Abdul Rahim vs Raghunath Sukul and Others

Chatterji, J.—This appeal by defendant 1 arises from a decision of the Subordinate Judge of Muzaffarpur reversing the decree of the Munsif and decreeing the plaintiff''s suit for recovery of manhunda rent for the years 1331-34 relating to 4 bighas 19 cottas 1 dhur of land on the basis of a registered kabuliyat dated 31st October 1922 executed by one Elahi Bux Mian the predecessor-in-interest of the defendants who are his children and nephews. A zarpeshgi for Rs. 1,500 came to be granted by Elahi Bux in favour of the plaintiff on the same day, 31st October 1922. The plaintiff was to be in possession of the lands as rehandar which were also hypothecated in simple mortgage by way of security. Elahi Bux agreed to hold the land on manhunda rent of 75 maunda of paddy each year for the years 1330-34. The suit was contested by the appellant on the ground that the zarpeshgi was illegal and void as being due to undue influence and pressure and the kabuliyat was quite illegal, null and void for the same reason. This defence found favour with the learned Munsif and he dismissed the suit. In the appeal the learned Subordinate Judge held that there was a relationship of landlord and tenant created by the kabuliyat which was not vitiated by any undue influence on the part of the plaintiff. As to the consideration of the zarpeshgi he held that

whether it was paid in cash or was set off against the commission agreed upon between Elahi Bux and the plaintiff to be paid to the latter for negotiating an advance of a loan of Rs. 40,000 with Hardi Babus in whose service he was, did not arise, inasmuch as even in the latter case the consideration to pay the commission agreed upon was a valid consideration

and on these findings he decreed the plaintiff''s suit.

The learned advocate for the appellant Contended that the zarpeshgi and the kabuliyat formed part of the same transaction and that no relationship of landlord and tenant had been created and the suit accordingly was not maintainable under the Bengal Tenancy Act. I do not think this contention is sound and the point seems to have been settled by authority. A similar question came to be considered in Chimman Lal v. Bahadur (1) and their Lordships held that the mortgage and the lease were two distinct transactions and a suit on the kabtuliyat would lie only in a revenue Court and it could not be held that the lease was granted simply for the mere realization of the amount of interest payable on the mortgage. No reference was made to the lease in the usufructuary mortgage and the lease in its turn in no way purported to be dependent on or to be a part of the mortgage transaction, and the mere fact that the two deeds came to be executed on the same date would not affect the matter at all. This decision was referred to with approval in Uttam Chandra Daw v. Raikrishna Dalal [1920] 47 Cal. 377 and reference may be made to the observations of Mookerjee, J., at p. 405 of the report:

It would be an abuse of language to maintain that the suit was for recovery of arrears of interest on the mortgage. Two instructive cases on this point are furnished by the decisions in Anon [1901] 23 All 341 and Chimman Lal v. Bahadur Singh [1901] 23 All. 33. In the first of these cases, a mortgage and a lease were, executed simultaneously. Sir John Edge, C.J., observed that the grant of such a lease by the mortgagee to his mortgagor had been invariably treated as a transaction in the nature of a lease and as putting the parties in exactly the same position as that in which they would have stood, if instead of having been mortgagor and mortgagee they were the zamindars and any other person taking a lease of the land. In the second case, precisely the same view was adopted, and it was ruled that the effect of the kabuliyat was to establish between the parties the relationship of landlord and tenant with the result that a suit on the kabuliyat would lie only in a revenue Court. A similar view was taken in Khuda Baksh v. Alimunnissa [1904] 27 All. 313.

Chatterji, J., was of the same view as is clear from his observations at p. 412 of the report:

It is true the arrangement was that the share of the crops, which the mortgagee would get from the mortgagors, would be appropriated as interest on the mortgagee, but the legal relation between the parties after the execution of the kabuliyat was that of landlord and tenant. Had the mortgagee let out the land to a third party it could not be contended that the share of crops payable under the kabuliyat was not rent, even though the same might be appropriated towards interest. The mere fact that the lands were let out to the mortgagor would not alter the relation between the parties.

