Gopal Saran Narayan Singh vs Maheshwari Prasad Singh and Others

James, J.—On the 14th of August, 1872, Raja Ram Kishun Singh of Tikari made a permanent grant of Mauza Dohia Chandhari in Gaya to Babu Mutukdhari Singh on payment by the tenure-holder of premium of Rs. 1,376 reserving an annual rent (jama) of Rs. 1,423 consisting of Rs. 1,376 described as mal together with Rs. 47 which is described in the tenure-holder''s covenant as abwab. In September of 1924 the present proprietor of the estate instituted a suit for arrears of rent at the annual rate of Rs. 1,423. The suit was decreed for arrears of rent at the rate of Rs. 1,376 by the Subordinate Judge of Gaya who held that the annual rent payable was not Rs. 1,423 on the ground that abwab was not recoverable by virtue of the provisions of Section 74 of the Bengal Tenancy Act. The plaintiff has appealed from that decision claiming that the amount of Rs. 47 though it is described in the mukarrari lease as abwab is recoverable from the defendants.

The learned Advocate for the appellant argues that the abivab must be regarded as legally payable. Section 74 of the Bengal Tenancy Act of 1885 provides that stipulations and reservations for payment of abwab in addition to the actual rent, shall be void; but if this covenant had to be interpreted exclusively in the light of the provisions of the Bengal Tenancy Act, the abwab would be recoverable since Section 179 of the Act expressly permits a proprietor in a permanently settled area to grant a permanent mukarrari lease on any terms agreed on between him and his tenant. If the application of Section 179 is excluded by reason of the fact that the parties entered into their contract before 1885 the abwab should still be recoverable. It is only an abwab imposed in addition to the actual rent which is by Section 74 declared to be illegal. Rent is defined in Section 3 of the Act as "Whatever is lawfully payable...by a tenant to his landlord on account of the use or occupation of the land".

Therefore, if the abwab was lawfully payable at the moment when the Bengal Tenancy Act came into force it is a part of the actual rent within the meaning of the definition and it is argued that the abwab was at that time lawfully payable under the third clause of Regulation V of 1812. Apart from this legal argument the learned Advocate contends that in any view the term mal ought not to be regarded as equivalent to rent which is more properly described by the term jama. In this argument the learned Advocate relies upon the decision of the Judicial Committee in the case of AIR 1927 250 (Privy Council) and contends that the whole sum claimed is really nothing more than the rent agreed upon between the parties at the time of the creation of the tenure. He points out that the total amount claimed is shown in the body of the kabuliyat executed by the tenure-holder and also at the end of it as the annual uniform rent with cesses.

On behalf of the respondents it is contended that the expression ''actual rent'' in Section 74 of the Bengal Tenancy Act means the actual ground rent exclusive of abwab arid that abwab was not recoverable in 1885 even though it may have been specific sum contained in a covenant entered into at the creation of a permanent tenancy. It is further argued that whether the term ''maV should be taken to mean actual rent or not we cannot, in dealing with a covenant such as that which is now before us, say that jama, means rent and mal means something other than rent when the jama is specifically made up of mal and abwab. In this connection the learned Advocate for the respondents lays stress upon the fact that the premium payable by the tenure-holder is equal to one year''s rent exclusive of the abwab. We have to consider whether the uniform annual jama of Rs. 1,423 is the actual rent of the tenure or whether the actual rent is the sum of Rs. 1,373 which is described in the covenant as mal.

If this case were governed exclusively by the provisions of the Bengal Tenancy Act the operation of Section 74 would be barred by s.179 which provides that nothing in the Act shall be deemed to prevent a proprietor in a permanently settled area from granting a permanent mukarrari lease on any terms agreed upon between him and his tenant. But this lease was created in 1872 before the Bengal Tenancy Act came into force so the provisions of Section 179 do not apply to it; and if at the time when the Tenancy Act came into force the tenant was entitled to exclude the abwab in calculating his rent the landlord cannot now apply Section 179 to make the abwab payable. It was pointed out in the case of Aparna Charan Ghose v. Karam Ali 10 C.W.N. 527 : 4 C.L.J. 527 that the repeal of Act X of 1859 and Regulation V of 1812 by the Bengal Tenancy Act did not revive any right or privilege which did not exist at the time when the Bengal Tenancy Act was passed so that if a landlord was not entitled before 1685 to recover abwab under a lease granted before the passing of the Act he could not do so after 1885, In this connection it is argued on behalf of the respondents that since by the provisions of Section 10 of Act X of 1859 under-tenants and raiyats were entitled to recover from their landlords any amount paid as abwab that right must be held to have continued to exist after the passing of the Bengal Tenancy Act; and it should be regarded as re-affirmed by the provisions of Section 74 of that Act.

