Dawson Miller, C.J:— (After stating the facts set out above, proceeded as follows:) The appellant contends in the first place that the annual rent found payable under the lease includes certain items amounting to Rs. 2,540-4-0 which are illegal abwabs and not recoverable. This question depends upon whether the stipulation in the lease whereby the tenant covenants to pay certain items there named in addition to the rent but included in the total jama payable-is void under section 74 of the Bengal Tenancy Act the material part of which provides as follows:

“(1) All impositions upon tenants under the denomination of abwab mathat, or other like appellations, in addition to the actual rent, shall be illegal, and all stipulations and reservations for the payment of such shall be void………………………………

(3) Nothing in this section shall be deemed to affect the terms of a permanent mukarrari lease granted by a proprietor or holder of a permanent tenure in a permanently settled area.”

The lease in so far as it is material for determining this point reads as follows:

“I have let out 16-annas of the following thirty-six villages as per boundaries given below……………………at a consolidated annual jama of Rs. 15,581-5-0 being the rent (malgunari), road and embankment cesses, dues to priests (mahal uprohiti) and expenses for obtaining acquittance receipts (farag kharach), etc., in addition to 515 maunds of paddy specified below payable annually at a uniform rate under a thika patta, the term whereof is given below and on receipt of a kabuliyat, to Mr. W.W Broucke.”

At the end of the document is a schedule giving a list of the 36 mauzas and stating in the case of each mauza the total annual jama and details of how it is made up. One instance will suffice. The first mauza is Thath Mitia. The particulars thereunder show first of all that the term is for 15 years from 1319 to 1333 F.

Then follows a list of payments in respect of that mauza as follows:

Rs. a. p. Rent (malguzari)… … … … 673 2 0 Road cess … … … … 40 8 0 Embankment cess … … … … 10 2 0 Costs of acquittance … … … 24 4 0 Dasahra and Chait Nawmi farmaish … … 12 0 0 Tika bheti, guru bheti … … … 5 0 0 Batchha pi jangla-isimnavisi … … … 7 0 0 Kathiari … … … … 4 0 0 Dewani dastur … … … 24 14 0 Mahal Uprohiti … … … … 5 0 0 Total … … 805 14 4 Paddy 35 maunds.

The total of Rs. 805-14-0 thus arrived at is then treated as the jama eksala and is divided into four kists of Rs. 201-7-6 payable in Asin, Pous, Chait and Jeyth. The words jama eksala in the column shewing the total has been translated “annual rental” but the words actually used are jama eksala. It is necessary to bear this in mind as reliance is placed by the appellant upon the use of the words jama and malauzari in this document the contention being that jama although frequently used as synonymous with rent literally means total, and is the only word which could be used for that purpose, whereas malguzari has a more specific meaning and indicates the actual rent payable as distinguished from the other items included in the jama.

It was hardly disputed, and there can be no doubt that it is the fact, that all the above items except the first two, making up the total of Rs. 805-14-0 are illegal abwabs and not recoverable by a landlord from his tenants, and stipulations for their payment are, by section 74 of the Bengal Tenancy Act, void. The evidence of Bhabun Prasad, a munshi of the Ramnagar Raj, explains the nature of these items and from his evidence it is clear that they are abwabs. It is also undoubtedly the fact that such abwabs are frequently demanded and perhaps almost as frequently acquiesced in by the tenants. A reference to clause 26 of the kabuliyat executed by the defendant shews that in the present instance such exactions were by custom realized from the tenants and the thikadar undertakes to get them collected and not to put any interference in the way of their realization. Clause 26 reads as follows:—

“That mahal Mahapatri and other rajunks are realized according to custom prevailing from former times from the tenants and banyas. I, the thikadar, shall get the said rakams realized, and shall not interfere in any way in the realization of the same. If any loss is caused then the amount lost shall be realized from me the thikadar.”

In the corresponding clause of the Patta, these impositions are dignified by the name of royalties.

