Full text of "The Bengal Tenancy Act: being Act VIII of 1885, (as amended by Act VIII of 1886) with notes and annotations, judicial rulings, the rules made under the act by the local government, the High Court, and the Registration Department, and the forms of registers prescribed by the Board of Revenue"

See other formats

I CO
■CSJ

^00

'CO

July, 1890.

LAW PUBLICATIONS

THACKER, SPINK AND CO.,

CALCUTTA.

AGNEW

cedure
tioDB, Sec
the Go
Copious

GiLBER'

8vo., o|

AMEER 4
Testam
Notes ai
edan Jl
Tagore 1

BEVERLl

and Mi:
complet
for Lan
Second 1
This Edition

CHALME
(XXVI
M.A..A1;
aud Che

COLLETI
Commei
late of

COLLETT

CHARLI'

8vo.. el

COLLIER.
(B.C. A
Critical
dix. co:
LIEB. B

COLLIER
ilunici
palities
Govern
By F.I

COWELL. — Hindu Law ; being a Treatise on the Law administered
exclusively to Hindus by the British Courts in India. The Tagore Law
Lectures. 1870 and 1871. By IlERnEKT Cowell, Bar.-at-Law. Royal 8vo.,
cloth. Lectures, 1870, Rs. 12. Lectures, 1871, Rs. 8.

COWELL.— The History and Constitution of the Courts

and Legislative Authorities in India. Second Edition, Revised. By Hke-
BEBT Cowell. 8vo., cloth. Rs. 6.

OF THE *^

/hA<p • /tiu.e4J-^^

QUz

/^.^rii.

'0)

bion

C.S.
888.
tdia.

lot

5tes,

lemy

flat

.Vith
pen-

COL-

the
nici-
liocal
rged.

■>:

LAW PUBLICATIONS BY THACKER, SPINK & CO., CALCUTTA. 2

CUNNINGHAM and SHEPHARD.— The Indian Contract

Act (No. IX of 1872) ; together with an Introduction and Explanatory
Notes, Table of Contents, Appendix and Index. By the Hon'ble
H. S. Cunningham, M.A., and the Hon'ble H. H. Shephabd, M.A. Fifth
Edition. Demy 8vo. Rs. 15.

CURRIE.— Indian Law Examination Manual. By Fendall

CURKIE, Esq., Bar.-at-Law. Third Edition, considerably enlarged. Svo.,
cloth. Rs. 5.

DONOGH.— The Stamp Law of British India, as constituted

by the Indian Stamp Act (No. I of 1879) ; Rulings and Circular Orders
of the four High Courts ; Notifications, Resolutions. Rules, and Orders of
the Government of India and of the various Local (lOvernments up to
date ; together with Schedules of all the Stamp-duties chargeable on in-
struments in India from the earliest times. Edited, with Notes and com-
plete Index, by Walter R. Donogh, M.A., Bar.-at-Law. Demy 8vo.,
cloth gilt. Rs. 8.

With a Supplement containing the Amendments made by Acts in 1888
and 1889 and Rulings and Notifications up to May 1890.

FIELD.— Landholding, and the Relation of Landlord

and Tenant, in various Countries of the "World. By C. D. Field, M.A.,
LL.D., B.C.S. Second Edition. 8vo., cloth. Rs. 17-12 ; cash Rs. 16.

N.B. — This Edition contains " Tlie Bengal Tenancy Act," 1885, with Notes and
Observations, and an Index to the wliole of the Law of Landlord and Tenant in Bengal.

FIELD.— Introduction to the Regulations of the Bengal

Code (specially reprinted for the use of students, etc.) Crown 8vo.,
cloth. Rs. 3.

FIELD.— The Law of Evidence in British India. By C. D. i

Field, M.A.. LL.D.. a Judge of the High Court of Judicature, Calcutta» I
Fourth Edition. Thick demy Svo. Rs. 18.

FORSYTH.— The Probate and Administration Act ; being

Act V of 18SI. With Notes, By W. E. H. Forsyth, and prepared for pub-
lication by F. J. Collinson. Demy 8vo., cloth. Rs. 5.

FORSYTH.— The Revenue Sale Law of Lower Bengal.

Comprising Act XI of 1859. B. C. ; Act VII of 1868, B. C. ; Act VII of 1880;
and the Unrepealed Regulations and Rules of the Board of Revenue on
the subject. With Notes. By W. E. H. Forsyth, Bar.-at-Law. Demy
8vo., cloth. Rs. 5.

GRIMLEY.— Manual of the Revenue Sale Law and Certi-
ficate Procedure of Lower Bengal; being Act XI of 1859; Act VII, B.C.,
of 1868, and Act VII, B.C., of 1880; the Public Demands Recovery Act,
including Selections from the Rules and Circular Orders of the Board of
Revenue. With Notes. By W. H. Geimley, B.A., C.S. 8vo. Rs. 5-8
interleaved, Rs. 6.

GURUDASS BANE RJEE.— The Hindu Law of Marriage

and Stridhana. Tagore Law Lectures. 1878. By the Hon'ble Gurudass
Banebjee, M.A., D.L. Royal 8vo., cloth. Rs. 10.

I HENDERSON.— The Law of Intestate and Testamentary

\ Succession in India ; including the Indian Succession Act (X of 1865),

I with a Commentary ; and the Parsee Succession Act (XXI of 1865), the

Hindu Wills Act (XXI of 1870), the Probate and Administration Act (V of
\ 1881), and all Laws on the subject. With Notes and Cross References. By

I Gilbert S. Henderson, M.A., Bar.-at-Law. Royal Svo., cloth. Rs. 16.

•^ ^^

THE

BENGAL TENANCY ACT.

THE

BENGAL TENANCY ACT:

BEINti

ACT VIII OF i885

(AS AMENDED BY ACT VIII OF 1886),

NOTES AND ANNOTATIONS, JUDICIAL RULINGS, THE RULES MADE

UNDER THE ACT BY THE LOCAL GOVERNMENT, THE HIGH

COURT, AND THE REGISTRATION DEPARTMENT, AND

THE FORMS OF REGISTERS PRESCRIBED BY

THE BOARD OF REVENUE.

R. F. RAMPINI, M. A.,

Bensal Civil Service, of the Inner Temple, Barrister-at-Law, and District
and Sessions Judge, Burdwan, Bengal ;

M. FINUCANE, M.A.,

Bengal Civil Service, Director of Land Records and Agriculture, Bengal.

SECOND EDITION.

CALCUTTA:

London :— W. THACKER & CO.
1889,

f'ALCrTTA : PKINTED BY THACKER, Hl'lSK AND CO.

PREFACE TO THE SECOND EDITION.

In submitting to the public a second edition of our work
on the Bengal Tenancy Act, we beg to say that the book has
been almost entirely re-written. In the present edition we
have discussed in the notes many points which the working
of the Act has shown to be important or obscure. We have
considerably increased the number of judicial rulings under
the old law to which reference is made, and we believe we
have cited every ruling under the present Act that has up to
date been reported, as well as several unreported decisions.
In quoting the titles of these rulings, we have adopted the so-
called Hunterian system of spelling, and have omitted all
unnecessary prefixes.

In the appendices we have printed the Government Rules
under the Act with the Board of Revenue's instructions
thereon, the forms of Registers under the Act prescribed by
the Board of Revenue, the High Court Rules and the Rules of
the Registration Department under the Act.

Our best acknowledgments are due to the Hon'ble Mr.
Reynolds, late senior member of, and to Messrs. Cotton and
Buckland, Secretaries to, the Board of Revenue, who have
given us free access to the correspondence in the Board's office
relating to the working of the Act, which has enabled us, we
hope, to make the work one of practical utility to executive, as
well as to judicial, officers, legal practitioners, and all who have
occasion to consult, or avail themselves of, the provisions of
the Act,

R. F. R.
M. F.

April, 1889.

Digitized by the Internet Archive

in 2007 with funding from

IVIicrosoft Corporation

http://www.archive.org/details/bengaltenancyactOOrampuoft

CONTENTS-

Page.
Index OF Cases Cited ... ... ... ... ... ... xv

COMPARATIVK STATEMENT SHEWING THE SECTIONS OF THE PRESENT ACT

WHICH COKHESPOND WITH SECTIONS OF PREVIOUS RENT LAWS .. XXX VU

Introduction ... ... ... ... ... ... ... xxxix

THE BENGAL TENANCY ACT, 188.5,

CHAPTER I.
Preliminary.

Sec-iions.

Short title

Commencement

Local extent

Repeal

Definitions

CHAPTER IT.
Classes of Tenants.

4. Classes of tenants ... ... •-. ... ... ... 22

5. Meaning of '• tenu;e holder " and " raiyat" ... ... ... ib.

CHAPTER III.

Tenure-holders.
Enhancement of rent.

6. Tenure held since Permanent Settlement liable to enhancement only

in certain cases ... ... ... ... ... ... 36

7. Limits of enhancement of rent of tenures ... ... ... 38

8 Power to order gradual enhancement ... ... ... ... 40

9. Rent once enhanced may not be altered for fifteen years ... ... ib.

Other incidents of tenures.

10. Permanent tenure-holder not liable to ejectment ... ... ... ib.

11. Transfer and transmission of permanent tenure ... ... „. 44

12. Voluntary transfer of permanent tenure ... ... ... ... 46

13. Transfer of permanent tenure by sale in execution of decree other

than decree for rent ... ... ... ... ... ... 49

14. Transfer of permanent tenure by sale in execution of decree for rent 51

15. Succession to permanent tenure ... ... ... ... ... ib,

1(5. Bar to recovery of rent, pending notice of succession ... ... 62

17, Transfer of, and succession to, share in permanent tenure ... ... ib.

Viil CONTENTS.

CHAPTER IV.

llAlYATS HOLDING AT FIXED RATES.

Sections. Page.

18. Incidents of holding at fixed rates ... ... ... ... 55

CHAPTER V.

OCCUPANCY-RAIYATS.

General.

19. Continuance of existing occapancy-rights ... ... ... ... 57

20. Definition of " settled raiyat " ... ... ... ... ... 61

21. Settled raiyats to have occupancy-rights ... ... ... ... 63

22. Effect of acquisition of occupancy-right by landlord. ... ... 65

Incidents of occupancy-right.

23. Rights of raiyat in respect of use of land ... ... ... 66

24. Obligation of raiyat to pay rent ... ... ... ... 67

25. Protection from eviction except on specified grounds ... ... 68

26. Devolution ot occupancy-right on death ... ... ... ... 70

Enhancement of rent.

27. Presumption as to fair and equitable rent ... ... ... ... 75

28. Restriction on enhancement of money-rents ... ... ... 76

29. Enhancement of rent by contract ... ... ... ... ib.

30. Enhancement of rent by suit. ... ••• ••• •■• ••■ 78

31. Rules as to enhancement on ground of prevailing rate ... ... 80

32. Rules as to enhancement on ground of rise in prices ... ... 83

33. Rules as to enhancement on ground of landlord's improvement ... 84

34. Rules as to enhancement on ground of increase in productive powers

due to fluvial action ... ... ••• ••• .• ... 85

35. Enhancement by suit to be fair and equitable .. ... ... ih.

36. Power to order progressive enhancement ... ... ... 86

37. Limitation of right to bring successive enhancement-scits ... ... ib.

Reduction of rent.

38. Reduction of rent ... ... ... ... ... ... 87

Price-lists.

39. Price-lists of staple food-crops ... .. ... ... 88

Commutation.

40. Commutation of rent payable in kind ... ... ... ... 89

CHAPTER VI.

NON-OCCUPANCY-RAIYATS.

41. Application of chapter ... ... ... ... ,.. «)2

42. Initial rent of non-occupaocy-raiyat ... ... ... ... ib.

43. Conditions of enhancement of rert ... ... ... ... ib.

44. Grounds on which non-occupancy-raiyat may be ejected ... ... 93

45. Conditions of ejectment on ground of expiration of lease ... ... ib.

46. Conditions of ejectment on ground of refusal to agree to enhancement 95

47. Explanation of " admitted to occupation ' ... ... ... 9(j

CONTENTS.

CHAPTER VII.

Under-raiyats.
Sections,

48. Limit of rent recoverable from under-raiyats

49. Restriction on ejectment of under-raiyats

Page.

. 97
. 98

50.
51.

52.

53.

54.
55.

56.
57.

58.

59.
60.

61.
62.
6.3.
64.

65.

66.
67.
63.

69.
70.
71.

72.

73.

CHAPTER VIII.

General Provisions as to Rent.

Rules and presumptions as to amount of rent.

Rules and presumptions as to fixity of rent

Presumption as to amount of rent and conditions of holding

Alteration of rent on alteration of area.

Altei'ation of rent in respect of alteration in area

Payment of rent.

Instalments of rent

Time and place for payment of rent ... ....

Appropriation of payments

Receipts and accounts.

