The Judgment of the Court was delivered by Maclean, C.J (Banerjee, J., concurring).
This appeal raises a very short point. The Plaintiff is a zemindar, the Defendant's his tenant. By the kabuliyat set out at page 16 of the paper-book, the Defendant agreed to pay the Plaintiff an enhanced rent of Rs. 12-12-10. This enhancement exceeds by more than 2 annas in the rupee the rent previously paid by the tenant. By sec. 28 of the Bengal Tenancy Act it is provided that “where an occupancy raiyat pays his rent in money, his rent shall not be enhanced except as provided by this Act” By sec. 29 the money-rent may be enhanced by contract and by sub-section (c), it must not be enhanced so as to exceed by more than 2 annas in the rupee the rent previously payable by the raiyat. The Plaintiff is suing the Defendant for the enhanced rent: the latter says the agreement contravenes the provisions of the Bengal Tenancy Act, and having regard to secs. 23 and 24 of the Contract Act (IX of 1872), the agreement is void. I think he is right. But the Appellant contends that the contract is severable, and that the good part can be severed from the bad, and a decree given for the good part, that is, for so much of the enhanced rent as does not exceed the 2 annas in the rupee. I am unable to accept this view. The object of the Bengal Tenancy Act is, I take it, protective of the raiyat; if the Appellant's contention be sound, the landlord could enter into an agreement for an enhanced rent far beyond the statutory limit, run the risk of the raiyat subsequently disputing it, and if he did, then ask the Court to give him an enhancement only within the statutory limit. To adopt this view would, in my opinion, be very injurious to the raiyat. Here the contract is to pay the enhanced rent; the contract qua the payment of the enhanced rent does not consist of two parts. How is the Court in this case to sever the illegal from the legal part of the contract; if it cannot do so, the contract is void. If the Appellant's argument be well-founded, it would have the consequence I have indicated; he, in effect, is asking us to make a new contract for the parties. This view is consonant with those expressed in Pickering v. Ilfracombe Railway Co. and Baker v. Hedgecock , as Mr. Justice Chitty said in the latter case, “the Court cannot create or carve out a new covenant for the sake of validating an instrument which would otherwise be void.” This view is in accord with that expressed by Mr. Justice Rampini in the unreported case which has been referred to. In my opinion the District Judge was right in holding that the agreement was void under the sections, I have referred to, of the Contract Act, and of the Bengal Tenancy Act. In this view it becomes immaterial to go into the question which rested upon the effect of secs. 67 and 178 of the Bengal Tenancy Act. The appeal must be dismissed with costs.
Appeal dismissed.