Sailabala Dassi vs Braja Nath Ray

Mookerjee, J.—These two appeals arise out of two suits brought by the Plaintiff-Respondent for the recovery of arrears of rent, road cess and education cess. The tenants-Defendants admitted the amount of rent claimed, but resisted the Plaintiff''s claim so far as the cesses under the Bengal Cess Act (Ben. IX of 1880) and education cess under the Bengal (Rural) Primary Education Act (Ben. VII of 1930) were concerned. The trial Court overruled the objections raised by the Defendants and decreed the Plaintiff''s claim in full. This was affirmed by the learned district Judge. On second appeal to this Court, that decision has been upheld. In the appeals now before us, the tenants-Defendants have not pressed their objections so far as the claim for road-cess is concerned. The only point now raised is that under the contract entered into between the landlord and the tenants, the tenants are not liable to pay any portion of the education-cess to the landlord.

The tenancies in question were created by a patni-putta executed in March, 1873, long before either the Bengal Cess Act or the Bengal (Rural) Primary Education Act had come into force.

On behalf of the tenants it is contended that the contract as evidenced by the patni-putta (Ex. C) disentitles the landlord from claiming any share of the education-cess as the landlords would otherwise have been entitled to u/s 30 of the Bengal (Rural) Primary Education Act. The relevant provision in the patni-putta on which reliance is placed by the tenants runs as follows:

Neither myself nor my successors-will ever be entitled to interfere with this lease or the rental as fixed. If the Government makes any imposition or assesses any tax upon the mahals with respect to the zamindary you will not have to pay it. You will not be also entitled to claim any reduction of the rent as fixed on any ground whatsoever.

The tenants-Defendants contended in the Courts below, as also in this Court, during the hearing of the second appeal, that in view of the express stipulation referred to above neither the road-cess nor the education-cess was payable by the Defendants: As indicated already, during the hearing of the present appeal before us the tenants-Defendants did not make any further attempt to argue that the road-cess was not payable by them. So far as the liability to pay the road-cess is concerned, the same is regulated by the Cess Act (Ben. IX of 1880). Cesses are payable in the first instance by the zamindars to the Government according to certain rates fixed under the Cess Act. The zamindars in their turn are entitled to re-imburse themselves, in part of the amount paid by them to Government and that from the tenure-holders and other tenants under them. The liability of tenants of different grades to pay their respective landlords a share of the road-cess is also determined in terms of the provisions contained in the Cess Act. The liability of the different grades of tenants as u/s 41 of the Cess Act, by the holders of an estate, a tenure-holder or a cultivating raiyat, may be imposed upon them unless there is a clear provision between a landlord and a tenant under him under which the landlord has given up the right to realise the amount of cesses from the tenant under him. It has been repeatedly held that Section 41 of the Cess Act is neither exhaustive nor does it prohibit or invalidate the contract under which one of the parties, either the landlord or the tenant, undertakes to pay the whole of the road-cess.

Shumbhu Nath Mookhopadhya v. Hurro Sundari Debi Chowdhrani (1882) 11 C.L.J. 140; Ashutosh Dhar v. Amir Mollah (1900) 3 C.L.J. 337; Narendra Kumar Ghose v. Gora Chand Poddar ILR (1906) Cal. 683; Mahanand Sahai v. Sahedunissa Bibi (1907) 12 C.W.N. 154; Krishna Chandra Basu v. Mohendra Nath Basu (1910) 13 Cri. L.J. 212; Gobinda Chandra Saha Sardar v. Lalit Mohan Roy (1915) 22 C.L.J. 571; and Hymayun v. Harendra ILR (1945) Pat. 438.

It is also well settled that the terms of a covenant which have the effect of depriving a person of his statutory rights must be construed strictly. If there is any ambiguity in the terms, a construction, which is in favour of maintaining the statutory right, should be adopted. Hem Chandra Naskar v. Rai Harendra Lal Roy Estate, Ltd. (1945) 49 C.W.N. 634.

In Mahanand Sahai v. Sayedunissa Bibi (supra) this Court observed that when an exemption was claimed from the statutory liability, the contract under which the exemption was claimed must be strictly construed against the claimant. It must appear from the terms of the contract, beyond the possibility of any dispute, that the parties intended to vary the liability as imposed by the statute. It was also laid down, as a well-established rule, that where exemption is claimed from taxation imposed by the statute not only should the parties be proved to have contracted themselves out of the statutory provisions, but that the construction be placed on a Deed which ought to be such as will render it reasonable rather than unreasonable and will make it just to both the parties rather than unjust to one of them. Reliance was placed on the principles enunciated in Attwood v. Emery (1856) 1 C.B. (N.S.) 110 : 140 E.R. 45 and Rawlinson v. Clarke (1845) 14 M.W. 187 : 153 E.R. 442. The Court would prefer a construction, consistent with the language of the Deed, which will prevent one of the parties from obtaining an unconscionable advantage over the other.

All the decisions abovementioned were under the Cess Act and determined the principle under which the liability imposed u/s 41 of the Cess Act could be avoided by the parties under a covenant entered into between the landlord and a tenant.

