Kuman Dass vs Tilakdhari Singh

Dawson Miller, C.J.—The plaintiff in this case sued the defendant as his tenant to recover rent in respect of a holding measuring 18 bighas 18 khatas 15 dhurs at the rate of Rs. 15 per bigha. The defence set up amongst others was that the rent was payable under contract entered into by the tenant in the year 1902 and expiring in the year 1910, that the original rent under that agreement was Rs. 15 for the whole holding for the term with a stipulation that on the expiry of the term in 1910 if the tenant should remain in possession the rent should be increased to Rs. 15 per bigha, and that this clause in the contract was by way of penalty and ought not to be enforced. It is further contended amongst other things that the bargain was unconscionable and that the defendant had been compelled to submit to these terms owing to undue influence on the part of the plaintiff.

It is unnecessary to deal with all the points that were raised in the lower Courts and which were decided against the defendant but the Munsif and the Officiating Subordinate Judge on appeal found that the stipulation of payment of higher rent was penal and, therefore, could not be enforced and agreed with the Munsif in decreeing the suit for Rs. 15 a year plus cesses as provided during the term under the original agreement.

The question which arises before us in this appeal is whether such a stipulation was penal or not. In my opinion the clause was not introduced into the lease by way of penalty. The material clause in the lease which we have had translated somewhat literally reads as follows: "After the expiry of the term I shall give up the land and I shall remove from possession and it will be open to the landlord without notice to settle the land with any one he likes." That clause is the usual one introduced into such leases but it is quite unnecessary. At the end of the term the tenant, unless he has acquired an occupancy right, which is not the case here, will be bound to give up the land and if he remains in possession he will be a trespasser and may be ejected by the landlord. It then proceeds: "Should under any circumstances the land remain in my possession without taking a fresh patta either a portion or of the whole, then I shall pay at the rate of Rs. 15 per bigha per annum for the entire land aforesaid whatever it may be." The words translated ''whatever it may be'' are ''jo hoga''. It seems to me that a clause of that sort cannot be construed as a penal Clause The term came to an end by efflux of time in the year 1910 and the tenant was bound then to give up the land to the landlord. If he did not do so, he would be a trespasser, But under the terms of the lease he is given an opportunity to remain on the land as a tenant on payment of a rental of Rs. 15 per bigha. Such a clause is certainly not a penalty. It is not introduced into the lease to compel the performance of an act stipulated in the contract. It is merely an option given to the lessee which he may accept or reject as he chooses. The same question has arisen in this Court on more than one occasion and has been determined in the sense in which I have just indicated. Those cases do not seem to have been reported, but they are: Second Appeal No. 1135 of 1917, decided by Jwala Prasad, J., Second Appeal No. 992 of 1917, decided by the same Judge; Second Appeals Nos. 397 and 398 of 1919, decided by Adami, J., and whose decision on appeal was affirmed under the Letters Patent; Second Appeal No. 737 of 1919, decided by Adami and Bucknill, JJ.; and a recent case decided this year in Second Appeal No. 1602 of 1924 [Kuman Das v. Kachali Mandal 105 Ind. Cas. 20] by Mr. Justice Wort. In those cases the Court took the view in somewhat similar circumstances that a clause of this sort was not a penalty and could be strictly enforced.

It was further contended that the bargain itself was oppressive and unconscionable and obtained by undue influence on the part of the landlord. It may be that the stipulation is a hard one looked at from one point of view; but it is merely an option given to that tenant to retain the land in his possession if he likes at an increased rental which after all is a much better bargain to him than if no such stipulation were contained in the contract, The landlord could in that case legally eject him if he refused to go. It cannot, therefore, to my mind be said that there was anything unconscionable or oppressive about such a bargain. Moreover, it is found as a fact by the lower Appellate Court as follows: "There is absolutely no evidence worthy of credit to prove that the defendant was compelled to submit to the terms appearing in the kabuliyat or that any undue influence was exercised or could be exercised by the plaintiff in connection with it. The defendant himself does not even speak of any compulsion or undue influence." In these circumstances, I am of opinion that the learned Subordinate Judge of the lower Appellate Court is wrong in arriving at the conclusion that this stipulation in the contract was a penal one and that he ought to have passed a decree for rent at the rate claimed, namely, Rs. 15 a bigha.

The appeal will be allowed and in lieu of the decree passed there will be a decree for the amount claimed, namely, Rs. 1,064-6 0 which is the rent at Rs. 15 per bigha for the years in suit together with cesses. The decretal amount will carry interest from the date of the suit at six per cent. per annum until realisation. The appellant is entitled to his costs here and in both the Courts below.

Mullick, J.

I agree.