Authored By : Lancelot Sanderson, Mookerjee, Newbould EdwardBrooks, Lancelot Sanderson
Lancelot Sanderson, C.J.
1. This is an appeal from the judgment of the learnedAdditional District Judge of 24-Perganhas, whereby he affirmed the judgment ofthe Court below; and the only question which arises on this appeal is withreference to the amount of rent which is payable under the Contract in writing,a translation of which has been handed up to us. I think it is desirable inthis case to draw attention to the terms of the Plaintiffs claim, and we areindebted to my learned brother Mr.- Justice Mookerjee who is sitting with us atour request, for having our attention drawn to the claim. The claim is one forRe. 1-6-8 gds. in cash; the value of the paddy is Rs. 28-12 as., making a totalof something over Rs. 30. then in addition to that, the Plaintiffs have claimed25 percent, on the Rs. 30 odd, making an amount of Rs. 7 odd, and altogetherRs. 38-9 as. The 25 per cent, is obviously a claim in pursuance of sec. 68 ofthe Bengal Tenancy Act. Therefore, it is obvious that that is a claim for rentand nothing else otherwise the Plaintiffs could not have claimed 25 per cent,on the amount which they bad claimed.
2. In order to justify this claim, the Plaintiffs mustsatisfy us that there was a covenant in the contract to pay such a claim.
3. The document was a mokurari and maurasi kabuliyat Thekabuliyat was m respect of 4 bighas and "at the rent at Rs. 1-6-0 each and7 arts of paddy the market value whereof is Rs. 15." Then comes a phraseas to the translation of which there was a little dispute, although I think thetranslation given by the learned Vakil for the Appellants and that given by thelearned Vakil for the Respondents did not differ very much. On behalf of theAppellants it was said that the Bengali words of that phrases ought to betranslated as follows : "Taking the cash and the price of pady together,the total rent being fixed at Rs 16-6-9 gda." The learned Vakil for theRespondents translated them as follows : "Taking the Cash and the price ofpaddy together assessing the total rent at Rs. 16-6-8gds." As I have saidbefore, I do not think there is any material difference between the twotranslations. Then the document goes on as follows : "And on payment ofRs. 30 as Selami, and covenant that I will maintain the boundaries and shallpay the cash rent fixed every year in Bhadra and Pous and the paddy in themonth of Magh every year in one kist. Then there are several other provisionsto which I need not refer. Then there is the following clause : "Thereshall be no increase or abatement in the jumma." At the end are thesewords "To this effect I hereby execute this mokurari maurasi kabuliyat.
4. On behalf of the Respondents it was contended that thematerial sentence to which I have referred was inserted merely for the purposeof determining the registration fee. On the other hand, on behalf of theAppellants if was contended that the parties had agreed to fix the total rentwhich was payable under this contract and had fixed this amount at Rs. 16-6-8gds. The question we have to decide is which of these constructions is thecorrect one.
5. In my judgment the Appellants contention is the correctone.
6. The first thing to be noticed is that this is a maurasimokurari kdbuliyat; and, therefore, one would expect to find a_ fixed rent. Inthe next place, the parties should be held to that which they have said in thecontract and 1 do not sec why the Court should speculate and as. a result, ofthat Speculation arrive of the conclusion that the important provision to whichI have referred had been inserted merely for the purpose of determining theregistration fee. I think there might be good reason for the parties havingfixed the rent, the parties may have thought that it would be more prudent, asbetween themselves, to fix the amount which should be taken as the value of thepaddy rather than have a dispute upon each occasion as to the market value ofit. to case it were not delivered. That is a point to which the late ChiefJustice Sir Francis Maclean drew attention in giving his judgment in anunreported case decided by Sir Francis Maclean and Mr. Justice Banerjee (DwarkaNath Mukerjee v. Dwijendra Nath Ghosal) * Second Appeal No. 966 of 1895.(Unreported), to which our attention was drawn. The Bengali words which wereused in the present contract are, no doubt, not the same as the Bengali wordsin the contract with which Sir Francis Maclean and Mr. Justice Banerjee had todeal; lad n was contended by the learned Vakil for the Appellants and I thinkit is not denied by the learned Vakil for the Respondents that there waspractically no difference in the meaning of the two phrases, and I was muchstruck with the judgment of Mr. Justice Banerjee. when referring to the Bengaliphrase used in the contract in that, Case; he said, "The words in theoriginal.....are a well-known Bengali expression which means a great deal morethan a provisional settlement of the rent for the incidental purpose ofascertaining the stamp duty. The lease was a mokurari maurasi lease; and whensuch a document mentions a certain sum of money as the jumma abadharita, whichwords may well be rendered as the fixed rent, the meaning of the documentseems to be very clear, that the parties wanted to fix the value of the paddy,that is the part of the rent which was payable in kind. Being impressed withthat learned Judges judgment as to the meaning of the words I thought it wasdesirable that we should have the assistance of one of the learned Judges ofthis Court who are thoroughly acquainted with the Bengali language, and that isthe reason why I asked my learned brother Mr. Justice Mookerjee to sit with us: and we shall have the advantage of his judgment presently. The bestconstruction that I can put upon this contract is the one that is contended forby the Appellants. Looking at the document as a whole I think the parties didintend to fix the total rent which should be paid in the event of non-deliveryof paddy, namely Rs. 16-6-8 gds.
7. There are several cases dealing. with points somewhatsimilar to the point which we have had before us to-day. but there is no casewhich is exactly the same. The words in each of the cases differ to some extentfrom the words of the contrad in this case, consequently I do not think M isany question which should be referred to a Full Bench, as we wore asked to doby the learned Vakil for the Respondents. In my judgment, it is our duty to puton the con-tract the best construction we can.