The thikadar no doubt expected that there would be no difficulty in realizing them from the raiyats and undertook in his kabuliyat to pay them in any event to the landlord. It would be his own fault if he failed to collect them. For some years no difficulty arose but in 1917 as the result of the advent of Mr. Gandhi to North Bihar the tenants refused to pay these exactions any longer to the thikadar, and there can be no doubt that they were fully justified in this attitude. Trouble arose and in some cases agrarian riots resulted. The Government appointed a commission known as the Agrarian Commission to consider the tenants' grievances. The Commission made a report to the Local Government. An extract from the Bihar and Orissa Gazette, dated the 8th October, 1917, dealing with this report has been proved in evidence and is marked Exhibit F in the case. It contains the following passages:

“13. The Committee next, deal with the exaction of abwab by the thikadars of the non-indigo concerns under the Bettiah and Ramnagar estates and by the proprietress of the latter estate. The Committee remark that until recently these exactions have given rise to little complaint, and that not a single suit has been brought under section 75 of the Bengal Tenancy Act which provides the legal remedy. They observe that the orders issued by the Court of Wards, when the facts were brought to its notice in the course of the recent settlement operations, have been effectual in stopping the practice in the Bettiah estate. In the Ramnagar estate the advice of the local officers was ignored, but the Court of Wards has recently declared the proprietress disqualified under section 6(a) of the Bengal Court of Wards Act (Act IX B.C of 1897) and proposes to take action similar to that which has already proved successful in the case of the Bettiah estate.

14. The Lieutenant-Governor in Council proposes in addition to cause all the tenants in this tract to be informed that the taking of abwab is ontirely illegal, and is not in any way countenanced either by the management of the estates or by Government.”

The Committee's report is then set out in which the following passages occur:

“The systematic levy of abwab still prevails in the Ramnagar estate. In one lease produced before us certain abwabs are specified as payable by the thikadar to the estate and in addition there is a clause binding him to assist in collecting certain dues ‘which are realized from the tenants and banyas according to the ancient custom’. The abwabs realized, by the thikadars bear many names most of which are of old standing, but the full development of the system seems to be comparatively recent and does not go back beyond the last quarter of the nineteenth century. It took the form of an amalgamation and an enhancement of the old abwab and the consolidated levy thenceforth passed under a single name, usually salami or pain-kharcha (irrigation due).”

Amongst the recommendations of the Committee it was suggested that,

“Government should issue a proclamation informing all landlords and raiyats that both abwab and the dasturi taken by landlord's servants are illegal and must be stopped.”

The names of the principal abwabs brought to the Committee's notice are mentioned. These included most of those set out in the schedule to the present lease.

I refer to this Notification in the Gazette to show that the question of exacting abwabs had become acute in 1917 and ??? at the Local Government was determined as far as possible to put a stop to it.

Ever since the East India Company took over the administration of this province in the eighteenth century it has been the policy of the Government for the time being to protect the raiyats from exactions of this nature which, although firmly established by custom at the time of the permanent settlement, were considered a source of oppression to the cultivating classes. An opportunity, however, was given to the landlords by rules passed in 1789 and 1790 to readjust, in concert with the raiyats, their rents upon the basis of existing rents added to the customary abwabs then paid, the whole being consolidated into one specific sum as rent. A period was fixed for this purpose within which new pattas in a prescribed form were to be granted to the raiyats under the supervision of the Collector. Thereafter all additional exactions by the landlords in the nature of abwab or mathat in addition to the rent payable were forbidden under heavy penalty. These rules were re-enacted with some amendments by Regulation VIII of 1793, sections 54 to 61, and Regulation IV of 1794. In 1812 by Regulation V of that year the restrictions as to the form of patta were removed, but the prohibition against the exaction of arbitrary and indefinite cesses even if stipulated in the lease was kept in force. Section 3, after rescinding so much of the former regulations as required the pattas to be in a particular form and subject to revision by the Collector, enacted as follows:

“The proprietors of land shall henceforth be considered competent to grant leases to their dependent talukdars, under-farmers and raiyats, and to receive correspondent engagements for the payment of rent from each of those classes, or any other classes of tenants, according to such form as the contracting parties may deem most convenient and most conducive to their respective interests:

Provided, however, that nothing herein contained shall be construed to sanction or legalize the imposition of arbitrary or indefinite cesses, whether under the denomination of abwab, mathat or any other denomination.

