision for four instalments; Manahar Mukherjee v. Khetra Nath Sabui 19 Ind. Cas. 625 : 17 C.W.N.820 : 18 C.L.J. 175. The agreement for payment of rent in monthly instalments in the case before us, would, consequently be operative, even if Section 53 had been in force when the lease was granted. The appellant has contended that this raises the question, how is Section 67 affected by Section 53; in other words, how has interest to be calculated under Section 67 when the instalments are not quarterly but monthly: and we have been pressed to hold that even when the rent is payable in monthly instalments, interest should be calculated on each instalment, not from the date when it falls due, but from the last day of the quarter in which it falls due. In support of this proposition, reliance has been placed upon the decision of the Judicial Committee in Hemanta Kumari Dehi v. Jagadindra Nath Roy 22 C. 214 AT P. 221 : 21 I.A. 131 : 6 SAR. P.C.J. 473 : 11 IND. DEC. (N.S.) 144 (P.C.) which was explained in Narendra Kumar Chose v. Gora Chand Poddar 33 C. 683 : 3 C.L.J. 391 and Manahar Mukherjee v. Khetra Nath Sahui 19 Ind. Cas. 625 : 17 C.W.N.820 : 18 C.L.J. 175, We are of opinion that the contention thus broadly raised need not be examined for the purposes of this case. Here the contract was made before the Sections 53 and 67 of the Bengal Tenancy Act were enacted. The agreement to pay rent in monthly instalments was valid when made, and its validity has not been affected by the retrospective operation of a subsequent Legislative enactment. The contract further provided that, in default of payment of rent according to monthly instalments, interest would be paid according to law. The law has fixed the rate of interest at twelve-and-a-half per centum per annum prima facie interest had to be clculated at this rate from the date of default and this is what was ruled by the Judicial Committee in Hemanta Kumari Debi v. Jagadindra Nath Roy 22 C. 214 at p. 221 : 21 I.A. 131 : 6 Sar. P.C.J. 473 : 11 Ind. Dec. (N.S.) 144 (P.C.). The decision of the Judicial Committee was in fact so interpreted in Narendra Kumar Ghose v. Gora Chand Poddar 33 C. 683 : 3 C.L.J. 391 and Ma-nohar Mukherjee v. Khetra Nath Sahui 19 Ind. Cas. 625 : 17 C.W.N.820 : 18 C.L.J. 175. We are accordingly of opinion that interest in the present case was payable on rent in arrear, calculated from the date of each instalment; and there is no controversy that the amount remitted on account of interest on rent in arrears was less than what was due according to this method of calculation. As regards the amount of cesses, there is no controversy that what was remitted was less than what was due. The valuation roll dated 28th June 1914, makes it abundantly clear that the amount of cesses annualy leviable had been enhanced by the Revenue Authorities. The amount remitted as interest on cesses was consequently also smaller than what was due. The position thus is that what was due as rent was transmitted, but what was remitted as the entire amount due on account of interest on rent, cesses and interest on cesses was less than what was legally due. This raises the question whether there was a valid tender. The concurrent answer of the Courts below in favour of the respondent has been challenged before us as based on principles erroneous in law.
5. It is well settled that a creditor is not bound to accept less than his whole debt, and there can be no valid tender of part of an entire and indivisible debt; Dixon v. Clark (1847) 5 C. B. 365 : 75 R.R.. 747 : 5 D. & L. 155 : 16 L.J.C.P. 237 : 136 E.R. 919; James v. Vane (1860) 2 E1. & E1. 883 : 119 R.R. 988 : 39 L.J.Q.B. 109 : 6 Jur. (N.S.) 731 : 2 L.T. (N.S.) 281 : 8 W.R. 446 : 12 : E.R. 330. But, though a tender of smaller amount than that of which an indivisible and entire claim consists, will be invalid as a tender, there is nothing to prevent the creditor from accepting the amount tendered in part payment, and his doing so will not preclude him from afterwards claiming the residue of his account, always provided that the debtor did not make it a condition of his tender that it be accepted in discharge of the whole ; Bowen v. Owen (1847) 11 Q.B. 130 : 75 R.R. 306 : 17 L. J.Q.B. 5 : 11 Jur. 972 : 116 E.R. 425. The import of the term 'indivisible and entire claim which is used in this connexion, will be fully appreciated, when it is said that though there can be no valid tender of part if such a debt, yet where the debt is of a conglomerate nature, that is to say, where the components exhibit the character of distinct debts in themselves, a debtor may make a valid tender of any one of such several distinct debts if at the time he makes the tender, he takes care to indicate the debt on account of which he makes the tender ; but if, in making the tender, he fails to specify the particular one of the several debts to which he wishes the tender to apply, and the amount tendered by him is insufficient to cover all, it will not be good for any. Thus tender of enough to pay one of several distinct items in a bill, if offered in satisfaction of the whole, will not be a good tender in repsect of either, though if it were specifically applied by the debtor to that one item at the time of payment, it would be a good tender in regard to that item, in spite of its being a unit. With reference to this, Coltman, J., observed in Hardingham v. Allen (1848) 5 C.B. 793 : 75 R.R. 839 : 17 L.J.C.P. 198 : 12 Jur. 584 : 136 E.R. 1091 'In order that a tender of one portion of a combined claim may be effective as regards that one portion, it must be specifically applied to that portion of it, or it does not sustain the tender.' In the case before us, the amount due as arrears of rent was tendered in full, but what was tendered as the full amount due on account of interest on rent, cesses, and interest on cesses, was inadequate. We feel no doubt that the landlord was competent to refuse the tender so made.
