HARI BHUSAN ASH Vs. JNANENDRA NATH CHAKRAVARTY

JUDGEMENT

(1.) 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:

(2.) 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 under Section 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 CalLJ 337 Pitamber Choudhury v. Sheikh Rahmat Ali,1921 1 ILR(Pat) 218 and Mahanand Sahai v. Sayedunnissa Bibi,1907 12 CalWN 154. The same principle applies in the case of the Rural Primary Education Act. The liability which is imposed under Section 29 and 30 of this Act is, under Section 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.

(3.) 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.