All stipulations or reservations of that nature shall be adjudged by the Courts of Judicature to be null and void: but the Courts shall notwithstanding maintain and give effect to the definite clauses of the engagements contracted between the parties, or, in other words, enforce payment of such sums as may have been specifically agreed upon between them.”

Again, by the Rent Acts of 1859 and 1869, the exaction of any sum in excess of the rent stipulated in the patta of an under-tenant or a raiyat, or payable under the provisions of the Act, was declared to be illegal. An exhaustive account of the history of the imposition of these cesses and the legislation respecting them will be found in the judgment of O'Kinealy, J., in Radha Prasad Singh v. Bal Kowar Koeri.

Different views have been taken from time to time by the Judges of the Calcutta High Court as to the interpretation of the above Regulations. One view was that stipulations to pay such cesses, provided they were fixed in amount, and not arbitrary or indefinite, were enforceable as being a part of the consideration for the lease. [See Pudmanand Singh Bahadur v. Baijnath Singh, Radha Charan Ray Chowdhry v. Golak Chandra Ghose and Kumar Kalanand Singh v. Eastern Mortgage Agency, Limited, Company]. The other view was that only such sums as were agreed to as rent were recoverable, but any stipulation to pay even a fixed and definite sum for any cesses not included in the asal jama was void [see Chultan Mahton v. Tilakdhari Singh, Radha Prasad Singh v. Bal Kowar Koeri and Bijoy Singha Dudhuria v. Krishna Behari Biswas]. We are not directly concerned to determine which of these views is correct as the present case depends not upon the construction of the Regulations but upon the construction of section 74 of the Bengal Tenancy Act. From the nature of things, however, it seems to me that the mischief aimed at could hardly be put an end to if it only required a stipulation in the lease to pay, a fixed and definite sum under the name of abwab in order to legalize the imposition. The landlord was as a rule all powerful. The tenants were, for the most part, accustomed to acquiescence and in this country old customs the hard. Further it seems to me that the proper criterion for deciding the question under the Regulations was not, as has sometimes been stated, whether the payment of abwabs was a part of the consideration for the lease. If the obligation depends upon contract, as distinguished from custom, stipulations in the contract to pay abwabs in addition to rent are just as much a consideration for the use and occupation of the land as a covenant to pay rent. Nevertheless stipulations of such a nature were prohibited by the Regulations in all future contracts. It may also be pointed out here that Ghosh, J., who had been a party to the decision in Pudmanand Singh Bahadur v. Baijnath Singh took occasion to point out two years later in Radha Prosad Singh v. Bal Kowar Koeri, where a different view was taken, that it was not intended in the earlier case to hold that anything which is not arbitrary and indefinite is recoverable although it may not be part of the rent and further stated, “I am however bound to say that having since more carefully considered the subject I have come to the opinion that we were not right in holding that the items of tehwari and salami were part of the rent stipulated to be paid under the lease. They were I now think abwabs.” Again, in 1917, in Bijoy Singha Dudhuria v. Krishna Behari Biswas, one of the latest cases decided under the Regulations, Chatterji, J., took care to explain that in the case of Upendra Lal Gupta v. Meheraj Bibi, to which he was also a party in the previous year, it was not meant that any consideration for the lease mentioned in the kabuliyat is rent and not abwab and added, “Any sum agreed upon to be paid as rent is consideration for a lease, but for the purpose of deciding the present question every consideration for a leasers not necessarily rent within the meaning of section 3 of the Regulations, and anything which is prohibited by statute cannot be said to be lawfully payable.”

I have referred to the cases decided under the Regulations not as affording any direct authority for interpreting the Bengal Tenancy Act but because the view occasionally expressed that a definite stipulation to pay a fixed sum even for abwabs may be enforced, or that any agreement forming a consideration for the lease must be regarded as outside the operation of the Regulations has influenced, I think, some of the later decisions dealing with cases governed by the Bengal Tenancy Act.

