BHAIRON PRASAD Vs. MAHANT SAMARPURI

JUDGEMENT

(1.) This is an action brought upon an agreement against ex-proprietary tenants. The facts were that the rate of rent having been fixed by the Collector under Section 36 of the Land Revenue Act at Rs. 50 on the 26th of April, the defendants on the 10th of July of the same year executed an agreement undertaking to pay Rs. 72 6 for the same interests. The first Court has found that the plaintiff s conduct in the matter had been perfectly honest and that the transaction was unimpeachable as a matter of fact. The defendants attempted to dispute the agreement on the merits. That attempt wholly failed. A further attempt was made by the defendants to dispute the agreement on the ground that two of them were minors. That was found against them as a fact in the first Court and the point was abandoned in the lower Appellate Court. It is raised here in the seventh paragraph of the memorandum of appeal, but the fact that it was abandoned in the Court below is sufficient ground for me to disregard it and I do so. The substantial point taken in the lower Appellate Court and before me is that this agreement is not binding. It is said, as I understand it, that it is illegal because the Agra Tenancy Act prohibits contracting out.

(2.) In the first place, it is to be observed that there is not a word in the Act itself against contracting out. The prohibition against contracting out of rights given by an Act of Parliament is not unknown in England and is to be found (speaking from recollection) in such instances as agreements by tenants not to keep down rabbits in the interests of the sporting proclivities of landlords, agreements to avoid the Truck Acts, and agreements by workmen to contract out of their rights to compensation for accidents. I know of no case where contracting out is prohibited by the English Law without some express enactment or some language in the section of an Act of Parliament declaring the rights of the parties to be such and such, notwithstanding any contract to the contrary." My own view is that in a free country the right of free contract cannot be disregarded by Courts of Law without an express statutory prohibition. In this particular Act so far from there being any prohibition there is an express permission, as I propose to show in a moment. But it was further said that it was the policy of the Act (I think that was the expression used) not to allow an ex-proprietary tenant to make any agreement inconsistent with the rights given to him by the Statute. If by policy is" meant something which is to be looked at outside an Act, such as the views of the authors of the Act and the various views of the advocates and opponents of the Act, to my mind such a method of interpretation of a Statute is altogether illegitimate. If it is something inside the Act which is to be looked at, it can only be gathered from the language of the Act itself. I think my duty is to confine myself in considering this question to the language of the Act itself. In Section 10 of the Agra Tenancy Act certain conditions are prescribed under which a proprietor shall become a tenant with a right of occupancy in sir land. It is also provided that he shall be entitled to hold the land at a favourable rent to be ascertained as provided afterwards by the section itself. The first of those two provisions is an enactment as to status. It creates a peculiar kind of estate in the land on the part of an individual and the language used is mandatory, shall become." The second provision deals with the peculiar privilege or right which is conferred upon him as a consequence of that status. He shall be entitled, says the Act to hold the same at a rent which shall be four annas in the rupee less than the rate generally payable by non-occupancy tenants for land of similar quality. I think that means what it says, that he has a right, if he chooses to exercise it, to hold the land at that rate of rent. Sub-section (5) indicates how the rent referred to in the earlier part of the section is to be fixed. It says that the rent referred to in Sub-section (1) shall be fixed by the Collector under Section 36 of the Land Revenue Act. I, therefore, turn to Section 36 of that Act, which provides amongst other things in Sub-section (2) that the rent so fixed shall not be liable to enhancement or abatement for a period of ten years except by order of a Settlement Officer with however this provision, Save as provided by Section 41 of the Agra Tenancy Act of 1901." Reading it without any assistance, I think it is perfectly plain that that provision is an exception or modification of the enactment in the general body of the sub-section. One has, therefore, to read Section 36, Sub-section (2), of the Land Revenue Act with Section 41 of the Agra Tenancy Act of 1901 as one and the same enactment. Section 41 of the latter Act provides that the rent of an ex-proprietary tenant shall be liable to enhancement only (a) by registered agreement, (b) by decree or order of a Revenue Court. In this case there is an agreement made some three months afterwards honestly and voluntarily by both parties in the form prescribed by the Act providing for enhancement of rent, an agreement within the precise terms of the section. I am asked to hold that it is invalid. All I can say is that it seems to me within the express provisions of the Act. I was referred to a passage in Mr. - Agarwala s Commentary on the Land Revenue Act at page 61, where the construction of Section 36 of the Revenue Act is discussed at some length. At the invitation of the appellants I have studied that passage with considerable care. I am unable to follow the reasoning of that passage. Mr. Agarwala seems to think- that the meaning of the words "save as provided by Section 41 of the Agra Tenancy Act of 1901" is not clear and he selects a construction inconsistent with the vies I take. I think the provision is perfectly clear, I see no ambiguity about it at all. The expression save as provided" is the usual and unambiguous way of preventing the general application of the words of a section; in this particular case, the general application of the enactment contained in Sub-section (2) of Section 35 of the Land Revenue Act, which might otherwise have been held to exclude the express enactment contained in Section 41, Sub-sections (a) and (b), of the Agra Tenancy Act of 1901. It is perfectly clear that when the rent has not been enhanced or abated within ten years it is open to the parties to adopt the alternative provisions, either by a registered agreement or by an application mentioned in Sub-section (1) of Section 41 of the Tenancy Act. Under these circumstances I am compelled to agree with the decision of the lower Appellate Court. I think it took the right view and I am confirmed in my decision by a ruling of this Court in Bhola v. Mohammad Habibul Rahman Khan 10 Ind. Cas. 465. Mr. Justice Griffin discussing this matter took the view that an agreement to pay enhanced rent is perfectly legal, unless there has been an actual enhancement within ten years of the agreement. I was referred to a decision of this Court in Pirag v. Sital Pershad 22 Ind. Cas. 965 : 36 A. 155 : 12 A.L.J. 136. That case did not relate to a registered agreement for enhancement of rent. No reference was made in it either to Section 41 of the Tenancy Act or to Mr. Justice Griffin s decision. It is distinguishable from the present case.

(3.) The result is that this appeal fails and is dismissed with costs.