Harendra Nath Chatterjee vs Bhakkul Mondol

P.N. Mookerjee, J.—This appeal raises a question which has often come up before the Courts but on which the decisions are not uniform and are clearly not wholly reconcilable. The question relates to recovery of rent and it arises when in the relevant document there is mention of a rent in kind along with a money value for the same, the point being whether the decree should be for the rent in kind, i.e., for its market value at the date when it had actually fallen due, or whether it should be for the money value as mentioned in the document. Usually, such cases have arisen upon old pattas and/or kabuliats, at the dates whereof the value of paddy and/or straw was extremely low and generally, therefore, the landlord has insisted on payment in kind or its equivalent money value at the date of its falling into arrears while the tenant has claimed the right to pay the money equivalent as mentioned in the lease. This controversy has not always been easy to determine and it is not surprising, therefore, that the judicial decisions on the point do not appear to be wholly reconcilable. One thing, however, is clear that the question has almost always been treated as one of intention-the original intention of the parties as appearing primarily from the document of lease and naturally, therefore, the construction of that document has been held to be of prime importance. This was pointed out by me in one of the recent cases where I had occasion to consider this question, viz., the case of Dolgobinda Kower v. Abdul Rejak Mondal and Ors. S.A. 953 of 1948 decided on June, 20, 1952, and I have heard nothing in this case which would warrant a different approach.

Turning now to the facts of the present case, the suit is one for recovery of arrears of rent (with the usual cesses) for the period 1350 to 1353 B.S. of a jama of 4 bighas 16 cottahs of land. In the cadastral survey khatian, ex. (1), the jama is recorded as mokrari raiyati with occupancy rights bearing a rental of Rs. 8-10 as. in cash and 1 ari-6 katis of paddy, there being no mention of the money value of the paddy in the settlement records. The cadastral survey khatian, however, mentions a registered patta, dated April 1, 1891, as the document creating the jama in suit. This patta is ex. B in the present case and there is no dispute now that the tenancy in suit is governed by this document, ex. B. In the patta, ex. B, which is described as a mourashi mokrari patta, the annual rent is mentioned as Rs. 8-10 as in cash and 1 ari 6 katis or fourteen katis of paddy valued at Rs. 3-8, the total being Rs. 12-2 as.

It will be convenient to set out here the relevant part of the patta, ex. B, which runs, inter alia, as follows:

In the schedule the kists are mentioned as follows:

In the plaint the claim was laid on the basis of the cash rent of Rs. 8-10 as. and the paddy rent of 1 ari 6 katis at the market rate of Rs. 10 per ari alleged to be prevailing at the date of the suit. The tenant''s defence was that the landlord was not entitled to a rate exceeding Rs. 12-2 as. per annum, that being the total consolidated money value of the rent as mentioned in the patta, ex. B, viz., Rs. 8-10 as cash and Rs. 3-8 as., the price, as stated in the said ex. B, of the paddy rent of one ari 6 katis. This defence succeeded in the two Courts below which gave the Plaintiff landlord a decree for rent at the rate of Rs. 12-2 as. per annum. The landlord has now come up in second appeal.

In support of the appeal, Mr. Chatterjee has placed strong reliance upon the cases of Baneswar Mukherjee v. Umesh Chandra Chakrabarti. ILR (1910) 37 Cal. 626, Basiruddin Baiddy v. Hari Mohan Ghose (1917) 39 I.C. 720, Hem Chandra Jelia and Ors. v. Satya Kinkar Sen and Ors. (1925) 43 C.L.J. 171, Sreemati Jogendra Kumari Dassya and Anr. v. Jogendra Nath Dutta and Ors. (1928) 49 C.L.J. 274, Sarat Chandra Roy v. Abbas Mondol (1917) 21 C.W.N. CXL (n), and Juran Mondal and Ors. v. Ram Mondal and Ors. ILR (1927) Cal. 808, and Mr. Banerjee appearing for the tenant Respondent has sought to support the decision of the two Courts below on the authority, in particular, of the cases of Dwarika Nath Mukherjee v. Dwijendra Nath Ghosal and Ors. (1897) 30 C.L.J. 37, Ashutosh Mukhopadhya and Another Vs. Haran Chandra Mukerjee and Another , Saroj Bandhu Simlai Vs. Mati Lal Ghose and Others, , and Bangshiram Mandal and Others Vs. Prasannomoyi Debi and Another, ,.

