Raj Narain Mitra v. Panna Chand Singh

In this appeal, which arises out of a suit for arrears of rent against the auction-purchaser of a dur-putni tenure, two questions arise for consideration, first, whether the auction-purchaser is bound by the clause in the dur-putni lease stipulating for payment of interest on the arrears of rent at the rate of Rs. 30 per cent per annum, and second, whether the auction-purchaser is bound by the clause in the dur-putni lease stipulating for payment of Rs. 10 annually in the event of default in supplying the landlord with a certain quantity of molasses.

The first Court answered these two questions in favour of the Plaintiffs; but the lower Appellate Court has answered them adversely to the Plaintiffs. Hence this second appeal by the Plaintiffs.

With regard to the first question, the learned Judge in the Court of Appeal below observes:—“It certainly seems to me that it would be most unjust to allow the Plaintiffs to demand this exorbitant rate of interest from the Defendant after making no mention of it in the advertisement in which everything material for the purchaser to know in order to judge of the value of the property must be entered.” In other words, the learned Judge was of opinion that as the rate of interest claimed is exorbitant and as no mention of it was made in the sale proclamation, the Plaintiffs cannot claim it.

The learned vakil for the Appellants contends that this view is wrong in law and that the auction-purchaser is bound by the stipulation contained in the dur-putni lease as to the payment of interest on arrears of rent, such a stipulation being part of the ordinary incidents of a tenure.

We are of opinion that this contention is correct.

It is argued on the other side that the judgment of the Court of Appeal below is not only right, so far as it goes, but that the view of the learned Judge below can also be supported on another ground, namely, that the stipulation for payment of interest on arrears of rent, if it is of an unusual character, does not form part of the incidents of a tenure. It was also argued for the Respondent that upon a sale of an under-tenure for arrears, a new tenancy is created as between the decree-holder and the auction-purchaser, the incidents of which may not necessarily be those of the original under-tenure.

We are unable to accept these arguments as sound. We think that a stipulation for payment of interest upon arrears is an ordinary incident of a tenancy in this country unless there is something unusual in the stipulation and that as a rule it attaches to the tenancy so that a purchaser of the tenancy will also be bound by the stipulation. Nor can it be said that the rate, of interest in this case is of itself a thing so unusual in the stipulation as to take it out of the operation of the above rule.

As to the ground upon which the learned Judge has based his decision, we do not think that the landlord decree-holder was under any obligation to specify the rate of interest in the proclamation of sale. There is nothing in the Bengal Tenancy Act or the Code of Civil Procedure, sec. 287, throwing that obligation upon him. In the sale proclamation the rent-decree is referred to; and the decree reciting the claim shows that a large amount was claimed as interest and was allowed, though the rate of interest is not specifically mentioned.

Nor can it be said that the sale of the tenancy involves any new contract between the auction-purchaser and the landlord. At the date of the sale what is sold is the original under-tenure and it therefore carries with it all its incidents. Certain cases were cited by the learned vakil for the Respondent in support of his contention. With regard to the first of these, namely, that of Alim v. Satis Chandra Chaturdhurin(1) we would observe that it is distinguishable from the present case in more respects than one. In the first place, that was a case of a ryoti holding in respect of which a contract for payment of interest on arrears of rent is controlled by sec. 178 of the Bengal Tenancy Act, and not of a permanent tenure in respect of which such a contract is not so controlled (see sec. 179 of the Act); and in the next place, the document creating the tenancy in that case was one for a term of seven years, which had expired and the contention of the claimant for interest was that as there was a holding-over, the terms of the original kabuliyat should attach to the same; and this contention the Court refused to accept. The next case cited was the case of Kali Nath Sen v. Troylukho Nath Roy(2). That also was a case of a ryoti holding and not of an under-tenure; and the stipulation for interest in that case was held to be not only of an unusual but of an unconscionable nature. As for the view taken in that case by one member of the Bench, that upon a sale of a holding for arrears of rent a new tenancy should be deemed to be created, that was the opinion of a single Judge; and, with all respect for his opinion, we cannot concur in it.

The claim for interest at the rate stipulated in the kabuliyat ought, therefore, in our opinion, to be allowed; and the decree of the lower Appellate Court, so far as it disallows that claim, must be set aside.

Upon the second question however, we are unable to give effect to the Appellant's contention. The rent mentioned in the sale proclamation is Rs. 1,009 and not Rs. 1,019 as it would have been if the Rs. 10 in dispute had been included in the rent. This is no case of an omission to state what was not necessary, but is a case of a positive statement of the rent, which it was necessary for the decree-holder to state in the sale proclamation; and that being so, we think that the Judge below is right in holding that the decree-holder is now debarred from asking for more. There is, moreover, an obvious reason why this part of the Plaintiff's claim was not included in the rent. The stipulation in the dur-putni lease for the payment of this sum of Rs. 10 is a peculiar one. It is nowhere stipulated for as being part of the rent. It is not included in either of the two instalments in which the rent is specified to be paid in the lease. It is a mere undertaking on the part of the lessee to pay this sum in default of delivery to the landlord of a certain quantity of molasses, which the landlord had been hitherto receiving from the raiyats in the mehal. It is very doubtful, therefore, whether a stipulation like this should be considered as an ordinary incident of a dur-putni tenure. It may well be held to have been a personal covenant by the lessee by whom the dur-putni was taken.

We therefore affirm that part of the judgment of the lower Appellate Court which disallows this claim for Rs. 10.

The result is that the decree of the lower Appellate Court will be modified by allowing the Plaintiff's claim for interest at Rs. 30 per cent per annum on the arrears of rent, the amount of rent being held to be Rs. 1,009.

The parties will pay and recover costs in proportion.

S.C.S

Decree modified.