1. By the kabuliyat of 1287 the tenants agreed to pay a rent of Rs. 37-1-0 per annum subject to a hajat or deduction of Rs. 21-10-0. The rent actually payable was, therefore, Rs. 15-7-0. The kabuliyat contains the following clause: If after the expiry of the term I do not within a year deliver a fresh dowl kabuliyat for the whole amount inclusive of the sum kept in abeyance, I shall pay Rs. 37-1-0, being the full amount of actual rent inclusive of the sum kept in abeyance.' That clause is rather in the nature of a threat that rent at the full nominal rate would be levied in case the tenants did not execute a kabuliyat within a year after the expiry of the term, which was six years. The tenants, however, seem to have continued to pay rent at the rate of Rs. 15-7 a year and no further kabuliyat seems to have been executed till the year 1311. The kabuliyat then executed contains a similar provision as to rent, except that the amount of the deduction was diminished by 4 annas and the amount of the rent payable was increased by the same sum. The kabuliyat in this case contains this clause towards the end: 'After the expiry of the said term I shall pay according to the above-mentioned arrangement the sum of Rs. 37-1 0, being the full amount of the actual rent inclusive of the rent kept in abeyance.' Acting presumably upon this clause, the plaintiffs have brought the present suit, claiming rent in respect of a period subsequent to the expiry of the term at the full rate without any deduction, the tenants having paid up to the end of 1316, first at the rate of Rs. 15 7 0 and then at the rate of Rs. 15-11-0. The Courts below have held that the claim for rent at the higher rate is inadmissible. The only ground on which these judgments are attacked is that neither Court has expressly found that the arrangement with regard to the deduction to be allowed was a device to evade the provisions of Section 29, Bengal Tenancy Act. The District Judge, however, has referred to the case of Mahamaya Kar. v. Kishore Chang 21 Ind. Cas. 918 : 18 C.L.J. 502 : 18 C.W.N. 738 and the only reason why he has not expressly found that the provisions of the law are being evaded is apparently that he considered the facts to be too clear to admit of any doubt. The facts of the present case are stronger than those of the case to which the learned District Judge has referred. No doubt there are a number of decisions relating to contracts more or less like the present. No doubt also each case must depend upon its own facts, and it would be better in all such cases for the lower Courts to record an express finding one way or the other, whether or not the agreement is a device to evade the Statute. It would be better that they should do so, if only far the purpose of saving the parties from the expense of appealing as also in cases near the line from the additional expense of a remand. We see no reason here for disturbing the concurrent judgments of the lower Courts and the appeal must be dismissed with costs.
2. I agree.