Tenant making payment to his landlord entitled to a receipt

Tenant entitled to full discharge or statement of account at close of

year ...
Penalties and fine for withholding receipts and statements of accounts

and failing to keep counterparts
Local Government to prepare forms of receipt and account ...
Effect of receipt by registered proprietor, manager or mortgagee

Deposit of rent.

Application to deposit rent in Court

Receipt granted by Court for rent deposited to be a valid acquittance ...

Notification of receipt of deposit

Payment or refund of deposit

Arrears of rent.

Liability to sale for arrears in case of permanent tenure, holding at

fixed rates or occupancy-holding
Ejectment for arrears in other cases
Interest; on arrears
Power to award damages on rent withheld without reasonable cause or

to defendant improperly sued for rent

Produce-rents.

Order for appraising or dividing produce ...
Procedure where officer appointed ...
Rights and liabilities as to possession of crop

Liability for rent on change of landlord or after transfer of
tenure or holding.

Tenant not liable to transferee of landlord's interest for rent paid to

former landlord without notice of the transfer
Liability for rent after transfer of occupancy-holding

107
111

112

118
119
120

121

122

123
ib.
124

125
128
129
130

131
134
135

136

137
140
141

142
146

X CONTENTS.

Illegal cessfs, d:c.

Sections. P"S^«-

7*. Abwab, ic, illegal ... ... ... ••• ... ••• 1^7

75. Penalty for exaction by landlord from tenant of sum in excess of the

rent payable ... ... ... ••• ••■ ••• ••• ^^^

CHAPTER IX.

Miscellaneous Provisions as to Landlords and Tenants.

Improvements.

7f>. Definition of "improvement" ... ... ■.• ••• •■• ^^^

77. Right to make improvements in case of holding at fixed rates and

occupancy-holding ... ... ••• ••• ••• ••• ^"2

78. Collector to decide question as to right to make improvement, &;c. ... ib.

79. Right to make improvements in case of non-occupaucy -holding ... ib.

80. Registration of landlords' improvements ... ... ... ... 153

81. Application to record evidence as to improvement ... ... ... ib.

82. Compensation for raiyats' improvements ... ... ... ... 151

83. Principle on which compensation is to be estimated ... ... ... 155

Acquisition of land for building and other purposes.

84. Acquisition of land for building and other purposes ... ... ... 157

Sub-letting.

85. Restrictions on Bub-letting ... ... ... ... ... ib.

Surrender and abandonment.

86. Surrender ... ... ... ... ... ... ... 159

87. Abandonment ... ... ... ... ... ... .•• 103

Sub-division of tenancy.

88. Division of tenancy not binding on landlord without his consent ... 165

Ejectment.

89. No ejectment except in execution of decree... ... ... ... 166

Meas%ireme7its.

90. Landlord's right to measure land ... ... ... ... ... 167

91. Power for Court to order tenant to attend and point out boundaries ,.. 168

92. Standard of measurement ... ... ... ... ,,. ... 169

Managers.

93. Power to call upon co-owners to show cause why they should not

appoint a common manager .,. .,. ... ... ... 171

94. Power to order them to appoint a manager if cause is not shown ... 172

95. Power to appoint manager if order is not obej'ed ... ... ... ib.

96. Power to nominate person to act in all cases under clause (2>) of last

section ,., ... ,., ... ... ... ,,, ib,

97. The Court of Wards Act, 1879, applicable to management by Court of

Wards .,. ... .,, ... „. ,.. ... ib.

98. Provisions applicable to manager ,., ... ... ... ... 173

99. Power to restore management to co-owners... ... ... ... ib.

100. Power to make rules ,.. .,. .., ... ... ... ih.

CONTENTS. XI

CHAPTER X.

Record-of-riqhts and Settlement of Rents.
Sections. Page.

101. Power to order survey and preparation of record-of- rights ... ... 177

102. Particulars to be recorded ... ... ... ... .. ... 179

103. Power for Revenue-officer to record particulars on application of pro-

prietor or tenure-holder... ... ... ... ... ... 180

104. Procedure as to recording or settling rents ... ... ... ... 181

105. Publication of record .. ... ... ... ... ... 183

106. Procedure in case of dispute as to entries in record ... ... ... ib.

107. Procedure to bo adopted by Revenue-officer ... ... ... 184

108. Appeals from decisions of Revenue-officers ... ... ... ... ib.

109. Undisputed entries in record to be presumptive evidence ... ... 185

110. Time at which settlement of rent is to take effect ... ... ..186

111. Stay of proceedings in Civil Court during preparation of record ... ib.

112. Power to authorize a special settlement in special cases ... ... ib.

113. Period for which rents as settled are to remain unaltered ... ... 187

114. Expenses of proceedings under chapter ... ... ... ... 188

115. Presumption as to fixity of rent not to apply where record has been

prepared ... ... ... ... ... ... ... lb.

CHAPTER XL
Record of Proprietors' Private Lands.

116. Saving as to khdmar land ... ... ... ... ... ... 190

.117, Power for Government to order survey and record of proprietor's

private lands ... ... ... ... ... ... ... 191

118. Power for Revenue-officer to record private land on application of pro-

prietor or tenant ... ... ... ... ... ... 192

119. Procedure for recording private land ... ... ... ... ib.

120. Rules for determination of proprietor's private land ... ... ib.

CHAPTER XIL

Distraint.

121. Cases in which an application for distraint may be made ... ... 194

122. Form of application ... ... ... ... ... ... 195

123. Procedure on receipt of application ... ... ... ... 196

124. Execution of order for distraint ... ... ... ... ... 197

125. Service of demand and account ... ... ... ... ... ib.

126. Right to reap, &.C., produce ... ... ... ... ... 198

127. Sale-proclamation to be issued unless demand is satisfied ... ... a,

128. Place of sale ... ... ... ... ... ... ... 199

129. When produce may be sold standing ... ... ... ... ib.

130. Manner of sale ... ... ... ... ... ... ... ib.

131. Postponement of sale ... ... ... ... ... ... ib.

132. Payment of purchase-money .... ... ... ... ... ib.

133. Certificate to be given to purchaser ... ... ... ... 200

134. Proceeds of sale how to be applied ... ... ... ... ... ib.

135. Certain persons may not purchase ... ... ... ... ... ib.

136. Procedure where demand is paid before the sale ... ... ... ib.

xn CONTENTS.

Sections. Page.

137. Amount paid by under-tenant for his lessor may be deducted from

rent ... ... ... ... ... ... ... ... 201

138. Conflict between rights of superior and inferior landlords ... ... ib.

139. Distraint of property which is under attachment ... ... ... 202

140. Suit for compensation for wrongful distraint ... ... ... /*.

141. Power for Local Government to authorize distraint in certain cases ... 203

142. Power for High Court to make rules ... ... ... ... 204

CHAPTER XIII.
Judicial Procedure.

143. Power to modify Civil Procedure Code in its application to landlord

and tenant suits ... ... ... ... ... ... ib.

144. Jurisdiction in proceedings under Act ... ... ... ... 213

145. N&ibs or gumdshtahs to be recognized agents ... ... ... 214

146. Special register of suits ... ... ... ... ... ... 216

147. Successive rent-suits ... ... ... ... ... ... 216

148. Procedure in rent-suits ... ... ... ... ... ... 218

149. Payment into Court of money admitted to be due to third person ... 221

150. Payment into Court of money admitted to be due to landlord ... 222

151. Provision as to payment of portion of money ... ... ... 223

1.52. Court to grant receipt ... ... ... ... ... ... ib.

153. Appeals in rent-suits ... ... ... ... ... ... ib.

154. Date from which decree for enhancement takes effect ... ... 226

155. Relief against forfeitures ... ... ... ... ... ... 227

156. Rights of ejected raiyats in respect of crops and land prepared for

sowing ... ... ... ... ... ... ... 229

157. Power for Court to fix fair rent as alternative to ejectment ... ... 230

158. Application to determine incidents of tenancy ... ... ... ib.

CHAPTER XIV.
Sale for Arrears under Decree.

159. General powers of purchaser as to avoidance of incumbrances ... 232

160. Protected interests ... ... ... ... ... ... 236

161. Meaning of "incumbrance" and "registered and notified incum-

brance" ... ... ... ... ... ... ... 237

162. Application for sale of tenure or holding ... ... ... ... 238

163. Order of attachment and proclamation of sale to be issued simul-

taneously ... ... ... ... ... ... ... ib.

164. Sale of tenure or holding subject to registered and notified incum-

brances, and effect thereof ... ... ... ... ... 240

165. Sale of tenure or holding with power to avoid all incumbrances, and

effect thereof ... ... ... ... ... ... ... ib.

166. Sale of occupancy-holding with power to avoid all incumbrances, and

effect thereof ... ... ... ... ... ... ... 241

167. Procedure for annulling incumbrances under the foregoing sections ... ib.

168. Power to direct that occupancy-holdings be dealt with under foregoing

sections as tenures ... ... ... ... ... ... 242

169. Rules for disposal of the sale proceeds ... ... ... ... 243

170. Tenure or holding to be released from attachment only on payment

into Court of amount of decree with costs, or on confession of satis-
faction by decree -holder ... ... ... ... ... ... ib.

CONTKNTS.

Xlll

Sectioks. Page.

171. Amount paid into Court to prevent sale to be in certain cases a mort-

gage-debt on the tenure or holding ... ... ... ... 244

172. Inferior tenant paying into Court may deduct from rent ... ... 246

173. Decree-holder may bid at sale ; judgment-debtor may not ... ... ib.

174. Application by judgment-debtor to set aside sale ... ... ... ib.

175. Registration of certain instruments creating incumbrances ... ... 248

176. Notification of incumbrances to landlord ... ... ... ... ib

177. Power to create incumbrances not extended ... ... ... 249

178.
179.
180.
181.

182.
18.3.

186.

187.
188.

189.
190.

191.
192.

193.

194.

195.

196.

CHAPTER XV.

Contract and Custom.

Restrictions on exclusion of Act by agreement

Permanent mukarrari leases

Utbandi, chur and dearah lands

Saving as to service-tenures

Homesteads

Saving of custom...

CHAPTER XVI.

Limitation.

184. Limitation in suits, appeals and applications in Schedule III

185. Portions of the Indian Limitation Act not applicable to such suits, &;c.

CHAPTER XVII.

Supplemental.
Penalties.
Penalties for illegal interference with produce

Agents and representatives of landlords.
Power for landlord to act through agent
Joint landlords to act collectively or by common agent

Rules binder Act.
Power to make rules regarding procedure, powers of officers, and

service of notices
Procedure for making, publication and confirmation of rules

Provisions as to temporarily-settled districts.
Saving as to land held in a district not permanently settled ...
Power to alter rent in case of new assessment of revenue

Rights of pasturage, &c.
Rights of pasturage, forest-rights, &c.

Saving for conditions binding on landlords.
Tenant not enabled by Act to violate conditions binding on landlord

Savings for special enactments.
Savings for special enactments

Construction of Act.
Act to be read subject to Acts hereafter passed by Lieutenant-Governor
of Bengal in Council

ib.
251

ib.
263
256
258

261
262

264

ib.
265

268
ib.

269
270

ib.

272
ib.

273

xiv CONTENTS.

SCHEDULKS.

Page.
I.— Repkal of Enactments ... ... ... ... ... 274

TI._FouMs OF Receipt and Account ... ... ... ... 276

III.— Limitation ... ... ... ... ... ... ... 279

APPENDICES.

I._GOVERNMEKT RULES UNDER THE BENGAL TENANCY ACT WITH

Board OF Revenue's INSTRUCTIONS THEKEON ... ... ... 285

11. — Forms of Registers under the Bengal Tenancy Act prescribed

BY THE Board OP Revenue ... ... ... ... ... 325

III.—HiGH Court Rules under the Bengal Tenancy Act ... ... 335

IV.— Rules of the Registration Department under the Bengal

Tenancy Act ... ... ... ... ... ... 339

v.— Glossary ... ... ... ... ... ... ... 348

VI.— Additional Notes ... ... ... ... ... ... 364

INDEX 3.16

INDEX OF CASES CITED.

