Atulya Churn Bose and others vs Tulsi Das Sarkar minor, by his mother and guardian Sreemuty Khetro Monee Dassee and Hira Lal Sarkar and others

The rent claimed in this case is for a dur-putni taluk, created on the 13th February 1886, after the Tenancy Act came into force. The kabuliyat executed by the Defendants provides for the payment of the rent in monthly instalments, and if it is not paid, for interest at the rate of 1 per cent, per mensem. Interest at that rate was claimed in the suit, but was disallowed by the Subordinate Judge on the ground that under sec. 67, read with sec. 178, cl. (h) of the Tenancy Act, interest on the arrears could only be recovered from the expiration of the quarter of the agricultural year in which the instalment fell due. Sec. 179 provides, however, that " nothing in this Act shall be deemed to prevent a proprietor or a holder of a permanent tenure in a permanently-settled area from granting a permanent mokurari lease on any terms agreed on between him and his tenant." This section, which seems to have been overlooked by the Subordinate Judge, controls, we think, sec. 178; and, in this instance, the lease being a permanent lease granted by a permanent tenure-holder in a permanently-settled area, comes within the scope of the section, and is not affected by the provisions of sec. 178 (h). We therefore think that the Plaintiffs were entitled to recover rent on the monthly instalments as they fell due under the terms of the kabuliyat. It is unnecessary to consider whether the decision of the Privy Council, that sec. 67 of the Tenancy Act applies only to cases where the rent is payable quarterly, had reference to the particular case before them, or is of general application.

It was further contended for the Appellants that they should have been allowed costs on the sum of Rs. 992, which fell due in Kartick, but had not been paid in Aghran, when the suit was instituted. Under the terms of the kabuliyat this sum was payable to the Maharajah of Burdwan as putni rent, the balance of Rs. 200 being payable to the Plaintiffs. The kabuliyat provides that the Defendants should pay, month by month, the putni rent to the Maharajah of Burdwan, should take receipts for the same, and should give to the Plaintiffs the receipts of the rent for every kist; and that if they failed to do so, the Plaintiffs will be at liberty to cancel the order upon them to pay the putni rent to the Maharajah and to undertake the collection of the rent and cases of the entire dur-putni mehal. The sum of Rs. 992 was paid into Court after the institution of the suit, and was made over to the Plaintiffs; consequently, it does not form any portion of the amount decreed. The decree only allows to the Plaintiffs proportionate costs on the amount decreed. We think that the amount must now be increased by the addition of the sum of Rs. 992.

These are the only two points which have been argued before us; and we direct that the decree of the Subordinate Judge be so amended as to give effect to this judgment. The Appellants are entitled to the costs of this appeal, the hearing fee being fixed at two gold mohurs.