Chatterji, J.:— These three appeals arise out of three suits (Rent Suits nos. 177, 178 and 281 of 1940) originally instituted by Rani Bhuneshwari Koer, appellant no. 1, against different persons for recovery of bhaoli rent for the years 1345 and 1346Fs. in respect of certain, raiyati holdings situated in village Rouna Sherpur, District Gaya. Appellant no. 2 is the Maharajadhiraj of Darbhanga, (referred to hereinafter as the Maharaja) who was originally impleaded as a pro forma defendant in all the three suits but subsequently made a co-plaintiff in suits nos. 178 and 281. Rani Bhuneshwari Koer will be referred to hereinafter as the plaintiff.

The proprietary interest in the said village Rouna Sherpur which vests in the plaintiff is subject to five mokarrari tenures, three of 4 as each and two of 2 as each, the total rental being Rs. 6,193-6-0. By a Sadua Patua deed dated the 15th August, 1931, the plaintiff mortgaged with possession her proprietary interest in the entire village to the Maharaja with the stipulation that in the event of the mortgagee purchasing any of the mokarrari tenures in execution of a decree for arrears of rent due in respect thereof, the mortgagor would be entitled to get sir possession of the tenure on payment of the purchase money to the mortgagee purchaser and would pay rent of the same to the mortgagee during the subsistence of the mortgage. The Maharaja purchased the two tenures of 2 as each in execution of rent decrees and got possession of the same in 1344 and thereafter he is said to have transferred them to the plaintiff in accordance with the above stipulation with effect from 1345. Accordingly, the plaintiff as mokarraridar in respect of 4 as brought these rent suits on the 9th September, 1939.

The defendants in the first two suits who are the raiyats of the respective holdings concerned are themselves mokar-raridars in respect of two of the tenures of 4 as each. The defendant in the third suit was the mokarraridar in respect of one of the two defaulting tenures of 2 as each which were purchased in execution of rent decrees by the Maharaja and said to have been subsequently transferred by him to the plaintiff.

The suits were contested on the grounds, inter alia, that the holdings were not properly described, that the plaintiff had no right to sue, and that the bhaoli rent was commuted to case rent by hukumnamas dated 15th Asarh 1338 granted by the mokarraridars with effect from 1339.

Suits nos. 178 and 281 were tried jointly with another suit with which we are not concerned. Suit no. 177 was tried separately. All the suits, however, were tried by the same Munsif.

In all the three suits the learned Munsif disbelieved the case of commutation. As regards the description of the holdings, he accepted the plaintiff's case. In suit no. 177 he held that the plaintiff, having obtained a deed of assignment dated 3rd November, 1940, from the Maharaja, was entitled to a decree for the rent for 1346 only as the claim for 1345 was barred. He accordingly decreed this suit in favour of the plaintiff for the rent for 1346 only. In the other two suits he held that the plaintiff, having no document of title, had no right to sue, but the Maharaja, having been made a co-plaintiff, was entitled to a decree. Accordingly these two suits were decreed in favour of the Maharaja.

From these decrees the defendants preferred appeals; and the plaintiff filed cross-objection in respect of the claim for 1345 in suit no. 177. These appeals were heard together by the Subordinate Judge. He held that the holdings were not properly described, that the bhaoli rent was commuted to cash rent, that the plaintiff was not entitled to a decree in suit no. 177 and that in the other two suits the Maharaja was not entitled to any decree. He accordingly allowed the appeals and dismissed all the three suits. Hence these second appeals by the plaintiffs. Appeal no. 512 arises out of suit no. 177, appeal no. 513 out of suit no. 178 and appeal no. 520 out of suit no. 281.

The first point argued by Mr. L.K Jha for the appellants is that there was no valid and bona fide commutation of bhaoli to cash rent. The Subordinate Judge's finding on the point has been attacked, in the first place, on the ground that the hukumnamas Exts. B series by which commutation is said to have been effected are inadmissible in evidence as they are unregistered. The terms of the hukumnamas being similar, it will be enough to reproduce one of them, Ext. B:

“Whereas, in accordance with your request, rent of the land mentioned, below, of which the Khata numbers and survey plot numbers are given below and which were held as Bhaoli lands from before, has been commuted into Nakdi rent, at an average rental of Rs. 2 per Bigha besides cesses, i.e, Rs. 70-11-0 besides cesses; it is desirable that you should pay Rupees Seventy and annas eleven per year as rent beside cesses for the lands mentioned below according to the custom, of kist prevalent in the village and therefore this Hukumnama is being given to you for your assurance and satisfaction to be used in time of need.”

Mr. Jha's contention is that this document falls under section 17(1)(b) of the Registration Act which provides that the following documents shall be registered:

“other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immoveable property.”

