(Sri Thakur) Nawnit Prayaqi vs Budhu Mahton

Courtney-Terrell, C.J.—Prior to the agreement, with the construction of which we are concerned in these suits, the defendants were tenants under their landlord, each of an area of raiyati land part of which was held on a cash rent basis and part on produce rent. In the year 1924 the tenants agreed with their landlord, each in similar terms, which translated are as follows:

Whereas 16 annas Mauza Danyawan and Mauza Chak Seleha and Mauza Gaura and Mauza Chak Sedani, Pargana Sandha, District Patna, Tauzi No and jama sadar as given below this document, is proprietary right of Nawabzada Syed Md. Mehdi Saheb and in the said mauzas there is 20 bighas 16 kattas 17 dhurs kasht raiyati land of me the declarant, khata and khasra numbers of which are given below this document, and it has been recorded in survey in my name and is in the possession of the declarant and on account of the batai system of the said land the declarant is put to difficulty during harvesting time, so the declarant appearing before malik requested that instead of batai system, annual nakdi rent of Rs. 9-8-0 be fixed per bigha and the said Nawab Saheb the malik agreed and granted the request of the declarant, fixed the nakdi rent, therefore the execution and admission of kabuliyat is urgently required and so the declarant with his will and accord without coercion and undue influence through anyone else in his sound state of health and body and in full senses, declare in writing that the rent of 20 bighas 16 kattas 17 dhurs kasht batai land mentioned below has been fixed annually at Rs. 198-0-1 from 1332 F.S. which the declarant and his heirs and representatives shall pay annually according to instalment mentioned below, without objection of inundation, draught, hailstones and other sky and earthly calamity, to Nawabzada Syed Mehdi Saheb Nazvi, son of Nawab Syed Md. Akbar Ali Khan Saheb, alias Syed Chhote Nawab Saheb and his representatives, by caste Syed, resident of Mohalla Moghalpura appertaining to Thana Khajakalan, one of the quarters of Patna City, by profession zamindari; and in case of default shall pay without objection the damage at the rate of Rs. 25 per cent. according to law, and in case of non-payment of the rent the said malik and his representatives shall have power to realize the same with damage etc. through Court to which there will be no objection by the declarant and his heirs and representatives. Be it known that at the time of batai the declarant used to give paddys, straw, husks and poal to the said malik from long time according to the custom of the village on each plough, i.e. on each 10 bigha, 150 anti paddy straw and one bundle poal and one mote husks as part of the rent and so the same will be given continually along with the rent as usual. In case of failure the said malik and his heirs and representatives shall have power to realize proper price of the same through Court and the cost of cultivation will be borne by the declarant and the irrigation and gilandazi is in concern with the malik, the declarant has no concern with the same. Hence this kabuliyat as stipulated above has been written so that it may be of use when required.

It will be seen that after the date of the agreement each tenant instead of paying cash and a share of produce was to pay cash and a specific amount of specific kinds of produce.

The plaintiff is the mortgagee of the landlord and is in possession, and alleging that the rent is in arrear as regards the delivery of the specified amounts of produce, he sued the defendants. These defended the suit on the ground that the stipulation in the agreement for delivery of produce constitutes imposition of an illegal cess or abwab. The Munsif held in favour of the plaintiff that there was nothing illegal in the agreement. On appeal the Subordinate Judge held that the contention of the defendants was sound and a second appeal to a single Judge of this Court was dismissed by him and the matter now comes before us as a Letters Patent appeal.

I approach the subject with some diffidence for it has been a matter of discussion by learned and experienced Judges for a period of many years.

