RAJ KUMAR SARKAR Vs. FAIZUDDI TARAFDAR

JUDGEMENT

(1.) These are appeals by the plaintiff in a suit for recovery of arrears of rent. The claim is based on a kabuliyat executed on the 11th February 1898 by the tenants in favour of the plaintiff and his co-sharers, who have been joined as defendants in the suit. The tenants contend that the kabuliyat was in contravention of Section 29 of the Bengal Tenancy Act and that they are consequently not liable to pay rent at the rate mentioned therein. In our opinion this contention is well founded and must prevail.

(2.) The kabuliyat recites that the tenants held an ancestral jama of 10 bighas at an annual rent of Rs. 6-15 under the plaintiff, his co-sharers and a lady named Jadumonee Dasi. The tenants agreed by the kabuliyat that from the date thereof they would hold the land in the share of the plaintiff and his co-sharers at the rate of Rs. 18-6. This was clearly in contravention of Section 29 of the Bengal Tenancy Act. It cannot be maintained that a new tenancy was created by the kabuliyat. The land remained the same as before, and yet the defendants undertook to pay to the plaintiff and his co-sharers a much larger sum than what they used to pay to these persons and Jadumonee. In fact, if they had by this contract agreed to pay Rs. 18-6 to the plaintiff, his co-sharers and Jadumonee, the contract would have been in contravention of Section 29 and consequently unenforceable. The position may be made obvious by a concrete illustration. If A holds; 6 bighas under X and Y for Rs. 16 a year, the maximum enhancement to which he can consent is R". 2. If he executes a fresh kabuliyat in favour of X and agrees to pay him for his share of the land more than Rs. 9, the agreement is void. If this view were not taken wherever land is held under several landlords jointly, the object of Section 29 may be defeated by the device of fresh distinct kabuliyats in favour of the different landlords. We hold, accordingly, in concurrence with the Courts below, that the plaintiff and his co-sharers are not entitled to claim rent at the rate of Rs. 18-6 from the defendants on the basis of the kabuliyat of the 11th February 1898.

(3.) We have next to consider another point on which the Courts below have taken divergent views.