The cases cited by the parties undoubtedly lend considerable support to their respective contentiops. But, as pointed out by me in my decision in Dolgobinda Kower v. Abdul Rezak Mondal and Ors. (Supra), to which reference has already been made, there is, notwithstanding a patent conflict between the two lines of cases, one common feature in them, namely, that all of them proceed on the footing that the whole thing rests on the intention of the parties as appearing primarily from the relevant document of the lease or, in other words that the construction of the relevant terms of the tenancy in question furnishes the real solution. That, indeed, is the guiding principle, deducible from the decisions cited, and is, in short, the essence of the said decisions. It was also pointed out by me in that case Dolgobinda Kower v. Abdul Rezak Mondal and Ors. (supra) that, beyond what has been stated above, no general rule guiding such cases could possibly be laid down. Generally speaking, it is hardly safe to interpret the language of one contract with the help of another, particularly where the parties are different. The circumstances also may not be quite or even sufficiently similar. The decisions cited, therefore, are not of much assistance beyond indicating the true approach, namely, that the relevant intention has to be found out and for that purpose the contract between the parties is to be primarily construed and in that connection the effect of the presence or absence of particular clauses may have to be carefully noted. This is clearly laid down in the very exhaustive and well-considered judgment of N.R. Chatterjee, J., in the case of Gurudas Sen v. Gobinda Chandra Sinha and Ors. (1919) 24 C.W.N. 85, which is generally accepted as the leading case on the subject and also by Suhrawardy, J. in Miran Mondal and Ors. v. Ram Mondal and Ors. (Supra), to which reference has already been made; and it also sufficiently appears from the other cases cited before me, I accordingly, proceed to ascertain from the patta, ex. B, the real contract between the parties as to the rent in dispute.

The relevant clauses in the patta, ex. B, have already been quoted. On a reading of the same, it seems to me that the rent was fixed at Rs. 8-10 as. in cash plus 1 ari 6 katis of paddy, i.e., partly in cash and partly in kind. The value of the paddy, mentioned in the patta, ex. B, appears to me only to refer to the then market rate and it does not seem to have been intended to be fixed for ever. It had to be given for the purpose of ascertaining the stamp duty and for the purpose of registration and without it the document would not have been complete. That the intention was to fix the rent partly in cash and partly in kind receives clear confirmation from the kists of payment as mentioned in the document, namely, the cash in Bhadra and the paddy in Magh.

I may also usefully recall here the very pertinent observations of N.R. Chatterjee J., in the leading case of Gurudas Sen v. Gohinda Chandra Sinha (Supra), already cited, at p. 92 of the report which run as follows:

Contracts for payment of bhag paddy.... are very common, and it is well known that middle-class people, specially of the bhadralogve class who cannot cultivate lands themselves, let out their lands for getting paddy for the consumption of their family, and in some cases the bhdg paddy is the only means of subsistence of the family. A certain value has to be fixed for the paddy in the katuliyat, not only for the ascertainment of the registration fee, but also (and specially) for fixing the stamp duty payable, though it is not so expressly stated in the kabuliyat. It is said that the parties may agree as to the value of the paddy in order to avoid disputes and the going into any question as to the value in the event of its nondelivery. But that would be a question of intention, and if it is clear from the kabuliyat (for instance where it is provided that the paddy is to be delivered in a particular month or measured with a certain measure) that it is only paddy which the parties intended should be paid, it would be inconsistant with that intention to hold that a fixed sum (which might be a wholly inadequate value of the paddy at the date of the suit) was agreed upon to be paid in the event of non-delivery of the paddy in order to avoid any question as to its value, in cases where the value is merely mentioned without any express stipulation to pay such value in the event of non-delivery of the paddy.

