GAJOO MAHATO Vs. GPCOOKE

JUDGEMENT

(1.) This is an appeal on behalf of the defendant in a suit for rent brought on the basis of a kabuliyat executed by him in favour of the plaintiff-respondent on the 24th September 1908. The Courts below have concurrently overruled the contention of the defendant that the kabuliyat had been obtained by undue influence bat they have disagreed upon the question of the rate at which rent is recoverable by the plaintiff. The primary Court held that the kabuliyat was not enforceable under Section 13 of Act X of 1859, while the District Judge had come to the conclusion that the contract between the parties is not affected by the provisions of that section, or of Section 26 of Act VI of 1908, B. C. By the kabuliyat, the rent previously payable by the tenant was enhanced from Rs. 19-8 a year to Rs. 59-9 a year when the parties agreed to this enhancement of rent, Act X of 1859 was in force in Manbhum where the land is situated. Act VI of 1903, B. 0., became law on the 11th November 1908, and though originally not applicable to Manbhum was subsequently, extended to that District on the 22nd December 1909. From that date, accordingly, Act X of 1859 ceased to be applicable in Manbhum. The present suit was commenced on the 28th April 1910. Two questions, consequently, require consideration, viz., first, was the agreement for payment of enhanced rent valid when it was made under Act X of 1859, and, secondly, if valid in its inception, did the agreement become subsequently inoperative by reason of the provisions of Act VI of 1908, B.C.?

(2.) In so far as the first of these questions is concerned, there can, in my opinion, be no room for reasonable doubt that the agreement for enhancement of rent was valid in its inception and did not contravene any of the provisions of Act X of 1859. Section 17 of Act X of 1859 provided that no ryot having right of occupancy was liable to an enhancement of rent previously paid by him, except on some one of three specified grounds. This section plainly did not affect enhancement by mutual agreement of the parties and consequently, Section 13 can have no application. This, I think, is amply indicated by the phraseology of Section 17, viz., "no ryot having a right of occupancy shall be liable to an enhancement of the rent," that is, no occupancy ryot can have a liability imposed upon him against his wish by the landlord in respect of enhanced rent. This interpretation is in accord with what was generally deemed to be the true scope of Section 17 for a long series of years. Be Silva v. Raj Coomar 16 W.R. 153; Mudhoo Manjee v. Nil Monee Singh 18 W.R. 533; Bhyrub Chander v. Huro Prosunno 17 W.R. 258; Enayetollah v. Nubo Coomar 20 W.R. 207; Nistarini Dasi v. Bonomali 4 C. 941 : 4 C.L.R. 278; Dwarka Nath v. Bubu Ram 11 C.L.R. 320 : 9 C. 72; Tejendro Narain Singh v. Bakai Singh 22 C. 658; Mothura Mohun v. Moti Sirkar 25 C. 781 which upon this point is unaffected by Bipin Behari v. Krishna Dhone 32 C. 395 : 9 C.W.N. 265 (F.B.) : 1 C.L.J. 10 and Ram Dayal v. Kamola Priya 6 M.L.T. 192 : 3 Ind. Cas. 223. In fact, it has been constantly assumed by the Courts that Section 17 of Act X of 1859 did not affect contractual enhancement of rent Huro Prasad v. Chundee Churn 9 C. 505 : 12 C.L.R. 251; Soorasoonderee Dabea v. Golam Ali 15 B.L.R. (P.C.) 125 note : 19 W.R. 141; Burhunuddi v. Mohun Chunder Guha 8 C.L.R. 508 at p. 511. It was, indeed, with a view to afford the occupancy ryot a certain degree of protection against improvident agreements for enhancement of rent that the Legislature enacted Section 29 of the Bengal Tenancy Act. Under these circumstances, the inference is irresistible that the agreement in the present case was not in contravention of the provisions of sections 13 and 17 of Act X of 1859 and was thus valid in its inception.

(3.) In so far as the second question is concerned, it has been argued that the agreement became unenforceable as soon as Section 26 of Act VI of 1908, B.C., came into force in Manbhum. Section 26 provides as follows: When the rent of an occupancy ryot whose rent is liable to enhancement has been enhanced before the commencement of this Act, otherwise than under Section 24 of the Chota Nagpur Landlord and Tenant Procedure Act, such enhanced rent shall be deemed to be lawfully payable, (a) if it has, been actually paid continuously for seven years before the commencement of this Act and (6) if it is not proved to be unfair and inequitable, provided that where the rent lawfully payable by an occupancy ryot for his holding has been made an issue in any suit for arrears of rent and the Court has arrived at a finding on that issue, the rent so found shall be deemed to be lawfully payable by the ryot for the holding." On behalf of the appellant, it has been eon-tended with reference to the terms of this section that the enhanced rent in the present case is not lawfully payable, because it has been actually paid continuously for seven years before the commencement of the Act. In my opinion, there is no foundation for this argument, because Section 26 was intended to save enhancements effected before the Act came into force in contravention of the provisions of sections 21 and 24 of Act I of 1879, B.C. It is unnecessary for the purposes of the present case to consider the true scope of Section 21 of Act I of 1879, B.C. or to determine whether it invalidated absolutely all agreements for enhancement of rent. It is sufficient to hold that Section 21 was deemed to have expressly barred all private agreements for enhancement of rent but as, notwithstanding Section 21, contracts had been made for enhancement of rent between landlords and tenants, the Legislature, in Section 26 of Act VI of 1908, B.C., intended to validate such agreements in special cases, that is, where the enhanced rent had been actually paid continuously for seven years and was not proved to be unfair and inequitable. Section 26 was never intended to apply to oases like the present, where the rent had been validly enhanced by private agreement under the law in force at the time. To put the matter briefly, when Section 26 was framed, the Legislature had in view only cases under Section 21 of Act I of 1879, B.C., and did not contemplate cases like the present, which could arise only after Act VI of 1908, B.C., had been extended to localities where Act X of 1859 had previously been in operation. This indicates the dangers of legislation by notification, and illustrates forcibly how incongruities may arise when Legislative provisions, framed primarily in view of one set of circumstances, are extended by notification to localities where an entirely different set of conditions prevails. In my opinion, it is plain that Section 26 of Act VI of 1908, B.C., does not touch the present case to hold that it invalidates agreements valid in their inception would be to attribute to it an effect the very reverse of what was intended by its framers, namely, that it should serve to validate agreements which were invalid at the time of their inception and had yet been accepted as valid and acted upon as such by the parties thereto for a number of year s. The very fact that reference is made in Section 26 to Section 24 of Act I of 1879, B 0., shows conclusively that the Legislature had in view only Oases of agreement for enhancement of rent under Act I of 1879, B.C., and not cases under Act X of 1859. As I have said before, I express no opinion upon the question whether the difference in phraseology between Section 17 of Act X of 1859 and sections 21 and 24 of Act I of 1879, B.C., made an effective alteration in the law. I am concerned only with the undoubted fact that sections 21 and 24 of Act I of 1379, B.C., were deemed to have effected a vital alteration in the law so as to invalidate all private agreements for enhancement of rent, and the history of the legislation, as just outlined, shows that Section 26 of Act VI of 1908, B.C., was framed with a view to mitigate what would otherwise have been an undoubted hardship on landlords and not with a view to prejudice their position as would be the inevitable result of the acceptance of the contention of the appellant. I hold accordingly that Section 26 of Act VI of 1908, B. C, does not invalidate preexisting contracts for enhancement of rent validly made under Act X of 1859. In this view, the second question, quite as much as the first, must be answered in favour of the respondent.