Jitendranath Chatterjee and another vs Jaku Mandar and others

Ross, J.—This is an appeal by the plaintiffs in a suit in which they claimed Rs. 1,349 on account of rent for 41 Bighas, 17 Kathas of land for the years 1322 to 1325. The land was held by the defendants under a Manhunda Settlement for 3 years from 1310 to 1312 and they have been holding over. The Munsif gave a decree in full but the learned District Judge modified the decree on a construction of the lease.

The first point taken in second appeal is that the appeal to the District Judge was incompetent and his decree a nullity because the suit was brought by 4 plaintiffs while only two of these were made respondents in the appeal. In support of this contention the cases of Bejoy Gopal v. Umesh Chandra Bose (1902) 6 C. W. N. 196., Dharanjit Narayan Singh and others Vs. Chandeshwar Prosad Narayan Singh . and an observation in the judgment of the Privy Council in Raj Chander Sen v. Ganga Das Seal (1904) 31 Cal. 487=31 I. A. 71=8 Sar. 623 (P.C.), have been referred to. On the other side has been cited the decision in Upendra Kumar Chakravarti Vs. Sham Lal Mandal, . This decision appears to be in conflict with the other authorities and contrary to the general course of decision.

It seems plain that a person who is a necessary party to a suit must also be a necessary party to the appeal. The two plaintiffs who were made respondents to the appeal could not have maintained the suit which was a suit for rent for one holding, and the appeal against these two plaintiffs only is in my opinion incompetent.

It was attempted to support the decree on the ground that the plaintiffs are brothers governed by the Dayabhaga School of Law and that the two who were made respondents are the senior members of the family, but the decree appealed against was not a decree for specific sums in favour of each plaintiff but a single decree in favour of all. The appellants were not entitled to divide the amount of the decree by two, and to appeal against two of the plaintiffs only in respect of half of the sum decreed.

Reference was also made to Order 41, Rule 4, but that has plainly no application as it provides for an exactly opposite set of circumstances to the present. I therefore hold that the appeal was incompetent and that the decree passed in appeal is a nullity.

The second point is on the merits of the case. It is contended that on the true construction of the Kabuliyat the Munsif''s decree was right. The settlement is expressed to be a Manhunda Settlement. The stipulation as to rent is as follows :-

We shall in respect of this Kamat land deliver to the Malik Zamindar aforesaid at his place, grains, kalai and Jai, 2 Maunds per bigha on the average, total 83 Maunds 28 seers by way of rent in this way, viz., each year in the month of Poos 50 Maunds of Kalai and in the month of Baishak 33 Maunds 28 seers Jai (oats).

The term of the settlement is then set forth and provision is made for what is to be done in the case of excess or defect in the area under cultivation, the rent being increased or decreased at the aforesaid rate of 2 Maunds of Jai per Bigha. Then at the end of the lease the following words occur : "the price approximately is fixed at Rs. 2-4-9 for Kalai per maund and Rs. 2-3-0 for Jai per maund," and in the schedule "approximate rent comes to Rs. 185."

Various cases have been cited on the construction of leases more or less similar to the present lease and in these cases different views have been taken. As these decisions proceeded on the terms of the contracts which were there being construed they are not of much assistance in the present case; but it may be noted that in Baneswar Mukherji v. Umesh Chandra Chakraverti (1910) 37 Cal. 626=7 I. C. 875. stress was laid in construing the document on the fact that there was an express provision relating to the delivery of paddy in the month of Poos.

A similar provision is found in the present lease. There is no doubt that the lease is a Manhunda lease and that the rent payable is rent-in-kind. There is no provision, as in some of the cases that were cited, that on failure to pay rent-in-kind, rent at particular cash rate shall be payable. It is contended that the last clause of the lease, which I have already quoted, has this effect. It is not so expressed and in my opinion will not bear that interpretation.

In the first place this clause is not inserted along with the clause where the rent is set forth but in a different part of the lease altogether, remote from the clause providing for the payment of rent. In the second place the price at which the produce is valued is not stipulated to be payable in default of delivery of produce. Thirdly in both places where cash is mentioned the word "approximate" is used.

No one grants a lease at an approximate rent and the fact that the word "approximate" is used in connection with the terms relating to cash is a clear indication that these terms are not rent or any substitute for rent. The rent is produce deliverable in the month of Poos 50 Maunds of Kalai and in the month of Baisakh 33 maunds 28 seers of Jai. It seems to me that the clear consequence of non-delivery of produce as covenanted is that the defendants are liable for the market value of these crops at the time when they were deliverable.

I hold therefore that the District Judge has erred in his construction of this lease and that the appeal ought to have been dismissed.

The result is that the present appeal must be decreed with costs, the decree of the District Judge set aside and the decree of the Munsiff restored.