Chaturgun Bind and others vs Tilakdhari Singh

Ross, J.—The facts of this case are these. On the 16th January 1917 the defendants executed a zarpeshgi lease of 2 bighas 7 kathas and 12 dhurs of kasht land in favour of the plaintiff in consideration of Rs 975. On the 18th January 1917 the defendants executed a kabuliyat in favour of the plaintiff for a term of nine years from 1324 to 1333 in respect of the same land, the rent reserved being Rs. 75-5-0 a year. As they defaulted in payment of the reserved rent the plaintiff brought this suit for 1325 and part of 1326. The defence was that the kabuliyat was executed by the defendants'' father when he was old and incapable of understanding the transaction: that during the revisional Survey the rent was recorded as Rs. 24-7-0 and that the plaintiff is not entitled to claim more. The Munsif decreed the suit at a rental of Rs. 24-7-0. With regard to the allegation that the defendants'' father was unable to understand the transaction into which he entered no definite finding was arrived at. The learned District Judge on appeal did not discuss the question whether the defendants'' father was able to understand the transaction or not, but holding that the tenancy created by the kabuliyat was a new tenancy and that the defendant, while executing the zarpeshgi lease, did not lose his original status of a raiyat decreed the suit in full. The defendants appeal.

In order to decide the question involved in this case it i s necessary to refer to the terms of the documents. The zarpeshgi lease was executed on the 16th January 1917 by Ram Piyar Bind. It recites that the executant gave in zarpeshgi 2 bighas 7 kathas 12 dhurs of quaimi kasht, hitherto held and possessed by him, for a term of nine years from 1324 to 1333 to Tilakdhari Singh and put him in possession and occupation thereof in consideration of Rs. 975, received by the executant; that the zarpeshgidar should have and hold possession of the zarpeshgi property and appropriate the produce thereof and pay Rs. 16-14-0 annually to the proprietor of the village on account of rent or the zarpeshgi property. On re-payment of the peshgi money to the zarpeshgidar by the end of Jeth 1333 Fasli, or any time in the month of Jeth of a subsequent year, the executant should re-enter into possession of the mortgaged property. In the event of failure to pay the peshgi money on the due date the above stipulations were to stand and in case of dispossession of the zarpeshgidar the amount of the peshgi money would be realised with interest from the executant. Now, what is the effect of this instrument. It is both a lease and a mortgage. In consideration of Rs. 975, the raiyat of 2 bighas 7 kathas of land puts the plaintiff in possession and occupation of the land for a term of nine years. The plaintiff is to appropriate the produce and pay the rent to the landlord, that is to say, the plaintiff is to hold directly under the landlord and not by way of sub-lease under the raiyat. The term of the lease is to be extended automatically until the peshgi money is paid. It seems clear that by this instrument the original raiyat transferred his raiyati right to the plaintiff who thereby acquired the right to hold the land for the purpose of cultivating it; and the defendant consequently ceased to be raiyat as long as the lease was outstanding against him. He had only the reversion of the raiyati interest on the expiry of the term of the lease, but during the term of the lease the raiyati interest was in the plaintiff.

The kabuliyat was executed on the 18th January 1917 by the same Ram Piyar Bind in favour of the same Tilakdhari Singh. It recited that by the zarpeshgi lease the executant had received the zarpeshgi money and had put Tilakdhari Singh in possession of the lease-hold property and the said zarpeshgidar had been in possession and occupation since then. But as the executant desired to keep the said mortgaged land under his cultivation and to pay Rs. 75-5-0 annually as rent to the said zarpeshgidar, the said zarpeshgidar had granted a simple lease for a term of nine years from 1324 to 1333 to the executant. The executant was to cultivate the land, appropriate the produce thereof from year to year till the expiry of the term of the kabuliyat and pay the fixed rent of Rs. 75-5-0 annually to the said malik, that is, Tilakdhari Singh, the zarpeshgidar. When the term of the kabuliyat expired at the end of Jeth 1333 the executant was to give up possession of the lease-hold properly. Now, this is clearly not a lease of the raiyati interest of land to the original raiyat. The defendant is not to pay rent to the proprietor but to the zarpeshgidar. He becomes the tenant of the zarpeshgidar at a rent of Rs. 75-5-0. He carnot be deemed to be a raiyat because he does not hold the land either immediately under a proprietor or immediately under a tenure-holder; he is an under-raiyat and the rent recoverable by the plaintiff must, therefore, be regulated by section 48 of the Bengal Tenancy Act. That these two transactions are separate is established by the authority of Chimman Lal v. Bahadur Singh (1901) 23 All. 338: (1901) A.W.N. 95 and the decision quoted in the foot-note to that report and also by Khuda Bakhsk v. Alimunnissa (1904) 27 All. 313: (1904) A.W.N. 273: 1 A.L.J. 715. The effect o the second transaction in such a case is stated in the Full Bench decision in Uttam Chandra Daw Vs. Raj Krishna Dalal and Another, , where Mr. Justice Chatterjee observed that the legal relation between the parties after the execution of the kabuliyat was that of landlord and tenant and that the mere fact that the lands were let out to the mortgagor would not alter the relation between the parties. It follows, therefore, that the decision of the Munsif in this case was right and that the appeal must be decreed with costs and that the decree of the District Judge be set aside and the decree of the Munsif restored.