Upon the plain wording of the document it is obvious that the commutation had already been effected and that its object was merely to serve as evidence of the same. Our attention has been drawn to the fact that the defendant's own case in the written statement was that the commutation was effected by the hukumnamas. But in considering the question of admissibility of a document we must construe it on its own terms and not according to how the parties themselves understand it. The distinction between an agreement and evidence of the agreement may be overlooked by the parties. The hukumnama Ext. B does not embody an agreement but is merely evidence of the agreement already come to. That being so, it cannot be said to create, declare or limit any right to or in immoveable property.

This view receives support from Hara Prasad Das v. Ram Narain Chowdhury, cited by Mr. Baldeva Sahay for the respondents. In that case the document under consideration was a “dowl” which was a memorandum showing the rents payable by all the tenants of the landlord's estate. Their Lordships held that the “only effect of the dowl was to evidence that there had been a commutation of rent and that the rent which was previously payable, partly in kind and partly in cash, was henceforth to be paid in cash” and that therefore the dowl did not require registration. The effect of the hukumnama Ext. B is much the same.

The cases of Raja Srimathu Muthu Vijia Raghunatha Duraisingam v. Periasami Pillai, Durga Prasad Singh v. Rajendra Narain Bagchi, Lalit Mohan Ghosh v. Gopali Chuck Coal Company, Ltd. and Parbati Charan Mukhopadhya v. Bandeali Akon, relied upon by Mr. Jha, are distinguishable.

In the case of Raja Srimathu Muthu Vijia Raghunatha Duraisingam v. Periasami Pillai the Full Bench had to consider two classes of documents, both being consent statements signed by the tenants, but in different forms. In both classes there was provision for payment of rent in cash instead of in kind and exchange of pattas and muchalikas on the basis of cash rent. One class was construed to contain merely an undertaking by the tenant to accept a patta on the basis of cash rent, if it were drawn up in accordance with the terms mentioned in the consent statement. In other words, there was merely an offer by the tenant and not a completed agreement. The other class was held to embody a definite agreement to pay rent for ever in money instead of in grain. It was held that the former class did not require registration, but the latter did. Their Lordships said “An agreement which varies the rent payable by the lessee requires registration”. The hukumnama Ext. B in the present case does not constitute an agreement, and therefore, even according to the above decision, does not require registration.

In the second case Durga Prasad Singh v. Rajendra Narain Bagchi which was varied on appeal on different grounds by the Privy Council the point for consideration was whether a letter addressed by the lessor to the lessee by which the rent payable under a mourosi mokarrari lease was reduced was admissible in evidence. Besides a definition of the reduced rental, the letter contained a recital of the area of the land demised under the lease, the nature of the interest granted by the lease, and the instalments in which the rents were payable. It was held that it contained all the essential elements of a lease and that even if it were treated merely as an agreement for reduction of the rent, it was in effect an agreement purporting to limit an interest in immoveable property, in either view it was not admissible without registration. The hukumnama Ext. B in the present case does not constitute either a lease or an agreement.

In the third case of Lalit Mohan Ghosh v. Gopali Chuck Coal Company, Ltd. it was held by the Full Bench that a document which varies the amount of rent to be paid under an existing lease registered as required by section 17(1)(d) of the Registration Act as also the incidents of such payments, namely, the date of payment and consequences of default of payment requires registration. In the present case there is no question of variation of the rent payable under an existing registered lease.

In the next case Parbati Char an Mukhopadhya v. Bandeali Akon the question for consideration was whether the rent of a permanent tenancy can be varied after the passing of the Transfer of Property Act by an oral agreement, that is to say, without a registered document. The question turned on section 107 of the Transfer of Property Act, Here we are concerned with raiyati leases to which section 107 of the Transfer of Property Act does not apply by reason of section 117 of the same Act.

In my view the hukumnamas Exts. B series do not require registration and are admissible in evidence.

The next ground on which the Subordinate Judge's finding about commutation has been attacked is that though the Munsif found that the rate of cash rent settled, that is, Rs. 2 per bigha, is too low which

“proves the whole transaction to be a collusive and fraudulent one”,

the Subordinate Judge did not deal with this point at all. This is undoubtedly a very material defect which vitiates the Subordinate Judge's finding. No doubt the Subordinate Judge considered the rent receipts produced by the defendants, but the value of these receipts would be materially affected if the rate of cash rent be too low and not fair and reasonable, as found by the Munsif. It is to be remembered that the defendants are themselves mokarraridars and the defendant in suit no. 281 held one of the two defaulting tenures which were purchased by the Maharaja in execution of rent decrees. It seems to me that the Subordinate Judge did not properly deal with the very important question of the bona fides of the alleged commutation. The cases must, therefore, go back to him.

