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Maharaja Sasi Kanta Acharjee Bahadur vs Genda Sheikh And Ors. on 11 June, 1924 cites

Sahar Munshi Garibulla Sheikh And Abu ... vs Jnanada Sundari Roy on 29 April, 1920

In this connection the learned Vakil refers to the case of Garibulla Shaikh v. Jnanada Sundari 57 Ind. Cas. 998 : 32 C.L.J. 134. The principle laid down in that case is 'Ordinarily applicable to the present case. It had been ingeniously suggested, however, for the defence before the lower Courts that although this rent was agreed to be paid for the holding created by amalgamation of lauds as stated in the kabuliyat but in arriving at the rent payable for the new holding the jama of the old holding was increased from Rs. 29 odd to Rs. 46 odd and the proportionate rent payable for the one-fifth share was not taken to be one-fifth of Rs. 29 odd but one-fifth of Rs. 46 odd and, therefore, it was really an enhancement of the rent of the old holding. I do not see that it is so as the rent agreed to be paid for the new holding was Rs. 15-7-0 on whatever basis it is arrived at. It might be, I do not say it was, that the parties agreed to take Rs. 46 odd as the jama of the old holding although it was not so. But that did not of itself in any way affect the promise of the tenant to pay Rs. 15-7-0 as rent for the newly created holding. The way in which it was attempted to be shown that the rent was taken to be Rs. 46 odd instead of Rs. 29 odd was this. The learned Subordinate Judge says that the Record of Rights shows that the jama of the occupancy holding of which Samir got one-fifth share was recorded as Rs. 29-13-5 and it was for the landlord to show that the rent was really Rs. 46 odd, and having come to the conclusion that the rent was Rs. 29 odd the lower Appellate Court says "the jama of Rs. 46-13-6 entered in the kabuliyat is either a misrepresentation or a mistake. In either view of the case the contract based on this amount is not enforceable in law." It is somewhat difficult to follow this reasoning. It has been found that the contract was not vitiated either by fraud or coercion as alleged by the defence. If that is so what is the justification for the lower Appellate Court to say that a particular item as mentioned in the contract was either vitiated by misrepresentation or mistake. This was not the defence or such a defence would be inconsistency with the defence that the kabuliyat was taken by coercion. It may well be that the rent recorded in the Record of Right which was published in the year 1915, shortly before this 'kabuliyat was executed was not the true record and until the contrary is established we must take the deliberate statement of the parties as contained in a document which is shown to have been executed voluntarily and properly by the parties as correct. The Court below did not refer to any evidence to that effect. Then again as has been contended by the learned Vakil for the appellant how is it possible for the defendants to refuse to be bound by one of the items of a contract which as I have already stated is of a complex nature. The landlord was not bound to recognize the subdivision of an old holding. He agreed to do so. The landlord was not bound to recognize the transferable occupancy holding but he agreed to do so and he was entitled to receive consideration fore these concessions made by him, and for aught we know the parties made the contract with a full knowledge of the circumstances and Rs. 15-7-0 was agreed to be the true rent payable for the jama created. There is no principle upon which a party to a contract allowing the contract to stand and enjoying the benefit of that contract himself can say when he is sued for the enforcement of one of the terms of the contract that he is entitled to retain the benefit of -the contract but is not bound by one of its terms at a time when the right to get either rescission or reformation of contract has been barred. The cases in Which a party to a contract was held hot to be bound by it without setting aside the contract were the cases when the contract was absolutely void in toto.
Calcutta High Court Cites 1 - Cited by 3 - Full Document
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