1. The only question involved in this appeal is, whether theplaintiff-landlord is entitled to interest tip overdue instalments at the rateof 75 per cent, per annum.

2. The Court of Appeal below has found that interest at 75per cent, is an unusual and exorbitant rate and that it was an unconscionablebargain at its inception. It accordingly followed simple interest at 12 1/2 percent, per annum.

3. The plaintiff has appealed to this Court and it iscontended that as the kabuliyat was executed in May 1882 before the passing ofthe Bengal Tenancy Act, the defendant is liable to pay interest at the ratestipulated in it.

4. No doubt, the kabuliyat having been executed prior to thepassing of the Bengal, Tenancy Act, the provisions of Section 67 are notapplicable to the case; but the defendant purchased the holding at a sale forarrears of rent held at the instance of the landlord, the plaintiff. As apurchaser at the rent sale, the defendant purchased it with the ordinaryincidents of a tenancy.

5. It was pointed out by Banerji, J. in the case of KaliNath Sen v. Trailokhya Nath Roy 26 C. 315 : 3 C.W.N. 194 : 13 Ind. Dec. 45 that"a stipulation for the payment of interest et an unusual and an exorbitantrate cannot be supposed to be an incident of a tenancy which would attach to iteven after a sale for arrears of rent;" and again "the distinctionbetween usual and unusual term of a contract of tenancy is a distinction whichshould be taken into consideration in determining whether the incident inquestion continues to attach to the tenancy, notwithstanding its sale forarrears of rent, and it is a distinction which has been given effect to by thisCourt in certain cases, of which I may refer to the following, namely, DeendyalParamanick v. Juggeshur Roy Marsh 252 : 2 Hay 21 and Alim v. Satis ChandraChaturdhurin 24 C. 37 : 15 Ind. Dec. 690."

6. On behalf of the appellant, we have been referred to thecase of Raj Narain Mitter v. Panna Chand Singh 30 C. 213 : 7 C.W.N. 203 wherethe auction-purchaser of a dur-putni tenure was held to be bound by thestipulation contained in the dur-putni lease as to the payment of interest onarrears of rent, such a stipulation where there is nothing unusual in it beingpart of an ordinary incident of a tenure. It was also held that theauction-sale of a tenancy does not involve any new contract between theauction-purchaser and the landlord, a question upon which an opinion wasexpressed by one of the Judges (Rampini, J.) in the case of Kali Nath Sen v.Trailokhya Nath Roy 26 C. 315 : 3 C.W.N. 194 : 13 Ind. Dec. 805; the otherJudge Banerji, J., expressing no opinion on the point. As stated above, however,in the case of Raj Narain Mitter v. Panha Chand Singh 30 C. 213 : 7 C.W.N. 203the tenancy was a dur-putni, i.e., a permanent tenure and not a raiyati holdingand it was upon that ground that Banerji, J., distinguished the cases Alim v.Satis Chandra Chaturdhurin 24 C. 37 : 12 Ind. Dec. 690 and Kali Nath Sen v.Trailokhya Nath Roy 26 C. 315 : 3 C.W.N. 194 : 13 Ind. Dec. 805.

7. It is unnecessary to refer to cases relating to permanenttenures, because the holder of a permanent lease may not be entitled to theindulgent consideration which might be extended to a raiyat. So far as casesgoverned by the Bengal Tenancy Act are concerned, Section 179 expresslyprovides that nothing in this Act shall be deemed to prevent a proprietor or aholder of a permanent tenure in a permanently settled area from granting, apermanent mukarrari lease on any terms agreed on between him and his tenant.

8. The learned Pleader for the appellant also relied uponthe cases of Tiluk Chandra Roy v. Jasoda Kumar Roy : 11C.W.N. 215 and Madhumala v. Alafzaddi Kazi 2 Ind. Cas. 415 [LQ/CalHC/1909/230] : 13 C.W.N. 962 : 10C.L.J. 45.

9. These cases, no doubt, related to raiyati holdings butthe defendants in both "the cases were private purchasers from theoriginal tenant; and, apart from the provisions of the Bengal Tenancy Act, theywould be bound by the contract in the same way as the original tenant was.

10. We were also referred to the case of Abdul Hamid v.Abdul Miji 32 Ind. Cas. 710 [LQ/CalHC/1916/40] where the original kabuliyat which was executed priorto the passing of the Bengal Tenancy Act provided for interest at the rate of75 per cent, on overdue instalments and there was subsequently a solenamabetween the landlord and the tenant by which there was some variation of therent. The question was whether the solenama created any new contract oftenancy. It was held that the solenama did not create any new contract oftenancy and the plaintiff was entitled to get interest at the rate stipulated.But there the defendant was the original tenant and there was no question ofpurchase at a sale for arrears of rent at the instance of the landlord.

11. It is contended by the learned Pleader for the appellantthat no distinction should be drawn between the case of a private purchaser anda purchaser at a rent-sale.

13. But there is a distinction between these two cases. Inthe case of a private transfer, the transferee can and should call for thetitle-deed of the vendor; and if there is a lease providing for interest at ahigh rate, the purchaser becomes aware of such a contract before his purchase.He, therefore, purchases with full knowledge of the terms of the lease and hecannot, in these circumstances, complain that the rate of interest is anexorbitant one. In the case of a rent-sale, on the other hand, the purchaserordinarily cannot have any knowledge of the terms of the contract between thelandlord and the tenant unless the landlord chooses to specify in the saleproclamation any incident of the tenancy or refer to the contract under whichthe tenancy is held.

14. In these cases, we may observe, there was no suchnotification by the landlord. Many agricultural tenancies in this country areheld without any written contract at all and if the landlord does not in thesale proclamation refer to any written contract under which interest at a veryhigh rate is payable, the purchaser has no means of knowing the terms of thecontract: and when a holding is put up to sale at the instance of the landlordhimself without any such notifications, the purchaser may be justified inpurchasing the holding on the assumption that the ordinary rate of interest ispayable, interest under the Bengal Tenancy Act being payable at 12 1/2 per centand before the passing of the Bengal Tenancy Act at 12 per cent, under Act VIIIof 1869. For reasons stated above, we think that the decision of the lowerAppellate Court is correct and that the appeal must be dismissed with costs.

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Annadamoyi Debi and Ors.vs. Saudamini Debya (13.12.1922 -CALHC)