The enactment from which all later provisions regarding recovery of abwab have developed is Regulation VIII of 1793 which re-enacted in the form of a Statute the rules of the Decennial Settlement of 1789. By the rule which was embodied in the fifty-fourth clause of that Regulation proprietors had been directed to consolidate abwab with the asal jama into one specific sum and to give pattas for the consolidated total which was to be done in Bihar by the end of the Fasli year 1198, that is to say, by the 12th of September, 1791. By the fifty-fifth clause of the Regulation landlords were prohibited from imposing any new abwab upon their raiyats. The Regulation applied, however, only to impositions of this nature upon raiyats so that it is not necessary to consider here the question of whether the consolidation of abwab with ground rent into a specific sum was not legal after September, 1791,since we are not dealing with raiyats but with permanent mukarraridars. The point is of some importance, because the decision in the case of Tilukdari Singh v. Chultan Mahton 17 C. 131 : 16 I.A. 152 : 13 Ind. Jur. 251 : 5 Sar. P.C.J. 408 (P.C.) which must be considered in dealing with this question, was ultimately based on these provisions of Regulation VIII of 1793.

By Regulation V of 1812 proprietors were declared competent to grant permanent leases to dependent talukdars in such form as the contracting parties might deem most conducive to their respective interests. The third clause of the Regulation, which made this important concession, contained the following proviso:

Provided, however, that nothing herein contained shall be construed to sanction or legalize the imposition of arbitrary or indefinite cesses, whether under the denomination of abwab, mathat or any other denomination. All stipulations or reservations of that nature shall be adjudged by the Courts of Judicature to be null and void: But the Courts shall notwithstanding maintain and give effect to the definite clauses of the engagements contracted between the parties, or, in other words, enforce payment of such sums as may have been specifically agreed upon between them.

This proviso would appear on the face of it to mean that any undertaking contained in a permanent tenure-holder''s covenant, by which he empowered his superior landlord to impose arbitrary or indefinite cesses, would be treated as null and void by the Courts, but a definite agreement entered into at the creation of the tenure, by which the tenure-holder undertook to pay a fixed specific sum would be enforced; and the Court naturally interpreted it in this way. Clause 3 of Regulation V of 1812 remained in force until the passing of the Bengal Tenancy Act (VIII of 1885) but this clause was not in its application limited to dependent talukdars but applied to all classes of tenures, including raiyati tenures.

Act X of 1859 represents the first serious attempt to codify the law of landlord and tenant in Bengal, Bihar and Orissa. Section 10 of the Act contained the following provisions:

Every under-tenant or raiyat from whom any sum is exacted in excess of the rent specified in his pattah, or payable under the provisions of this Act, whether as abwab or under any other pretext...shall be entitled to recover from the person receiving such rent damages not exceeding double the amount so exacted or paid.

By Act X of 1859 certain clauses of Regulation V of 1812 were repealed, but the first four clauses remained in force, Therefore in order to ascertain what was the "rent specified in the pattah" the provisions of the third clause of Regulation V of 1812 had to be considered. The question considered by the Courts, in deciding whether a written agreement to pay abwab was enforceable under Act X of 1859, was whether the amount was arbitrary or indefinite or a fixed specific sum, but there appears to have been some doubt as to whether the third clause of Regulation V of 1812 rendered valid oral agreements by raiyats to pay definite and specific sums as abwab, where there was no written engagement and where the documentary evidence consisted merely of rent receipts or of entries in the landlords'' village papers.

On the 9th January, 1885, when the Bengal Tenancy Act in its final form was about to be passed Into law, after having been recast from time to time during the previous four years, the question of whether customary abwabs could be realised from raiyats came before Full Bench of the Calcutta High Court, Chultan Mahton v. Tilukdari Singh 11 C. 175. The reference to the Full Bench in that case was in the following terms:

Whether, assuming that the abwab (sic) question have, by the custom of the estate of which the lands form part, been paid to the defendant and his ancestors for a good many years, they are legally recoverable by the plaintiffs, although they are not actually proved to have been paid or payable before the time of the Permanent Settlement?