Page

Abdul Aziz Khan r. Ahmmi Ali. I. L. R , H Calc, 795 ... ... ...75. 147

Abdul Ghaiii «<. Bhattu Sheikh. 22 W. R., 350 ... ... ... ... ' 85

Abdul Haniid r. Dongraram De, 3 h. L. R., App.. 1.^3 ... ... ... 2.57

Abdul Ho.«sein r. Lai Chaud Mchtan Das, I. L. R., 10 Calc, 36 ; 13 C. L. R., 323 ; 168, 266

Abdul Jabar v. Kali Chain Datta. 7 W. R . 81 ... ... ... ... 60, 99

Abdul Karim r. Amar Chand Lahata, 24 W. R.. 461 ... ... ... 94

Abdul Mannah v. Barada Kant Banaiji, 15 VV. R., 394 ... ... ... IIG

Abdul Rahman V. Dafcaram Bashi. W. R., Sp. No., 1864, 367 ... ... 66

Abdur Rahman r. Digambari Dasi, 18 W. R., 477 ,. ... ... 134

Abhoy Chandra Sirdar v. Radha Ballabh Sen, 1 C. L. R., 549 ... ... 80

Abhoy Charan ?'. Saslii Bhushan Basu. I. L. R.. 16 Calc. 155 ... ... 355

Abhoy Gobind Chaudhri c. Hari Charn Chaudhri, I. L. R., 8 Cal., 277 146, 265

Abilak Rai v. Dalial Rai, I. L. R., 3 Calc, 567 ... ... ... ... 215

Abul Hossein v. Ragtu Nath Saha, I. L. R., 13 Calc, 70 .. ... 18

Addoyto Charn De v. Peter Das, 13 B L. R., 417 ; 17 W. R., 383 ... ... 43, 60

Aditya Pal ». Kamala Kant Pal. Marsh. 401 .. ... ... ... 11

AfatuUahSirdar r. DwarkaNathMoltri, I. L. R., 4 Calc, 814 ... ... 230

Afsaruddin r. Saiashi Bala. Marsh. 5.58 ... ... ... .. 88, 116

Afzal Ali V. Gur Narain. 6 W. R., Act X, 59 ; B. L. R., F. B., 519 ... 234, 245

Afzal ». Ram Kumar Bhadra, I. L. R., 12Calc.,6I0 ... .. ... 143

Ahmuddia tJ. Girish Chandra Samonto, I. L R, 4 Calc, 3.50 ... ... 265

Ahmad All r.Ghulam Ghaflfur, 11 W. R., 432 ... ... ... ... 110

Ahmad Hossein ?•. Bandi, 15 W. R., 91 ... ... ... ... 114

Ahmuty t\ Brodie. W. R., Sp. No., ActX, 15 ... ... ... ... 120

Ahsauullah i\ Aftabuddin. 3 C. L. R., 382 ... ... ... ... 136

Ahsanullah v. Bassarat Ali Chaudhri, I. L. R., 10 Calc, 920 ... ...38, 205

Ahsauullah ?•. Rajendra Chandra Rai, I. L. R., 12 Calc, 464 ... ... 234

Ahsanullah r. Trilochau Bagchi. I. L. R.. 13 Calc, 197 ... ... ... 103

Ajodhya Prasad r. Imam Bandi Begam, 7 W. R., 628 ... ... ... 70, 71

Akbar Ali 1-. Bhyea LalJha. I. L. R., 6 Calc, 666 ... ... ... 205

Akhil Chandra Chaudhri r. Nayu. I. L. R., 10 Calc. 248 ... ... ... 206

Alam Chandra Shaha r. Moran. W. R., Sp. No., Act X, 31 ... ... 43. 69

Alam Manjhi v. Ashad Ali, 16 W. R., 138 ... ... ... .- 266

A lim udin r. Kali Krishna Tagore, I. L. R., 10 Calc, 895 ... ... ... 168

Alimuddin r. Sabir Khan, 8 AV. R.. 60 ... ... ... 233.234

Allender v. Dwarka Nath Rai, 15 W. R., 320 ... ... ... ... 53, 74

Allyat Chinaman r. Jagat Chandra Rai, 5 W. R., 242 ... ... ... 206

Altab Bibi r. Jugal Mandal, 25 W. R., 234 ... ... ... ... Ill

Amar Chand Lahata ('. Bakshi Paikar, 22 W. R , 228 ... ... ... 62

Amatal Fatima Khanum v Taranath Chand, 24 W. R., 151 ... ... 207

Ambika Charan Mandal v. Ram Dhan, 11 W. R , 35 ... ... ... 205

Ambika Debi ??. Pran Hari Das, 4 B. L. R., 77 ... ... ... 245

Amin Baksh v. Bhairo Mandal, 22 W. R., 493 ... ... ... ... 74

Amir Ali t. Hira Singh, 20 W. R.. 291 ... ... ... ... 104

Amir Hos.sein f. Sheo Suhai, 19 W, R., 338 ... ... ... ... 68

Amrit Chaudhri v. Haidar Ali. W. R.. Sp. Nc, Act X, 63 ... ... 265

Amrita Lai Basu v. Saurabi Dasi, 2 W. R., Act X, 86 ... ... ... 235

Anando Kumari i?. Government, 11 W. R , 180 ... ... ... 255

Anand Kumar Mukharji V. Bissonath Banarji, 17 W. R., 416 ... ... 66

Auanda Lai Chaudhri v. Hills. 4 W. R., Act X, 33 ... ... ... 110

Ananda Lai Mukharji v. Kalika Prasad Misra, 20 "VV. R., 59 ... ...53, 244

Ananda Mohan Sarma i;. Basir ... ... ... ... ... 266

Anando Mayi Dasi v. Mohendra Narain Das, 15 W. R., 264 ... ... 63

Anundomayi Dasi c. Swarnamayi, 6 W. R., Act X, 83 ... ... ... 110

Anando Rai r. Kali Prasad Singh, I. L. R., 10 Calc, 677 ... 46. 253, 254

xvi INDEX OF CASES CITED.

Page.

AnaniUah Sheikh v. Knilash Chandra Basti, T. L. U., 8 Calc, 118 ... ... ICl

Anuo<la Charn Rai /■ Kali Kumar Hai. I, L. U., 4 Calc, 8!> ... I4r>, 2('>C,

AniKxla Pra.'^ad Hanarji r. Chandra Sikhar Deb, 7 W. R , 3<H ... ... 215

Aunoda Prasad Mukharji r. Krishna Kumar Moitra. 1S» W. R.. u ... ... 2G.S

Anncxla Prai'ad Rai ?•. Dwarka Nafch Gangopadhja. I. L. K , C Calc, 7o4 ... 2fi*>

Annopurna Dasi r. Radha Mohan Patro, 19 W. R , 95 ... ... ... GO, 99

Aunopurna Dasi r. UmaCbarn Das. 18 W. U., 55 ... ... ... 71

Anu Maiidal v. Kamaludin, 1 C. L. R., 248 ... ... ... ... 145

Apu Badgavda r. Narhari Annaji. I. L. R., '.i Bom., 21 ... ... ... 20

Arat Snhu i'. Praudban Paikara, I. L R., 10 Calc. 502 ... ... ...43, 258

Arfannispa r. Piari Mohan Mukharji. I. L. R., 1 Calc, 378 ... ... 205

Arjuu Datta Banik r. Ram Nath Karmokar, 21 vV. II., 123 ... 167, 230

Ariun Saha r. Anand Singh, 10 W. R., 257 ... ... ... ... 147

Ashraf r. llam Kishor Ghosh. 23 W. R.. 288 ... ... ... ...59, 191

A^hrafuunissa r. Umang Mohan Deb Rai, 5 W. R,, Ac< X, 48 ... ... 205

Asman Singh r. Obiduddin. 23 W. R.. 460 ... ... ... ... 280

A tal Chandra r Kedar Nath Mukharji ... ... ... ... 166

Attimullahr. Sahibullah, 15 W. R., 149 ... ... ... ... 114

Audh B"harl Singh v. Dost Mahomed. 22 W. R., 185 ... ... ... 79, 82

Auo'ar Singh v. Mohini Datta Singh, 2 W. R.. Act X, 101 ... ... 43, 69

Az-lar Ali r- Asmat Ali, I. L. R.,8 Calc, 110 ... ... ... 237

Azizunuissa Khatuu v. Gora Chaud Das, I. L. B., 7 Calc, 163 ; 8 C. L. R. 498 ; 219, 247

Baba r. Visvanath Joshi, I. L. R., 8 Bora., 228 ... ... ... 108

Baban Mandal v. Shib Knmari Barmani, 21 W. R., 404 ... ... 88, II9

B.iijinath Sahu r. Raradaur Rai. 7 C. L. R., 369 ... ... ... 226

Baikanta Kaibarta r. Shoshi Mohan Pal, 22 W. R., 526 ... ... 207, 265

Baikanta Nath Das r. Bissonath Manjhi, 9 W. R., 268 ... ... ... 161

Baikanta Paraki r. Surendra Natb Rai, 1 W. R., 84 ... ... ... 88

Biikauta Ram Rai r. Surfannis.sa Begam. 15 W. R., 523 ... ... ... 280

Bakranath Mandal v. Binod Ram Sen, 1 B. L. R., F. B.. 25 ; 10 W. R., F. B., 33 ; 94, 96

Bakranath Singh v Nilmani Singh, I. L. R., 5 Calc, 389; 9 Calc, 187 ... 255

Baksh Ali Bhumya v. Nobotara, 13 W. R., 468 ... ... ... 19

Balaram Das i'. Jogendra Nath Mallik. 19 \V. R., 349 ... ... 44, 131, 166

Balli Dhobi v. Gonai Deo, I. L. R., 9 Calc, 388 ... ... ... 255

Bama Sundari Dasi v. Krishna Chandra Dhar, I. L. R., 10 Calc, 421 ... 18

Bama Sundari Dasi r. Radhika Chaudhurani. 13 Moo. I. A., 248 ; 4 B, L. R.,

P. C, 8; 13 W. R., P. C, 11 ... ... ... ... 37,38,39

Bama Sundari Dasi v. Radhika Chaudhurani, 1 W. R,, 339 ... ... 40

Banchantind r. Har Gopal Bhadnri, 1 Sel. Rep., 145 ... ... ... 39^ 40

Bangshodhar Biswas r. Madhu Mahaldar, 21 W. R., 383 ... ... 13,271

Bangsraj Bhukta r. Megh Lai Puri, 20 W. R., 398 ... ... ... 106

BanwariLal r. Sangam Lai, 7 W. R., 280 ... ... ... ... 2O

Banwari Lai Rai v. Mohima Chandra Kunal, 4 B. L. R., App. 86 ; 13 W. R., 267 94

Barada Kant Rai r. Chandra Kumar Rai. 23 W. R , 280 ... ... ... 263

Barhanadi Hauladar r. Mohan Chandra Guha. 8 C. L. R., 511 ... ... 77

Barma Chaudhri r. Srinath Singh, 12 W. R., 29 ... ... ... 147

Barry v. Ab.lul Ali, W. R , Sp. No., Act X, 38 ... ... ... ... 116

B.-ifs.^an Lai Sukal r. Chandi Das, 4 C. L. R., 1 ... ... ... 21O

Basant Lai r. Batul Bibi, I. L. R , 6 AH., 23 ... ... ... ... 282

Basarat Ali 1: Altaf Hossein. I. L. R., 14 Calc, 624 ... ... ... 280

Becharam Datta p. Abdul Wahid, I. L. R, 11 Calc, 55 ... ... ... 6

Becharam Mandal r. Piari Mohan Banarji, I. L. R , 9 Calc, 813 ... ... 205

Behari Lai D;us r. Radha Nath Das, 22 W. R., 229 ... ... ... 207

Behari Lai r. Gobardhan Lai. I. L. R., 9 Calc, 446 ... ... ... q

Behari Lai Mukharji r, Manglouath Mukharji, 4 C. L. R , 371 ; I. L. R., 5

Calc. 110 ... ... ... ... ... ... 262

Bell Campbell v. Abdul Hak, 6 W. R., Act X. 8 ... ... ... 282

Beni Madhab Banarji r. Jai Krishna Mukharji, 7 B, L. R., 152; 12

W. R..495 ... ... ... ... ... 46.67,69,72,258,259

Beni Madhab Ghosh r. Thakurdas Mandal, B. L. R., F. B , 588 ; 6 W. R , Act

X, 71 ... ... ... ... ... ... 105,144,265

Bettsv. Jamai Sheikh, 23 W.R., 271 ... ... ... ... 94

Bhagbat Panda v Bamdeb Panda, I. L. R., 11 Calc, 557 ... ... ... 88

Bhagbat Pra.saa Singh /•. Durga Bijai Singh, 8 B. L. R., 73 ; 16 W. R., 95 ... 114

INDEX OF CASES CITED. XVll

Page.