Whatever difficulty may have arisen in the interpretation of the Regulations the law as it now stands under section 74 of the Bengal Tenancy Act appears to me to present no ambiguity. All impositions upon the tenants under the denomination of abwab, mathat or other like appellations in addition to the actual rent are illegal and all stipulations and reservations for the payment of such are void. They cannot legally be exacted nor can the tenant legally bind himself by contract to pay them. It was contended, however, that on the proper construction of the lease the disputed items were in reality a part of the rent and payable as such. The argument in support of this contention is based on the fact that the total sum payable, including the disputed items, is described in the document as the consolidated jama and that, as the parties were contracting at arms length and knew what they were about, no question of coercion or imposition arises. Evidence was given by both parties as to the circumstances under which the lease was granted. Such circumstances cannot alter the plain meaning of the written contract, but evidence of them may be admissible to explain any latent ambiguity, if such exists, in the document. The object of this evidence was no doubt to explain the sense in which the word jama had been used and, although I have some doubt as to its admissibility, I shall refer shortly to the evidence upon this point. The witness Bhabhun Prasad, the Raj munshi already referred to, stated that the total of Rs. 15,581-5-0 was agreed to as the annual jama by Mr. Broucke before any talk of abwabs took place and that the details were only entered in the patta for the Raja's convenience so that he might know how much he might get under the different heads and regulate his expenditure on these items accordingly. He goes the length of saying that the jama included no abwabs and that the abwabs named in the patta had never been realized previously by the Raja from the tenants. Their inclusion in the patta he said, was suggested by amosaheb of the Raja named Deo Narain Sinha, but Deo Narain was not called to corroborate this. This story although contradicted by Khodadin Khan, the defendant's tahsildar, seems to have found favour with the learned Judge, but after considering all the evidence it seems to me absolutely incredible the defendant's tahsildar, on the other hand, deposed that the disputed items of abwab used to be realized from the tenants before the current lease, and during the negotiations the lessor said it would be difficult for him to realize them separately from the raiyats if the villages were leased to a thikadar and so the items were entered in the patta as payable by the thikadar to the lessor and were to be realized from the tenants by the thikadar. The reasons why the story of the plaintiff's witnesses on this part of the case does not seem to me acceptable are, first, that the lease itself contradicts it. Clause 26 as already pointed out shews that the abwabs or rajunks were by custom paid by the tenants and the thikadar stipulates that he will do nothing to interfere with this custom. The object of this clause can only be that the lessor's supposed customary rights should not be allowed to fall into desuetude lest at the termination of the lease he might find a difficulty in reviving it. Secondly, the detailed particulars given in the schedule of the amount of abwabs payable in each village could only have come from the Raj accounts and jamabandis, and the lessor must have known, without any statement in the lease, exactly how he stood in the matter and how much he might conveniently spend, if anything, under the different heads. Moreover the munshi himself admits that there was no rule as to the amount to be spent under these heads; it depended on the will of the Raja and the Rani. Thirdly, it seems to me quite incredible that the lessee should agree to pay a fixed annual sum without first obtaining full particulars of the rent and other collections, if any, which he might expect to realize from the tenants. No man of any business capacity would act in such a way. A number of tenants were called on behalf of the defendant to prove that they paid these abwabs before 1917. They also stated that the printed rent receipts did not show these payments but katcha receipts were given for them. A tenant called Chandi Kinkar was also called by the plaintiff presumably to prove that he never paid the disputed items of abwab and in fact he said so but he afterwards qualified it by saying that before the recent revisionai survey he paid Rs. 3 per bigha as pain kharcha (a sort of consolidated levy) in each of the two villages in which he had a holding. In my opinion it is clear beyond any reasonable doubt that abwabs such as those mentioned in the lease had been collected from the tenants long before the lease was executed end were regarded as having the sanction of custom. I am also of opinion that on the proper construction of the lease the defendant undertook to pay them under the different denominations of abwab as set out in the schedule and as indicated in the body of the lease and not as part of the rent which is described as malguzari. Each side complains that the other had not produced the jamabandis or accounts relating to the collections, but other documents in the case, and particularly Exhibits C and C-1, which are rent receipts granted by the lessor to the lessee in respect of certain of the villages for the year 1324 F., show that the payment of the actual rent and the abwabs were kept separate. Exhibit C is a receipt for the uprohiti mahal of five villages. Exhibit C-1 is a receipt for the rent and other items for the same five and one other village for that year. The translation of the document printed with the record is defective. The words translated “abwabs on account of (illegible)” are “abwab babat bandh beheri” that is “abwab on account of embankment cess.” The word translated “costs” is “kharcha”— which includes all the remaining items of abwab except uprohiti mahal. In the details given at the bottom of the page the word “income” should be “embankment cess” or “bandh beheri”. The word “costs” again is “kharcha” which includes the farag kharach and the remaining abwabs except uprohiti mahal. The arrangement that the thikadar should pay a fixed sum for each of these cesses and take the risk of collecting them from the tenants—a risk at that time slight—was no doubt come to for the convenience of the landlord who might have a difficulty in making a separate collection, but at the same time care was taken to have these sums definitely described as what they in fact were, namely, something in addition to the actual rent. The fact that the total of these payments was described as the consolidated jama was inevitable. There was no other word to describe it and I am unable to give this fact a signification which. I think, it was not intended to bear. In Kalar Singh v. Mathura Prosad decided by Sir Lawrence Jenkins, C.J, and Mukharji, J., in 1913 somewhat similar features were present. The nagdi rent was stated to be Rs. 42-8-0 in the kabuliyat. Then followed an undertaking to pay annually a cartload of husk or its value, Rs. 6. The whole was referred to as “the said rent” and in the schedule the annual jama was said to be Rs. 48-8-0. It was held by the Court that the husk was not a part of the rent but an abwab and not recoverable. It does not seem to have been argued in that case that the husk might have been recoverable as produce rent. Again, in Sree Kanta Pershad Hajari v. Irshad Ali Sarkar, a case under the Bengal Tenancy Act, there was a stipulation to pay Rs. 360 as fixed rent and an additional sum of Rs. 17-4-0, the equivalent of presents and unpaid labour, and the whole was described as the total rent. This fact, however, was regarded by the Court as inconclusive and on the construction of the document as a whole it was held that the Rs. 17-4-0 was an illegal abwab and not recoverable. Fletcher and Richardson, J.J, on the other hand, in Nagendra Lal Chowdhury v. Hamdoo Mia, where certain abwabs were added to the rent and the total amounting to Rs. 13 was described as consolidated rent and payable by instalments, held that the whole including the abwabs was recoverable, apparently for the reason that “the tenant in consideration of having the grant of the land to him undertook to pay the Rs. 13 by these particular instalments.” No other reason is assigned and the Bengal Tenancy Act was not referred to in the judgment. With respect to those learned Judges although their decision may have been justified, I am unable to accept the reason stated for their decisions as adequate. Two other cases decided in this Court were relied on by the learned Vakil for the respondent, namely, Sadanand Tewari v. Debnath Manjhi and Rudreshwari Prasad Singh v. Dhana Mahton.

