BEHARI LAL BISWAS Vs. NASIMANNESSA BIBI

JUDGEMENT

(1.) The subject-matter of this litigation is a putni taluk created on the 31 December 1844 by Maharaja Srish Chandra Deb of Nadia in favour of Kaligatee Mookerjee. The interest of the Zemindar is now held by Nasimannessa Bibi, the defendant in this suit, "while the interest of the pulnidar has, by devolution, vested in Majidannessa Bibi. The plaintiff Behari Lal Biswas is a dar-putniddr who obtained possession of the putni in 1909, under the provisions of Section 13 of the Putni Regulation, on payment of the dues of the then Zemindar, and he has since then been in occupation in order to recover the amount advanced by him. On the 15 May 1916 the putni taluk was brought to sale by the Zemindar for realisation of arrears due and was purchased by the Zenvndar herself. On the 27 May 1916, the plaintiff instituted the present suit for declaration that the sale was null and void, inasmuch as no arrears were due at that time. The Court of first instance dismissed the suit on the ground that rent was in arrears, and that decision has been affirmed by the District Judge on appeal. On the present appeal, the plaintiff has urged that there had been a valid tender of the sums due, which had been improperly refused by the landlord. The facts material for the determination of the question of law thus raised are really not in controversy and may be briefly recited at this stage.

(2.) On the 18 October 1915, the plaintiff sent to the defendant a sum of Rs. 647-0-9 through the Post Office, by what is known as rent-money order. As under the rules of the Postal Department the maximum amount which can be remitted by a single money order is Rs. 600, the amount mentioned was included in two money orders one for Rs.600, the other for Rs. 47-0-9. The money order for Rs. 600 stated that the amount was remitted as rent due on the putni for the six months from Baisakh to Aswin 1322. The money order for Rs. 47-0-9 stated that Rs. 10-8-0 was interest on rent in arreras, Rs. 35-13-9 was road and public works cesses, and annas 11 was interest due on cesses. The money orders were tendered to the defendant by the Postal peon and were refused. On the 22 November, 1915, the plaintiff deposited the amount in Court under Section 61 of the Bengal Tenancy Act. On the 6 April 1916, the plaintiff sent to the defendant Rs. 654-2-0 by rent-money order. There were two money orders as on the previous occasion, namely, one for Rs. 600 and the other for Rs. 54- 2-0. The money order for Rs. 600 stated that the amount remitted was rent due for the six months from Kartic to Chait 1322. The money order for Rs. 54-2-0 stated that Rs. 17-4-3 was interest in rent in arrears, Rs. 35-13-9 was road and public works cesses, and annas 6 was interest on cesses. The money orders were taken to the defendant by the Postal peon but were refused. On the 18 April 1916, the plaintiff deposited the sum in Court under Section 61 of the Bengal Tenancy Act. The question in controversy is, whether there was a valid tender on either or both of the occasions mentioned. The defendant urges that what was. tendered on each occasion was really less than the amount actually due and did not constitute a valid tender.

(3.) The putni lease fixed the annual rent at Rs. 1,200, payable in twelve monthly instalments, namely, Rs. 50 in Baisakh, Rs. 50 in Jaistha, Rs. 50 in Assar, Rs. 100 in Saravan Rs. 250 in Bhadra, Rs. 100 in Aswin, Rs. 100 in Kartic, Rs. 100 in Aghrayan, Rs. 200 in Pous, Rs. 100 in Magh, Rs. 60 in Falgun and Rs. 40 in Chaitra. The lease contained a covenant that on default of payment of the instalments, the lessee would pay interest according to law. It was further provided that on default, the rights and interests of the lessee would be sold under Regulation VIII of 1819 m order that the arrears of rent with interest might be realised. It is plain from the terms of the lease that Rs. 600 was the aggregate amount of rent in arrears for the first half of the year endingin Aswin and another sum of Rs. 600 the aggregate amount of rent in arrears for the second half of the year ending in Chait. Consequently, when on the 18th October 1915, the plaintiff sent to the defendant the sum of Rs. 647-0-9 by rent-money order the rent in arrears was Rs. 600 as correctly stated in the first money order, the question in controversy is, whether Rs. 10-8-0 was the amount of interest due on rent in arrears, Rs. 35- 13-9 the amount due on account of cesses, and annas eleven the amount due as interest on cesses in arrears. The Courts below have answered this question against the plaintiff. The three items require separate examination.