I am not unmindful that in Tilakhdari Singh Vs. Chaturgan Bind and Others, their Lordships came to hold that a zarpeshgi was an instrument of mortgage and not a lease, but all the same they did not dissent from the Calcutta view as the facts in the Calcutta case entirely supported the finding that the mortgagor became a raiyat by reason of the terms of Section 5, Ben. Ten. Act, which read together with the definition of "proprietor" in the Act which includes a trustee; but all the same their Lordships decreed the claim of the zarpeshgidar for the rents which had been agreed to be paid by the kabuliyat in favour of the mortgagee stipulating the payment of the rent.

The learned advocate next contended that though the learned Munsif had on reasons given held that the zarpeshgi bond was not for any cash advance and that the consideration for it was nothing but commission which the plaintiff had managed to extort from Elahi Bux on undue influence and pressure, the learned Subordinate Judge had not come to any distinct and definite finding on the point, and accordingly his judgment was not a proper judgment in accordance with the law and his findings were liable to be challenged even in second appeal. He referred to Illus. (j) in Section 23, Contract Act, and to Harrington v. The Victoria Bathing Dock Company [1878] 3 Q.B.D 549 and argued that as the promise to pay the commission was immoral and opposed to public policy the zarpeshgi bond could be avoided by the heirs of Elahi Bux deceased. In my view this contention is equally unsound. The learned Subordinate Judge had come to a distinct finding that the defendants failed completely to adduce satisfactory evidence to prove that the zarpeshgi bond was not executed for consideration; that bond had been executed on 31st October 1922, but the zarpeshgi deed which was executed by Elahi Bux in favour of the Hardi Babus was dated much earlier, namely 26th August 1922, and accordingly the whole story of the defendants that unless the zarpeshgi bond in favour of the plaintiff was executed, he would put obstacles in the way of completing the transaction between Elahi Bux and the Hardi Babus was absolutely false. There could not have been any pressure or undue influence on the part of the plaintiff in getting the zarpeshgi bond and the kabuliyat executed in his favour when really the transaction between Elahi Bux and the Hardi Babus had been completed two months before the zarpeshgi bond in favour of the plaintiff was executed and registered by Elahi Bux. From the whole evidence and circumstances, he was not at all satisfied that the zarpeshgi bond in favour of the plaintiff was vitiated by any undue influence. There is accordingly a clear finding of fact which is binding on this Court and cannot be re-agitated in second appeal. Reference to the Illus. (j), Section 23 Contract Act, and to the case cited is also, in my view, out of place. It was hot shown that the plaintiff was induced by the offer of any reward or commission so as to derelict him from doing his proper duties as a servant of his masters the Hardi Babus and there is no moral turpitude which came into play to vitiate the promise to pay the alleged commission agreed to be given on the ground that it was immoral and opposed to public policy. The law has already settled certain definite rules and the Courts should not invent a new head of public policy: Janson v. Driefonteir [1902] A.C. 484. Lord Halsbury observed in Equitable Life Assurance Co. v. Reed [1914] A.C. 587: "I deny that any Court can invent a new head of public policy." The Courts ought to be very cautions in deciding a question of public policy. It is no doubt true that with the development of public opinion and morality, the doctrine must be applied with necessary variation as is observed in Srinivas v. Ramchandra [1920] 44 Bom. 6 But all the same each case has to be decided on its own facts. There was nothing immoral in agreeing to pay a commission to an agent of the maliks who had facilitated the transaction of the heavy loan advanced to Elahi Bux and the consideration would be valid as found by the learned Subordinate Judge in appeal. The facts did warrant the plaintiff in this case being entitled to a decree. The manhunda rent for the years in suit had not been paid. But then the question remains as to Whether he should be allowed a decree at the rate of Rs. 300 per year in lieu of the fixed paddy rent agreed to be paid. Though in the kabuliyat it had bean stipulated that in case the fixed paddy rent was not paid the plaintiff would be entitled to recover at the rate of Rs. 300; yet in my view the plaintiff cannot justly recover any higher value for the paddy rent than its price in the market during those years. The learned advocates on both sides are agreed that the market value of 75 maunds of paddy during the years in suit was on the average Rs. 180 a year. Though 25 per cent damages had been allowed, having regard to the facts I would reduce it to 12� per cent.

The result is that the decree of the Subordinate Judge will be modified and confirmed in other respects to the extent above noted, and a decree for the plaintiff should be entered accordingly. The plaintiff''s suit will accordingly be decreed modifiedly with proportionate costs throughout in all the Courts, the appellant bearing his own costs.

Fazl Ali, J.

I agree with the conclusions of my learned brother as well as to the order proposed by him.