Bliagirath Patni v. Ram Lochan Deb, I. L. R., 8 Calc, 275. ... ... 212

Bhaghirath Sikdar V. Ram Narain Mandar, 9 W. R., 300 ... ... ... 147

Bhagrath Das v. Mahasup Rai, 6 W. R., Act X, 34 ... ... ... 80

Bhagwan Bhagat v. Jag Mohan Rai, 20 W. R., 308 ... ... ...59, 191

Bhagwan Das v. Sheo Narain Singh, 23 W. R., 253 ... ... ... 209

Bhagwan Datta Jha v. Sheo Mangal Singh. 22 W. R., 256 ... 206, 217

Bhagwan Sahai v. Sangessar Chaudhri, 19 W. R., 431 ... ... 216, 220

Bhairub Chandra Kapur v. Lalit Mohan Singh, I. L. R., 12 Calc, 185 ... 245
Bhairab Mandal v. Gangaiam Banarji, 17 W. R., 408 ; 12 B. L. R., 290 note 265, 266

Bhairab Nath Sandyal v. Mati Mandal, W. R., Sp. No., Act X, 100 ... ... 108

Bhajohari Banik v. Aka Ghulam Ali, 16 W. R., 97 ... ... ...74, 215

Bhalu Rai v. Jakhu Rai, I. L. R , 11 Calc, 667 ... ... ... 18

Bharat Chaudia Aich v. Gauimani Dasi, 11 W. R., 81 ... ... ... 39

Bharat Chandra Rai v. Kali Das De, 5 C. L. R., 545 ; I. L. R., 5 Calc, 574 ... 266

Bharab Chandra Sen v. Osimuddin, 6 W. R., Act X, 56 ... ... ... 100

Bharat Rai t;. Ganga Narain Mahapatra, 14 W. R., 211 ... ... 53,165

Bhavan Badhar, in re., I. L. R., 6 Bom., 691 ... ... ... ... 19

Bhobo Suudari Chaudhurani v. Kashi Nath Acharji, 22 W. R., 351 ... ... 217

Bhobo Tarini Dasi v. Prasannamayi Dasi, 10 W. R., 304 ... ... ... 234

Bhobo Sundari Debi v. Rakhal Chandra Basu, I. L. R., 12 Calc, 583 ... 6

Bhola Nath Rai p. Hiramani Debi, 1 2 C. L. R., 58 ... ... ... 282

Bhola Nath Rai V. Narendra Nath Rai, I. L. R., 9 Calc, 380 ... ... 282

Bholu i>. Zorawar. L. R., 2 R. & R.. p. 72 ... ... ... ... 83

Bhubanjai Acharji r. Ram Narain Chaudhri. 9 W. R., 449 ... ... 59

Bhuban Mohan Basu v. Chandra Nath Banarji, 17 W. R., 69 ... ... 13, 14

Bhuban Mohini Debi v. Harish Chandra Chaudhuri, I. L. R., 4 Calc, 23 ... 41

Bhuban Pari v. Shamanand De, I. L. R., 11 Calc, 699. ... ... . ... 31

Bhubo Sundari Debi V. Jynal Abdin, 8 W. R.. 393 ... ... ... 14

Bhulu V. Ram Narain Mukharji, W. R., Sp. No., 129 ... ... ... 236

Bhupendra Narain Datta v. Nemai Cham Mandal, T. L. R,, 15 Calc , 627 ... 231

Bidhu Bhushan Basu v. Kamaradin Mandal, I. L. R., 9 Calc, 864 ... ... 266

Bidhumukhi Debi v. Kifaiyat-ullah, I. L. R., 12 Calc, 93 ... ... 94

Bijai Chandra Banarji t'. Kali Prasanno Mukharji, I. L R., 4 Calc, 327 ... 106

Bijai Gobind Baral i-. Bhiku Rai, 10 W. R., 291 ... ... ... 207

Bijai Gobind Singh v. Karu Singh, 18 W. R., 531 ... ... ... 280

Bilasmani Dasi v. Sheo Prasad Singh, I. L. R.. 8 Calc, 664 ; 11 C. L. R., 215 ... 41

Bimola Sundari Chaudhurani v. Panchanan Chaudhuri, I. L. R., 3 Calc, 705 211
Binod Ram Sen v. Deputy Commissioner of Santal Parganas, 6 W. R., 129 ; 7

W. R., 178 ... „, ... ... ... ... 254

Bipiu Bihari Chaudhri v. Ram Chandra Rai. 5 B. L. R , 234 ... 33, 208

Bipra Das De v. Sakirmani Dasi, VV. R., Sp. No., Act X, 38 ... ... 114

Bipra Das De ?). Wollen, 1 W. R., 223 ... ... ... ... H

Bir Chandra Manik v. Harish Chandra Das, I. L. R., 3 Calc, 383 ... ... 211

Bir Chandra Manikv. Hossein. 17 W. R, 29 ... .. .- ... 70

Bir Chandra Manik V. Ram Krishna Saha, 23 W. R., 128 ; 14 B. L. R., 370 ... 211

Bireshar Panri ^•. Jogendro Chandra Deb, 24 W. R., 261 ... ... 207

Bisheshari Debi Chaudhurani v. Hem Chandra Chaudhri, I. L. R., 14 Calc, 133 39

Bishnu Lai Das v. Khyrunuissa Begam, 1 W. R., 78 ... ... ... 27l

Bishnu Prakash Siugh w. Ratan Gir Chela. 20 W. R., 3 ... ... ... 212

Bisseshvvar Chakrabartti r. Uma Charan Rai, 7 W. R., 44 ... ... 110

Bisseshwar Lai Sahu v. Lachmessar Singh. 6 C. L. R., 477 ; L. R., 6 I. A., 233 ... 233
Bissonath Rai v. Bhairab Singh, 7 W. R., 145... ... ... 59, 106, 109

Bis.sonath Sirkar t>. Svvarnamayi, 4 W. R., 6 ... ... ... ... 149

Boidinath Manjhi v. Aupurna Debi. 10 C. L. R., 15 ... ... 161, 164

Bollye Sati f. Akram Ali, L L. R.. 4 Calc, 961 ... ... 266,271

Bonomali Bajadar v. Kailash Chandra Mazumdar, I. L. R., 4 Calc, 135 ... 99

BonomaliGhoshv. Dilu Sirdar, 24 W. R., 118 ... ... ••• 160

Braja Bihari Mitra v. Kedaruath Mazumdar, I. L. R., 12 Calc. 580 ... 210

Braja Gopal Sirkar v. Basirunnissa Bibi, I. L. R., 15 Calc, 179 ... ... 219

Braja Kishor Bhattacharji v. Uma Suudari Debi 23 W. R., 37 ... ... 265

Braja Misra v. Ahladi Misrani, 21 W. R., 320 ; 13 B. L. R., 376 ... ... 224

BrajaNath Kuudu I'. Gopinath Saha. 17 W. R., 183 ... ... ... 12

Braja Nath Kundu v. Lakhi Narain Addi, 7 B. L. R., 211... ... ... 42,46

Braja Nath Kundu r?. Lowther, 9 B. L. R., 121 ... .., ... 12

Braja Nath Kundu v. Stewart, 8 B. L. R , App., 51 ; 16 W. R., 216 ... 43, 67, 69, 268
Braja Nath Pal v. Hira Lai Pal, 1 B. L R , A. C, 87 ; 10 W. R., 120 105, 115, 118

Braja Nath Srimani p. Troylakhya Nath Mitra ... ... ■•• 226

Xviil INDEX OF CASES CITED.

Page

BrajaNathTewari p. Grant, 22 W. R, 13 ... ... ... ... 217

Brajeudra Kumar Bhumik v. Upeudru Narain Singh, I. L. R., 8 Calc, 706 ... 113

Brajeudru Kumar llai v. Baugo Chandra Maudal, 12 C. L. R , ;589 ... 58, ol

Brajendra Kumar Rai v. Rakbal Chaudra Rai, I. L. R., 3 Calc, 791... ... 2(13

Bramainayi, <« »r. i) B. L. R., 101) note ... ... ... 11, 12

Brimlaban CLaudra Sirkar v. Dhananjai Lashkar, 4 C. L. B., 443, I. L. R.,

6 Calc, 246 ... ... ... ... ... 210, 280

Bubu Piaru Tuhobildariui v. Nazir Hossein, 23 W. R., 183 ... ... 282

Budhua Orawau Mahtuu r. Jogeshar Doyal Singh, 24 W. R., 4 ... ... 148

BulChand Jha «'. LathuMudi, 23 W 11., 387 ... ... ... ... 237

BuUen v. Lalit Jha, 3 li. L. R., App., 119 ... ... ... 100, 104, 105

Burn k Co. r. Bishomayi Dasi, 14 W R., 85 ... ... ... ... 105

Buti Singh r. Murat Siugh, 13 B. L R., 284 ; 20 W. R., 478 ... 32, 71

Bjrd Nath Saha v. Jadab Chandra Saha, 3 W. R., 208 ... ... ... 59

Cannan r. Kailash Chandra Rai, 25 W. R., 117 ... ... ... 69

Chuitauua Chandra Rai v. Kedar Nabh Rai. 14 W. R., 99 ... ... 118

Chamarni Bibi r. AinuUa Sirdar, 9 W. R., 451 ... ... 109, 206

Chandessari o. Ghinah Pandi, 24 W. R.. 152 ... ... ... ...12, 256

Chandra Kant Sarmah v. Bissessar Sarmah, 7 W. R., 312 ... ... 236

Chandra Kishor De v. Raj Kishor Mazumdar, I. L R., 15 Calc, 450... ... 281

Chandra Kumar Datta v. Jai Chaudra Datta, 19 W R., 213 ... ... 211

Chaudra Kumar Mandal «. Namni Khanum, 19 W. R., 322 ... ... 209

Chandra Kumar Uai r. Kadirmaui Dasi, 7 W. R., 247 ... ... 71, 258

Chaudra Kumar Rai v. Piari Lall Banarji, 6 W. R., 190 ... ... ... 2.59

Chandramaui Chaudhurani v. Debeudra Nath Rai, Marsh. 420 ; 2 Hay's Rep., 519 150
Chandramani Nyabhusan v. Sambhu Chandra Chakrabarbti, W. R., Sp.

No., 1864, 270 ... ... ... ... ... ...46, 164

Chandra Narain Singh c. Krishna Chand Golicha, I. L. R., 9 Calc, 856 ... 132

Chandra Nath Chaudhri v. Ahsauullah Maudal, 10 W. R.. 438 ... ... 100

Chandra Nath Bharttacharji v. Jagat Chandra Bharttacharji, 22 W. R., 337 ... 105
Chandra Nath Misra v. Sirdar Khan, 18 W. R., 218 ... ... 70, 135, 228

Chandra Nath Rai v. Bhairab Chandra Sarmah. I. L. R.. 10 Calc, 250 ... 18

Chandra Nath Rai v. Bhim Sirdar. W. R., Sp. No., Act X, 37 ... ... 13

Chandra Pradhan v. Gopi Mohan Saha, I. L R., 14 Calc, 385 ... ... 282

Chattarbhuj Bharti v. Janki Prasad Singh, 4 C. L. R., 298 ... 32, 57, 58

Chaturi Singh v. Makund Lai, I. L. R., 7 Calc, 710 ... ... ... 94

Cherag Ali » Kadir Mahomed, 12 C. L. R, 367 ... ... ... 220

Chittro Narain Singh v. Asst. Commr. of Santal Parganas, 14 W. R., 203 ... 254

Chultan Mahton v. Tilakdari Singh, I. L. R., 11 Calc, 175 ... ... 148

Chuli Lai v. Kokil Singh, 19 W. R., 248 ... ... ... ... 207

Chuni Mandar «. Chandi Lai Das, 14 W. R., 178 ... ... ... 20

Chuni Singh v. Hira Mahata. 9 C. L. R., 37 ; I. L. R., 7 Calc, 633 ... ... 266

Churamani De v. Howrah Mills Co., I. L R., 11 Calc, 697 ... ... 118

Churamau Singh v. Duuraj Rai, I. L. R., 5 Calc, 56 ... ... ... 80

Churaman Singh w. Patu Koer. 24 W. R., 68 ... ... ... ... 143

Church r. Ramtanu Shaha, 9 B. L. R., 105 note... ... ... ...11, 257

Crowdie r. KuUar Chaudhri, 21 W. R., 307 ... ... ... ... 21

Carrie P. Chatty, 11 W.R, 520 ... ... ... ... ... 21

Daitari Mahanti ». Jagatbandhu Mahanti, 23 W. R., 293 ... ... 207

Damri Sheikh v. Bisseshar Lai, 13 W. R., 291... ... 104, 168, 165, 167, 230

Darjobatti Chaudhurani r. Chamru Mandal, 25 W. R., 217 ... ... 280

Dassorathi Hari Chandra Mahapatra v. Ram Krishna Jana, I. L. R., 9

Calc, 526 ... ... ... ... ... 31,111,166

Daulat Ghazi Chaudhri v. Manwar, 15 W. R.,341 ... ... 132, 233

David p. Grish Chandra Guha. I. L. R., 9 Calc, 183 ... ... ... 272

David V. Ramdhan Chatarji, 6 W. R., Act X, 97 ... ... ... 114

Davies 17. Debi Mahton, 18 W. R., 377 ... ... ... ... 255

Daya Chand Shaha f. Anand Chaudra Sen, I. L. R., 14 Calc, 382 ... ... 45

DeauatuUah v. Nazar Ali Khan, 1 B. L. R., A. C, 216 ; 10 W. R., 341 ... 133

Debi Misra v. Mangar Miah, 2 C. L. R., 208 ... ... ... 59, 106

Debi Narain Singh v. Sri Krishna Sen, 1 W. R., 321 ... ... .-.. 256

INDEX OF CASES CITED. xix

Page.