6. The landlord was not bound to accept even the principal amount of rent, when the interest due thereon was not tendered in full. This is supported by the decision of the Judicial Committee in Bamundoss Mookerjee v. Omesh Chunder Raee 6 M.I.A. 289 : 1 Sar. P.C.J. 542 : 19 E.R. 108 where it was ruled that if principal as well as interest thereon is due, all payments should be applied in the first instance to interest, and thereafter to principal only in so far as those payments exceed the interest due. This was the rule recognised since 1809 : in a long series of decisions of the Sadar Court, mentioned in the judgment of Bayley and Jackson, JJ., in Lootf Ally v. Guneshur (1863) Sevestre 834a which was ultimately affirmed by the Judicial Committee in Luchmeswar Singh Bahadur v. Syud Lutf Ali Khan 8 B.L.R. 110 : 2 Sar. P.C.J. 700 : 2 Suth. P.C.J. 461 (P.C) See also Syed Lutf Ali Khan v. Afzuloonnissa Begum 3 W.R. 113 which was reversed by the Judicial Committee in Syud Lootf Ali Khan v. Afzuloonnissa Begum 9 B.L.R. 348 : 16 W.R. 20 : 2 Sar. p.c.J. 701 (P.C). Again, in Meka Venkatadri Appa Row v. Raja Parthasarathy Appa Row 61 Ind. Cas. 31 : 48 I.A. 150 : 44 M. 570 : 19 A.L.J. 465 : 33 C.L.J. 447 : 40 M.L.J. 549 : 23 Bom. L.R. 644 : (1921) M.W.N. 347 : U.P.L.R. (P.C.) 27 : 14 L.W. 25 : 26 C.W.N. 33 : 30 M.L.T. 36 : (1922) A.I.R. (P.C.) 233 (P.C.), Lord Buckmaster reiterated the same view and relied' upon the statement by Rigby, L.J. in Parr's Banking Company v. Yates (1898) 2 Q.B. 460 : 67 L.J.Q.B. 851 : 47 W.R. 42 : 79 L.T. 321 'where both principal and, interest are due, the sums paid on account must be applied first to interest. That rule, where it is applicable, is only common justice. To apply the sums paid to principal where interest has accrued upon the debt, and is not paid, would be depriving the' creditor of the benefit to which he is entitled under the contract.' The substance of the matter is that, as pointed out by Lord Buckmaster in Muhammad Hafiz v. Mirza Muhammad Zakariya 65 Ind. Cas. 79 : 49 9 : 35 C.L.J. 126 : 20 A.L.J. 17 : 26 C.W.N. 297 : (1922) M.W.N 89 : 42 M..L.J. 248 : 15 L.W. 377 : 24 Bom. L.R. 341 : 30 M.L.T. 224 : 3 P.L.T. 279 : 1 P.W.R. 1922 : (1922) A.I.R. (P.C.) 23 : 44 A. 121 (P.C.), the cause of action where principal and interest thereon are both due, is only one, so that if the creditor sues to recover only the interest, he cannot sue to recover the principal and subsequent interest in a second suit. The inference follows that in the present case the landlord was entitled to refuse the tender, because the principal and interest constituted one indivisible and entire claim, and the sum tendered was smaller than the amount really due. This is supported by the decision of the Judicial Committee in Durga Prasad Singh v. Rajendra Narain Bagchi 21 Ind. Cas. 750 : 41 C. 493 at p. 513 : 40 I.A. 223 : 19 C.L.J. 95 : 18 C.W.N. 66 : (1914) M.W.N. 1 : 15 M.L.T. 68 : 26 M.L.J. 25 : 16 Blm. L.R. 42 (P.C.). In that case, there were tenders in respect of rent and interest upon arrear of rent, based on an erroneous assumption as to the amount of rent payable. The amount really payable turned out to be larger than the assumed figure. It was tuled that the amounts tendered were not good tenders, either as tender of rent or of interest on arrears of rent, and were consequently ineffective.