In the former it was held by Mullick and Atkinson, J.J, that where, upon the contract entered into by the defendants, it was clear that the consideration for the use and occupation of the land was a certain amount of rent in cash and the price of certain quantities of paddy and ghee and that the total of these items was to constitute the whole rent or jama, there being no indication that the price of paddy and ghee was intended to be an imposition independent of the rent such sums were recoverable as part of the rent. I can find nothing in that decision which conflicts with the view I have already expressed. I may add that it was a case falling under the Chota Nagpur Tenancy Act and the Rent Act (X of 1859), and the Bengal Tenancy Act was not considered. The second case was a decision of Das, J., sitting singly, and although entitled to great respect it is not binding on this Bench. The defendant there covenanted to pay Rs. 167-7-5 as mal jama but it appeared from the kabuliyat that about Rs. 11 of that sum was made up of items which would ordinarily fall under the denomination of abwabs. The learned Judge, reversing the decision of the two lower Courts, found that the defendant had agreed to pay the whole sum as rent and that the whole was recoverable. The decision may be justified on the ground that the agreement was to pay the whole as mal rent but the learned Judge in the course of his judgment went further than I think was necessary for the determination of the case. Although he makes it clear that the whole sum was payable under, the terms of the kabuliyat as mal rent, there are dicta in the judgment which, with respect, I consider cannot be supported. They are to the effect that every item is recoverable as rent if it forms part of the consideration for the lease even if it may not have been described therein as rent.