Debi Prasad Chattarji v. Ram Kumar Ghoaal, 10 W. R., 443 ... ... 206

Deb Kumari Dasi t?. Ganga Dhar Datta, 17 VV. R., 189 ... ... ... 224

DeCourcy o. Megh Nath Jha, 15 W. R., 157 ... ... ... ... lU

Denamani Debi r. Durga Prasad Mazumdar, 21 W. R., 70 ... ... 106

Deputy Commr. of Birbhum «. Rango Lai Deo, W. R., F. B.. .34 ; Marsli., 117 254

Dhaii Paramauik ('. Auauda Chandra Tolapatro, 5 W. R., Act X, 86 ... 147

Dhaumani Debi v. Satturghan Sil, 6 W. R., Act X, 100 ... ... ... 205

Dhanpat Siugh v. Dinabaudhu Saha, 9 C. L. R., 279 ... ... ... 148

Dhaupat Singh ?; Guman Singh, W. R., Sp. No., 1864, Act X, 61 ... ... 17, 25

Dhanpat Singh v. Guman Siugh, II Moo., I. A., 433 ... ... ... 42

Dhaupat Singh v. Guman Singh, 9 W. R., P. C, 3 ... ... ... 39

Dhanpat Siugh f. Villayat Ali, 15 W. R. 211 ... ... ... ... 53

Dhan Siugli Rai v. Chaudra Kant Mukharji, 4 W. R., Act X, 43 ... ... 108

Dhanukdhari Sahi v. Toomey, 20 W. R., 142 ... ... ... ... 206

Dhepat Singh v. Ilalal Khuri Chaudhri, W. R., Sp. No., 279 ... ... 67

Dhuuraj Kuuwar n, Ugar Narain Kunwar, 15 W. R., 2 ... ... ... 79

Digambar Mazumdar f. Kali Nath Rai. I. L. R., 7 Calc, 654 ... ... 265

Dilbar v. Ishar Chaudra Rai, 21 W. R.. 36 ... ... ... ... 225

Dinabandhu Chaudhri v. Dinanath Mukharji, 19 W. R., 168 ... ... 265

Diuabandhu De ;■. Ramdhan Rai, 9 W. R., 522 ... ... ... 60

Dinabaudhu Rai v. Uma Charn Chaudhri, 23 W. R., 53 ... ... ... 265

Dina Ghazi D. Mohiui Mohan Das, 21 W. 11., 157 ... ... ... 79

Dinamayi Debi t). Anangomayi, 4 C. L. R., 599 ... ... ... 211

Dinamayi Debi iJ. Salimulla ... ... ... ... ... 267

Dinanath Basu v. Grish Chandra Bandopadhya, 23 W. R., 435 ... ... 207

Dinanath Ghosh v. Alakmani Debi. I. L. R.. 7 Calc, 753 .. ... ... 18

Dinanath Mukharji i-. Debnath Mallik, 13 W. R., 307 ... ... ... 14, 21

Dinanath Mukharji v. Debnath Mallik, 14 W. R., 429 ... ... ... 21

Din Dyal Lai v. Thakru Kuuwar. 6 W. R., Act X. 24 ... ... 88, 115, 116

Dindayal Paramauik v. Radha Kishori Debi, 8 B. L. R., 530 ; 17 W. R., 415 ... 263
Doe d. Jago Mohan Rai v. Nimu Dasi, Moutriou's cases of Hindu Law, 596 ... 260

Doman i;. Shubal Kulal, 10 W. R., 253 ... ... ... ... 61

Doma Rai '{?. Melon, 20 W. R., 416... ... ... ... ... 106

Donzellev. Gridhari Singh. 23 W. R., 121 ... ... ... ... 105

Donzelle v. Kedarnath Chakrabartti, 7 B. L. R., 720 ; 16 W. R., 186 ; 20 W. R., 352 105

Douzelle v. Tekau Nodaf, 2 C. L. R,, 558 ... ... ... ... 225

Doyal Chand Sahai v. Nabin Chandra Adhikari, 8 B. L. R., 180 ... 100, 207

Dukhiram Sirkar v. Gauhar Mandal, 10 W. R., 307 ... ... ... 266

Dular Chand Sahu v. Lai Chabil Chand, L. R., 6 I. A., 47 ; 3 C. L. R., 561 133, 233

Duli Chand r. Meher Chand Sahu, 12 B. L. R., 439 ... ... 44, 131, 228

Duli Chand V. Meher Chaud Sahu, 8 W. R., 138 ... ... 127,228,279

Duli Chand v. Raj Kishor, I. L. R.. 9 Calc, 88 ; 11 C. L. R., 326 ... 44, 131, 135, 228

Duli Chand v. Sham Bihari Singh, 24 W. R., 113 ... ... ... 106

Dumaine V. Uttam Singh, 13 W. R, 462 ... ... ... ... 122

Durga Charan Chatarji v. Dayamayi Dasi, 20 W. R., 243... ... ... HO

Durga Charn Kar V. Anandmayi Debi, 3 W. R., 127 ... ... ... 32

Durga Charn Sarmah v. Jampa Dasi, 21 W. R., 46 ; 12 B. L. R., 289 ... 265

Durga Das Chatarji v. Nobin Mohan Ghosal, 6 W. II., Act X, 63 ... ... 280

Durga Kripa Rai t\ Sri Janu Lathak, 18 W. R, 465 ... ... ... 1O6

Durga Narain Sen v. Ram Lai Chhutar, I. L. R., 7 Calc, 330 ... ... 225

Durga Prasad v. Ghosita Goria, I L. R., 11 Calc, 284 ... ... ... 146

Durga Prosad Mahanti v. Jai Narain Hazra, I. L. R.. 2 Calc, 474 ... ... 79

Durga Prasad Misra r. Brindaban Sukal, 7 B. L. R., 159 ; 15 W. R., 274 ; 45, 67, 69, 72, 258

Durga Prasad Rai tv Tara Prasad Rai. 10 Moo. I. A., 203 ; 3 W. R., P. C, 11 ... 1.50

Durga Prasad Pal v. Jogesh Prokash Gangopadhya, 4 W R., Act X, 38 ... 236

Durga Prasad Singh v. Durga Koeri, 20 VV. It., 154 ... ... ... 25.>

Durga Prasanno Ghosh ?>. Kali Das Datta, 9 C. L. R.,449 ... 23, 158

Durga Sundari v. Brindaban Chandra Sirkar, 11 \V. R., 162 ; 2 B. L. R.,

App.,37, ... ... ... ... ... 60,71,73

Durga Sundari Dasi v. Umdatunnissa, 18 W. R., 235 ; 9 B, L. R., 101 11, 12, 257

Durjan Mahton ^'. Wazid Hossein, I. L. R., 5 Calc, 135 ... ... ... 230

Durjodhan Das tJ. Chuya Dayi, 1 W. R., 322 ... ... ... ... 31

Dwarka Nath v. Alok Chandra Sil, I. L. R., 9 Calc, 641 ... ... 233

Dwarka Nath Chakrabartti v. Tara Sundari Barmani. 8 W. R., 517 ... 182

Dwarka Nath Misra v. Harish Chaudra, I. L. R., 4 Calc, 925 ... 71, 73, 74

Dwarka Nath Misra f. Kauai Sirdar, 16 W. R., Ill ... ... ... 61,7.^

Dwarka Nath Misra f. Nobo Sirdar, 14 W. R, 193 ... ... ... 252

XX INDEX OP CASKS CITED.

Page,
Dwarka Nath Misra v. Taritnmayi Debi, I. L. R., 14 Calc, 120 ... ... 260

Dwnrka Nath Rai r. Kali Cbaudra Rai, I. L. R., U Calc, 75 ... ... 266

Dwarka Nath Singh Rai v. Naba Kumar Basu, 20 W. R., 270 ... ... 110

Erskine r. Government, 8 W. R., 232 ... ... ... ... 265

Erskine r. Manik Singh. 6 W. R., 10 ... ... ... ... 255

Erskiner. Ram KumarRni. 8 W. R., 221 ... ... ... ... 16o

Erakine r. Trilochan Chatarji, 9 \V. R., 518 ... ... ... ... 149

Fakir Cband r. Fonzdar Misra, I L. R., 10 Calc, 547 ... ... ... 132

Fatik Chandra De Sirkar v. Foley, 1. L. R., 15 Calc, 492 ... ... 1.33

FatJma Khatnn v. Collector of Tipperah, 13 W. R., 433 ... ... ... 233

Fazal Ali Chandhri v. Abdul Majid Chaudhri, I. L. R., 14 Calc , 659 ... 355

Fazlar Rahman c. Altaf Hossein, I. L. R., 10 Calc, 541 ... ... 282

Fazludin v. Fakir Mahomed, I. L. R., 5 Calc, 336 ; 4 C. L. R., 257 ... ... 18

Finlay, Muir & Co. v. Gopi Kristo Gossami, 24 W. R., 404 ... ... 114

Fitzpatrickr. Gowan, 6W. R., ActX, 64 ... ... ... ... 228

Fitzpatrick r. Wallace, 11 W. R , 231 ... ... ... 69, 271

Forbes v. Mahomed Hossein, 12 B. L. R., 210 ... ... ... ... 271

Forbes r. Mir Mahomed Taki, 5 B. L. R., 529 ; 14 W. R., P. C, 28 ... 255, 256

Forbes r Pratap Sing Dugar. 7 W. R., 409 ... ... ... ... 234

Forbes r. Ram Lai Biswas, 22 W. R., 51 ... ... ... ...59,63

Forbes r. Sri LalJha, I. L. R., 8 Calc, 365 ... ... ... ... 280

Forester??. The Secretary of State, 12 B. L.R., 120 ... ... ... 26

Foscholar. Hara Chandra Basu, 8 W.E., 284... ,.. ... ... 109

Gadadhar Banarji TJ. Government, 6 W. R., 326 ... ... ... 255

Gaetri Debi v. Thakur Das, W. R., Sp. No. 1864, Act X, 78 ... ... 12

Gajadhar Panre r. Naik Panre, I. L. R., 8 Calc, 528 ... ... ... 134

Gaju Koer r. Ali Ahmad, 14 W. R.. 474 ; 6 B. L. R., App., 62 ... ... 206

Ganga Das Dattar. Ram Narain Ghosh, B. L. R.,F. B., 625 ... ... 234

Ganpadhar Shikdar v. Ayimudin Shah Biswas, I. L. R., 8 Calc, 960; 11 C. L.

R..281 ... .. ... ... ... ... 26,43,258

Gangadhar Singh v. Bimola Dasi, 5 W. R., Act X, 37 ... ... ... 205

Ganga Narain Dns v. Sharada Mohan Rai, 12 W. R., .30 ; 3 B, L. R., A.C., 230 ; 122, 265

Ganga Narain Sirkar v. Srinath Banarji, I. L. R., 5 Calc, 915 ... ... 265

Ganga Prasad r. Gagan Singh, I. L. R., 3 Calc, 322 ... ... ... 20

Gaur Ilari Singh v. Behari Raut, 3 B. L. R., App., 138 ; 12 W. R., 278 59, 190

Gaura Knmari v. Bengal Coal Co.. 13 W. R., 129 ; 12 B. L. R , 282 ... ... 106

Gauia Kumari r. Saru Kumari. 19 W. R, 252 ... ... ... 106

Gauri Das r. Jagannath Rai, 7 W. R., 25 ... ... ... ... 105

Gauri Prasad Das r. Swarnaraayi, 6 W. R., Act X. 41 ... ... ... 39

Gauri SankarSarmahr. Tirthamani, 12 W. R. 452 ... ... ... 266

Gaur Kishor Chandra r. Bonomali Chaudhri, 22 \V. R., 117 ... 88, 116

Gaur Lai Sirkar v. Rameshwar Bhumik, 6 R. L. R., App., 9i ... ... 74

Gaur Mohan Rai r. AnandMandal, 22 W. R, 295 ... ... 165

Ghani Mahomed v. Moran, I. L. R., 4 Calc. 96 ; 2 C. L. R., 370 ... 79. 265, 2G6

Ghanshvara Singh v. Tara Prasad Kundu, I. L. R.. 8 Calc, 465 ; 10 C. L. R., 447 217

Gharib Mandal f . Bhuban Mohan Sen, 2 W. R., Act X, 85 ... ... 59

Gharibullah Paramanik r. Fakir Mahomed Kholu. 10 W. R.. 203 ... ... 150

Gharibullah Sirkar r. Mohan Lai Shaha, L L. R., 7 Calc. 127 ; 8 C. L. R., 409... 281

Ghulam Ali v. Gopal Lai Thakur, 9 W. R., 65 ; 19 W. R., 141 ; 1 W. R., 56 ; 41, 114, 118,

205

Ghulam Ali Chaudhri v. Kali Krishna Thakur, 8 C. L. R., 517 ; I. L. R., 7 Calc.

