ADMINISTRATOR-GENERAL OF BENGAL, EXECUTOR TO THE ESTATE OF THE LATE KUMAR INDRA CHUNDER SINGH Vs. ASRAF ALI

JUDGEMENT

(1.) This appeal arises out of a suit brought by the plaintiff to recover from the defendants certain arrears of rent in respect of a holding in their occupation with interest at 75 per cent, per annum. and the only question in the case is whether the plaintiff is entitled to that interest. It appears that one Banu Gazi on the 28 of April 1876, executed in favour of the predecessor of the plaintiff a kabuliat by which he agreed to pay interest at that rate on arrears of rent. Banu Gazi has since died, and the defendants are his heirs. The lease was for six years and the term expired in 1881, since then the defendants have been holding over. The Lower Courts have given the plaintiff interest at the rate of 12 per cent. Hence this appeal. It is contended on behalf of the plaintiff appellant, as was evidently contended in the Courts below, that inasmuch as the original contract was entered into prior to the passing of the Bengal Tenancy Act, the condition relating to interest is untouched by the provisions of that Act; and as the defendants are holding over they must be taken to be holding subject to all the conditions contained in the lease.

(2.) In support of this contention we have been referred to a number of cases from the Weekly Reporter. In the case of Enayutoollah V/s. Flahee Buksh (1864) W.R. 1864, Act X, 42 it appeared that a tenant who had been holding under a lease had a part of his land washed away. The lease was alleged to contain a stipulation that the tenant should not have an abatement if any part of his holding was diluviated. Peacock, C. J., held that the tenant was entitled to abatement unless he was precluded by any express stipulation in the lease giving up the right. With regard to the contention that the lease having expired the tenant was entitled to abatement, he said as follows:?"We think when a tenant holds on after the expiration of a lease he does so on the terms of the lease, at the same rent, and on the same stipulations as are mentioned in the lease until the parties come to a fresh settlement. Therefore, if by the kabuliat it was stipulated that there should be no abatement if a part of the land should be washed away, the tenant continued bound by that stipulation, notwithstanding the expiration of the lease."

(3.) The pleader for the appellant relies on this part of the judgment, but it is clear that the stipulation must be one recognized by law to be binding on the tenant.