Sir Richard Garth, the Chief Justice, (sic) fining himself strictly to the terms of this reference, held that the abwabs were no recoverable from the raiyat. Mr. Juatice Mitter, with whom the rest of the Judge concurred, based his decision on the provisions of Clause 54 of Regulations, VIII of 1793 but traveling beyond the terms of the reference, he held that the last four lines of Clause 3 of Regulation V of 1812 providing that an engagement for the payment of any sun specifically agreed upon should be enforced referred only to the amount fixed as rent excluding abwab; although Clause 3 of Regulation V of 1812 refers exclusively to formal written engagements, and no question of the effect of such engagements arose in Chultan Mahton''s case. 11 C. 175.

In 1883, while the appeal in Chultan Mahton''s case 11 C. 175 was still before the Judicial Committee, the case of Padmanund Singh v. Baij Nath Singh 15 C. 828 came before a Division Bench of the Calcutta High Court. In that case the defendant as holder of a mukarrari tenure had agreed by his covenant to pay a certain sum as rent and also certain fixed sums described in the covenant as tehwari and salami. It was held that these amounts had been payable by virtue of the provisions of Clause 3 of Regulation V of 1812 up to the date of the repeal of the Regulation in November of 1885; and that they ought to be regarded as a part of the actual rent payable in respect of the tenure. The Judges held that the matter was not affected by the decision of the Full Bench in the case of Chultan Mahton v. Tilukdari Singh 11 C. 175 for reasons which they gave in their judgment, which certainly appear to be convincing.

The following passage from the judgment of Tottenham, J., is important in this connection: "The words of Mr. Justice Mitter''s decision in that Full Bench case...do at first sight seem, to bear out the view taken by the District Judge, but I happened to be one of the Judges of the Full Bench who concurred in Mr. Justice Mitter''s judgment, and I certainly did not at the time of the decision intend to concur in holding that anything recoverable under the terms of Regulation V of 1812 could not be recovered at the present day. That Regulation has been repealed by the new Tenancy Act. But at the time the kabuliyat was given by the defendants in the present suit, it was in, full force. We have had since an opportunity of consulting Mr. Justice Mitter on this point, and he is anxious that he should not be misunderstood in this matter. He did not mean then to exclude the operation of Regulation V of 1812, where that Regulation could apply. In the case before the Pull Bench, that Regulation did not support the plaintiffs: on the contrary it was directly opposed to their claim. In the present case, the Regulation does support the plaintiffs'' case, because the items in dispute are not arbitrary and uncertain in their character, but they are specific sums which the tenants agreed to pay to the landlords; and from the terms of their kabuliyat it seems to us that the payment of these items, no less than the payment of the jama itself, formed part of the consideration upon which the tenancy was created. Therefore, the plaintiffs were entitled, by virtue of Regulation V of 1812, to demand and recover these items, they being in fact part of the rent agreed to be paid, although not so described. In the definition contained in the new Tenancy Act, ''rent'' means whatever is lawfully payable or deliverable in money or kind by a tenant to his landlord on account of the use or occupation of the land held by the tenant. There is nothing new in this, but it expresses concisely what has always been understood by the word ''rent''. What is or is not an abwab must depend upon the circumstances of each particular case in which the question arises. The Full Bench case, upon which the District Judge relies, does not, as we have said, bar the plaintiffs'' present claim. We think the plaintiffs are entitled to succeed on that point".

On the 10th of April, 1889, the case of Chultan Mahton v. Tilukdari Singh 11 C. 175 came on appeal before the Judicial Committee. The decree of the-Full Bench of the Calcutta High Court was affirmed. The basis of the decision Tilukdari Singh v. Chuttan Mahton 17 C. 131 : 16 I.A. 152 : 13 Ind. Jur. 251 : 5 S. P.C.J. 408 (P.C.) of the Judicial Committee was the dilemma put by Lord Masnaghten in tin following terms:

If the abwabs were payable at the time of the Permanent Settlement, they ought to have been consolidated with the rent u/s 54 of Regulation VIII of 1793. Not being so consolidated, they cannot now be recovered u/s 61 of that Regulation. If they were not payable at the time of the Permanent Settlement, they would come under the description of new abwabs in Section 55, and they would be in that case illegal.

In April, 1890, the question of whether certain cesses were recoverable from raiyats once more came before a Full Bench of the Calcutta High Court in the casa of Radha Prasad Singh v. Bal Kowar Koeri 17 C. 726. The Court held that the particular items in question were not recoverable, following the decision of the Judicial Committee in the case of Tilukdari Singh v. Chultan Mahton 17 C. 131 : 16 I.A. 152 : 13 Ind. Jur. 251 : 5 Sar. P.C.J. 408 (P.C.). In the course of the judgment Sir Comer Petheram remarked that the decision in the case of Pudmanund Singh v. Baij Nath Singh 15 C. 828 must be regarded as overruled by the decision of the Judicial Committee in the case of Tilukdari Singh v. Chultan Mahton 17 C. 131 : 16 I.A. 152 : 13 Ind. Jur. 251 : 5 Sar. P.C.J. 408 (P.C.).