8. For these reasons I think that the appeal should beallowed with costs.
Mookerjee, J.
9. I agree that this appeal must be allowed. In my opinion,in the events which have happened, the landlords are entitled to recover rentfrom the tenants only at the rate of Rs. 16-6-8 gds. under the terms of thecontract between them.
10. The lease is described as a maurasi mohurari kabuliyat :and the rent payable thereunder is fixed in perpetuity. This is manifest fromthe concluding words in other words, atno time would there be reduction or increase in the land and the rent fixed.
11. The document states that the rent is payable partly incash and partly in kind. The cash rent is payable at the rate of Rs. 1-6-8gds., and the paddy rent is payable at the rate of Rs. 7-3-16 gds. an ari. Thedocument further states that the market value of the paddy is Rs. 15 and thatthe total rent is Rs. 16-6-8 gds. obtained by the addition of the rent in cashand the money value of the rent in kind). It is fairly clear that upon thelease taken as a whole the rent was fixed at Rs. 16-6-8 gds., if the tenantshould fail to deliver the paddy under the terms of the contract.
12. It has been suggested by the learned Vakil for theRespondents that this was not the true intention of the parties; but we mustremember that we have to give effect only to such intention as the parties wereable to express by the language used in the document; the Court is notconcerned with any unexpressed intention which they might have entertained. Thesuggestion that the quantity of paddy deliverable might have been valued forthe purpose of payment of the registration fee is a speculation for which thereis no foundation either in the document or in the evidence.
13. There are many cases to be found in the books on theconstruction of documents of this character, more or less varying in theirterms. The earliest case I have been able to trace in which the suggestion wasmade that the money value of the paddy was stated for purposes of theregistration laws is that of Sohobut Ali v. Abdool Ali 3 C.W. N. 151 (1898)..The theory that the paddy is valued either for the purpose of convenience ofthe parties or for the purpose of registration reappears in two later cases,-Akbar Ali v. Durga Kripa Sen 12 C.L.J. 589 (1900). and Sheikh Isaf v. Gopal Chunder12 C.L.J. 593(1910).; The latest case where it is reiterated is Baneswar v.Umesh I. L. R. 37 Cal. 626 (1910). On the other hand, there are decisions wherethe Court has construed the agreement strictly, without travelling beyond theterms expressed there and amongst cases of this class reference may be made toBipro Charan v. Suchand Roy 12 C. L. J. 595 (1910)., After Morole v. ProsonnaKumar 15 C. W. N. 249 : s. c. 12 C.L.J. 649 (1910) and Nil-madhab v. Sitanath26 C.L.J. 94 (1914). It now transpires that the earliest case on the point isin the same direction, namely, the unreported decision of the late ChiefJustice Sir Francis Maclean and Mr. Justice Banerjee in Dwarka Nath Mukerjee v.Dwijendra Nath Ghosal and it is probable that if that ruling had been reported,the current of decision of this Court might have been uniform. I have read thejudgment of Mr. Justice Banerjee in the case just mentioned and I entirelyagree with that learned Judge as to the meaning of the expression"abadharita jununa." The expression used in this case is not"abadharita" but "dharjya"; the two words, however, arederived from the same root, and, in my opinion, they have clearly the samesignificance.
14. It we were to accede to the contention of theRespondents, the result would be to destroy the character of this lease as amaurasi mokurari kabuliyat; the amount of rent payable would vary from year toyear according to the market price of the paddy. This, in my opinion, was notthe intention of the parties, so far as that intention can be gathered from thewords wised in the document.
Newbould Edward Brooks, J.
15. With respect, I find myself unable to agree with thelearned Chief Justice and my learned brother Mr. Justice Mookerjee.
16. The facts of this case seem to me to beindistinguishable from the facts of the case of Baneswar Mukerjee v. UmeshChandra Chakraburtty (4) I.L.R. 37 Cal. 626 (1910). There was as here amokurari kabuliyat, the annual rent was a cash rent and a paddy rent. In thekabuliyat the paddy was valued and the total of the cash rent and valuation ofthe paddy rent was stated as settled in perpetuity, and it was held that thestatement as to the market value of the paddy was explicable by thedesirability of stating that amount for the purpose of fixing the stamp duty.It seems to me that to give any other meaning to this portion of the kabuliyat,we have now hail to consider, would contradict the terms of the document. Themarket value of the paddy rent and the total rental of Rs. 16-6-8 gds. arestated at the commencement of the document and subsequently comes the covenantto pay the cash rent on two different occasions and the paddy at a later dateeach year. There is nothing in the covenant suggesting that there is any optiongiven to the tenant to substitute cash rent for the portion of the rent whichis payable in paddy. The recovery of the paddy rent at its cash value as itvaries from year to year does not seem to me to be inconsistent with the tenurebeing a mokurari one. When the value of the paddy varies the value of the cashmay also he said to Vary in comparison with the paddy. The effect of variationis diminished by fixing, a b this case, the rent partly in cash and partly inkind. In the absence of any agreement in the kabuliyat to pay the total rent incash, I cannot see that the statement fixing the total rent at Rs. 10-6-8 gds.can be, given any other meaning than a statement added to the document for thepurpose of fixing the stamp duty and the registration fee. I would, therefore,dismiss the appeal.
Lancelot Sanderson, C.J.
The result is that we allow the appeal, set aside the decreeof the Courts below, and direct that a decree be drawn according to thejudgment of the majority of the Court.
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Ashutosh Mukhopadhya and Ors. vs. Haran Chandra Mukerjee andOrs. (16.05.1919 - CALHC)
