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Umesh Chandra Roy and ors. Vs. Surendra Chandra Dutta Alias Gedu Dutta - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in49Ind.Cas.8
AppellantUmesh Chandra Roy and ors.
RespondentSurendra Chandra Dutta Alias Gedu Dutta
Cases ReferredPrasad v. Kalidas
Excerpt:
construction of document - intention of parties--conduct - .....on some date between 1893 and 1902. it is not disputed that ever since the death of the original tenant, rent has been realised from his suceessor-in-interest at the rate of rs- 22-14-0 for a period of a quarter of a century. the putnidars now put forward a claim for rent at the rate of rs. 26-14 0. they contend that, upon a true construction of the document, the remission granted as a mark of favour on account of services as a pradhan was a temporary and personal remission which cannot be claimed by the defendant. the court of first instance decided in favour - of the tenant. the subordinate judge on appeal decided in favour of the landlords. mr. justice new bould has reversed that decision and has accepted the interpretation put by the trial court. this divergence of judicial opinion.....
Judgment:

1. The question in controversy in this appeal is whether the plaintiffs landlords are entitled to realise rent at the rate of. Rs. 2614-0, as they assert, or at the rate of Rs. 22-14-0, as the tenant defendant alleges. The determination of this question turns upon the construction of a Kabuliyat executed by the predecessor of the defendant on the 18th September 1883. The Kabuliyat shows that there was a survey in 1879 and a Jamanbandi was prepared in the year following. The father of the defendant came into occupation of the land and 'agreed to pay rent at the rate of Rs. 22-44 0 according to the prevailing rates after deduction of the remissions mentioned. The Kabuliyat further recited that rent had been paid on promise that the tenant would execute a Kabuliyat afterwards and that as the document had been demanded by the landlords he executed the Kabuliyat, agreeing to pay the said Jama of; Rs. 22-140 per instalments mentioned in the schedule. If attention be confined to the body of the lease, the inference is irresistible that the rent fixed is Rs. 22-14-Q* but as reference is made therein to 'deduction of remissions, ' we must turn to the scheduled appended to the document. The first of these is described as the Jamabandi and sets out the details of the calculation whereby the rent of Rs. 22-140 was fixed. We have first the area of the paddy lands and the rate at which the rent thereon was assessed. From this was excluded the remission for lands under water; this brought the rent to Rs. 26-14-0. Then followed a further remission as a mark of favour to the tenant on account of his services as a pradhan. The amount under this head was Rs. 4. The ultimate figure thus came to Rs. 22-14-0, and this was stated as the rent payable by the tenant in the body of the lease. The other schedule sets out the instalments. The rent was payable in four equal instalments in Ashar, Aswin, Pous and Chait. It is admitted that the tenant was a pradhan under the Zemindar, and the real question in controversy is whether the remission granted as a, mark of favour on account of his services as pradhan was a permanent remission annexed to the grant or whether it was a temporary and personal remission contingent upon the performance of service as a pradhan. The grantee died in 1890. The Zemindar granted a Putni in favour of the present plaintiffs on some date between 1893 and 1902. It is not disputed that ever since the death of the original tenant, rent has been realised from his suceessor-in-interest at the rate of Rs- 22-14-0 for a period of a quarter of a century. The Putnidars now put forward a claim for rent at the rate of Rs. 26-14 0. They contend that, upon a true construction of the document, the remission granted as a mark of favour on account of services as a pradhan was a temporary and personal remission which cannot be claimed by the defendant. The Court of first instance decided in favour - of the tenant. The Subordinate Judge on appeal decided in favour of the landlords. Mr. Justice New bould has reversed that decision and has accepted the interpretation put by the trial Court. This divergence of judicial opinion furnishes ample indication that the terms of the document are by no means plain and unambiguous. On behalf of the landlords, stress is laid on the fact that there are at least two elements mentioned in the schedule which are variable, namely, the prevailing rate of rent for paddy lands and the amount of remission granted in respect of the lands under water. On this is founded the argument that as the term 'Hajat' is used in respect as well of remission- for the lands under water, as of the remission granted as a mark of favour for service rendered as a pradhan, both have the same character and both should be deemed temporary. On the other hand, the defendant lays stress on the fact that the body of the document describes the rent settled as Rs 22-14-0, contains no explicit statement that on cessation of service as a pradhan the rent would become payable at Rs. 26-14-0, and further sets out instalments on the assumption that the rent would be payable' at Rs. 2214-0 only. It is thus plain that the. intention of the parties cannot be determined with absolute certainty. In such a contingency, the conduct of the parties daring a long series of years is a very material element for consideration. No doubt, as Lord Halsbury stated in the case of North Eastern Railway v. Hastings (Lord) (1900) A.C. 260 at. p. 263 : 69 L.J.Ch. 516 : 82 L.T. 429 : 16 T.L.R. 325, the words of a written instrument must be construed according to their natural meaning and that no amount of acting by the parties can alter or qualify words which are plain and unambiguous. On the other hand, Tindal, C.J., enunciated the rule in the; following, terms in the case of Doe d. Peat son v. Ries (1832) 8 Bing. 178 at. p. 181 : 1 Moo. &Sc.; 269 : 1 L.J.C.P. 73 : 131 E.R. 369: 'Upon the general and the leading principle in such cases, we are to look to the words of the instrument and to the acts of the parties to ascertain what their intention was; if the words of the instrument be ambiguous, we may call in aid, the acts done under it as a clue to the intention of the parties,' Tindal, C.J., in a later case Chapman v. Bluck (1838) 4 Bing. (N.C.) 187 at. p. 193 : 5 Scott 515 : 1 Arn. 27 : 7 L.J.C.P. 100 : 2 Jur. 206 : 132 E.R. 760, formulates the rule in' very explicit terms: 'There is no 'better way of seeing what they intended than seeing what- they did, under the instrument in dispute:' See also. Hula da Prasad v. Kalidas 24 Ind. Cas. 899 : 20 C.L.J. 312 : 42 C. 536 : 19 C.W.N. 542. Let us apply this principle to the case before us. The original tenant died in 1890. We are not told whether the estate was still in the hands of the Zemindar at the time or whether the Putni had been granted, If the estate was still in the hands of the Zemindar and he continued for some years to realise rent from the successor-in interest of the original tenant at the rate of Rs. 22 140, his conduct furnishes strong evidence of his intention when the tenancy was created. On the other hand if the Putni came into existence just about the time when the original tenant died, we have the fact that the Putnidars, now plaintiffs, have not claimed rent at the rate of Rs. 26 14.0 from the defendant during the period of a quarter of a century. We think that in these circumstances we may reasonably hold that the true interpretation of the document is what the parties have placed upon it during a long series of years. That construction, undoubtedly, does not favour the claim of the plaintiffs.

2. The result is that the decree made by Mr. Justice Newbould is affirmed and this appeal dismissed with costs.

3. We express no opinion upon the question, which may hereafter arise, as to the right of the landlord to claim additional rent in respect of the land wherefrom the water -may have receded since the grant of the lease.


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