MOHITKRISHNA KUNDU Vs. MAHENDRANATH GUHA

JUDGEMENT

(1.) Plaintiffs sue to recover arrears of rent in respect of a jama of Rs. 27-12 0 in cash and 10 arhis in gula paddy. The defence is that, under the terms of the kabuliyat, plaintiffs are entitled only to a consolidated rent of Rs. 37-12-0. The Courts below have construed the kabuliyat and agreed in holding against the defence. They have held that the defendant is liable to pay Rs. 27-12-0 and 10 arhis of gula paddy, according to the current market value, which is found to be Rs. 50 a bish. The present second appeal is by the defendant.

(2.) The decision will turn on the construction of the patta, Ex. A, which is of the year 1905. It describes the holding as consisting of an area of 23 bighas 10 cottas, with an annual cash rent of Rs. 27-12-0 and (according to a certain measure) 10 arhis of gula paddy, "the price of which is Rs. 10." The total, including the price of the paddy, is fixed at a jama (dharya) of Rs. 37-12-0. The document further recites that the lease, which is created out of a pre-existing lease of 1889, will form a mokarari mourasi kayemi tenancy and "Rs. 27-12-0 in cash rent and the paddy rent of 10 arhis will not be enhanced." There is a selami of Rs. 150 and two kinds of penalties are provided for, namely for default of cash rent interest will be realizable and for default of paddy rent barhi or damages will be realizable, and there are the usual provisions that the paddy will be carried to the house of the landlord and so fourth. As I read the patta, it is clear that it was intended that the cash rent of Rs. 27-12-0 and the paddy rent of 10 arhis of gula paddy should be kept separate, and the schedule also provides that the paddy is to be delivered in Falgun and cash rent is to be paid in four kists. In 1922 there was a compromise between the parties in an execution-proceeding and the solenama describes the tenancy in similar terms, namely that the rent is Rs. 27-12-0 and "10 arhis of paddy of the value of Rs. 10," the total rent being Rs. 37-12-0 in a mourasi mokarari jama. From this also, it is clear that the paddy rent was meant to be a real rent, that is to say, the tenant was liable to deliver paddy in addition to paying cash rent. Now, the question has arisen as to what would be the value of the paddy so payable, in case of failure to deliver it. The Courts below have taken the contract to mean that the paddy would be valued at the current market rate. But the document itself puts the value at Rs. 10 and I prefer to follow the authority of the case of Asutosh Mukerjee V/s. Haran Chandra Mukerjee [1920] 47 Cal. 133, and hold that the parties intended that Rs. 10 should be fixed as the value of the paddy rent. In that case, Sanderson, C. J., remarks as follows: In the next place, the parties should be held to that which they have said in the contract and I do not see why the Court should speculate and as a result of that speculation arrive at the conclusion that the important provision to which I have referred had been inserted merely for the purpose of determining the registration fee. I think there might be very good reason for the parties having fixed the rent- the parties may have thought that it would be more prudent, as between themselves, to fix the amount which should be taken as the value of the paddy rather than have a dispute upon each occasion as to the market value of it, in case it were not delivered.

(3.) I consider that these remarks apply to the terms of the present contract and I take it that the parties fixed Rs. 10 as the amount to be payable in case of non-delivery of the paddy rent.