CHUNDY CHURAN LAW Vs. ABBAS ALI BHUYA

JUDGEMENT

(1.) These are three appeals before us: Appeals Nos. 988, 989 and 990 of 1931. These appeals have arisen out of three suits. Appeal No. 988 arises out of Suit No. 232 of 1929 and the corresponding appeal to the lower appellate Court was appeal No. 17 of 193Order Appeal No. 989 arises out of Suit No. 107 of 1929 and the corresponding appeal in the lower appellate Court was Appeal No. 24 of 1930. Appeal No. 990 arises out of Suit No. 109 of 1929 and the corresponding appeal in the lower appellate Court was Appeal No. 25 of 1930.

(2.) In appeal No. 988 there is no appearance on behalf of the respondents. In Appeals Nos. 989 and 990 some of the respondents are represented by the learned Advocate Mr. Amarendra Mohan Mitter. The learned Advocate has pointed out to us that respondent 6, Ansar Ali, died some time ago and no substitution having been effected on the record of his legal representatives within time the appeals so far as he is concerned abated. He has also pointed out to us that in the last mentioned suits corresponding to appeals Nos. 989 and 990 there was a minor defendant who was defendant 7 and her name was Sm. Badarennessa Bibi. It does not appear from the record that in any of the Courts below was the minor represented by a guardian.ad-litem and it does not appear also what steps have been taken for the representation of this minor defendant in this Court. So far as this minor defendant is concerned the decrees made in the Courts below are nullities and so far as this Court is concerned there are no proper appeals against the defendant Sm. Badarennessa Bibi. Her rights remain unaffected. Now, as regards the respondent Ansar Ali who died and in respect of whom the appeals have abated, the learned advocate has taken this point that the entire Appeals Nos. 989 and 990 are now incompetent. We are unable to agree with the learned Advocate's contention because the suits are for rent and rent was payable jointly and severally by the body of the tenants who had executed the kabuliyats or who were representatives of the people who had executed the kabuliyats in favour of the landlord. The position therefore is that as regards the respondent Ansar Ali the decrees of the lower appellate Court will stand and there will be no order against his representatives in this Court; but that does not in any way prevent the appellant from proceeding with his appeals as regards the remaining respondents and obtaining judgment against them. We do not think that the preliminary objection has any substance and we now proceed to deal with the question of the merits of these three appeals.

(3.) In all these three appeals the suits are based on kabuliyats executed between 1865 and 1867, i.e., long prior to the introduction of the Bengal Tenancy Act. 1885. The rents are claimed for the years 1382 to Magh 1335 B. S. The leases created by these kabuliyats were all mourashi mokarrari leases. It appears from the kabuliyats that the rent reserved was payable in ten monthly kists, that is to say, in kists ranging between Baisakh and Magh of each year. It was also agreed by and between the parties to the kabuliyats that in default of payment of the money due on each kist interest would run at the rate of 2 per cent per month. It was also agreed that damages at the rate of 25 percent over and above the interest payable by the tenants would have to be paid by the tenants in case the institution of suit for recovery of rent and interest became necessary. Now, the questions involved in these appeals are really, first, question of the construction of the kabuliyats and, secondly, whether or not certain provisions of the Bengal Tenancy Act have application to the facts and circumstances of the three eases out of which these appeals have arisen. The main points which have been taken on behalf of the tenants are these: It is argued in the first instance that interest and damages are not payable together; in other words, the contention is that the landlord would have to be content either with interest or with damages; that is to say, the provisions as regards the payment of interest and damages are exclusive of each other. In the second place it has been contended that Section 67, Ben. Ten. Act, applies and also Section 68 Ben. Ten. Act, applies and that the application of these two sections along with the application of Section 179 as it stands now in the Bengal Tenancy Act, would have the effect of restricting the plaintiff landlord to a claim for interest on the arrears of rent not exceeding 12? per cent as provided for by Section 67, Ben. Ten. Act. In particular, the contention is that having regard to the terms of the proviso to Section 179 the landlord is incompetent t,o claim anything more in the way of interest than what is allowed by Section 67, Ben. Ten. Act.