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Krishna Chandra Basu and ors. Vs. Mohendra Nath Basu and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in9Ind.Cas.704
AppellantKrishna Chandra Basu and ors.
RespondentMohendra Nath Basu and ors.
Cases ReferredMahanand Sahai v. Musammat Sayedunissa Bibi
Excerpt:
kabulyat, construction of - road and public works cesses as levied at present to be paid by lessee--re-valuation--increase of amount of cesses to he payable by whom. - .....that is rs. 500 a year at a certain prescribed rate. but you shall pay in addition to the said fixed jama, road and public works cesses at half-anna per rupee as is levied at present according to the instalments given at foot. besides, you as mourasi mukararidars shall be bound according to law to pay any other kind of cess or tax that government may hereafter impose and you shall continue to pay the same separately in addition to the fixed jama the instalments mentioned are specified in a schedule in which the following statement occurs: 'the fixed jama of rs. 500 or more or less as may be assessed upon measurement according to the terms of this pattah and road and public works cesses at half-anna per rupee. a two-thirds share of the same is to be paid in the month of pous and.....
Judgment:

1. This is an appeal on behalf of the plaintiffs in an action for recovery of arrears of rent with cesses and damages, from the defendants, who are tenure-holders under them, under a lease granted in their favour on the 17th August 1892. The sole question in controversy between the parties relates to the liability of the tenants-defendants to pay cesses to the landlords-appellants. The covenant in the lease which bears upon this matter is in the following terms: 'I shall never be competent to claim any enhancement in any way upon the said fixed amount of jama, that is Rs. 500 a year at a certain prescribed rate. But you shall pay in addition to the said fixed jama, Road and Public Works cesses at half-anna per rupee as is levied at present according to the instalments given at foot. Besides, you as Mourasi Mukararidars shall be bound according to law to pay any other kind of cess or tax that Government may hereafter impose and you shall continue to pay the same separately in addition to the fixed jama The instalments mentioned are specified in a schedule in which the following statement occurs: 'The fixed jama of Rs. 500 or more or less as may be assessed upon measurement according to the terms of this pattah and Road and Public Works cesses at half-anna per rupee. A two-thirds share of the same is to be paid in the month of Pous and one-third in the month of Falgun.' The contention on behalf of the plaintiffs is that as since the grant of the lease there has been a re-valuation of the land comprised in the tenure under the provisions of the Cess Act of 1880, the tenants are liable to pay, as cesses the amount calculated upon the valuation, not as it stood at the time of the contract but as it stands altered and increased at the present time. The contention on behalf of the defendants is that the tenants are liable to pay the cesses upon the valuation as it stood at the time of the grant of the lease and that the additional burden imposed by way of increased cesses on account of re-valuation must be borne by the landlords.

2. The Courts below have accepted the contion of the defendants and have dismissed the suit of the plaintiffs. In our opinion, the view taken by the Courts below cannot be supported. The covenant to which reference has been made is capable of one of two interpretations. It either provides for the payment by the tenants of cesses in accordance with the provisions of the Cess Act, or it does not contemplate and provide for the contingency which has happened. In our opinion, the first of these interpretations is the correct one. The lessors agreed with the tenants that the latter were to pay, in addition to the fixed rent, Road and Public Works cesses at half-anna per rupee, as was levied at the time, according to the instalments given at the foot of the instrument. There has been some discussion before us as to the precise meaning of the words 'Road and Public Works cesses at half-anna per rupee as is levied at present.' The learned Vakil for the respondents has suggested that this means, levied according to the terms of the contract.' This interpretation is clearly inadmissible, because before the lease was granted no cesses admittedly were or could be levied. The obvious interpretation of the expression in question is that the lessees were to pay.Road and Public Works cesses at half-anna per rupee as is levied in accordance with the statutory provisions on the subject. If this interpretation is adopted, the defence of the defendants entirely fails, because if the lessees undertake the liability to pay the cesses at half-anna per rupee according to the statutory provisions on the subject in the event of re-valuation, the increased cesses would be payable by them. If, on the other hand, the second interpretation is adopted, namely, that the parties did not anticipate the contingency which has happened and did not make any provision for the same, it is clear, according to the decision of this Court in the case of Mahanand Sahai v. Musammat Sayedunissa Bibi 8 C.L.J. 525 : 12 C.W.N. 154, that the provisions of the statute must be enforced. In either view, therefore, the plaintiffs are entitled to the cesses claimed by them. The learned Vakil for the respondents has, however, suggested that the effect of this covenant was to impose the liability for any additional cesses upon the landlords. In our opinion, there is no foundation for this contention. In the first place, it cannot be disputed that the covenant in question does not expressly lay down that if the amount of cesses was increased by reason of the re-valuation of the lands, the additional burden would be borne by the landlords. In the second place, an interpretation of this character would be so obviously unreasonable and so manifestly detrimental to the interest of the landlords, that no Court would accept it, unless the covenant was incapable of rational interpretation in any other manner. The learned Vakil for the respondents has further suggested that the agreement between the parties was that cesses at half an anna per rupee should be levied upon the amount of rent payable, that is, the fixed jama. In our opinion, this contention also is not welf-founded. But if it were well-founded, the defence of the defendants would be equally groundless because taking all the terms of the lease together, there was a provision that what was described as fixed jama was variable according to the area. If, therefore, the agreement between the parties was that the cess would be in proportion to the jama, if the jama was varied by reason of alteration in the area, the amount payable as cesses would also have to be varied. Thus, from whatever point of view the case may be considered, the defence is obviously unsustainable. We may add that there was no dispute in the Courts below that if the defendants are liable for the additional cesses, the amount claimed is not excessive. In fact, it appears that if a calculation were made according to the provisions of Section 41 of the Cess Act, the amount realisable by the plaintiffs as cesses under the terms of the contract as we interpret them, would be in excess of the amount actually claimed. That, however, is a matter with which we are not now concerned.

3. The result is that this appeal is allowed, the decrees made by the Courts below are discharged, and the suit is decreed with costs in all the Courts.


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