I have read the lucid historical account of the legislation and decisions delivered by Mukharji, J., in Jogesh Chandra Ray Vs. Sharfuddin Ahamad and Others, and I gather from that judgment that the object of the legislation was to make definite and certain the position of the tenant, so that when once he had made his bargain with the landlord he should not thereafter be at the mercy of the latter and be subject to further demands which he had not contemplated when his tenancy began; not that he should be relieved from paying any part of the agreed rent in whatever form it was agreed to be paid, but merely that the periodical consideration to be paid by him to the landlord should be definite and certain and that the landlord should not be able to demand more. It followed that a collateral and one-sided bargain by which the tenant might, in addition to his proper contractual obligation to pay rent, submit without consideration to pay further sums was made void and not binding on the tenant. So that even if in a single document there exists firstly the creation of a tenancy with a corresponding obligation in consideration thereof on the part of the tenant to pay rent in cash, kind or both, and another and severable admission by the tenant that he is liable to make any other payment, then such further payment is without consideration and cannot legally be demanded by the landlord. Now if the liability in dispute is contained in a single document by which the tenancy in dispute is created and the obligation to pay rent is incurred, it can rarely happen that the liability in dispute can be severed from the rent and held to be outside the consideration for the tenancy and so illegal. Such a contingency is however indicated by N.R. Chattarji, J. in Bejoy Singh Dudhuria v. Krishna Behari Biswas [1918] 45 Cal. 259 quoted by Ross, J. in this case. In that case (decided by Sir L. Sanderson, G.J., and N.R. Chattarji, J.) the document in question imposed upon the tenant the obligation to pay a fixed periodical payment of some Rs. 3,000 and in a separate clause he undertook to pay annually at stated times a sum of Rs. 15 to the support of a certain Thakur. The Court decided that this latter payment was a severable obligation distinct from the rent, and in so holding it must be implied that they held such obligation to be without consideration at all and so in any case irrecoverable. The reports do not set forth the contract in full and moreover the construction of one contract does not bind a Court which has to construe another and different contract. On the facts as reported I personally do not see why the obligation to pay the Rs. 15 was not part of the consideration for the lease itself for consideration need not in law move from the promisor to the promisee, and the payment was periodical and certain in amount. But at all events the Court decided that that particular contract contained a separate obligation, not part of the rent consideration, for the grant of the lease. It is possible though it is not clearly so stated that the Court thought that "rent" properly so called must be confined strictly to consideration moving from the tenant to the landlord, but inasmuch as consideration as a matter of contract is not necessarily limited to consideration by way of rent, and as they had to decide not whether the payment was part of the consideration for the contract, but whether it was "rent," they held that the payment to the Thakur was not "rent."

There are two cases in which the facts as reported are remarkably like those in the case we have to decide, where the obligation to make a periodical payment of cartloads of husk in addition to the cash rent was held to be illegal. The first, Mathura Prasad v. Tota Singh [1912] 40 Cal. 806, was decided by Sir Ashutosh Mookerjee, and the second was Kalar Singh v. Mathura Prasad [1913] 25 I.C. 547, decided by Sir Lawrence Jenkins and Sir Ashutosh Mookerjee. In the latter case the Court held itself bound by the decision in Mathura Prasad v. Tota Singh [1912] 40 Cal. 806 . In both cases the rent and the additional payment in kind, which was held to be illegal, were stipulated for in the same document and it cannot be denied that if these decisions are still good law the present case would be governed by them. But since those decisions there has been firstly the case of Jogesh Chandra Ray Vs. Sharfuddin Ahamad and Others, , referred to above, decided by Mukharji, J. and Cammiade, J., in which the Court took a decidedly different view without however expressly dissenting from those authorities. In that case the tenant''s kabuliyat stipulated for a total amount of rent in cash, the annual payment of two he-goats at the time of Dashara Puja and cess, which was to be assessed on the cash payment alone. It was nevertheless held that the cash and the goats and the cess together formed the consideration for the tenancy and that the stipulation for the goats was not illegal. There has also been a decision of the Privy Council in the case of AIR 1927 250 (Privy Council) . In that case the lease set out a "consolidated annual jama" made up of a number of items, the first of which was "malguzari" which constituted the major part of the total and then a number of payments which, if they had been the subject of an independent exaction by the landlord would certainly have been considered as abwabs, but which were included in the "consolidated annual jama" as I have said. This High Court held that the words "malguzari" was to be translated as "rent" and that the other payments, although included in the total, were abwabs.