Each case must be decided, I think, upon the construction of the particular lease in question and the construction of one document is not necessarily of much assistance in considering another. I recognize that the parties in this case were contracting on equal terms and I confess I have no sympathy with the defendant, but it appears to me that the arrangement come to had the ultimate object of keeping in force the exaction of illegal payments from the raiyats, I am also aware that it is essentially desirable to refrain as far as possible from interfering with the freedom of contract, and only considerations of public policy or express statutory enactment can justify it. But in the present case the statute is clear and prohibits such a contract. The motive underlying this enactment is also one of public policy. No distinction is made in the Act between a raiyat and any intermediate tenant except in the case of a permanent mukarrari lease as provided in clause (3) of section 74 and in section 179 of the Act. The wisdom of extending the prohibition to tenure-holders as well as raiyats is exemplified by the present case. The thikadar who contracts to pay abwabs has a strong motive for enforcing similar exactions from the raiyats and so the objectionable system is kept alive; but if he is prohibited from so contracting the motive is removed.

I hold that the only items recoverable under this lease apart from the produce rent are the first two named in the schedule, namely, rent and road cess, and that the decree should be varied by disallowing the other items.

The next point taken by the appellant is that the sum of Rs. 641-4-11 allowed by the decree as the costs of survey is not recoverable under the terms of clause 21 of the lease. The clause reads as follows:

“In case survey is made of the aforesaid villages either privately or by the Government under any law in force for the time being, the said thikadar shall make honest and proper pairwi and bear the cost of the same, and he shall till the (end of) the term of thika abide by the loss and gain arising therefrom.”

A survey of the Champaran district, in which these villages are situated, took place under the Bengal Tenancy Act and was completed in 1917. The costs incurred by the Government in such cases are by law recoverable in certain proportions from the landlords and the tenants. It is the plaintiff's proportion of such costs which are claimed in the present suit. The parties interested, however, who appear before the Survey and Settlement Officers to protect their own interest incur expenses in so doing. If there is much dispute between the parties concerned these costs may be considerable. By clause 21 of the lease the thikadar undertook to look after the interests of his landlord as well as his own and to bear the cost of so doing. Their interests, as against those of the raiyats, would no doubt be identical. The learned Judge of the trial Court considered that the obligation of the thikadar under clause 21 was not merely to protect the interests of the landlord by making pairwi and to bear the cost of so doing, but also to pay the landlord's proportion of the Government's costs of survey. In my opinion the clause will not bear that interpretation. The costs referred to in the clause seem to me upon a proper construction to refer solely to the costs incurred by the thikadar in making proper pairwi, and according to his diligence or remissness in so doing, he was to enjoy the profit or suffer the loss caused thereby. The learned Judge thought that according to the terms of the lease all the costs of survey were to be borne by the lessee and that clause 21 made it quite clear, but it seems to me that had it been intended that the thikadar should bear the landlord's proportion of the Government's expenses of conducting the survey, the clause would have been much more specific in that respect. In my opinion the costs which the thikadar undertook to bear under clause 21 were the costs of making proper pairwi and nothing else, and the sum awarded in the decree under this head is not recoverable.

Although the defendant appealed against that part of the decree which allowed Rs. 432 as damages for failure to deliver jamabandis the matter was not pressed and no argument was addressed to us on that part of the appeal.

The defendant also appealed from that part of the decree which ordered ejectment under section 66 of the Bengal Tenancy Act if within 15 days the rent found due should not be deposited. The learned Judge, it should be mentioned, had found that section 155 of the Bengal Tenancy Act would have been applicable to the present case but for the fact that the conditions as to notice mentioned in the section had not been complied with. He found, however, that section 66, which relates to ejectment in the case of non-payment of arrears of rent, was applicable and passed a decree under that section. The contention of the defendant before us was that if he was not liable for the abwabs there was no rent due. If upon a proper calculation of the rent payable as directed in this judgment it should appear that at the time of suit after giving credit for the sums paid and the amount deposited in Court before trial no further rent was due, then a decree for ejectment under section 66 of the Bengal Tenancy Act would be wrong. As the amount decreed has been deposited by the defendant in pursuance of the decree no ejectment has in fact taken place. The question is therefore of academic interest only. The defendant, however, will be entitled to recover from the plaintiff, if he has been paid, or from the amount deposited in Court under the decree, as the case may be, the excess, if any, over and above liability under the present judgment.

