Patna High Court
Rai Hari Prasad Lal vs Damar Singh And Ors. on 7 March, 1917
Equivalent citations: 39IND. CAS.736, AIR 1917 PATNA 488
JUDGMENT Chapman, J.
1. Upon the facts found by the Courts below, the question which we have to decide falls within a narrow compass. In November 1910, the defendants owed the plaintiff a sum of Rs. 312-6-0 for arrears of rent in respect of two holdings for the previous four years. The defendants thereupon came to an agreement with the plaintiff that these arrears might be paid in six instalments, and that if default were made in the payment of two successive instalments, the plaintiff would have the right to realize the whole amount due with interest at 2 per cent. per mensem from the date of the bond. As security for payment in this manner the defendants mortgaged 10 bighas of land which they held as raiyats of the plaintiff. The present suit was instituted upon this mortgage bond and was decreed in a modified form by the Munsif. On appeal, the learned District Judge has held that the mortgage-bond was void, being in contravention of Section 178(3)(h) of the Bengal Tenancy Act, and he dismissed the suit. Section 178(3)(h) of the Bengal Tenancy Act provides that nothing in any contract made between landlord and tenant after the passing of the Act shall affect the provisions of Section 67 relating to the interest payable on arrears of rent. Section 67 is to the effect that arrears of rent shall boar simple interest at the rate of 12 1/2 per cent. per annum from the expiration of that quarter of the agricultural year in which the instalment falls due to the date of the payment or of the institution of the suit, whichever date is earlier. The object of Section 67, therefore, clearly is to provide that in a suit for rent the decree shall grant interest at the rate of 12 1/2 per cent. per annum as provided in that section; and Section 178(3)(h), therefore, means that a landlord and tenant should not be permitted to make any contract that in the event of a suit being brought for arrears of rent interest shall be payable at either a higher or a lower rate than 12 1/2 per cent. The contract in the present case was not contemplating a suit for rent. Therefore it does not fall within the provisions of the Bengal Tenancy Act above referred to, if I am right in my interpretation of them. These provisions are ordinarily resorted to by tenants by way of relief from contracts with their landlords as to the terms upon which they shall hold their tenancy. The provisions were not intended in the first instates to apply to any other classes of cases. The present is not a case of contract between a tenant and landlord as to the terms upon which the tenancy was to be held. It does not, therefore, appear to me to come within the spirit of the provisions upon which the learned District Judge relied. I am further of opinion that the parties to this contract ceased to be in the relationship of landlord and tenant; it was a case merely of an arrangement for the payment of a debt by the defendants to the plaintiff. It established a new relationship between the parties--a new contract under which the parties became mortgagor and mortgagee and ceased to be landlord and tenant. I am, therefore, of opinion that the learned District Judge fell into an error in applying the provisions of the Bengal Tenancy Act to this case and I would accordingly set aside the judgment and decree of the learned District Judge and restore that of the original Court.
2. The appellant is entitled to his costs.
Atkinson, J.
3. I concur.