The question of whether an agreement contained in a tenure-holder''s covenant to pay certain specific sums as abwab was enforceable again came before the Calcutta High Court in the case of Kalanand Singh v. Eastern Mortgage & Agency Co., Ltd. 19 Ind. Cas. 701 : 18 C.L.J. 83. In that case a tenure-holder had covenanted in 1874 to pay the annual sum of Rs. 4,310 of which the sum of Rs. 4,300 was described as jama, while the balance consisted of certain and definite sums payable as cesses. The Division Bench (Chitty and Teunon, JJ.), discussed the case of Radha Prosad Singh v. Bal Kowar Koeri 17 C. 726 and it was pointed out that although some of the Judges in that case had expressed the opinion that the decision in Pudmanund Singh''s case 15 C. 828 had been overruled, the facts in Radha Prosad Singh''s case 17 C. 726 and in the Privy Council case of Tilukdari Singh v. Chultan Mahton 17 C. 131 : 16 I.A. 152 : 13 Ind. Jur. 251 : 5 Sar. P.C.J. 408 (P.C.) were wholly different from the facts in the present case. The abwabs were held to be recoverable on the ground that they were really part of the consideration for the letting.

The cases of Pudmanund Singh v. Baij Nath Singh 15 C. 828 and Kalanand Singh v. Eastern Mortgage & Agency Co., Ltd. 19 Ind. Cas. 701 : 18 C.L.J. 83 have from time to time been considered in the High Court of Calcutta. On January the 12th, 1914, the decision in Kalanand, Singh''s case 19 Ind. Cas. 701 : 18 C.L.J. 83 was followed in the case of Haradas Acharyea Chaudhuri v. Abhoy Charan Dhupi 24 Ind. Cas. 58. On May the 26th, 1914, the case was again considered in the case of Kalanand Singh v. Saira 25 Ind. Cas. 540 when the Division Bench, while not expressly disapproving the decision in the case of Kalanand Singh v. Eastern Mortgage & Agency Co., Ltd. 19 Ind. Cas. 701 : 18 C.L.J. 83 considered that they were bound by the ruling in the case of Radha Prasad Singh v. Bal Kowar Koeri 17 C. 726 which held that the decision in Pudmanund Singh''s case 15 C. 828 had been overruled. This view was again taken in 1917 in the case of Bejoy Singh Dudhuria v. Krishna Behari Biswas 41 Ind. Cas. 561 : 21 C.W.N. 959 : 45 C. 259, where Sanderson, C.J., mentioned other cases in which the interpretation given by Petheram, C.J. to the decision of the Privy Council in Tilkdari Singh''s case 17 C. 131 : 16 I.A. 152 : 13 Ind. Jur. 251 : 5 Sar. P.C.J. 408 (P.C.) had not been adopted. In Bejoy Singh Dudhuria''s case 41 Ind. Cas. 561 : 21 C.W.N. 959 : 45 C. 259 it was decided that each case must depend upon the proper construction of the contract before the Court. If upon a fair interpretation of the contract it can be seen that a particular sum is specified or agreed to be paid as lawful consideration for use and occupation of the land, that is to say, if it is really part of the rent, although not described as such, the landlord can recover it. In 1916, the question came before the Patna High Court in the case of Sadanand Tewari v. Deb Nath Manjhi 37 Ind. Cas. 983 : (1917) Pat. 287 : 3 P.L.W. 270 when the decision in Kalanand Singh v. Eastern Mortgage & Agency Co., Ltd. 19 Ind. Cas. 701 : 18 C.L.J. 83 was followed. The learned Judges held that the question for decision was whether the separate items claimed were actually part of the total rent pay able for the land.

