1. This appeal arises out of a suit for rent of a certain occupation holding The annual rent payable is the sum of 24 rupees, 4 annas. The suit is based upon a kabuliyat executed by the father of defendant No. 1. The kabuliyat provides that that rent shall be parable in 4 kids of four unequal amounts and that, on default in any one instalment, the arrears will carry interest at the rate of one anna per rupee per month.
2. The only question that have been argued before us, whether the plaintiff is entitled to interest at the rate specified in the kabuliyat and decency, whether it should have been deoided in this suit that the defendant No. 1 is the sole tenant in respect of this holding.
3. With regard to interest, both the Courts below were of opinion that the rate was exorbitant and, therefore, gave a decree for interest at the rate of 12/1/2 percent. only. In this, we think both the Courts have fallen into error. The rate of interest no doubt is high. But Here is no evidence to show that any undue lanai was exercised upon the executants of the kabuliyat. Other authority of a number of recent decisions of their Lordships of the Judicial Committee, it must be held that the mere fact that interest is high is not a sufficient reason for not giving effect to the contract which provided for such interest. On this point we reverse the decision of the Court below and decree interest upon the arrears at the kabuliyat rate.
4. The defendant No. 1 alleged that he was the sole tenant and that defendants Nos, 2 to a who are the sons of one Bholai have no interest therein. The defendant No. 4 appeared in the Court of first instance and claimed that defendant No. 1 was their under-tenant and they in fact were the sole tenants of this holding. The Court of first instance found that defendants Nos. 2 to 5 were in possession of the homestead portion of the holding and declined to enter into the question of the extent of the respective shares of defendant No. 1 and defendants Nos. 2 to 5. These defendants did not appear in the Court of first appeal, be appear here and support the plaintiff in saying that this question should no be decided in the present proceeding. The Court of first appeal held that defendant No. 1 was the sole tenant, but is silent with regard to the possession of the other defendants in the homestead land of the holding, and relied upon a series of chelas which were filed in his Court and which no witnesses proved. Ha further relied upon the deposition of the husband of the present plaintiff, a deposition given in previous suits. No explanation has been given of the failure to examine the plaintiff's husband in the present suit. It is dear, therefore, that the Subordinate Judge proceeded on inadmissible evidence when he, overruling the Court of first instance, held that defendant No. 1 was the sole tenant. Defendants Nos. 2 to 5 being in possession of at Act a portion of the holding we agree that the suit for rent may proceed against them. The question as to who is in law the sole tenant or what is the extent of the shares of the respective tenants will be left for adjudication in such suit as either of those parties may choose to bring.
5. To the extent above indicated, the decree of the Subordinate Judge is modified. The question of title, as between the defendant No. 1 and defendants Nos. 2 to 5, is left open. Upon the arrears of rent claimed, the plaintiff will have interest at the kabuliyat rate with full costs throughout.