It has been argued by Mr. Baldeva Sahay, relying on Section 51 of the Bihar Tenancy Act, that quite irrespective of the question of commutation, the rent for the period under claim must be presumed to be the same as was paid in the last preceding agricultural year. Section 51 of the Bihar Tenancy Act is in these words:

“If a question arises as to the amount of a tenant's rent or the conditions under which he holds in any agricultural year, he shall be presumed, until the contrary is shown, to hold at the same rent and under the same conditions as in the last preceding agricultural year.”

The argument is based entirely on the rent receipts, but these receipts cannot be considered apart from the question of commutation. Admittedly the holdings in question were bhaoli holdings, as recorded in the Record-of-rights. The defendants must prove the alleged commutation. Section 51, therefore, is of no assistance.

The next point urged by Mr. Jha is that the learned Subordinate Judge erred in holding that neither the plaintiff in suit no. 177 nor the Maharaja in suits nos. 178 and 281 is entitled to a decree. With regard to suit no. 177, the Munsif found that the claim for 1345 only was barred by limitation, whereas the Subordinate Judge found the claim for both 1345 and 1346 was barred. The suit was instituted on 9th September, 1939. The last day of 1345 was 29th Bhado 1345 or 9th September, 1938. Therefore, the suit was within time. The Maharaja was impleaded as a pro forma defendant when the suit was filed, but his name was struck off on 3rd April, 1940, for default of the plaintiff to take steps against him. On 22nd July, 1940, however, his name was restored. On 3rd November, 1940, he executed a deed of assignment in favour of the plaintiff. The Munsif held that the plaintiff was entitled to a decree on the strength of this deed of assignment, but as the Maharaja's name was restored on 22nd July, 1940, which was beyond one year from the last day of 1345, he gave the plaintiff a decree for 1346 only. The Subordinate Judge held that by the time when the deed of assignment was executed the claim for both the years had become barred and, therefore, the Maharaja who had himself at that time no right to recover the rent claimed could not transfer any higher right to the plaintiff. I think this view is correct. If the Maharaja had been transposed to the category of plaintiff, the position would have been different. In that case the Maharaja himself as a plaintiff would have been entitled to a decree and no question of limitation would have arisen by reason of section 22(2) of the Limitation Act.

It must be observed that if the rent be payable in money, the question of limitation would not arise.

In suits nos. 178 and 181 the Subordinate Judge held that the Maharaja, though added as a co-plaintiff, could not get a decree as he did not put in his own claim and adduce evidence in support thereof. In the petition filed by him on the basis of which he was transposed to the category of plaintiff he stated that he had parted with possession of the tenures in favour of the Rani, but as the defendants objected that the Rani had no right to sue for want of any document of title, it was necessary that he should be transposed as a co-plaintiff so that the difficulty might be obviated and the suits might be decreed either in the Rani's favour or in his favour or in favour of both. In the circumstances, it was not necessary for him to put forward his separate claim or adduce separate evidence. The defendants pleaded payment of rent to him, but that plea was rejected by both Courts. The Rani adduced evidence in support of her claim. If that evidence could be accepted, there would be no bar to the suits being decreed in favour of the co-plaintiff, if he was the rightful person entitled to the rent. In my opinion, the view taken by, the Subordinate Judge is wrong.

The next point argued by Mr. Jha relates to the Subordinate Judge's finding that the holdings were not properly described. The Subordinate Judge upon a consideration of the evidence came to the finding that

“the defendant's holdings are as they allege and not as original plaintiff Rani Bhunesvrari Koer alleges “.

This is a finding of fact, and nothing has been shown to us from which it can be laid that this finding is wrong.

One of the reasons, however, given by the Subordinate Judge for dismissing the suits is that the holdings were not properly described in the plaint. This is wrong. The suits could be decreed, taking the holdings as described by the defendants. The Subordinate Judge said

“But such a decree cannot be passed in a bhaoli suit where different kinds of crops have been claimed on different lauds and the claims cannot be separated from the plots which are in defendants' possession and the plots which are excluded from the holding”.

This depends upon evidence, and the Subordinate Judge does not appear to have considered the evidence from this point of view.

There is one other point. If the rent was really commuted, as found by the Subordinate Judge, there is no reason why the suits should have altogether been dismissed, when the plea of payment was rejected.

In the result, I would allow the appeals, set aside the decision of the Subordinate Judge and remand the cases to him for disposal according to law in the light of the observations made above. Costs will abide the result.

Reuben, J.:— I agree.

H.R.K

Appeals allowed.