47>j ... ... ... ... ... ... 113,118

Ghuham Ali Mandal v. Gol^p Sundari Dasi, I. L. R., 8 C^ilc, 612, 10 C. L. R.,

499 ... ... ... ... ... ... 61,161, 164

Ghulam Asgar v. Lakhimani Debi, 5 B. L. R., 68 ; 13 W. R., 273 ... ... 236

Ghulam Chandra De v. Nadiar Chand Adhikari, 16 W. R., 1 ... ... 233

Ghulam Haidar I'. Puma Chandra Rai, 3 W. R., Act X, 147 ... ... 59

GhulamKhejar f. Erskiue, U W. R.. 445 ... ... ... ... 168

INDEX OF CASES CITED. SCXI

Page.

Ghulam Panja v. Harish Chandra Ghosh, 17 W. R., 552 ... ... ... 58

Ghuman Singh v. Grant, 11 W. R., 292 ... ... ... ... 254

Ghuia Singh v. Otar Singh, 4 W. R , Act X, 15 ... ... ... 109

Ghursobhit Ahir v. Ramdat Singh, I. L. R., 5 Calc, 923 ; 6 C. L. R., 537 ... 210

Gilraore r. Saibessari Dasi, W. R , Sp. No., Act X, 72 ... ... ...60,99

Gilmore v. Srimant Bhumik, W R.. Sp. No., 1864, Act X, 77 ... ... 60, 66

Gitam Singh r. Baldeo Kahar, 4 All., 76 ... .. ... ... 195

Gobind Chandra Datta v. Krishna Kanta Datta, 14 W. R.^ 273 ... ... 105

Gobind Chandra Jatti r. Man Mohan Jha, 14 W. R, 43 ... ... ... 105

Gobind Chandra Kundu v. Tarak Chandra Basu, I. L. R., 3 Calc, 145 ; 1 C. L. R,, 35 ; 211

Gobind Chandra Rai v. Ram Chandra Chaudhri, 22 W. R., 421 ... ... 234

Gobind Karmakar v. Kumud Nath Bhatbaeharji, 3 W. R., Act X, 148 .;. 109

Gobind Kumar Chaudhri v. Haro Gopal Nag, 11 W. R.. 537 ... ... 280

Gobind Mahton v. Ram Khelawan Singh, 22 W. R., 478 ... ... ... 216

Gobindmani Debi i;. Dinabandhu Shaha, 15 W. R., 87 ... ... 113,118

Goklanand V. Lalji Sahu, 21 W. R., 11 ... ... ... .*. 22^

Gokul Chand Chatarji r. Mosahru Kundu, 21 W. R., 5 ... ... ... 11

Golak Chandra Datta i'. Miah Raj^h Miji, 17 W. R.. 119 ... ... ... 226

Golak Chandra Mahanti i>. Parbati Cham Das, 15 W. R.. 168 .. ... 88

Golak Kishor Acharji r. Nanda Mohan De, 12 W. R., 394 ... ... 20

Golakmani Debi V. Asimuddin, 1 W. R., 66 ... ... ... ... 215

Golakmani Debi v. Mohesh Chandra Mosa, 1 C. L. R., 149 ; I. L, R,, 3 Calc, 547. 282

Golak Kana v. Nobo Sundari Dasi, 21 W. R., 344 ... ... ... 66

Golap Chandra Naulakha v. Krishna Chandra Biswas, I. L. R., 5 Calc, 314 261, 262

Gopal V. Macnaughten, I. L. R., 7 Calc, 751 ... ... ... ... 266

Gopal Chandra Basu v. Mathur Mohan Bauarji, 3 W. R., Act X, 132 ... 110

Gopal Chandra Singh Mura ^). Sankari Paharin, 23 W. R, 458 ... ... 271

Gopal Krishna Mukharji v. Madhu Sudan Pal, W. R , Sp. No., Act X, 82 ... 209

Gopal Lai Thakur r. Badaruddin, 7 W. R., 28 ... ... ... ... 96

GopalLalThakur r. Kumar AH. 6 W. R., ActX, 85 ... ... 113,118

Gopal Lai Thakur v. Mahomed Kadir, W. R., Sp. No , Act X, 73 ... ... 137

Gopal Lai Thakur v. Tilak Chandra Rai. 10 Moo. I. A., 183 ; 3 W. R., P. C, 1 ; 32, 38, 42

Gopal Mandal t>. Shubhudra Baishtabi, 5 W. R., 205 ... ... ... 132

Gopal Pal Chaudhri r. Tai'ini Prasad Ghosh, 9 W. R., 89 ... ... ... 163

Gopalrao Ganesh v. Kishor Kalidas, I. L. R., 9 Bom., 627 ... ... ... 106

Gopanand Jha v. Gobind Prasad, 12 W, R , 109 ... ...100, 105, 115, 145

Gopi Mohan Mazumdar V. HillSj 5 C. L. R., 33 ... ... ... 113

Gopi Mohun Mazumdar r. Hills, I. L, R., 3 Calc, 789 ... ... ... 210

Gopi Nath Mukharji t'. Ram Hari Mandal, 9 W. R y 476 ... ... ... 114

Gora Chand Mustafi v. Barada Prasad Mustafi, 11 W. R., 94 ; 13 B. L R..

279, note ... ... ... ... ... ... ... 01, 73

Government of Bengal v. Jaffar Hossain Khan, 5 Moo. I. A., 467 ... ... 41

Goya Prasad Aubasti t\ Tarini Kant Lahiri, 23 W. R., 149 ... ... 211

Grant v. Bangshi Deo, 6 B. L. R., 652 ; 15 W. R., 38 ... ... ... 254

Grish Chandra r. Kashishwari Debi, I L. R., 13 Calc, 145 ... ... 144

Grish Chandra Basu v. Kali Krishna Haldar, 6 W. R., Act X, 58 ... 108, 109

Grish Chandra Ghosh v. Kali Tara, 25 W. R., 395 ... ... ... 233

Grish Chandra Mitra v. Jhaku. 17 W. R., 352 ... ... ... 233

Grish Chandra Rai v, Amina Khatun, 3 B. L. R.. App., 125 ... ... 21

Grish Chandra Rai «. Bhagwan Chandra Rai, 13 W. R., 191 ... ... 106

Gugli Sahu«7. Prem Lai Sahu, I. L R., 7 Calc, 148 ... ... ... 208

Gur Baksh Rai v. Jeo Lai Rai, I. L. R., 16 Calc, 127 ... ... ... 355

Gur Dial y. Ramdut, 1 Agra F. B., 15 ... ... ... ... 271

Gurucharya v. The President of Belgaura Town Municipalities, I. L. R.,

8 Bom. .529 ... ... ... ... ... ... 262

Guru Das Mandal v. Daibari. 5 W. R., Act X, 86 ... ... ... 108

Guru Das Rai r. Issar Chandra Basu. 22 W. R., 246 ... ... ... 114

Guru Das Rai v. Ram Naraiu Mitra, B. L. R., F. B., 628 ; 7 W. R., 186 ... 280

Gurupadapa Basapa v. Virbhadrapa Irsangapa. I. L. R., 7 Bom.^ 4")9 .,. 6

Guru Prasauna Banarji v. Gagan Chandra Datta, 20 W. R., 383 ... .-. 207

Guru Prasanna Banarji v. Sri Gopal Chaudhri, 20 W. R., 99 ... ... 207

Guru Prasanna Rai ?^. Govind Prasad Das, 1 W. R., 34 ... ... ••• 58

Gyaram Datta y. Guru Charau Chatarji, 2 W. R., Act X, 59 ... ... 110

Habilla Sirkarv. Durga Kant Mazumdar, 11 W. R., 456 ... ... ••• 161

Haidar Ali r. Jafar^li, I.L, R., 1 Calc.,183 ...

203

xxii INDEX OF CASES CITED.

Page.

HaidarBftksh ». BhupendraDebKunnrar, 17 W. R., 179... ... ... 60

Ilnimobati Dasi r. Sri Krishna Nandi, 14 W. U., 58 ... ... ... 105

Ilaunninn Prasad v. Kauleshar Pandi, I. L R., 1 All., 301 ... ... 56

Hanuman Prasad r. Uanijup Singh, H. 0. R., N. W. P., 1874,371 ... ... 56

Haratihau Gossami r. Ram Newaz MiKra. 17 W. R, 414 ... 265,266

Haradhan Uai r. Haladhar Chandra Chaudhri, 25 W. R., 56 ... ... 106

llarak Singh r. TuLsi Ram Sahai, 13 \V. R., 216 .., ... ... 109

HarakSinghf. Tiilsi RamSahai, 11 W. R.. 84 ... ... ... 109

Haran Chandra Pal r. Mukta Sundari, 10 W. R., 113; 1 B. L. R., A. C, 81.

60,61.99,158

Hari Charan Basu r. Meharunissa Bibi, 7 W. R., 318 ... ... 32, 53, 234

Hari Charan Basu r. Subaydar Sheikh, I. L. R., 12 Calc, 161 ... ... 282

llarihar Mukharji v. Biresbar Banarji, 6 W. R.. Act X, 17 ... ... 58

Harihar Mukharji r. Jadu Nath Ghosh, 7 W. R., 114 ... ... 73, 75, 158, 164

Harihar Mukharji r. Madhab Chandra, 8 B. L. R„ 566 ; 14 Moo., I. A., 152 ... 205

Harihar Mukharji r>. Padma Lochan De, 7 W. R, 176 ... ... ... 108

Hari Kri.«hua Rai v. Babu, 1 W. R., 5 ... ... ... ... 109

Hari Mohan Mozumdar v. Dwarka Nath Sen, 18 W. R., 42 ... ... 225

Hari Mohim Mukharji r. Gorachand Mitra, 2 W. R., Act X, 25 ... ... 165

Hari Mohan Sirkar v. Scott Moncriefif, 9 B. L. R., App., 14 ... ... 11

Hari Narain Singh n. Beljit Jha, 24 VV. R.. 125 ... ... ... 142

Hari Nath Mazumdar v. Moran & Co., W. R., Sp. No., Act X, 127 ... 220

Hari Sankar Mukharji r. Krishna Patro, 24 W. R., 154 ; 15 B. L. R., 238 ... 209

Harish Chandra Chakrabartti v. Hari Bewa, 20 W. R , 16 ... ... 226

Harish Chandra Kundu v. Mohini Mohan Mittra, 9 W. R., 682 ... 100, 104

Harish Chandra Mukharji v. Anand Chandra Chatarji. 9 W. R., 279 ... 53

Harish Chandra Rai r. Collector of Jessore. I. L. R., 3 Calc, 712 ... ... 133

Harish Chandra Rai v. Srikali Mukharji, 22 W. R., 274 ... ... 104, 158

Har Kishor Dasw. Jugal Kishor Shaha, 16 W. R., 281 ... ... ... 265

Haro Chandra Guha f. Dunn, 5 W. R., Act X, 55 ... ... .. 60

Haro Das v. Gobiud Bharttacharji, 3 B. L. R., App.. 123 ; 12 W, R., 304 61, 161, 164

Haro Gobind Raha v. Ram Ratno De, I. L. R., 4 Calc, 67 ... 44, 60, 256

Haro Krishna Banarji v. Jai Krishna Mukharji, 1 W. R., 299 ... 114, 116

Haro Mohan Mukharji r. Chintamani Rai, 2 W. R., Act X, 19 ... 53, 72, 73

Haro Mohan Mukharji u. Lalanmani Dasi, 1 VV. R., 5 ... ... ... 42, 71

Haro Nath Rai v. Amir Biswas, 1 VV. R., 230 ... ... ... ... 110

Haro Nath Rai ». Chitramani Dasi. 3 W. R., Act X, 122 ... ... ... 109

Haro Nath Rai c. Gobind Chandra Datta, L. R., 2 I. A., 193 ; 15 B. L. R., 120 217

Haro Nath Rai r. Golak Nath, 19 W. R,, 18 ... ... ... 263

Haro Nath Rai v. Jogendra Chandra Rai, 6 W. R., 218 ... ... ... 106

Haro Nath Rai v. Prannath Rai, 7 W. R.. 85 ... ... ... ... 207

Haro Prasad Chakrabartti v. Sridam Chandra Chaudhri, 20 W. R., 15 ... 226

Haro Prasad Chaudhri v. Shama Prasad Rai, 6 W. R., Act X, 107 ... ... 101

Haro Prasad Rai v. Chandi Cham Bairagi, I. L. R.. 9 Calc, 505 ; 12 C. L. R.,

251 ... ... ... ... ... ... ...80,251

Haro Prasad Rai ». Gopal Das Datta, I. L. R., 3 Calc, 817 ... ... 268

Haro Prosad Rai v. Gopal Das Datta, I. L. R., 9 Calc, 255 ; 12 C. L. R., 129 ... 263

