HANUMAN DAS MUNDRA Vs. DAMODAR LAIK

JUDGEMENT

(1.) The appellant in this case is the plaintiff in a suit for enhancement of rent of a tenure under Section 7, Ben. Ten. Act. The defence of the tenants was that their rent was not liable to be enhanced as it was a Mokarari Mourashi tenure, that is, a heritable tenure the rent of which is fixed in perpetuity. In support of this defence, a pattah of 1250 B. Section was produced by the defendants. The Courts below have found that this document is a genuine document and this finding has not been challenged before us. The only point that has been urged in this appeal is that on a proper construction of the pattah, the Courts below should have held that the tenure was only heritable but that its rent was not fixed in perpetuity. We have gone through this pattah, and we are of opinion that the construction put upon it by the Courts below is correct. The words Thica Mokra, Mourashi, Putra Pautradikramay along with a stipulation that there will be no remission of rent on any account taken together, lead us to think that by this pattah a hereditary tenure with a fixed rent was intended to be created. The learned Advocate for the appellant argued that the word Mourashi was not enough to show that the rent was fixed in perpetuity. But there are other expressions in this pattah which clearly indicate that the intention of the grantor was to fix the rent in perpetuity. The word Thica as it appears from Wilson's glossary means a contract by which a person engages to pay a fixed amount of rent or revenue. This word does not, in our opinion, mean temporary , as was contended by the learned Advocate for the appellant. This contention of the appellant would be wholly inconsistent with the words "Putra Pautradikramay" mentioned in the lease.

(2.) The tenure was evidently intended to be held from generation to generation and not for a temporary period. This view gains further support from the use of the word Mokra in the lease. It was pointed out by Suhrawardy, J., in the case of 1931 Cal 265 Nabendra Kishore Roy v. Chowdhury Mian, 1931 Cal 265 that the word Mokra is a corruption of the Arabic word Mokarrar . In view of the accepted meaning of the words Mokarari and Mourashi in a lease, there cannot be any doubt that the tenancy was not only hereditary but that its rent was also fixed in perpetuity. Beading the document as a whole, we are of opinion that this was a Mokarari Mourashi lease, and, consequently, the rent of the tenants cannot be enhanced. The appeal is, accordingly, dismissed with costs. Lort-Williams, J.

(3.) I agree.