JITENDRA NATH GHOSE Vs. MONMOHAN GHOSE

JUDGEMENT

(1.) The appellants are the owners of a ganti tenure known as Dahar Nalbunia in the Khulna District. On 26th January 1885, shortly before the passing of the Bengal Tenancy Act 8 of 1885, the predecessor-in-title of the appellants created a darganti or under-tenure in favour of three ladies (hereinafter referred to as the dargantidars) at an annual rent of Rs. 629-11-0 payable in four kists or instalments. By the terms of the kabuliyat then executed by the dargantidars his tenure was non-transferable, and provision was made for default as follows: "In case of default in payment of any kist we shall pay the whole amount of the List together with half of it by way of interest within the period from the date following the date of the kist, up to the 30 Chaitra of the same year. Besides the rent, we shall pay along with it all existing and future Government cesses, etc., according to the aforesaid kistibundi, and in case of default of any kist we shall without any objection pay interest thereon in the way as stipulated above. If the rent for a year be not paid within the year, then we shall cease to have any right to or concern with the property on the 1 day of Biasakh of the next year. You will be entitled to take khas possession of the same without instituting any suit and without giving any notice, and the arrears of rent with interest for the year, together with interest on the same at the rate of 1 anna per rupee per month from the 1 day of Baisakh of the following year up to the date of realization of the same shall be recovered from our other moveable and immovable properties and from our persons."

(2.) The effect of this was that upon any instalment of the rent being in arrear interest at the rate of 50 per cent would be payable up to the end of the year, and that if a year's rent was unpaid the landlord would be entitled to re-enter, and the arrears and interest then due would carry further interest at 75 per cent per annum recoverable from the dargantidars personality.

(3.) These terms, however, were in effect modified by the operation of the Tenancy Act which came into force in November 1885. The darganti which, it is now admitted, was heritable, was a " permanent tenure" within the meaning of the Act, and therefore became under S. 11 transferable ; and by S. 65 the dargantidars ceased to be liable to ejectment for arrears of rent, but their tenure was liable to be sold in execution of a rent decree, and the rent was made a first charge thereon. It was also provided by S. 67 that arrears of rent should bear simple interest at the rate of 12 per cent per annum which was raised by a later Act to 12? per cent.