NALINI BHUSAN GUPTA Vs. ALI MIA

JUDGEMENT

(1.) This is a suit for rent for the years 1322 to 1325 at the rate of Rs. 33 per annum, and interest on arrears of rent has also been claimed. The claim for rent is based upon a kabuliat, dated the 23 June 1875. The defence was that rent was not claimed by the plaintiff, but the actual rent was Rs. 28-12-9, the balance being in the nature of an abwab and hence irrecoverable. The determination of this question depends upon the construction to be put upon the kabuliat. A large number of cases has been placed before us in. which the question as to whether a portion of the rent claimed was abwab or not was raised and decided in one way or the other on the construction of the contract in each particular case. It will not be necessary, therefore, to examine those cases as we are called upon to construe the contract in the present case. It will serve no useful purpose to seek help from other forms of contract in interpreting the terms of the contract in this case, as the learned Chief Justice observed in the case of Bejoy Singh Dudhuria V/s. Krishna Behary Biswas (1917) 45 Cal. 259. It seems that the rule followed in that case is that each case must depend upon the proper construction of the contract before the Court, and if, upon a fair interpretation of the contract, it can be seen that a particular sum is specified in the contract or agreed to be paid as the lawful consideration for the use and occupation of the land, that is, if it is really a part of the rent, although not described as such, the landlord can recover it. Proceeding to interpret the contract before me it would be necessary to quote that portion of the kabuliat which relates to the present enquiry. In the first part of this kabuliat, no doubt, rent has been fixed of culturable and homestead lands at a certain rate per kani. To the total amount of the sum thus obtained certain other sums have been added under the heads of improvement of Dat and Bhet expenses and the rent total is put down as Rs. 33. Then follow the instalments in which not the rent of the lands as fixed at a certain rate per kani but the whole 33 rupees are to be paid. This sum of Rs. 33 has to be paid according to the instalments mentioned therein and has to be paid in ten instalments annually. After the instalments have been mentioned follow the following words which really have a great bearing on the true construction of this kabuliat. The words are "Rents Rs. 33 according to above instalments I shall pay to your estate and receive dakhilas for same." Beading these words it seems to me that what the parties intended was that the rent of the land was fixed at a certain rate, but over and above that, the tenant had to pay a certain amount for improvement of Dat and Bhet expenses in respect of the land which also was intended to form part of the rent. No such case has been placed before us in which all the circumstances have been combined. But there are cases in which one of these conditions exists; for instance in the case of Mathura Prosad V/s. Tola Sinah (1912) 40 Cal. 806, the circumstance that rent was fixed at so much per bigha was mentioned in the kabuliat. But in other respects the kabuliat is very different from the present one. In that case the tenant undertook to pay a cart-load of husk over and above the rent, or in default, its value which was assessed at Rs. 5 per cart-load. Two other circumstances there were in that case, namely, that the plaintiff did not claim that price of the husk at the rate mentioned in the kabuliat, but at a higher rate alleging that that was the market rate at the time and this additional sum was not made a part of the rent. Then again, in that case cesses were not calculated on the rent as claimed. In these circumstances, the Court held that the claim for the value of the husk be taken as not a part of the rent. In this case we have got a very important factor, namely, that the total amount payable by tenant according to the calculation mentioned in the kabuliat was distributed over certain instalments and the whole sum is mentioned in the kabuliat as rent. This is a circumstance which is of very great importance as is observed by Chatterjea, J., in the case of Bejoy Singh Dudhuria V/s. Krishna Behary Biswas (1917) 45 Cal. 259. The real question is what was the intention of the parties when they entered into the contract. That intention is to be gathered from the terms of contract. On the construction of the kabuliat before us I have no hesitation in coming to the conclusion that the parties intended that the sum of Rs. 5-3 under the heads of improvement of Dot and Bhet expenses should be a part of the rout payable by the tenant. This view if? further strengthened by the last clause of the above document. There it is stipulated that on occasions of marriage and other auspicious ceremonies the tenant shall pay rajdhuti and selami according to the practice prevailing in the mouza. This is clearly an abwab as it does not form part of the actual rents. It has been held in several cases that where a payment of certain sum is embodied in a certain portion of the document, and in another portion of the document some excess amount is mentioned, it may fairly be inferred from this circumstance that the latter amount was not intended as a part of the rent. In the present kabuliat the entire sum of Rs. 33 has been mentioned in one place where the different items payable by the tenant are mentioned. Both the Courts below have taken the view that this amount claimed under the heads of the improvement of Bat and Bhet expenses is an abwab. They have come to this conclusion by the fact that the rent of the land has been fixed at a certain rate per kani. No doubt that is an important circumstance to be taken into consideration, but that is not all. The whole document has to be construed and the intention of the parties gathered from the nature of the entire contract. There are some other circumstances mentioned by the learned Munsif in his judgment though the lower Appellate Court does not rely upon them. But those circumstances do not go very far to enable us to interpret the document. It is found that the plaintiff has failed to prove that he bad realized rent at the rate claimed. But it is also found that the defendants had paid sums of money from time to time to the plaintiff which he appropriated at the rate now claimed. Then the entry in the record-of-rights is also in favour of the defendants. That only raised the presumption that the rent payable by the defendant is so much. I may mention here that the defendant admits that he is liable to pay rent at the rate of Rs. 28-12-6, but the record-of-rights shows the amount of rent is only Rs. 28. In construing a contract, it is not necessary that it must be proved that rent was realised at the amount mentioned in it. No doubt that circumstance would be of great assistance where the terms are ambiguous. But I do not think that there is any ambiguity about terms here. I am of opinion that the view taken by the Courts below is wrong and that this appeal ought to succeed. In the construction I put upon the kabuliat in this case the plaintiff is entitled to a decree at the rate claimed by him.

(2.) The result is that this appeal is allowed, the decree of the Courts below sot aside and the plaintiff's suit decreed for the amount of the rent claimed with costs in all the Courts. Page, J.

(3.) I am of the same opinion. The question which falls for determination, is whether the items of Dat and Bhet expenses from part of the rent payable for the use and occupation of the premises, or are illegal abwabs under Section 74, Bengal Tenancy Act. In the course of the argument a number of cases were cited before us. The law on the subject may, I think, be ascertained from the following cases : Chultan Mahton V/s. Tilukdhari Singh [1885] 11 Cal. 175, Radha Prasad Singh V/s. Balkower Koeri [1890] 17 Cal. 726 (F.B.), Srikanta Pershad Hazari v. Irshad Ali Sarkar [1912] 16 C.L.J. 225, Kalanand Singh V/s. Eastern Mortgage Agency Co. [1913] 18 C.L.J. 83, and Bejoy Singh Dudhuria V/s. Krishna Behary Biswas (1917) 45 Cal. 259. Little, if any, assistance can be obtained from the consideration of the facts in other cases, because, in my opinion, the determination of the question as to whether items in question form part of the rent, or whether they are abwabs, depends upon the construction of the terms of the particular tenancy in each case. The rule of construction to be applied, in my opinion, is that laid down by Mr. Justice Ghose in the case of Radha Prosad a Singh v. Balkower Koeri [1890] 17 Cal. 726 (F.B.). His Lordship observed: It appears to me that if in any given case the Court finds that any particular sum specified in the lease is a lawful consideration for the use and occupation of any land, that is to say, if it is really a part of the rent although not described as such, it would be justified in holding that it is not an abwab and is recoverable by the landlord.