MANORANJAN RAI Vs. SRIJUKTA MUNSHI SELAMUDDIN AHMED CHAUDHURI

JUDGEMENT

(1.) In this appeal which arises in a suit for arrears of rent a question of some importance has been raised. The question which we are to decide is really a question of first impression turning on the provisions of Regulation VIII of 1819, and also on the provisions of the Bengal Tenancy Act. it appears that the predecessors of respondents executed so far back as in the year 1869 a putni kabuliyat in favour of the predecessor of the present plaintiffs. In that kabuliyat one of the stipulations was that in case of default of any kist the lessee should pay interest at the rate of two per cent. per month and that the amount in arrears together with the said interest should be realized without any objection under Regulation VIII of 1819 and Act X of 1859 and under the provisions of other laws in force for the time. On the basis of that kabuliyat a suit was instituted by the present plaintiffs for the recovery of the arrears of rent in respect of the nutni for the whole of 1337 and 1338 B.S. and the Asar and Bhadra kists of 1339 B.S. The only defence which was taken in this suit was that the plaintiffs were not entitled to interest at the rate claimed. The defence in substance is that the plaintiffs were not entitled to interest at a rate exceeding 12 1/2 per cent. per annum having regard to the provisions of proviso to Section 179 of the Bengal Tenancy Act as amended by Act IV of 1928 read with Section 178 of the said Act. With regard to plaintiffs claim the trial Court held that the plaintiffs were to recover rent and cess at the rate claimed together with interest at 12 1/2 per cent. per annum on the arrears of such rent and cess as they fell due.

(2.) In appeal to this Court by the plaintiffs it has been contended that the Subordinate Judge was wrong in cutting down the rate of interest and that he was in error in applying the provisions, of proviso to Secs.178 and 179 having regard to the provisions of Section 195 (e) of the Act. The argument on behalf of the appellants is that there is an express provision determining the incident of the putni in the Putni Regulation and consequently Bengal Tenancy Act will not apply to the provisions with regard to interest on the arrears of the putni rent which is one of the main incidents of relationship between the parties based on the putni. Section 195, Clause (e) is to the following effect: Nothing in this Act shall affect any enactment relating to putni tenures in so far as it relates to those tenures, except that the expression khud kast raiyat or resident and hereditary cultivator in Sub-section (3) of Section 11 of the Bengal Patni Taluks Regulation, 1819, shall be deemed to include all raiyats having a right of occupancy.

(3.) It is contended that by virtue of Secs.2 and 3 of the Putni Regulation, Act VIII of 1819, the rights of the parties must be determined according to the terms under which the putni is held. Section 2 says this: It is hereby declared that any leases or engagements for the fixing of rent now in existence, that may have been granted or concluded for a term of years or in perpetuity by a proprietor under engagements with Government or other person competent to grant the same, shall be deemed good and valid tenures according to the terms of the covenants or engagments interchanged, not withstanding that the same may have been executed before the passing or Regulation V, 1812.