SEAMUDDIN MOLLA Vs. MOHADEB MONDAL

JUDGEMENT

(1.) This is an appeal by the landlords and arises out of a suit for rent based upon a kabuliyat. It appears that the defendants held a jama of 12 bighas bearing a rental of Rs. 15. They let out this jama to the plaintiff at a rental of Rs. 15-4-0 and then took a sub-lease, agreeing to deliver 13 aria of paddy annually as rent, and in the alternative to pay Rs. 400 as the price thereof. The main contention of the defendants in the suit was that the plaintiffs could not recover rent higher than what they were entitled to under Section 48, Ben. Ten. Act, before its amendment in 1928. The section says: The landlord of an under-raiyat holding at a money rent shall not be entitled to recover rent exceeding the rent which he himself pays by more than 50 per cent when the rent payable by the under-raiyat is payable under a registered lease.

(2.) Here the lease is registered and if the section applies the plaintiffs will be entitled to get annually Rs. 15-4-0 and 50 per cent of it, that is Rs. 22-14-0, as yearly rent from the defendants. The trial Court held that the rent was not payable in money but in kind, and therefore according to the view expressed in some cases by this Court Section 48(a) had no application. The lower appellate Court on a consideration of the kabuliyat has held that Section 48 of the Act applies and that the plaintiffs are not entitled to recover rent more than Rs. 22- 14-0 a year. The case really turns upon the construction of the kabuliyat. The law that seems to be established from various decisions on this point is that if the rent is payable in kind and in the alternative in money at the option of the tenant, Section 48 is applicable. But where the alternative money rent is recoverable at the option of the landlord, Section 48 has no application. If the interpretation put by the learned Subordinate Judge is right, the case is covered by the decision in Ananda Chandra Roy V/s. Makram Ali (1909) 3 IC 204. The relevant portion of the kabuliyat is in these words: If we do not deliver paddy (as aforesaid) then we will pay to you within the said month as value of the said paddy Rs. 400 according to the present market rate If we do not, then you will be entitled to realize the same amicably or by suit with interest thereon.

(3.) In our opinion the Subordinate Judge has placed the correct construction on this kabuliyat. It fixes the rent at 13 aris of paddy yearly, but at the same time gives the option to the tenants to pay Rs. 400 as value of the paddy instead of the paddy. The kabuliyat in Ananda Chandra Roy's case (1909) 3 IC 204 referred to above was also to the same effect. There the stipulation was: We shall deliver on the 30 Assin every year, a quantity of 27 maunds 30 seers of paddy at the rate of 3 maunds per kani of the chukti per annum (or) in the absence thereof a sum of Rs. 132 on account of the value of the paddy and shall deliver on the 30 Pous every year a quantity of 59 maunds of paddy at the rate of 4 maunds per kani per annum, and in the absence thereof pay a sum of Rs. 118, and we shall pay on account of the value of paddy and jute Rs. 250 and shall take receipts. Brett, J.