Budhan Mahton and Others vs Musammat Wazi Hunnissa Begum and Another

Atkinson, J.—These appeals have come before us from a decision of Mr. Ross, the District Judge of Patna. The plaintiffs sued to enhance the rent payable by certain tenants on their property. Thirty-four appeals were taken before the learned District Judge and out of 34 only 28 cases are now-pending in second appeal before us. The plaintiffs, who are the zemindars, let the lands in suit to the defendants as tenants. Sometime about the year 1882 they leased the property to a ticcadar, who was entitled to collect from the tenants the rents payable by them.

In the year 1882 the ticcadar sued the tenants for an enhancement of rent. The suit was dismissed; and after the dismissal of the suit while an appeal was pending the parties came to an agreement, the ticcadar on the one side and the tenants on the other. By that agreement, the tenants agreed to pay an enhanced rent for the years 1291 to 1293 In 1294 the agreement was revived and again the tenants entered into an agreement with the ticcadar to pay an enhanced rent from the years 1294 to 1301. In 1301 the ticcadar again came to an agreement to enhance the rent for the years 1302 to 1310. The tenants agreed to pay a further enhanced rent to the ticcadar by an agreement which continued in operation till 1310. In 1311 a further arrangement was come to between the ticcadar and the tenants by which the tenants agreed to pay a further enhanced rent for the years 1311 to 1319. Subsequently when the matter came before the Settlement Officer it was pointed out that the contract that was made between the parties in 1311 was illegal. The grounds on which it was declared to be illegal do not appear. But there are obvious reasons for holding that the agreement was illegal; firstly, because it was an agreement which was made within 15 years of the date of the last enhancement. Such an agreement is prohibited by Section 37 of the Bengal Tenancy Act. Therefore, the agreement that was arrived at in the year 1311 between the parties was illegal. No doubt after that agreement was entered into, the tenants did pay the rent provided thereby to be paid, but clearly the rent was in excess of the amount provided in the agreement in 1302.

It is urged now in second appeal that the learned Judge was wrong in holding in point of law that this suit was not barred by the provisions of Section 37 of the Bengal Tenancy Act. It was contended before the learned Judge that inasmuch as there was a contract providing for enhancement of rent in the year 1311 that no suit could be instituted by the plaintiffs now to enhance the rent, an enhancement of rent having already taken place within 15 years prior to the institution of this suit. It is right to observe that the ticcadar made the contract in 1311 and not the plaintiffs as zemindars. The learned District Judge, Mr. Ross, has held that the provisions of Section 37 do not apply to this case. That section, we think, clearly contemplates a prohibition against enhancement of rent in respect of a contract validly made and binding between the parties; but that if an illegal or invalid contract and one not legally binding is made within the period of 15 years that such a contract does not come within the provisions of Section 37 of the Bengal Tenancy Act so as to operate as a bar to the institution of a suit for enhancement of rent. We think the view taken by the learned Judge as to the proper construction to be put upon Section 37 was right. The wording of the section runs as follows: A suit for enhancement of rent of a holding shall not be entertained if within 15 years next preceding its institution the rent of the holding has been enhanced by a contract made between the landlord and the tenants." Giving a legal interpretation and construction to these words, it appears to us that they must mean that the contract then made between the parties to operate as a bar to a subsequent suit for enhancement must be a contract legally binding and operative as between the parties to it; but that these words cannot apply to a contract which is void and illegal. This appears to us to be the correct interpretation of Section 37. Therefore, the enhanced rent arrived at by the agreement of 1311 would not operate as a bar to the present suit for enhancement of rent. Accordingly we think the learned District Judge was right in his view of the construction of Section 37 and We dismiss these appeals with costs.

It is right to say that the plaintiffs must suffer for the illegal action of the ticcadar in so far as the receipt of rent over and above the rate stipulated by the agreement of 1302 is concerned. After the enhancement is made by the learned Judge on remand, which we confirm, we direct that in the future payment of rent the tenants will be entitled as against future rent to deduct in respect thereof the sums paid by them between the years 1311 to 1316 in excess of the rent provided by the agreement of 1302. The deductions will be without interest. We dismiss the appeals.

Chapman, J.

I agree.