JURAN MANDAL Vs. RAM MANDAL

JUDGEMENT

(1.) I agree with my learned brother in the construction he has put upon the contract in this case. I only wish to refer to certain vernacular expressions on which the parties have attempted to put different constructions. The kabuliyat in suit is a mourashi mokararri kabuliyat. After describing the land leased under it, it recites : ukto jomir barshik gula ekbisa panah adi dhan jahar mulya panchas taka hoytechhe abdharitey. Translated literally the clause will stand thus : Of the aforesaid land the annual, paddy rent, 1 bishi and 5 aris of paddy, the price of which is Rs. 50, having been fixed or settled. The word abdharitey according to the context refers to gula or paddy rent which was settled at 1 bishi and 5 aris. The learned vakil for the respondent has laid great stress upon the word abdharitey and suggests that it should go, not with the paddy rent but with Rs. 50, the price of the paddy rent. He bases his argument on certain observations made by Banerjee, J., in the case of Dwarika Nath v. Dwijendra Nath [1897] 47 Cal. 139n. In that case there was cash rent and a portion of the rent was to be paid in kind, the value of the paddy in money was stated and the total amount of rent including the cash rent and the price of the paddy rent was also stated. Then followed the words ekune 89-10 jama abdharitey.

(2.) The learned Judge there interpreted the words jama abadharite as meaning the fixed jama which according to the context was Rs. 89-10-0 The words therefore were taken to mean the total amount of rent fixed. The word abadharitey has been used in this kabuliyat in quite a different context and has been placed in a different position. The jama has been fixed as paddy rent of 1 bishi 5 aris and the words jahar mulya 50 taka hoiteohhey are parenthetical mentioning the price of the paddy rent fixed as the rent for the tenure. As my learned brother has observed, the word (hoitechhey) in the sentence jahar mulya 50 taka hoitechhey is significant. It makes the sentence mean "the price of which is Rs. 50" or" the price of which is at present Rs. 50." In my judgment there can be no doubt that the word abadharitey refers only to the gula rent fixed and not to the price of the paddy. This sentence is followed by another which is san sari khajnar taka nimner kishti niato adai purbak orthat gular dhanya nimner kishti mato adai purbak jamir semana ohau hadda bajay rukhiya, etc. Rendered in literal English it means : "Having paid every year the rent money according to the kist mentioned below, i.e., the qula paddy according to the kist, and keeping the boundaries of the land intact, etc. The learned vakil for the respondent has laid stress on the words talca khajnar taka. The sentence clearly shows that the words khajnir taka are used in place of rent or rental without reference to the kind of rent to be paid inasmuch as the words khajnar taka have been explained as meaning the gula or paddy rent. Thereafter, as my learned brother has observed, come expressions about the payment of the paddy rent only and there is nowhere stipulated any mode of payment of the equivalent money rent. In the sentence that I have quoted above it is stated the khajnar taka will be paid according to the kist at foot. The schedule which we find in the document states that 1 bishi 5 aria of paddy must be paid in tb.3 month of Magh every year.

(3.) There have been numerous cases dealing with contracts of this kind; but there can be no question that every case must depend upon its own particular facts and the particular terms of the contract which the Courts are called upon to interpret in that ease. But it may be useful to refer to some of the cases to show how the contracts have been interpreted though differently worded. The cases may be divided into two groups: one in which it was held that though the contract spoke of paddy rent and in lieu thereof a money rent, the intention of the parties was that in the event of failure of payment of paddy rent the landlord would be entitled only to recover the money rent. Under this head may be mentioned the cases of Bipro Charan v. Suahand Roy [1910] 12 C.L.J. 595, Afar Morole V/s. Surja Kumar Ghose [1910] 12 C.L.J. 649, Nil Madhab V/s. Keshab Lal [1916] 26 C.L.J. 94, Dwarika Nath V/s. Dwijendra Nath [1897] 47 Cal. 139n and Asutosh Mukhopadhya V/s. Haran Chandra Mukherji [1919] 47 Cal. 133.