We have, however, to consider in the present case whether the same principle will or should be attracted in the case of the liability to pay education-cess under the Bengal (Rural) Primary Education Act.

u/s 29 of the Bengal (Rural) Primary Education Act, it is provided-

(1) In any district or part of a district in which the provisions of this chapter are in force, all immoveable property on which the road and public work cesses are assessed according to the provision of the Cess Act, 1880, shall be liable to the payment of a primary education cess.

(2) The Primary Education Cess shall be levied at the rate of three and a half pice on each rupee of annual net profits from mines and quarries and at the rate of five pice on each rupee from tramways, railways and other immoveable property as determined under the Cess Act, 1880.

Section 30 of the said Act provides for the mode of payment of education-cess by the holders of different grades of interest in land and how the same is to be apportioned between the holders of an estate and of tenure or of a cultivating rayat.

Sub-Section 1 of Section 30 is in the following terms:

Except as otherwise provided in this Act the primary education cess shall be paid to the same persons in the same manner and at the same time as the road-cess and public work cess are paid under the Cess Act, 1880.

Section 32 of the same Act lays down-

Subject to the provisions of this chapter, the provisions of the Cess Act, 1880, shall apply as far as possible to the assessment, levy, payment and recovery of the primary education cess.

It will be apparent from the scheme of the Bengal (Rural) Primary Education Act, 1930, and its dependence on and relation to the provisions of the Cess Act that the extent of the liability of the different categories of holders of land to pay education-cess is on the same basic principle as in the case of roads and public works cess under the Cess Act.

Sub-Section 3 of Section 74 of the Bengal Tenancy Act declares that nothing in that section shall be deemed to affect the terms of a permanent mokarari lease granted by a proprietor or holder of a permanent tenure in a permanently settled area and registered before the commencement of the Bengal Tenancy Amendment Act, 1928.

In the case now before us, the Bengal (Rural) Primary Education Act was passed many decades after the patni lease of 1873. There can be no doubt that it was not in the contemplation of the parties nor could they even think of this particular provision; but the question really is whether the parties had on the day of the contract fixed the rent payable by the tenure-holder as being inclusive of all new imposition as may be levied upon or be fixed under any future statutory provision.

If we examine critically the terms as contained in the patni-putta it will appear that the zamindar was stipulating that if any new imposition be levied upon the mahals in respect of the zamindary the tenure-holder shall not be liable to pay the same. This term definitely refers to a new imposition on the zamindary and makes no reference to imposition which can be levied under new statutory provisions upon the tenure-holders. What was being stipulated between the parties was that the zamindar would not be entitled to realise anything in excess of the stipulated patni rent basing such claim for additional rent on the ground that the zamindar was being required to make extra payments in respect of the zamindary. If a new taxing statute imposed a new levy from the patnidar, such payments could not be avoided by the patnidar on the ground that the stipulation in the patni-putta entitled the patnidar to avoid such payment.

A different interpretation of the covenant in the patni-putta will lead to manifest injustice. Under Sub-section (4) of Section 30 of the Bengal (Rural) Primary Education Act, a tenure-holder is entitled to realise from the raiyats under him the amount of education-cess payable by such raiyats to his immediate landlord. As it has been explained already the provision contained in the Bengal (Rural) Primary Education Act about the collection of education-cess is that the zamindar pays to the Government a certain amount as education-cess for the entire area covered by the zamindary. A portion of the payment made by the zamindar is recoverable from the tenure-holders under him and the tenure-holders in their turn are entitled and competent to realise a portion of the amount so paid from the raiyats. The right of the tenure-holders to realise education-cess from the raiyats is for the purpose of reimbursing the former to a certain extent the amount paid by him to the zaminddr. Such arrangement is made in the Bengal (Rural) Primary Education Act for the facility of collection and is practically the same as contained in the Cess Act.

If the tenure-holder is allowed exemption from the payment of the education-cess payable by him under the provisions of the Act, it would be most unreasonable and inequitable for such tenure-holder to realise education-cess from the raiyats under him. There are no provisions in the Act under which the rights of the tenure-holder to realise education-cess from the raiyats can be affected or taken away even if we were to hold that the zamindar had taken upon himself, under the patni-putta, the entire liability to pay the education-cess to Government, not only the share payable by him but also the shares payable by the different grades of tenants holding under him, it would have been an unreasonable construction. We would be justified in avoiding such an unreasonable construction allowing the tenure-holder to retain for himself the amount of education-cess collected from the raiyats for himself while the zamindar makes payment to the Government of the entire amount.

The allocation and distribution of education-cess as recoverable by or from the different grades of holders of lands is really in the nature of imposition of taxes on different grades of tenants leaving a portion of the amount collected as remuneration as a tax-gatherer for the Government.

The principles which were enunciated by this Court in Mahanand Sahai v. Sayedunissa Bibi (supra) are applicable to the facts of the present case. The terms and stipulations contained in the patni-putta are not absolutely clear and unequivocal, under which tenants can refuse to pay their share of the education-cess as under the Bengal (Rural) Primary Education Act. Even if there be any doubt about the interpretation, we would give a reasonable rather than an unreasonable interpretation of the terms in the Deed.

The appeals are accordingly dismissed with costs. There will be one set of hearing fee for the two appeals.

Sinha, J.

I agree.