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Judgment
Ross, J.—In this suit the plaintiffs-respondents claimed a mortgage decree for the amount of rent due under a mukarrari lease of the 3rd December 1885, which had been secured on certain properties of the lessee. Both the Courts below have decreed the suit in full.
The lease was in consideration of an annual payment of Rs. 1,200 in cash and 8 maunds of chura and 3 maunds of gur. Two questions arise in this appeal: one, whether the security extends to the payment of the rent in kind and, secondly; whether that item of the rent carries interest.
The hypothecation clause in the lease is as follows:
I the executant for the satisfaction of the annual jama payable by me out of my own free will give in security 16 annas of village Chakyadih, etc.
The first question therefore reduces itself to this: Is the payment in kind to be considered part of the annual jama? If it is, then it is secured; if it is not, it is not secured.
It is argued on behalf of the appellants that this is not rent in kind because the appellants are not producing chura and gur; and as rent is defined in the Ben. Ten. Act, Section 3(5), as
whatever is lawfully payable or deliverable in money or kind by a tenant to his landlord on account of the use and occupation of the land held by the tenant,
it is not rent. Reference was made to Section 40, and in particular to Sub-section (4)(c) as indicating that rent in kind means produce rent, and it is contended that as this is not produce rent it is not rent at all. On the construction of the lease it is argued that there is no stipulation for the payment of interest on this so-called rent in kind, that the forfeiture clause only refers to the cash payment; that the covenant is to pay Rs. 1,200 and that the rent is nowhere in the, lease said to be Rs. 1,215 (Rs, 15 being the estimated value of the produce rent). It is also argued that inasmuch as this is a mukarrari lease with a fixed rent (and this is a fluctuating item) it is no part of the rent.
In order to test the validity of these arguments it is necessary first of all to set out the relevant clauses of the deed. The reddendum is thus described:
An annual jama of Rs. 1,200 cash and 8 maunds of chura and 3 maunds of rava by the weight of Rukhai (the village leased) the price of which would be about Rs. 15 according to the present price.
The covenant to pay the rent is in the following terms:
Therefore I the executant ... declare ... that we shall pay the rent annually according to the kist as detailed below ... and if there be default in payment of any kist then, we shall be liable to pay Rs. 12 per cent per annum as interest from the date of default to the date of payment to the maliks and the mukarraridars and there should be no objection in this, and the maliks and the mukarraridars are entitled to realize the amount by the sale of the secured properties. And fine chura and fine molasses as said above will be given by mo, the executant to all the maliks ten days before Sankaranti Makar in village Hathidih Khurd at their house, and if I fail to give the said chura and gur I shall pay the price of these according to the market value then prevailing.
There is then a reference to an outstanding lease in favour of one Mahendra Narayan Singh and the deed proceeds as follows:
Though the annual jama of the said thicca (to the said Babu Mahendra Narayan Singh) is less than Rs. 1,200, but from 1293 fasli without any regard being had to the thicca I, the executant, have of my own free will, consented to pay Rs. 1,200 annually to the maliks. During the subsistence of the lease or after the expiry of it, I the executant shall without any objection pay to the maliks Rs. 1,200 hard cash and 6 maunds of chura and 3 maunds of molasses annually.
Then follows a clause dealing with improvements to the benefit of which the maliks will not be entitled unless the entire secured property is sold for arrears of rent,
and in other case they will be entitled to get the cash and the kind rental (malguzari nakdi o jinsi)
Later there is a clause providing for the case where the hypothecated properties are sold for arrears of rent:
Then in that condition if there arises any further arrear to the maliks then, on failure of payment of three continuous kists, the maliks shall be entitled to dispossess me the executant ... and shall take sir possession in satisfaction of the decree.
There is a schedule at the end with a heading "rent of mukarrari and dar mukarrari" and under that head is "cash Rs. 1,200; grain (gala) chura 6 maunds, rava 3 maunds, price approximately Rs. 15," and then follow the kists. In my opinion the only clause which offers any difficulty in the construction of this lease is the clause in the covenant to pay the rent
and the maliks and the mukarraridars are entitled to realize the amount by the sale of the secured properties.
It may be argued that the appearance of this clause after the reference to the kists and the interest due in default of payment of the cash rental limits the hypothecation to a security for the cash rent, but in my opinion this is not the necessary effect of this clause. The opening description of the rent near the beginning of the lease seems clear that it consists of both cash and kind. The covenant to pay the rent also refers to both these items and the reference to the security after the provision for interest on the kists of the cash rent seems in my opinion merely to indicate that the interest is to be secured as well as the principal. The hypothecation clause itself had referred only to the rent, but this clause gives security for the interest also. But there is no interest on the rent in kind and this explains the position of that clause. The next passage clearly indicates that both payments are to be made annually, and later on the rent is expressly described as rent in cash and kind and the schedule is explicit. The heading "Rent" has two subheadings; cash Rs. 1,200 and produce. The fact that there is no stipulation for interest on the produce rent and no stipulation for forfeiture in respect thereof does not, on the terms of this lease, lead to the conclusion that this is not part of the rent.
As to the argument that it is not rent in kind there seems to be no substance in this contention. Chura and gur are both natural products of agricultural land, treated no doubt by some artificial process, and there is I see no reason-why they should not be regarded as produce rent. The objection that this introduces a variable element into a fixed rent is not a valid objection. In Baneswar Mukherji v. Umesh Chandra Chakraberti [1910] 37 Cal. 626 there was a mukarrari kabuliyat in which the rent was partly cash and partly 40 maunds of paddy of which the value was stated to be Rs. 37 and it was argued that the lease being a mukarrari lease, that indicated that a fixed rent was in the contemplation of parties. But this argument was overruled by Jenkins, C.J., who held that the terms of the document clearly pointed to the fact that the rent was to be as rent as to part in money and as to part in kind and the decree was for the cash rent and the then market value of 40 maunds of paddy.
Numerous decisions were cited in the argument, but the construction of one lease is of very little help in construing another, and it seems to me that in the present case the language of this lease is capable of only one possible construction and that is that the payment of produce was part of the rent. It follows that this is secured by the hypothecation clause. It further follows however that as there is no stipulation for interest in the mortgage, there can be no decree for interest so far as the rent in kind is concerned.
The result is that the appeal must be decreed in part and the decree of the Court below modified by disallowing the claim for interest on the produce rent. In other respects the decree is affirmed. The appellants are entitled to costs according to their success throughout.
Chatterji, J.
I agree.