BISHNU MONDAL Vs. CHARU CHANDRA CHATTERJEE

JUDGEMENT

(1.) The plaintiff sues to recover arrears of rent for the years 1332 and 1333 at an annual jama of Rs. 12 in cash, 8 aris of paddy, and 12 seers of molasses on the basis of a registered kabuliyat dated 9 Baisakh 1306. The Courts below have agreed in decreeing the suit, valuing the paddy and molasses at the current market rate. The present second appeal is by the "defendants. Their defence is that they are only liable for the value as given in the kabuliyat. The material portion of the kabuliyat, which is for a mourasi makarari kaimi lease, is recited in the judgment of the learned Subordinate Judge in appeal. It shows that the stipulation is that the jama is fixed at annual rent of Rs. 12 in cash, 12 seers of molasses and 8 axis of dried paddy. The price of the 12 seers of molasses is stated to be Re. 1 and that of the 8 aris of paddy is stated to be Rs. 12 the total being Rs. 25. It is however quite clear from the terms of the kabuliyat that the tenant contracted to pay Rs. 12 in cash, and the rest in produce, namely, molasses and paddy. It is only if he should fail to deliver molasses and paddy, that he will be liable to pay the equivalent in cash as stated in the kabuliyat. The result is that the tenant is primarily liable to pay the arrears of rent at the rate of Rs. 12 in cash, 12 seers of molasses and 8 aris of paddy, in the measure as given in the kabuliyat, namely, each arrive being equal to 16 palis of 4 seers per pali. It will be for the tenant to show that he is not in a position to deliver the molasses and the paddy, and if he succeeds in doing that, then he; will be liable, not at the market rate but at the rate which is mentioned in the kabuliat, I may say that the case seems to be similar to that which I decided in second appeal No. 916 of 1928 on the 20 February 1930, It is also supported by the decision in the case of Asutosh Mukhopadhya V/s. Haran Chandra Muherji [1920] 47 Cal. 133.

(2.) If the tenants in the above view should be held to be liable for the cash value of the produce, in that case the question is whether he will be liable for interest thereon. The Courts below have taken the view that he will not be so liable, because there is no mention of interest in the kabuliyat. It is contended by the learned advocate for the respondent that, in spite of that, the plaintiff is entitled to get interest under1 Section 67 read with Section 178, Sub- section (3), Clause (h) Ben. Ten. Act. I think that the contention is sound. The kabuliyat was executed after the passing of the Bengal1 Tenancy Act and, since the amount payable by the tenant is rent, it is clear that the landlord is entitled to interest under Section 67, Ben. Ten. Act at the rate of 12 and half per cent per annum. The result is that the plaintiff will get a decree for the arrears of rent at the annual rate of Rs. 12 plus 8 ari3 of paddy plus 12 seers of molasses in the measure as described in the kabuliyat. If it be found that the deterv&aut9 have no molasses or no paddy to deliver or that there is no molasses or no paddy to be attached, in that case they will be liable at the rate of Re. 1 in respect of 12 seers of molasses and Rs. 12 in respect of 8 aris of paddy per year, and these amounts will bear interest at the rate of 12 and half per cent per annum.

(3.) The appeal is dismissed with costs. The cross-objection is allowed with costs.