MOMUDDIN MISRA Vs. SURENDRA KUMAR ROY

JUDGEMENT

(1.) This is a first appeal from a decision of the Subordinate Judge of Purnea in a suit for the recovery of rent for the years 1332, 1333 and 1334, together with interest at the rate of 12 percent per annum as provided by Section 67, Ben. Ten. Act. No question arises as to the liability of the defendants to pay the amount of the rent agreed upon. The substantial dispute is as to the amount of Rs. 6,000, which has been computed as interest at the rate of 12 percent per annum on the instalments of rent in arrear. A reference is made to the terms of the lease by which the tenancy was created and it is pointed out that the lease is one for a permanent mukarrari tenure.

(2.) That is not disputed. Accordingly it is said that the situation is governed by Section 179, Ben. Ten. Act. Reference is made to the terms of the document in which there is no specific provision for interest being payable upon kists in arrear. Section 179, Ben. Ten. Act, is as follows: Nothing in this Act shall be deemed to prevent a proprietor or a holder of a permanent tenure in a permanently settled area from granting a permanent mukarrari lease on any terms agreed on between him and his tenant. It is contended that the proper construction of this section is that when a lease is found conferring a permanent tenure in a permanently settled area the terms of the lease must be looked at without reference to the Act and that whereas the general law in the case of overdue debts is that unless specific provision is made for the payment of interest no interest is recoverable; therefore under the terms of a tenancy of this kind the tenancy making no specific provision for payment of interest is equivalent to a contract that no interest shall be payable upon overdue instalments, and being construed by the ordinary law standing by itself and without reference to the Bengal Tenancy Act, that interest is not recoverable.

(3.) On the other hand the contention is put forward and I think rightly put forward that the true construction of Section 179 is that it is a permission to landlords and tenants in the case of a creation of a permanent tenure in a permanently settled area to contract out of the Act and that whereas the general law created by the Bengal Tenancy Act as applicable to the relationship of landlord and tenant will apply to a permanent mukarrari lease, the parties are at liberty to make a specific provision for the elimination of such terms as may be imposed by the Act as they may select to eliminate. In my opinion, this view of the construction of the Act is right. That this construction has been followed is clear and two cases have been cited to us as examples of the application of that construction. In the case of Matangini Debi V/s. Mokrura Bibi (1902) 29 Cal 674 the Pull Bench of the Calcutta High Court took Shis view. In that case the plaintiffs sued the defendants for arrears of rent due on a permanent tenure. The kabuliat itself under which the tenancy was created provided for express rate of Rs. 3/2 percent per month.