An obiter dictum of Sir Comer Petheram is, of course, entitled to respect, but in our view, if we may say so, his remark that the decision of Pudmanund Singh''s case 15 C. 828 had been overruled by the decision of the Privy Council in Tilukdar Singh''s 17 C. 131 : 16 I.A. 152 : 13 Ind. Jur. 251 : 5 Sar. P.C.J. 408 (P.C.) was not correct. All that was decided by the Full Bench in Tilkdari Singh''s case 11 C. 175 was that neg and certain other abwabs which had been added to produce rent paid by raiyats for an indefinite period, were not recoverable. In Radha Prosad Singh''s case 17 C. 726 the question which the Full Bench had to decide was of a similar nature. The decision in Pudmanund Singh''s case 15 C. 828 was based upon the interpretation of the third clause of Regulation V of 1812, as applied to the written patta and kabuliyat creating a permanent tenure. The decision of the Judicial Committee in Tilkdari Singh''s case 17 C. 131 : 16 I.A. 152 : 13 Ind. Jur. 251 : 5 Sar. P.C.J. 408 (P.C.) was based exclusively on the interpretation of certain clauses in Regulation VIII of 1793 which affected only abwabs imposed upon raiyats. It should not be held that their Lordships by that decision affirmed obiter dicta which they had no occasion to mention, and so tied down Mr. Justice Mitter and Mr. Justice Tottenham to these dicta which they had already repudiated at the first opportunity. We would, therefore, say with due respect that the view taken by the learned Judges who decided the case of Kalanand Singh v. Eastern Mortgage Agency Co. Ltd. 19 Ind. Cas. 701 : 18 C.L.J. 83 is correct and the decision in the case of Pudmanund Singh v. Baij Nath Singh 15 C. 828 has not been overruled.

Therefore at the time when the Bengal Tenancy Act came into force, a written agreement by a permanent tenure-holder, entered into when his tenure was created, to pay a certain specific sum, by whatever term any particular items may have been described in the covenant, was enforceable by the Courts, and the whole sum agreed upon was the rent payable for the tenure.

If in 1885 a tenure-holder had no right to refuse to pay any part of the whole specific sum which he had agreed to pay by the terms of his covenant, the defendant''s case must rest exclusively upon the terms of Section 74 of the Bengal Tenancy Act, which provides that all impositions upon tenants under the denomination of abwab and mathut or other like appellations, in addition to actual rent, shall be illegal and that stipulations and reservations to pay such cesses shall be void. The effect of this provision of law is clearly to make such impositions illegal when they are imposed in addition to the actual rent. In the case of a permanent tenure which had come into existence before the passing of the Bengal Tenancy Act, the actual rent would be the amount recoverable as rent under Clause 3 of Regulation V of 1812, that is to say, the whole specific sum which the permanent tenure-holder agreed to pay when his tenure was created, whether it contained abwab or whether it did not. We, therefore, consider that in this case the sum of Rs. 47 though it may have been described in the covenant of 1872 as abwab is a part of the actual rent; it is not an imposition in addition to the actual rent, of a kind which would be illegal by the provisions of Section 74 of the Bengal Tenancy Act.

In the case of AIR 1927 250 (Privy Council) the defendant''s argument was that the amount described as malguzari in his lease was his actual rent, and the specific payments which he understood to make under various heads in addition to the malguzari were something other than rent. This view was not accepted by the Judicial Committee who held that it was impossible to take the first item as being actual rent and the rest as abwab when they were all included in the total, which was expressly stated as the annual rent payable in the present case, the argument of the learned Advocate for the respondents is that the item of mal is annual rent and that the abwab of Rs. 47 is an imposition added to the actual rent. But both in the body of the lease and in the foot of it we find that the tenure-holder covenanted in 1872 to pay a uniform annual jama of Rs. 1,423; and though this was made up of Rs. 1,376 mal and Rs. 47 a year abwab, the whole sum of Rs. 1,423 would appear to be the actual rent of the holding. If malguzari is not to be regarded as necessarily a definition of actual rent, still less can the term mal be so regarded. And when we have the annual jama distinctly specified at Rs. 1,423 it would be difficult to hold, in view of the decision of the Judicial Committee to which reference has been made, that nothing other than the mal is the actual rent of the holding, if it were not for the fact that the balance is definitely described as abwab. The fact that the total is described as jama would probably entitle the plaintiff to his decree; but it was not necessary for him to enter into a discussion of the meaning of the term mal in the defendant''s covenant. Any definite and specific sum which a permanent tenure-holder agreed to pay by a formal kabuliyat executed on the creation of a permanent tenure created before the passing of the Bengal Tenancy Act is part of the actual rent within the meaning of Section 74 of the Bengal Tenancy Act; and the plaintiff is entitled to succeed on that ground alone. The decree of the lower Court is accordingly set aside. The appeal is allowed and the plaintiff''s suit is decreed with costs throughout.

Das, J.

I agree.