Haro Prasad Rai a. Umatara Debi, I. L. R., 7 Calc, 263 ; 8 C. L. R., 449 ... 80

Haro Sundari Chandhnrani «. Ananda Mohan Ghosh, 7 \V. R., 459 ... ... 39

Haro Sundari Dasi v. Gopi Sundari Dasi, 10 C. L. R., 659 ... ... 113

Haro Sundari Debi v. Bhajo Hari Das, I. L. R., 13 Calc, 86 ... ... 5, 226

Har Pra.sad r. Sheo Dyal, 26 W. R., 55 ... ... ... ... 259

Hem Chandra Chatarji r. Parna Chandra Rai, 3 W. R., Act X, 162 .. ... 108

Hem Chandra Chaudhri w. Chand Akund. I. L. R., 12 Calc, 115 ... ... 61

Hem Chandra Ghosh t). Radha Prasad Palit, 23 VV. R., 440 ... ... 94

Hem Nath Datta «. Ashgar Sirdhar, I. L. R., 4 Calc, 894 ... ...61,164

Hills t>. Besharath Mir, 1 VV. R., 10 ... ... ... ... ... Ill

Hills V. Hara Lai Sen, 3 W. R , Act X, 35 ... ... ... ... Ill

Hills r. Umamayi Barmani, 15 W. R., 545 ... ... ... ... 119

Himmat c. Sunit Koer, 15 W. R, 549 ... ... ... ... 41

HiraLalDas??. MathuraMohan Rai, I L. R., 15 Calc, 714 ... ... 118

Hira Lai Pal r. Nilmani Pal, 20 W. R., 383 ... ... ... ...46,162

Hira Lai Sil r, Paran Matiah, 6 W. R., Act X, 84 ... ... ... 282

Hiramani t-. Ganga Narain Rai, 10 W. R., 384 .. ... 100, 104, 162

Hiraram Bhattacharji v. Ashraf Ali, 9 W. R., 103 ... ... ... 205

HoBsaina Bibi v. Smith, 22 W. R , 15 ; 13 B. L. R., 440 ... ... ... 212

HoBsain Ali v. Donzelle, I. L. R,, 5 Calc, 906 ... ... 134, 262

INDEX OF CASES CITED. XXlii

Page.
ITossain Baksh r. Mutukdhari Lai, I. L. R., 14 Gale, 312... ... 171, 224

Hridaya Krishna Ghosh r. Kailash Chandra Basu, 13 W. R., F. B., 3 ; 4 B. L.R.,

82 ... ... ... ... ... ... ... 282

Ibadatullah j>. Mahomed Ali, 25 W. R., 114 ... ... ... ... 58

Ikram v. Bahuran, 2 W. R.. Act X, 96 ... ... ... ... 109

Ilahi Baksh <). RupChand Teli.7 W. R., 284 ... ... ... ... 110

Imam Baksh Mandal v. Momin Mandal, I. L. R., 9 Calc, 280 ... ... 280

Inayatullah v. Ilabi Baksh, W. R., Sp. No., 1804, Acb X, 42 ... 87, 111 115,

Inayatnllah Miah «). Nabo Kumar Siikar, 20 W. R., 207 ... ... ... 206

Indrabati Koer v. Mahbub Ali. 24 W. R., 44 ... ... ... ... 105

Iiidra Chandra Dugar v, Brindaban Bihara, 8 B. L. R., 251 ... ... 267

Indra Narain Chaudhri v. Mahomed Nazaruddin, 1 W. R., 234 ... ... 260

Ishan Chandra Banarji v. Harish Chandra Saha, 24 W. R., 146 ... ... 37

Ishan Chandra Chattopadhya v. Shama Charan Datta, I. L. R., 10 Calc, 41 59, 106

Ishan Chandra Ghosal v Baruomayi Dasi, 16 W. R.. 233 ... ... 225

Ishan Chandra Ghosh v. Harish Chandra Banarji, 10 B. L R., App. 5 ; 18 \V. R..

19 ... ... ... ... ... ... 59,60,99

Ishan Chandra Ghosh v. Pratap Chandra Rai, 20 W. R.. 224 ... ... 116

Ishan Chandra Rai v. Ahsonullah. 16 W. R., 79 ; 8 B. L. R., 537 note 127, 263

Ishar Chandra Sen V. Bipin Bihari Rai, 16 W. R., 132 .. ... ... 207

Ishar Chandra Datta v. Ram Krishna Das. I. L R., 5 Calc, 902 ... ... 145

Lshar Ghosh *;. Hills, W. R., Sp. No.. F. B., 148 ... ... ... 57, 75

Issari Dasi v. Abdul Khalak, I. L. R., 4 Calc, 415 ... ... ... 282

IzzatuUah Khan w. Ram Cham Ganguli, 12 W. R , 39 ... ... ... 206

Jadu Das v Sutherland, I L. R., 4 Calc, 556 ; 3 C. L. R., 223 ... ... 265

Jadu Nath Ghosh v Schoene Kilburn& cc, I.L.R., 9 Calc, 671 ; 12 C.L.B., 343 ; 46, 162
Jadu Nath Kundu v. Braja Nath Kundu. 6 B. L. R., App., 90 ... ... 236

Jadu Nath Pal v. Prasanna Datta, 9 W. R.. 71 ... ... ... 208

Jadu Sett v. Kadambini Dasi, I. L. If., 7 Calc , 150; 8 C. L. R., 445... ... 266

Jagabandhu Chattopadhya v. Dinu Pal

Jagabandhu Patak v. Jadu Ghosh Alkushi, I. L. R., 15 Calc, 47

Jagabandhu Saha v. Pramotha Nath Rai, I. L. R., 4 Calc, 767

Jagadamba Dasi v. Tara Kant Banarji. 6 C. L. R , 121 ...

Jagadamba Debi v. Protap Ghosh, I. L R., 14 Calc, 537 ...

Jagadish Chandra Biswas v. Abidullah Mandal. 14 W. R., 68

Jagadish Chandra Biswas « JarikuUa Sirkar, 24 W. R., 90

Jaga Mohan Das v. Purna Chandra Rai. 3 W. R., Act X., 133

Jaga Mohan Ghosh v. Manik Chand. 7 Moo., I. A., 282 ...

Jaga Mohan Mahbo v Lachmessar Singh, I. L. R., 10 Calc, 748

Jaga Mohan Tewari tJ. Finch, I. L. R., 9 Calc, 62

Jagat Chandra Datta v. Panioty, 6 W. R., Act X, 48

Jagat Chandra Datta v. Panioty, 8 W. R., 427 , 9 W. R., 379

Jagat Chandra Rai v. Ishan Chandra Banarji, 24 W. R., 220

Jagat Chandra Rai v. Ram Narain Bharttacharji, 1 W. R. , 126

Jagat Chandra Rai v. Rup Chand Chang, I. L. R., 9 Calc, 48 ; 11 C. L.

Jagdeo Sahai v Braja Bihari Lai, I. L. R., 12 Calc, 505 ...

Jageshar Chaudhurani v. Mahomed Ibrahim, I. L. R., 14 Gale, 33 ...

Jageshari Debi v. Gadadhar Banarji, 6 W. R., Act X, 21

Jageshar Sirkar v. Nimai Karmokar, 1 B. L. R., S. N., 7

Jago Jewan Lai v. Raghu Nath Kopat, 6 W. R , 197

Jagurdi v. Radha Kishor Talukdar, 13 W. R.. 269

Jahari Lai v. Ballab Lai, I. L. R., 5 Calc, 102 ; 4 G. L. R., 349

Jahari Lai Sahu v. Dear, 23 W. R., 399

Jai Datt Jha v. Bayi Ram Singh, 7 W. R., 40 ...

Jai Durga Debi v. Bolai Chand Kundu, 2 Hay, 525

Jai Kishor Chaudhurani v. Nabi Baksh, 17 W. R., 178 ...

Jai Koer v. Furlong, W. R., Sp. No., Act X, 112

Jai Krishna Mukharji, in the matter of

Jai Krishna Mukharji v. Collector of East BuFdwan, 1 W. R., P. C., 26

Jai Krishna Mukharji v. Durga Narain Nag. 11 W. R., 348

Jai Krishna Mukharji v. Raj Krishna Mukharji, 1 W. R., 153

244

'224

, 267

,271

211

...

222

...

148

108

...

260

'ibi,

, 103

• ■•

113

113,

, 117

.32. 4i

5,71

143

■ • •

143

• • •

135

205

• ■•

265

255

207

136

"■■43,

,258

191

...

131

...

• ••

119

...

214

266

73,

260

71,

260

Xxiv INDEX OF CASES CITED.

Page.
Jai Krishna Mukharji v. Raj Krisha Mukharji, 5 W. R., 147 ... ... 63, 73

Jainudin r. Purna Chandra Rai, 8 W. R., 129 ... ... ... 109

Jallaluddin p. Burne, 18 W. R., 99 .. ... ... ... 215

Jamiatunnissa Bibi r. Nur Mahomed, W. R , Sp. No., Act X, 77 ... ...60,99

Jamina Khatan r. Pagal Ram, 1 W. R., 250 ... ... ... ... 259

Jamir Ghazi v. Gonai Mandal, lb B. L. R., 278 note ; 12 W. R., 110 61, 168, 165

Janaki Ballabh Chakrabartti v. Nabin Chandra Rai, 2 W. R., Act X, 33 ... 117

Jan Ali «. Jan Ali Chaudhri, 10 W. R., 154 ; 1 B. L R., 56 ... ... 236

Janardan Acharii r. Haradhan Acharji, 9 W. R., 513 ; B. L. R., F. B., 1020

99, 166, 167, 230
Jan Ali Chaudhri v. Nityanand Basu, 10 W. R., F. B., 12 ; B. L. R., F. B., 972

44,131,135,228
JanessarDasr. GulzariLal, 11 W. R.,216 ... ... ... ... 209

Jaunieiai Mukharji, in the matter of, 14 W. R., 215 ... ... ... 220

Jaumeiai MuUik r. Dwarka Nath Mahanti, I. L. R., 5 Calc, 287 ... ... 206

Jami Mandar r. Brojo Singh, 22 W. R, 548 ... ... ... ..94,96

Javdiue, Skinner & Co. r. Sarat Sundari Debi, 3 C. L. R., 140 ; 25 W. R., 347 ... 58, 66
Jntto Moar r. Basmati Koer, 15 W. R.. 479 ... ... ... 32, 56, 57, 58

Jeo Lai Singh r. Ganga Prasad, I. L. R. 10 Calc, 996 ... .. ... 233

Jeo Lai Singh t>. Surfan, 1 1 C. L. R., 483 ... ... ... 210

Jewan DasSahui'. Shah Kabiruddin. 2 Moo.. I. A.,390 ... ... ... 27

Jewa Ram v. Futteh Singh, 1 Agra, F. B., 125 ... ... ... 67

JianLalJhat'. KaliNath Jha, 5 W. R., ActX, 41 ... ... ... 96

JiatuUah Paramanik v. Jogendra Narain Rai, 22 W. R., 12 ... ... 148

Jishan Hossein r. Bakar, 3 W R, Act X, 3 ... ... ... ... 100

Jishan Hoasein u. JSIarain Das, 5 W. R, ActX, 56 ... ... ... 207

Jogendra Chandra Ghosh v. Dwarka Karmakar, I. L. R., 16 Calc, 681 95, 220

Jogendra Chandra Ghosh v. Nabin Chandra Chattopadhya, I L. R , 8 Calc, 353 ;

IOC. L. R, 331 ... ... ... ... ... 79,266

Jogesh Chandra Dattar. Kali Charan Datta, I. L. R., 3 Calc, 30 ... ... 160

Jogessar Das v. Aisani Kaibarta, I. L. R., 14 Calc. 553 ... ... ... 64

Joki Lai r. Narsingh Narain Singh, 4 W. R., Act X, 5 ... ... ... 133

Joyanti Dasi v. Mahomed Ali Khan, I. L. R., 9 Calc, 423 ... ... 280

Jubraj Rail?. Mackenzie, 5 C. L. R., 231 ... ... ... ... 94

Jumaut Ali Shah t;. Chattardhari Sahi, 16 W. R , 185 ... ... ... Ill

Kabil Shaha v. Radha Krishna Mallik, 16 W. R., 146 ... ... ... 68

Kabulan v. Shamsher Ali, 11 W. R., 16 ... ... ... ... 21

Kadambini Debi r. Kailash Chandra Pal, I. L. R., 6 Calc, 554 ... ... 282

Kadambini Debi v. Nabin Chandra Adhnkh, 2 W. R., 157 ... ... 6fi

Kailashbashini Dasi v. Gokulmani Dasi, I. L. R., 8 Calc, 230 ... ... 205

Kailash Chandra Biswas v. Biressari Dasi, 10 W. R., 408 ... ... 104

Kailash Chandra Rai t\ Jada Nath Rai, L L. R., 14 Calc, 380 ... ... 220

Kali Chandra Singh v. Raj Kishor Bhadro, I. L. R., 11 Calc, 615 ... 79, 266

Kailash Chandra Sirkar v. Umanand Rai, 24 W. R., 412 ... 230, 257

Kali Cham Datta v. Sashi Dasi, 1 W. R., 248 ... ... ... ... 110

Kali Cham Singh ?;. Amiruddin, 9 W. R., 579 ... ... 23,25,58

Kali Cham Singh t>. Solano, 24 W. R., 267 ... ... ... .,. 265

Kali Kamal Mazamdar T7. Jumat Ali, 11 W. R., 452 ... ... ... 279

Kali Kant Rai v. Ashrafunnissa, 2 W. R., 326 ... ... ... 211

Kali Kishor Chatarji ??. Ram Cham Shaha, 9 W. R., 344 ... 60,61,99,168

Kali Krishna Biswas v. Janki, 8 W. R., 250 ... ... ... 11, 60

Kali Krishna Tagore v. Fazal Ali. I. L. R., 9 Calc, 843 ... ... 135, 228

Kali Krishna Tagore v. Ghulam Ali, I. L. R., 13 Calc, 3 ... ... 106

Kali Krishna Tagore c. Ghulam Ali, I. L. R., 13 Calc, 248 ... ... 107

Kali Kumar Das t;. Anis, 3 W. R., Act X, 1 ... ... ... ... 215

Kali Mohan Chatarji t: Kali Krishna Rai, 11 W. R., 183 ; 2 B. L. R., App,, 39 11, 257

