Hemanta Kumari Debi and Hem Chunder Chowdhri vs Jagadindra Nath Roy Bahadur

Macnaghten, J. 1. The appellants are the zemindars of a ten-anna and a four-anna share in the zemindari property called Pakhuria Jainsahi, in the District of Maimensingh. The respondent is talukdar of a taluk called Balasuti, forming part of that zemindari. The object of the four suits, which were brought by the predecessor in title of Rani Hemanta Kumari Debi and by Horn Chunder Chowdhri against the respondent, was to obtain from him enhanced rents in respect of that taluk. The main question to be decided in these appeals is whether the Courts below were right in holding that the appellants were precluded by a decree of the Sudder Dewani Adalut from demanding a larger rent from the respondent than Rs. 16,369-8-11, or from disputing the independent nature of the respondent''s taluk. The decree of the Sudder Court was pronounced on the 14th August 1805. By that decree the Court expressed the opinion that the then defendant, the predecessor in title of the respondent, was entitled to have his taluk detached from the plaintiff''s zemindari, and that in the meantime, and until separation took place, the rent of sicca Rs. 16,369-8-11 should continue to be paid. 2. The sole objection to treating that decree as absolutely binding comes to a question of form. It is said that the opinion of the Sudder Court was expressed in the form of a recommendation and not in the form of a decision. That undoubtedly is so; but it was an expression of opinion by a Court which was perfectly competent to deal with the matter, and it must be borne in mind that at that time the pleadings, if there were any pleadings, were not very strict or very formal. Beyond that, it appeals that from the date of the decree until the present question arose, both parties, zemindars and talukdars alike, have treated that expression of opinion as binding. 3. Proceedings were taken soon after the decree to obtain an actual separation. Those proceedings lasted for about fifty years. They were carried on with more or less activity, until the year 1854 when they came to an end, not in consequence of the right of the predecessor in title of the respondent to a separation being disputed, but because of the intervention of the Government. 4. The first of the four suits now pending was brought in the year 1882. Both Courts have decided the suits in the respondent''s favour. In the judgment of the High Court pronounced in all the suits the view of the Court is expressed as follows: ''The suit, as laid, is a suit against an independent talukdar alleged to be a dependent talukdar under the Regulations; and it appears to us quite clear from the decision of the Sudder Dewani Adalut that it was decided between the parties that, instead of being a dependent taluk, it was an independent taluk, within the meaning of Section 5, Regulation VIII of 1793, and that that decision had been acted upon by both parties for nearly fifty years." In that view their Lordships entirely concur. They are of opinion that there is no foundation whatever for these appeals on the main question of the enhancement of rent. 5. A subordinate question arose in Appeals Nos. 20 and 21 of 1890 with regard to the interest on the rent in arrears. It appears that there are some arrears which have become due since the Bengal Tenancy Act, 1885, The Subordinate Court held that interest was to be calculated monthly on the arrears; but the High Court held that under the provisions of that Act, as regards arrears which became due after the Act came into force, the interest should be calculated quarterly. It appears to their Lordships that the High Court were wrong, and that the provision in Section 67 of the Act, on which they relied, only applies to cases where the rent is payable quarterly. Here it is not disputed that the rent is payable monthly, and on rent in arrears it appears to their Lordships that interest ought to be calculated monthly. This is a matter which has not added at all, or if at all, only to an infinitesimal degree, to the costs of the appeals, and their Lordships think that this variation ought to make no difference as to the costs. 6. Although by the judgment of the High Court the judgment of the Subordinate Court was varied in the above respect, the decrees drawn up by the High Court contain no such variation, but simply dismiss the appeals from the Subordinate Court with costs. The decrees of the High Court are consequently right and should be affirmed. Their Lordships will humbly advise Her Majesty accordingly. The appellants must pay the costs of these appeals.