LAWS(PVC)-1933-2-62

TARAPRASANNA RAY Vs. FARIDUNNESSA KHATUN

Decided On February 20, 1933
TARAPRASANNA RAY Appellant
V/S
FARIDUNNESSA KHATUN Respondents

JUDGEMENT

(1.) This appeal has arisen out of a suit for rent. The plaintiffs, who are the appellants, ask for a decree for interest at a rate higher than what is allowed by Section 67, Ben. Ten. Act, on the basis of a stipulation contained in the kabuliyat, which created a permanent mokarrari lease in a permanently settled estate under a permanent tenure-holder and is dated 1283 B.S. The Courts below have allowed interest at 12 per cent per annum. The suit was instituted on 15 April 1929, that is to say, after the date when the amending Act came into force. The claim was for 1332 to 1335, the major part of the claim being for a period antecedent to that date.

(2.) Prior to the amendments, the clause as to interest was a clause of Sub-section (3), Section 178. From the position it then occupied, it meant that a rate of interest in excess of what is provided for in Section 67 was not affected by the provision of that section, if the rate was in a contract made before the passing of the Act in 1885. As a consequence of the amendments, the clause now finds a place in Sub-section (1), Section 178, and means that such a rate cannot affect Section 67, whether it be embodied in a contract made after or in a contract made before the aforesaid date in 1885. Section 179 is an exception to all the provisions of the Act to which it may serve as an exception, and accordingly to Section 178. The present case satisfies the requirements of Section 179, so far as the status of the parties and the character of the lease is concerned. The lease in the present case is therefore a good lease upon the plain meaning of the substantive part of Section 179. But then there is the proviso to Section 179 which has to be considered. That proviso says-I read such portion of it as has any bearing on the question of interest: Provided that such holder?shall not be entitled to recover interest at a rate exceeding that set forth in Section 67?.

(3.) The plaintiff has sued to recover interest at a rate exceeding the rate given in Section 67. The proviso disentitled him from recovering such interest. This is the conclusion which, in my judgment, follows from a plain reading of the different section to which I have referred. But there are several other matters which I have been asked on behalf of the appellant to consider.