The Privy Council held that the word "malguzari" did not in fact mean rent and decided that the actual rent to be paid under the lease was the total of which the malguzari was only a part. It may be contended that this decision depended upon the particular construction given by the Privy Council to the word malguzari." I venture however to express the opinion that the material factor to the decision was the inclusion in one total of all the items including a payment of paddy in kind, which total was the rent in question, and that even if any other term had been used to describe the first item the decision would have been the same; in other words my own view of this case is that whereas the interpretation of the term malguzari used for the principal item in the total was, in the opinion arrived at by this High Court, vital to the decision of the case, the opinion of their Lordships was that the meaning of the term was in any case wholly immaterial, the material point being what was the total consideration in cash and kind which the tenant had to pay to the landlord as a matter of contract in consideration for his tenancy. These two cases have to my mind entirely disposed of the effect of the decisions of 1912 and 1913.

The learned Judge in this particular case was impressed by the fact that the cash rent was dealt with in the document quite separately from the payment in kind. The real test is as to whether the provision for the delivery of the goods in kind was with the addition of the cash rent a certain and definite obligation and whether it was part of the consideration for which the lease was granted, and I am unable to arrive at any but an affirmative view of this question.

It only remains to notice a further argument for the respondents used before us, but apparently not taken in the lower Courts, which is as follows: Whereas under the bhauli system in this part of the country the tenant would retain the husks and straw and would give to the landlord a share of the grain only, therefore the right to the grain only has been commuted for cash and the obligation on the tenant imposed by the agreement to pay not only the cash equivalent of the original grain but a specific quantity of straw and husks constitutes either an enhancement of the original rent, which would be illegal, or a consolidation with the rent of an abwab, since the obligation to pay straw was not mentioned in the Record-of-Rights and must have been an abwab even if paid before the date of the contract as stated therein. The answer to this contention is firstly that this is a new contract with good and mutual consideration and the fact that commutation was a part of the contract is really not material. Each party to the contract agreed to a modification of his rights and liabilities and the real question that remains is whether the new contract is capable of enforcement. Moreover the tenant in view of his express statements in writing to which the landlord was a party cannot be heard now to set up the allegation of fact that the statements in this mutual document are not true. If the statement of fact in the document must be accepted it must be taken that under the preceding bhauli system, instead of a definite proportion of the straw and husks it was the contract between the parties that a specific amount should be paid regularly by the tenant. This part of the argument advanced on behalf of the respondents is, in my opinion, without substance,

For these reasons I would reverse the judgments of the learned Judge and of the Subordinate Judge and restore the decision of the Munsif. The respondent must pay the costs throughout, but one set of costs only will be sufficient.

Adami, J.

I agree with the finding of my lord the Chief Justice.

The decision in every case, where the question arises whether a stipulation in a rent contract is a stipulation to pay an abwab in addition to the rent agreed on depends on the construction of the contract in the case. In the present case the tenants had formerly been paying rent partly in cash and partly in kind. By the contract it was agreed that in future the produce rent should be commuted to a cash rent and that a consolidated rent of Rs. 198-1-0 should be paid in four annual instalments.

The tenants in their kabuliyat proceeded to state that they had been in the habit of delivering to the landlords fixed quantities of straw and husks as part of their rent according to the village custom and they undertook to continue to deliver these quantities as part of the rent.

In my opinion this shows that it was the intention of the parties to the contract that the payment of straw and husks should be part of and not an addition to, the rent fixed by the contract. It is true that the Courts have found that there was no proof that the tenants had previously delivered straw and bhusa, nor was there proof of any village custom, but the tenant-defendants cannot be heard to go behind their admission in the contract, and moreover it is most likely that the landlords would require straw and bhusa for their own domestic use, and would take a certain quantity from the tenants as part of the produce rent when produce rent was payable.

The kabuliyat definitely states that the quantity of bhusa and straw had been and was to be a part of the rent and I cannot see that the fact that the statement is contained in a separate clause alters in any way the nature or intention of the stipulation.