7. We must further observe that the plaintiff not only tendered less than what was due, but tendered the insufficient amount for acceptance in full satisfaction of the claim of the landlord. A tender, however, must be unconditional, or at all events, free from any condition to which the creditor may rightfully object.' The condition which the debtor is the most apt to impose is precisely the one which the law does not permit: the debtor has no right to insist that the creditor shall admit that no more is due than the sum tendered: Bowen v. Owen (1847) 11 Q.B. 130 : 75 R.R. 306 : 17 L.J.Q. 5 : 11 Jur. 972 : 116 E.R. 425, see also Huxham v. Smith (1809) 2 Camp. 19 : 11 R.R. 651, Evens v. Judkins (1815) 4 Camp. 156, Griffiths v. Hodges (1824) 1 Car. & P. 419, Cheminant v. Thornton (1825) 2 Car. & P. 50, Strong v. Harvey (1825) 3 Bing. 304 : 11 Moore 72 : 4 L.J. (O.S.) C.P. 57 : 130 E.R. 530, Finch v. Miller (1848) 5 C.B. 428 : 75 R.R. 774 : 136 E.R. 945, whether a tender is in fact intended to be conditional or not may give rise to refined controversies, as is clear from numerous cases in the books; Mitchell v. King (1833) 6 Car. & P. 237 : 40 R.R. 810, Hough v. May (1826) 4 A. & E. 954 : 43 R.R. 530 : 6 N. & M. 535 : 2 H. & W. 33 : 5 L.J. (N.S.) K.B. 186 : in E.R. 1042, Sutton v. Hawkins (1838) 8 Car. & P. 259, Hastings v. Thorley (1838) 8 Car. & P. 573, Henwood v. Oliver (1841) 1 Q.B. 409 : 1 G. & D. 25 : 10 L.J.Q.B. 158 : 113 E.R. 1189 : 55 R.R. 290, Bull v. Parker (1842) 2 Dow. (N.S.) 345 : 12 L.J.Q.B. 93 : 7 Jur. 282, Bowen v. Owen (1847) 11 Q.B. 130 : 75 R.R. 306 : 17 L.J.Q. 5 : 11 Jur. 972 : 116 E.R. 425, Jones v. Bridgman (1878) 39 L.T. 500. No such question, however, arises here, as it is not disputed that what was tendered was tendered as the full amount due and was intended to be accepted only in full satisfaction of the claim, from whatever point of view the question is approached, it thus follows that the tender was bad.
8. As the money tendered was not on account but was in full satisfaction of the dues it is not necessary to consider, whether, even if the tender were expressly in part satisfaction of the claim, the landlord would be bound to accept it. We may add, however, that we did not feel impressed by the argument that Section 55 of the Bengal Tenancy Act was intended to abrogate the ordinary rule, recognised in a long line of cases such as Cotton v. Godwin (1840) 7 M. & W. 147 : 9 D.P.C. 763 : 10 L.J. Ex. 243 : 151 E.R. 715, Dixon v. Clark (1847) 5 C. B. 365 : 75 R.R.. 747 : 5 D. & L. 155 : 16 L.J.C.P. 237 : 136 E.R. 919, Chunder Caunt v. Jodoonath Khan 3 C. 468 : 1 C.L.R. 470 : 1 Ind. Dec. (N.S.) 883, Ram Kamlessuri Pershad Singh v. Sukhan Singh 7 C.W.N. 172 and Bechu Singh v. Bichharam Sahu 1 Ind. Cas. 677 : 10 C.L.J. 91 at p. 98, namely, that a creditor cannot be compelled to accept any sum in part satisfaction of his dues. Section 55 appears to refer not to the right of a debtor to make a part payment, but to the appropriation of a payment when accepted fry the landlord; in other words, Section 55 treats, not of tendet but of appropration. We must accordingly hold, in concurrence with the Courts below, that there was no valid tender on the first occasion and the subsequent deposit under Section 61 of the Bengal Tenancy Act was equally ineffectual. The tender on the second occasion followed by a deposit in Court is, for similar reasons, of no avail.