The cross objection by the plaintiff was confined to three points:—(1) that the Transfer of Property Act and not the Bengal Tenancy Act was applicable to the present lease and that under the former Act the defendant was liable to ejectment by reason of his breach of the conditions of the lease, which entitled the lessor to re-enter as provided in section 111(g) of that Act; (2) that the claim for damages for failing to supply carts and thatching grass ought to have been allowed by the learned Judge, and, (3) that the learned Judge ought to have assessed the price of the produce rent at Rs. 3 and not Rs. 2 per maund. The second and third points were abandoned in the course of argument and it is necessary only to deal with the first.

If the lease in question is a lease for agricultural purposes, then by section 117 of the Transfer of Property Act the other provisions of that Chapter including section 111 have no application. The learned Judge found that the lease was one for agricultural purposes, and further that, the defendant's status being that of a tenure-holder as defined in section 5 of the Bengal Tenancy Act, the provisions of that Act were applicable.

It was contended that the lease was not a lease for agricultural purposes and in support of this contention the case of Promoth Nath Mitter v. Kali Prasanna Chowdhry was relied on. It was there held that a patni interest in a share in a zamindari was not a lease for agricultural purposes within the meaning of section 117 of the Transfer of Property Act. The objects for which the lease was granted were referred to in the judgment and do not appear to include direct cultivation by the tenant of any part of the land. In the present case there were zerait lands as well as lands settled with raiyats and the lease contemplates the direct cultivation of the former by the tenant. The facts are therefore to some extent dissimilar in this case. Sir Francis Maclean, C.J, who decided the case above cited, affirmed on appeal the latter decision of Mitra, J., in Babu Ram Roy v. Mahendra Nath Samanta where it was held that a lease of homestead lands granted by an occupancy raiyat in favour of an under-raiyat was governed by the Bengal Tenancy Act, and not by the Transfer of Property Act, although the land leased was not agricultural land but homestead land. The suit was one to eject the under-raiyat. One of the grounds of the decision was that although the purpose of the tenancy granted to the sub-tenant was not agricultural nevertheless as the Bengal Tenancy Act provides for the benefit of under-raiyats as well as raiyats, the provisions of section 49 of the latter Act ought to be applied. In the present case the land was undoubtedly agricultural land to which the Bengal Tenancy Act applies. The defendant was also a tenant within the meaning of the Act and his status that of a tenure-holder. Such a case comes within the express provisions of the Bengal Tenancy Act and the benefit of section 66 must operate in favour of the lessee, unless it can be said that the Transfer of Property Act deprives him of such benefit. In construing the two Acts it must be remembered that although the Bengal Tenancy Act is later in time, there were somewhat, similar provisions in the Bengal Rent Acts of 1859 and 1869 and it was probably the intention of the Legislature in exempting leases for agricultural purposes from the operation of Chapter V of the Transfer of Property Act to retain in force the special provisions relating to the class of leases dealt with in those Acts and which may be compendiously described as leases for agricultural purposes. I consider therefore that a liberal interpretation should be given to the words of section 117. There is no doubt that under the present lease the lessee would have a considerable area of the villages under his own cultivation. He was also to pay a produce rent in addition to the cash rent and in case of dispossession he was to get half the crop grown on the zerait lands, the other half going to the landlord. Lands left vacant or abandoned were to be brought into direct cultivation or settled with other tenants. He had also certain obligations to see that the lands were cultivated in a proper manner. He was to take care of the existing boundaries, bandhs and pynes and was not to allow the water from the pynes to be taken into other elakas. All these matters point to the conclusion that the lease was one for agricultural purposes. I do not think it can be said that the main purpose of the lease was merely to collect rents. It was I think a lease for agricultural purposes. The cross-objection, in my opinion, fails and should be dismissed with costs. The appellant is entitled to the costs of the appeal. The decree will be varied in accordance with the directions stated in this judgment. The costs in the trial Court will follow the result of the calculation of the defendant's indebtedness as directed above. The parties will have liberty to apply for further directions as to the costs in the lower Court, if necessary, when the figures have been ascertained.

