Momuddin Misra vs Surendra Kumar Roy

Courtney-Terrell, C.J.—This is a first appeal from a decision of the Subordinate Judge of Purnea in a suit for the recovery of rent for the years 1332, 1333 and 1334, together with interest at the rate of 12� percent per annum as provided by Section 67, Ben. Ten. Act. No question arises as to the liability of the defendants to pay the amount of the rent agreed upon. The substantial dispute is as to the amount of Rs. 6,000, which has been computed as interest at the rate of 12� percent per annum on the instalments of rent in arrear. A reference is made to the terms of the lease by which the tenancy was created and it is pointed out that the lease is one for a permanent mukarrari tenure.

That is not disputed. Accordingly it is said that the situation is governed by Section 179, Ben. Ten. Act. Reference is made to the terms of the document in which there is no specific provision for interest being payable upon kists in arrear. Section 179, Ben. Ten. Act, is as follows:

Nothing in this Act shall be deemed to prevent a proprietor or a holder of a permanent tenure in a permanently settled area from granting a permanent mukarrari lease on any terms agreed on between him and his tenant.

It is contended that the proper construction of this section is that when a lease is found conferring a permanent tenure in a permanently settled area the terms of the lease must be looked at without reference to the Act and that whereas the general law in the case of overdue debts is that unless specific provision is made for the payment of interest no interest is recoverable; therefore under the terms of a tenancy of this kind the tenancy making no specific provision for payment of interest is equivalent to a contract that no interest shall be payable upon overdue instalments, and being construed by the ordinary law standing by itself and without reference to the Bengal Tenancy Act, that interest is not recoverable.

On the other hand the contention is put forward and I think rightly put forward that the true construction of Section 179 is that it is a permission to landlords and tenants in the case of a creation of a permanent tenure in a permanently settled area to contract out of the Act and that whereas the general law created by the Bengal Tenancy Act as applicable to the relationship of landlord and tenant will apply to a permanent mukarrari lease, the parties are at liberty to make a specific provision for the elimination of such terms as may be imposed by the Act as they may select to eliminate. In my opinion, this view of the construction of the Act is right. That this construction has been followed is clear and two cases have been cited to us as examples of the application of that construction. In the case of Matangini Debi v. Mokrura Bibi (1902) 29 Cal 674 the Pull Bench of the Calcutta High Court took Shis view. In that case the plaintiffs sued the defendants for arrears of rent due on a permanent tenure. The kabuliat itself under which the tenancy was created provided for express rate of Rs. 3/2 percent per month.

The learned Munsif nevertheless awarded interest at 12 per cent as laid down in S.67, Ben. Ten. Act. The learned District Judge on appeal from the Munsif awarded interest at the stipulated rate holding that it was open to the parties to make an express contract on their own account and apart from the Act. The view of the majority of the High Courts was that whereas Section 67, Ben. Ten, Act applied to the general law governing the relationship of landlord and tenant, Section 179 was a particular and specific arrangement enabling the parties to contract out of the Act, and the plaintiff was entitled only to the interest specified in the kabuliat. That is an instance of the case where there had been a specific contract on the part of the parties and that overrode the general provisions of the law.

In the case of Ajeb Bharthi v. Ram Narain Singh AIR 1914 Cal 655, there was an absence of any specific contract for the payment of interest. In that case instead of applying Section 67, Ben. Ten. Act, Section 68 had been applied which allows in lieu of interest on overdue amounts a certain sum as damages. The District Judge had disallowed the claim for damages. The contention of the tenant, who was the respondent to the appeal to the learned Judges of the High Court, was that the intention of the parties as conveyed by the terms of the lease was that no interest should be payable and also that under the terms of Section 179, Ben. Ten. Act, neither Section 67 nor S.68 applies, the lease being of a permanent mukarrari nature. The learned Judge in that case used these words in deciding the case:

"In the absence of any express or implied contract to the contrary, I am of opinion that the landlord is clearly entitled to the benefit of the general law with regard to the payment of interest on arreara of rent, that is to say, he is entitled to the benefit of Sections 67 and 68, Ben. Ten. Act."

The general law there was treated as the law laid down for the governing of the relationship of landlord and tenant as provided by the Bengal Tenancy Act and there were no express terms in the tenancy agreement which removed the general terms provided by the Act. Another case was cited to us which has not been reported, but which was shown to us; a certified copy was produced of the judgment of a Bench of the High Court of Calcutta. The reference to the case is Second Appeal No. 370 of 1902, decided on 20th July 1904. In that case the learned District Judge had awarded u/s 68 a sum for damages and the contract contained no clause providing for the payment of interest and the award of damages was supported by two of the learned Judges of the Calcutta High Court.

In my opinion, it is clear that the proper construction of Section 179, Ben. Ten. Act, is that the parties have a right to contract out of the Act. I must admit that at first I was strongly attracted to the argument advanced by Sir Sultan Ahmad in opening the appeal that when once it was found that the lease related to a permanently settled'' area the terms of the contract both express and implied under the general law and quite apart from all other terms of the Bengal Tenancy Act governed the situation and that therefore no reference could he made to any of the terms of the Bengal Tenancy Act. I am, however convinced that the view which really led to the reference of this case to the Pull Bench was erroneous. I would dismiss this appeal with coats.

Kulwant Sahay, J.

I agree.