9. As a last resort, a faint attempt was made to invoke the aid of principle, recognised in some judicial decisons, namely, that an unconditional tender of a sum which turns out in the end to be less than what is really due may be valid pro tanto, if there is a genuine dispute as to the amount due; Bowen v. Owen (1847) 11 Q.B. 130 : 75 R.R. 306 : 17 L.J.Q. 5 : 11 Jur. 972 : 116 E.R. 425, Read v. Goldring (1813) 2 M. & S. 86 : 14 R.R. 594 : 105 E.R. 314, Eckstein v. Reynolds (1837) 7 A. & E. 80 : 2 N.& P. 256 :6 L.J. (N.S.) K.B. 198 : 112 E.R. 401 : 45 R.R. 676, Henwood v. Oliver (1841) 1 Q.B. 409 : 1 G. & D. 25 : 10 L.J.Q.B. 158 : 113 E.R. 1189 : 55 R.R. 290, Bull v. Parker (1842) 2 Dow. (N.S.) 345 : 12 L.J.Q.B. 93 : 7 Jur. 282, Greenwood v. Sutcliffe (1892) 1 Ch. 1 : 61 L.J. Ch. 59 : 65 L.T. 797 : 40 W.R. 214, Haji Abdul Rahman v. Haji Noor Mahomed 16 B. 141 : 8 Ind. Dec. (N.S.) 570 and Digambar Das v. Harendra Narain 5 Ind. Cas. 165 : 11 C.L.J. 226 at p. 234 14 C.W.N. 617. This doctrine, even if it be assumed to have been left unaffected by the decision of the Judicial Committee in Durga Prasad Singh v. Rajendra Narain Bagchi 21 Ind. Cas. 750 : 41 C. 493 at p. 513 : 40 I.A. 223 : 19 C.L.J. 95 : 18 C.W.N. 66 : (1914) M.W.N. 1 : 15 M.L.T. 68 : 26 M.L.J. 25 : 16 Blm. L.R. 42 (P.C), is of no assistance to the appellant. In the first place, the tender was not unconditional; in the second place, there was no substantial ground for dispute; the amount had been miscalculated because it overlooked that interest was payable at twelve-and-a-half instead of twelve per cent. and that the amount of cess leviable had been enhanced by the Revenue Authorities. The inference is thus irresistible that arrears were due and that the landlord was within her rights when she took recourse to the provisions of, Regulation VIII of 1819.
10. It has finally been urged that the sale was bad, because the proceedings under the Regulation were carried on against the previous putnidar who was dead and whose name still stood on the books of the landlord. In our opinion, there is no substance in this contention. As was pointed out by Tottenham, J., in Rajnarain Mitra v. Ananta Lal Mondul 19 C. 703 at p. 717 : 9 Ind. Dec. (N.S.) 911 'proceedings under the Putni Regulation, taken for the realisation of arrears of putni rent, are not taken against persons at all, but against the tenure; and the Zemindar is quite right in setting out in his petition and notices the name of the putni and the names of the putnidars as recorded in his books.' This view was not dissented from by Fetheram, C.J., and Ghose, J., indeed, if a different view had been taken by them on this point, it would not have been necessary for them to examine the point which led to difference of opinion and consequent reference to a third Judge. We are not unmindful that in Golam Sattar v. Prodyat Kumar Tagore 51 Ind Cas. 933 : 29 C.L.J. 481 Chatterjea, J., although conceding that the proceedings under the Regulation were taken against the putni tenure, did not feel inclined to hold that the tenure could be sold by taking proceedings against wrong persons. The question, however, did not actually arise for decision in the case. It may be noted that the Regulation does not contemplate service of notice upon the defaulter personally. The petition and notice mentioned in Section 8(2) are stuck up in some conspicious part of the Kacheri of the Collector. A similar notice is stuck up at the Sadar Kacheri of the Zemindar himself, and a copy of extract of such part of the notice as may apply to the individual case, is sent to be similarly published at the Kacheri or at the principal town or village upon the land of the defaulter. The proceeding is thus throughout against the tenure, and the mere fact that in the application to the Collector, the Zemindar mentions the names of one or two of the parties in possession, though not registered in his books, and omits to mention the names of others, does not in any way vitiate the sale or render the proceedings invalid; Raghub Chunder Banerjee v. Brojonath Koondoo Chowdhry 14 W.R. 489 : 9 B.L.R. 91 n, Gyanada Kantho Roy Bahadur v. Bro momoyi Dassi 17 C. 162. : 8 Ind. Dec. (N.S.) 647, Saibesk Chandra v. Bono wati Mukunda 4 Ind. Cas. 371 : 10 C.L.J. 453. Putni taluks are made heritable by Section 3 of Regulation VIII of 1819 and it is incumbent on persons, who acquire an interest in a putni tenure by succession to get themselves registered in the books of the landlord under Section 15 of the Bengal Tenancy Act. If they fail to take the necessary steps and at the same time make default in the payment of rent, they cannot very well be heard to assail the legality of a sale under the Regulation on the ground that their names were not mentioned in the application to the Collector; Durga Prosad Bun-dopadhya v. Brindaban Roy 19 C. 504 : 9 Ind Dec. (N.S.) 780, Khetter Mohan Pal v. Pran Kristo Kabiraj 3 C.W.N. 371.
11. We are of opinion that the Courts below have rightly dismissed the suit and that this appeal must be dismissed with costs. The cross-objection has not been pressed by the respondent and is dismissed without costs.