Maclean, C.J:— I agree with Mr. Justice Rampini to the extent that, inasmuch as the kabuliyat stated the amount of rent, oral evidence would not be admissible for the purpose of contradicting that statement. But, at the same time, I consider evidence would be admissible to show that, as between the landlord and the tenant, the document was never intended to be acted upon or enforced, or evidence to show that there had been, as between the parties to this document, a waiver of some of its terms.
Evidence has been admitted to show that for nearly the whole, if not the whole, period from the date of the kabuliyat, receipts have been given by the landlord himself to the tenant (the Defendant) in the form prescribed by the Bengal Tenancy Act for a smaller rent than that stated in the kabuliyat. I think these receipts were admissible to show either that the parties never intended the terms of the kabuliyat to be strictly carried out, or that, as between the parties, there had been a waiver of the strict terms of the lease. In my opinion the admission of such evidence does not contravene the provisions of sec. 92 of the Indian Evidence Act.
It was urged that these issues were not distinctly raised by the Defendant in his defence. They were perhaps not very precisely raised, but the whole question was gone into before the Munsif and before the District Judge, and it is worthy of comment that the point now raised was never raised until the matter came before Mr. Justice Rampini.
The judgment of Mr. Justice Rampini must be reversed, and that of the District Judge restored with costs of both the hearings in this Court.
Macpherson, J.:— The Defendant in this case does not attempt to give any evidence of an oral agreement rescinding or contradicting the contract as to the amount of the rent payable, but as both the lower Courts found, he did prove that since the time the agreement was entered into he had always paid rent at a lower rate than that stated in the agreement. That evidence was, in my opinion, distinctly admissible, not for the purpose of contradicting the terms of the agreement, but for the purpose of showing, as the learned Chief Justice has pointed out, that the intention of the parties was, that the agreement from the first was not intended to be acted upon, or that there had been a waiver by the parties. It seems to me impossible, in dealing with a question of this kind, to put on one side altogether the cogent evidence furnished by statements of the Plaintiff in her receipts that the rent payable by the present Appellant was the rent stated by him, and not the higher rent now claimed by her, and I think that, upon the facts which have been found in this case, the lower Courts were quite justified in coming to the conclusion which they did come to and in refusing to give the Plaintiff a decree for the higher rent claimed by her. On these grounds, I think that the decision of Mr. Justice Rampini is not right and that it should be set aside, and the judgment of the District Judge restored.
S.C.S
Appeal allowed.