SHEIKH KAMAARDDI Vs. SRIMATI MONMOHINI DASYA

JUDGEMENT

(1.) This is an appeal under Clause 15 of the Letters Patent from a judgment of Mr. Justice Newbould in a suit for rent. Under the contract of tenancy, dated the 8th September 1898, the defendant undertook to deliver to his landlord 35 powas of paddy as rent for each year. There was a further provision that, on default, the landlord would be entitled to realise from the tenant Rs. 20 as price of the paddy with damages and costs, The landlord instituted this suit on the allegation that the paddy due for the years 1317 and 1318 had not been delivered and sought a decree for recovery of Rs. 40 with damages and costs. The defendant pleaded that the contract contravened the provisions of Section 48 (a) of the Bengal Tenancy Act and was consequently not enforceable in law. This contention was accepted by the Court of first instance. Upon appeal a contrary view was taken by the Subordinate Judge, and the decision of the lower Appellate Court has been confirmed by Mr. Justice Newbould.

(2.) Section 48 is in these terms:---"The landlord of an under--raiyat holding at a money-rent shall not be entitled to recover rent exceeding the rent which he himself pays by more than the following percentage of the same, namely, (a) when the rent payable by the under raiyat is payable under a registered lease or agreement, 50 per cent., and (b) in any other case, 25 per cent." In the present case, the rent was payable by the under-raiyat under a registered lease. Consequently, if the Section is applicable, the plaintiff cannot recover from the tenant, as rent, a sum which exceeds by more than 50 per cent, what is paid by himself to his superior landlord. The Court of first instance found that, for the entire holding, the plaintiff pays to his superior landlord Rs. 2-8-0 a year, and in the view that the Section was applicable, held that the plaintiff could recover rent at the rate of Rs. 2-8-0 plus Rs. 1-4-0 that is Rs. 3- 12-0, Consequently, the question arises whether Section 48 is applicable to this tenancy. The appellant contends that the Section is applicable, because the tenant holds at a money-rent, and in -support of this view relies upon the cases of Ananda Chandra Roy v. Makram Ali (1) and Bipro Charan v. Suchand Roy (2). In our opinion, there is no foundation for this contention and the cases mentioned are clearly distinguishable.

(3.) In the first of these cases, the tenant had the option to deliver a certain quantity of produce, or in the alternative, to pay a certain sum of money. In the second case, the agreement was exactly the reverse. In the case before us, the agreement on the face of it shows that the tenant held at produce rent. No doubt there was a provision to the effect that if there was default on the part of the tenant, the landlord would be entitled to realise a certain sum of money as the price of the paddy. This only accentuates the true position, namely, that rent is payable not in cash but in kind, and the contract only prescribes the measure of the damage which the landlord could claim in the event of default on the part of the tenant. We hold, accordingly, that this is not a case of an under-raiyat holding at a money-rent. We may add that it was contended before us that the expression holding at a money-rent refers to the landlord and not to the under-raiyat Ananda Chandra Roy v. Makram Ali (1); it is clear, however, that Section 48 taken as a whole indicates plainly that the landlord and the under- raiyat must both hold their respective tenancies at a money-rent; otherwise, no comparison can possibly be instituted, as contemplated by the section. In this view it is needless to consider the question raised by Mr. Justice Newbould as to the applicability of the decision in Nim Chand Shaha v. Joy Chandra Nath.(.3).