It is a matter of great hardship in such cases, as the value of the paddy at the date of the kabuliyat might be one rupee a maund, while at the date of the suit, it might be four rupees per maund, and if he is to get the value of the paddy mentioned in the kabuliyat, he would get only one-fourth of the paddy agreed upon to be paid.

Proceeding the learned Judge went on to observe further:

A distinction may perhaps be drawn between such cases, and cases where there is an express stipulation to pay the sum mentioned in the kabuliyat as the value of the paddy in the event of its non-delivery.

Broadly speaking, this distinction seems to be not without importance and, leaving aside the question whether it is decisive in all cases, there can be little doubt that it has great practical value and ought not to be overlooked or lightly discarded.

In the present case, viewing the matter as a whole, it seems to me that the money values of Rs. 3-8 as. and Rs. 12-2 as. in the patta, ex. B, were not intended to be fixed for ever. It is no doubt true that under the patta, ex. B, the jama was mourashi mokrari or, in other words, the rent was fixed and fixed permanently and forever. But such fixation was of the rent which was partly in cash (Rs. 8-10 as.) and partly in kind (1 ari 6 katis or fourteen katis is of paddy) and not of the money values (Rs. 3-8 as. and Rs. 12-2 as.) appearing in ex. B, these latter being merely figures given in the document for its completion on the basis of the then current rate for paddy; and I am unable to hold that the words and as used in the patta, ex. B., to which Mr. Banerjee drew my particular attention and which I have underlined in the extract, quoted above, point to any different conclusion.

The words only mean the jama fixed,-not necessarily any fixed cash jama or any money value fixed for the rent in kind or for the total jama; and in this case they would mean the rent fixed partly in cash and partly in kind, as found above. The words are followed by the words and, as already stated, the kists mentioned are: one for the cash in Bhadra and the other for the paddy in Magh. The words therefore, refer to the whole rent reserved, namely, the rent in cash and in kind, and do not indicate any fixed money rent. The words in the expression" on which too reliance was placed by Mr. Banerjee, cannot help the tenant in the present case. in the clause referred to, obviously denotes "rent", or the entire rent, partly in cash and partly in kind, but even conceding that the word refers only to the total money value as mentioned in the earlier part of the document such payment-that is, the payment under this clause, is contemplated only in case of failure of crops by drought or inundation thus bringing the present case close to the case of Gopal Chandra Mondal and Ors. v. Prasannamoyi Delhi and Anr. (1924) 32 C.W.N. 467. At the most it will entitle the tenant to pay the said money value at his option only in case of drought or inundation and would thus be of no avail to the Defendant in the present case, there being no allegation to that effect anywhere made. I had some difficulty with the word in view particularly of the two decisions of very learned Judges reported in Dwarika Nath Mukherjee v. Dwijendra Nath Ghosal and Ors. (Supra) and Ashutosh Mukhopadhaya and Anr. v. Haran Chandra Mukherjee and Ors. (Supra), but after giving the matter my best consideration I am unable to hold that it is of any great or special significance in the present case. The patta, ex. B, does not contain the words or or as in the two cases cited. The words here are and in the context the word does not, in my opinion, connote fixity of the money value for ever. The dictionary meaning of the word is "having fixed, settled, determined or ascertained". It may mean "having fixed forever". But it does not necessarily mean so; and it does not always mean "having "fixed forever" [vide, FJatindra Nath Raha and Ors. v. Keramatali Sheikh and Ors. (1934) 39 C.W.N. 1244]. In the clause quoted the word means, in my opinion, "having "determined." It does not connote fixity of the money value. It no doubt refers to the fixation of the total money value, viz., Its. 12-2 as. but that means only that the money value was determined on calculation in accordance with the figure given as value of the paddy rent immediately before. It has been argued by Mr. Banerjee that the patta, ex. B, being admittedly a mourashi mokrari patta the word in the clause quoted refers to the permanent fixation of the jama or rent. That, however, would not necessarily imply fixation of the money value for ever. The permanent fixation would be of the rent in cash and kind, and the word read in that light would imply only fixity of that rent, viz., the rent in cash (Rs. 8-10 as.) and the rent in kind (paddy-1 ari 6 katis or 14 katis), the intention of the parties or the predominant idea in the patta, ex. B, clearly being that the rent would be partly in cash and partly in kind. I do not, accordingly, find anything in the word to compel me to hold that in the patta, ex. B, the money value of the paddy rent was fixed for ever, or, in other words, that a fixed money rent in the alternative at the option of the tenant was contemplated by the parties.

