Hari Bhusan Ash vs Jnanendra Nath Chakravarty

Mookerjee, J.—The only question in dispute in the present appeal is whether the landlord Plaintiff is entitled to claim education cess in addition to the rent which was fixed under the patni lease dated June 6, 1879. Both the courts below have found against the -Plaintiff. The relevant portion as appearing in the patni lease, dated June 6, 1879, is as follows:

Reliance has been placed on various decisions of this Court and of the Patna Court for convincing us that on the terms of the present contract the landlord did not contract under his right which might enure to his benefit by any subsequent legislation. The authorities are now well settled that the right which is given to the landlord to realise amounts of road cess u/s 41 of the Cess Act (IX of 1880) is neither an exhaustive provision, nor is the said provision prohibitive of contracts between, parties. It does not bar contracts by which a tenant is made to pay either the whole cess or the landlord is required to pay the entire amount of the cess, Ashutosh Dhar v. Amir Mollah (1900) 3 C.L.J. 337 Pitamber Choudhury v. Sheikh Rahmat Ali ILR (1921) 1 Pat. 218 and Mahanand Sahai v. Sayedunnissa Bibi (1907) 12 C.W.N. 154. The same principle applies in the case of the Rural Primary Education Act. The liability which is imposed u/s 29 and 30 of this Act is, u/s 32 of the same Act, subject to the provisions of the Cess Act of 1880, as far as possible, to the assessment, levy, payment and recovery of the primary education cess. There is no question and it has not been controverted before us, that the principles enunciated by this Court while interpreting Section 41 of the Cess Act are equally attracted while interpreting Sections 29 and 30 of the Rural Primary Education Act. If the legal right which a person has got, to realise certain amounts from another, or the legal liability of another to make a payment is attempted to be proved to have been contracted out, it must be shown clearly that the parties had intended to do so. So far as the then existing impositions are concerned, the terms of a contract may very often limit the rights of the landlord to realise the same.

Difficulties, however, arise when fresh impositions are created under future statutes. It had been laid down and it has not been questioned before us also, that in such a case there must be, on a reading of the contract as a whole, the clear intention of the parties that all future impositions were also thought of.

In the present case there is not only specific provision about and reference to the then existing impositions but it is clearly stated that the tenant will not be liable to pay anything in excess of the amount fixed for whatever reason. The landlord gave up his right even to have a survey of the property or to claim additional rent for additional area. All future impositions on the property, in whatever manner they might be, were to be paid by the landlord and the landlord makes him liable if such impositions are not paid by him.

From the use of the words used and in this document it is quite evident that the parties were thinking not only of the actual rent which was payable by the tenant to the Zemindar but also the liability to pay all other kinds of impositions, whether such impositions are in the mature of cesses or otherwise.

Reliance was placed upon the cases of Balwant v. Biswanath ILR (1945) 24 Pat. 307 and Hymayun v. Harendra ILR (1945) 24 Pat. 438 in support of the proposition that even where there is a reference to future impositions being included within the amount of rent fixed, the courts had held that such inclusion did not debar the landlord from claiming the amounts under future statutes. In both these cases there is no such negative provision as I have indicated already, by which the landlord debars himself from realising anything in excess of the amount fixed in perpetuity as the total amount payable by the tenant for the entire tenancy. The double negative which appears from the passage quoted already, distinguishes this case from both the decisions referred to above.

The terms of the present contract are so very clear and specific that there is no escape from the conclusion that the Zemindar had in 1879 fixed the total amount of rent payable by the tenant to him to be inclusive of all local and public charges payable in respect of that tenancy or which might be imposed at any future date.

In view of the interpretation of the patni lease dated June 6, 1879, it becomes unnecessary to consider the other points as to whether the earlier decision between the parties in Rent Appeal No. 170 of 1925 dated August 13, 1926, raises a bar of res judicata or not. It might have been argued that, that decision was on the question of liability of the tenant in respect of the road cess payable under the Cess Act and not the amount of education cess payable under, the Rural Primary Education Act, 1930, but as we have come to the decision on an interpretation of the lease in question that no extra amounts are payable by the tenant we need not consider this point any further.

This appeal is accordingly dismissed but in the circumstances of this case each party will bear his own costs in this Court.

Chunder, J.

I agree.