Foster, J.:— I agree. Judging by the pleadings in the written statement the term abwab is used as meaning, in the circumstances of this particular lease, both an imposition upon the raiyats in addition to their actual rents and an imposition upon the thikadar over and above his actual rent. In the latter case section 74 of the Bengal Tenancy Act would directly bar the claim to the abwabs; and in the former case, I think, the defendant's special contract to realize abwabs from the tenantry and pass them on to the proprietor would be void and illegal as opposed to public policy. These two distinguishable pleadings in defence, set out in paragraphs 2 to 5 and in paragraphs 6 to 8 respectively of the written statement, are I think fully substantiated.

In paragraph 27 of the documents of the lease it is clearly stated that the thikadar shall pay……embankment cess over and above the rent. Embankment cess is an unlawful imposition. Exhibits C-1 and C, the printed forms of receipt used in the Raj, when compared with the tabulated Schedule of the patta and kabuliyat, show that payments by the thikadar were acknowledged under five heads (1) rent, (2) road and public works cess, (3) abwab on account of embankment cess (bandhbehri), (4) kharcha and (5) uprohiti mahal. The last was collected separately, and was appropriated to the raj priests. The fourth item kharcha is the aggregate of most of the abwabs tabulated, from farag kharach (charge for granting receipts) down to dewani dastur (payment for the upkeep of the estate office). Some of these abwabs are uniform throughout the villages, others vary. The receipts, though printed in brief in parts of the Paper Book, are all in fact in the form described. In paragraph 26 of the documents of lease it was stipulated and agreed that raj angs (i.e, the abwabs) payable by custom shall be collected by the thikadar from tenants and banyas on behalf of the raj, and the thikadar shall be responsible for any loss, an expression which seems to mean collections in deficit. So these abwabs were, it is clear, impositions of a pecuniary responsibility and liability over and above the thika rent, properly so-called, standing under the denomination of abwabs, raj angs, rakam, dastur and other like appellations.

The evidence in my opinion clearly shows that these collections were also abwabs over and above the raiyat's rent; and I think that in paragraph 26 of the lease, the stipulation that they shall be realized from the tenants and banyas, is an illegal contract. I do not wish in this judgment to make more than supplementary remarks, but I would like to point out that the tax on weights and measures (bat chhapi) falls on the banyas of the villages, as is deposed by plaintiff's witness no. 12. This explains why banyas as well as tenants are mentioned in paragraph 26. I regard the plaintiff's explanation of the insertion of these items in the lease not only as mendacious but even as puerile. There is plenty of credible oral and documentary evidence to show that these abwabs came originally from the cultivators' pockets and were passed on to the proprietor.

There is one other point. It was urged that section 117 of the Transfer of Property Act did not avail to remove this case from the provisions of Chapter V of that Act. In my opinion the decision of this case must rest entirely on the provisions of the Bengal Tenancy Act, because there is everything to show that this was a lease for agricultural purposes. Looking at the kabuliyat I note the following points, (a) part of the rent is produce rent; (b) the thikadar is to have the zerait lands cultivated and to enjoy the crops (paragraphs 25 and 5); (c) the thikadar is not to cut down certain trees (paragraph 8) nor grow indigo (paragraph 11) nor make new water-courses (paragraph 17); (d) the thikadar is to settle lands with tenants at proper rental (paragraph 15 et passim), and he is to take waste lands of tenants into the landlord's zerait (paragraph 16). Then looking at the oral evidence, we find in the statements of defendant witness nos. 1, 3, 4, 8, 24 and plaintiffs witness no. 12 enough to show that the thikadar had cultivation in his own control, including fields of thatching grass, (kher, translated correctly in the kabuliyat, but incorrectly as “straw” elsewhere). Lastly, looking at the pleadings, I would invite attention to paragraphs 5 and 9 of the plaint, the statement of breaches of covenant, which show clearly how the plaintiff regarded the lease: the tenant was not to settle trees and orchards, but keep them; he was to take under his own cultivation and keep lands vacated by tenants; and he was to render a fixed amount of thatching grass. It seems to me to be clear, therefore, that this is a lease for agricultural purposes and that section 74 and also sections 66 and 155 of the Tenancy Act apply to this case.

Appeal decreed.

Cross-appeal dismissed.