What I have held above is fully consistent with the mourashi mokrari character of the patta, ex. B. The jama is no doubt fixed and permanent (mourashi mokrari) but that would not necessarily imply fixity of the money value, as a fixed rent in kind or a fixed rent partly in cash and partly in kind would also be quite in keeping with the mourashi mokrari character of the jama. The rent would no doubt be fixed or invariable but that element of fixity would be clearly satisfied if the rent in kind or the rent, partly in cash and partly in kind, that is, the cash portion and the portion in kind, as the case may be, be fixed or constant, just as in the case of a mourashi mokrari jama at a money rent, the money figure must be invariable. It would not necessarily require any fixed money value for the rent in kind for all times to come.

It is also important to note that in the present case there is no clause that in case of default of payment the tenant would be entitled to pay only the money value as fixed in the document of lease or that in case of such default that money value alone would be recovered or recoverable as in Dolgobinda''s case (decided by me on June 20, 1952) and in numerous other cases where the money value, mentioned in the document, was held to be fixed and binding upon the parties for ever. There is also in the present case no provision for money payment in the alternative in discharge of the liability for rent as in the case of Official Trustee of Bengal v. Benode Behari Ghosh Mal ILR (1923) 51 Cal. 943.

I may point out further that the acceptance of the Respondent''s contention on the construction of the patta, ex. B, and affirmance of the findings of the two Courts below on that point would virtually abrogate the rent in kind and make the tenancy in suit one at a fixed money rent. Reference to the paddy rent in the patta and to the hist for its delivery would thus become practically meaningless. In the absence of compelling circumstances such a result ought to be avoided and I find no adequate reason in the present case to justify a departure from this normal rule.

I hold, therefore, that the landlord Appellant is entitled to the rent of Rs. 8-10 as plus 1 ari 6 katis of paddy or its market value, and is not limited to the money figure of Rs. 12-2 as., mentioned in the patta for the total rent, or the money figure of Rs. 8-8 as. there mentioned for the paddy rent, in lieu of the rent in kind. The decisions of the two Courts below on this point cannot, therefore, stand, and their decrees must be modified.

As to the market price at the relevant dates, i.e., when the rents fell due in the years in suit, the evidence in the case reasonably points to an average of Rs. 7-8 as. per ari or Rs. 13-2 as. for the 14 katis of paddy rent, which, together with the cash rent of Rs. 8-10 as., would entitle the Plaintiff to a decree for rent at the rate of Rs. 21-12 as. per annum for the years in suit. The Plaintiff will also get proportionate cesses and damages.

In the result, therefore, this appeal is allowed in part. The judgments and decrees of the two Courts below are modified and the Plaintiff''s claim for rent stands decreed at the rate of Rs. 21-12 as. per annum with proportionate cesses and damages. The Plaintiff will also get proportionate costs in the trial Court. But in this Court and in the Court of appeal below the parties will bear their own costs.

Let a fresh decree be drawn up by the trial Court in terms of this judgment.