Kali Nath Rai r. Ishar Chandra Ghosal, 11 W. R., F. B., 23 ... ... 207

Kali Prasad v. Shah Latafat Hossein, 12 W. R., 418 ... ... ... 69

Kali Pra-ianna Rai r. Dhanan jai Ghosh, I. L. R., 11 Calc, 625 ... ... 115

Kali Sundra Rai f. Dwarkanath Mazumdar, 18 W. R,, 461 ... ... 271

Kallam c. Panchn Mandal, 11 W.R., 128 ... ... ... ... 143

Kalyan Bhai Dipchand v. Ghanasham Lai Jadunathji, I. L. R,, 5 Bom., 29 ... 282

K&mala Kanta Daar. Pogose, 2 W. R., Act X, 65 ... ... ... 116

INDEX OF CASES CITED. XXV

Page.

Kamala Kanta Ghosh v. Kanu Mahoni6d Mandal, 11 W. R., 396; 3 B.L. R.,

A. C.,4i ... ... ... ... ... ... 147

Kamal Lochan Rai v. Zamiruddiu Sirdar, 7 W. R., 417 ... ... ... 109

Kamla Sahai v. Ram Ratan Neogi, 11 W. R., 201 ... ... 131, 228

Kamyab t'. Umda Begam, W. R , Sp. No. Act X, 88 ... ... ... 209

Kanai Lai Set v. Nistarini Dasij I. L. R., 10 Calc, 443 ... ... ... 245

Kanak Chandra Mukharji v. Guru Das Biswas, I. L. R., 9 Calc, 919 ; 12 C.

L. R., 599 ... ... ... ... ... ... 217

Kaniz Fatima ^•. Sahiba Jan. 8 W. R.. 313 ... ... ... ... 27

Karim v. Mokhada Sundari Dasi, 23 W. R. 11. 268 ; 15 B. L. R.. Ill ... 225

Kartik Chandra Mukharji ^•. Muktaram Sirkar, 10 W. R., 21 ... ... 207

Kartik Chandra Pal v. Sridhar Mandal. I. L. R., 12 Calc, 563 ... ... 210

Kartik Pandi v. Khakan Singh, 1 C. L. R., 328 ... ... ... 20

Karu Lai Thakur ??. Lachmipat Dugar. 7 W. R., 15 ... ... 23,72.158

Karunakar Mahanti v. Niladhro Chaudhri, 5 B. L. R., 652 ; 14 W. R., 107 ... 42, 45

Karunamayi Dasi v. Sbibchandra De. 6 W. R., Act X, 50 ... ... 109

Kashi Kant Bharttacbarji v. Rohiui Kant Bharttacbarji, I. L. R., 6 Calc, 325,119, 280

Kashi Kishor Rai v. Alip Mandal, I. L. R., 6 Calc, 149 ... ... 79, 266

Kashi Nath LashkariJ. Bama Sundari Debi, 10 W. R., 429 ... ... Ill

Kashi Nath Pani V. Lakhmani Prasad Patnaik, 19 W. R., 99 ... ... 31,53

Kashi Ram Das u Sham Mohini, 23 W. R., 227 ... ... ... 225

Kashi Singh v. Onraet, 5 W. R., Act X, 81 ... ... ... ... 162

Kasimuddin Khundkarv. Nadi Ali Tarafdar, 11 W. R., 164 ... ... 39

Kastura Kumari u. Binod Ram Sen, 4 W. R., Mis., 5 ... ... ... £54

Kastura Kumari r. Monohar Deo, W. R., Sp. No., 39 ... ... ... 254

Kattyaui Debi «. Grish Chandra Banarji, 23 W. R., 168 ... ... ... 207

Kattyaui Debi •!). Sundari Debi, 2 W. R., Act. X, 60 ... ... 109,110

KedarNath Biswas «. Hara Prasad Rai, 23 W. R., 207 ... ... ... 22i

Kedar Nath Nag v. Khetra Pal Shibratna, 6 C. L. R., 569 ... ... 66, 69

Kenaram Mallik r. Ram Kumar Mukharji, 2 W. R., Act X, 17 ... ... HI

Kenny v. Ishar Chandra Poddar, W. R., Sp. No., Act X, 9 ... 160, 252

Ketal Gain v. Nadir Mistri, 6 W. R., 168 .. ... ... ... 60, 99

Khagendra Nath Mallik i\ Kan ti Ram Pal, 14 W. R., 363 ... ... 168

Khairuddin Ahmad v. Abdul Baki, 9 B. L. R., 103 note ... 11, 257

Khajurunnissa Begam V. Ahmad Reza, llW. R.,88 ... ... ...25,58

Khalat Chandra Ghosh v. Minto. 1 Ind. .Tur., N. S., 426 ... ... 11

KhedarunnissaBibi r. Budhi Bibi, 13 W. R., 317 ... ... ... 217

Khetra Mohan Chakrabartti v. Diuabashi Shaba. I. L. R., 10 Calc , 265 ... 262

Khetra Mohan Datta v. Wells, I. L 11., 8 Calc. 719. ... ... ... 79

Khetra Pal Singh r. Lakhi NarainMitra, 15 W. R., 125 ... ... 53

Khiramani Dasi v. Bijai Gobind Baral, 7 W. R., 533 ... ... ... 206

Khirod Chandra Rai v. Gordon, 23 VV. 11., 237 ... ... ... 60

KhodaNewazw. Nobo Krishna Raj. 5 W. R., Act X, 53 ... ... ... Ill

Khosal Mahomed t\ Jainudiu, 12 W. R., 451 ... .. ... ... 158

Khosh Lai Mahton v. Ganesh Dutta, I. L. R.. 7 Calc, 690 ... ... 262

Khubari Rai v. Raghubar Rai, 2 W. R.. 131 ' ... ... ... ... 132

Khudiram Chatarji v. Rukhini Bai.shtabi, 15 W. R., 197 ... ... 74

Kishor Das t). Parsan Mah tun, 20 W. R., 171 ... ... ... ... 206

Kolodip Narain Singh v. Govt, of India, 14 Moo., I. A., 217 ; 11 B. L. R., 71 42, 44

Kripamayi Debi v. Draupadi Chaudhurani, 24 W. R., 213 ... ... 225

Kripamaji Debi v. Durga Gobind Sirkar. I. L. R , 15 Calc, 89 ... ... 45, 72

Kripa Nath Chaki v. Doyal Chand Pal. 22 W. R., 169 ... ... ... 71

Krishnabandhu Bharttacbarji v. Rotish Sbeikb, 25 W. R.. 307 ... 120, 141, 280

Krishna Chandra Ghosh v. Raj Krisbna Bandopadhya, 1. L. R., 12 Calc, 24 54, 233

Krishna Chandra Gupta v. Safdar Ali, 22 W. R., S26 ... ... ... 41

Krishnadhan Pandit t;. Mahomed Naki, 10 W. R., 495 ... ... ... 119

Krishna Gopal Mawar I'. Barnes, I. L. R., 2 Calc, 374 ... ... ...14,134

Krishna Kali Munshi V. Agemoua Bewa, 15 W. R., 170 ... ... 20

Krishna Kinkar Paramanik r. Ram Dhan Chetlangia, 24 W. R., 326 ... 217

Krishna Kumar Chakrabartti t'. Anand Kumar Datta, 19 W. R., 307 ... 224

Krishna Kumar Shaba v. Jiban Singh, 5 W. R., Act X, 85 ... ... 207

Krishna Mohan Ghosh v. Ishan Chandra Mitra, 4 W. R., Act X, 36 ... 109

Krishna Mohan Patro ?J. Hari Sankar Mukharji, 7, W. R., 235 .>. ... 85

Krishna Prasad Singh t7. Radha Prasad Singh ... ... ... 65

Krishna Prasanna Mitra I'. Ram Pratab Agarwala ... ... ... 239

Krishna Protibar v. Alladini Dasi, 15 W. R., 4 ... ... ... 126

Krishna Ram Rai v. Janaki Nath Rai, I. L. R., 7 Calc, 748 ... ... 133

XXV i INDEX OF CASES CITED.

Page.

Krishna Sandra Sandynl v. Chandra Nath Rai, 15 W. R.. 230 ... ... 105

Krishtendra Rai v. Aina Bewa. I. L. R., 8 Calc, 675 ; 10 C. L. R., 399 ...22, 132

Krittibash Mahanti r. Raradhan Kharah, 7 W. R , 526 ... ... ... 122

Knbir Sirdar r. Golak Chandra Chakrabartfci. 3 W. R., Act X, 126 ... ... 96

Kulodip Naraiii Singh i\ Mahadeo Singh, 6 W. R., 199 ... ... ...44, 255

Kunda Misra v Ganesh Singh. 6 B. L. R.. App , 120 ; 15 W R., 193 ... 109

Kuuja Bihari Patak v. Shiva Balak Singh. 1 Agra, F. B., 119 ... ... 67

Kunja Bihari llai r. Puma Chandra Chatarji, I. L. R , 9 Calc, 450 ; 12 C. L.

R.. 55 ... ... ... ... ... ... ... 214

Kunja Bihari Singh ». Nilmani Singh, 4 0. L. R., 296 ... ... ... 212

LachmanPrasad t'. Hnlas Mahtnn, 2 B. L R., App., 27 ; 11 W. R., 151 ... 142

Lachman Rai v. Akbar Khan. I. L. R , 1 All., 440 ... ... 2o9, 260

Lachmessar Singh v. Dukho, I. L. R , 7 Calc, 708 ; 10 C. L. R., 127 ... 20

Lachini Narain Shaha v Kuchil Kant Rai. 6 W R., Act X, 46 ... ... 109

Lachmipat Singh v. Sadatulla Noshyo, 12 C. L R., 382 ; I. L. R., 9 Calc, 698 ... 2.59

Lachmi Prasad v. Ram Ghulam Singh, 2 W. R., Act X, 30 ... ... 109

Laidley r. Bishnu Cham Pal, I. L R., 11 Calc, 553 ... ... ... 118

Laidley v Gaur Gobind Sirkar, I. L. R., 11 Calc, 501 ... ... ... 58

Lakhi Kant Das v. Samirnddin Lashkar, 21 W. R., 208 ; 13 B. L. R., 243 101, 167, 230

Lakhi Kant Das t). Shib Chandra Chakrabartti, 12 W. R., 462 ... ... 119

Lakhi Narain Mitra v. Khetra Pal Singh, 13 B. L. R., 146 ... ... 245

Lakhu Khan f. Wise. 18 W. R.. 443 ... ... ... ... 106

Lakhu Koer r. Hari Krishna Singh, 3 B. L. R., A. C, 226 ; 12 W. R., 3 ... 42, 45

Lnla «. Hira Lai Singh, I. L. R.. 2 All., 49 ... ... ... ... 259

Lalan v. Hemraj Singh. 20 W. R.. 76 ... ... ... ... 265

Lalan Mani «. Sonamani Debi, 22 W. R.. 334 ... 101,166.167.230

Lai Bahadur Singh «. Solano, I. L. R., 10 Calc, 45 ; 12 C. L. R., 559 58, 60, 65. 66

Lai Dhari Rai •«. Brojo Lai Singh, 10 W. R.. 401 ... ... ... 255

Lalit Mohan Rai V. Binodai Debi, L L. R., 14 Calc, 14 ... ... ... 1.33

LalJhatJ. Negru. I. L. R., 7 Calc, 717 ... ... ... ... 20

Lai Mahomed V. Kalonas. L L. R., 11 Calc, 519 ... ... ... 105

Lai Mohan Mukharji v. Jogendra Chandra Rai, I. L. R., 14 Calc , 636 ... 6, 248

Lai Sahu v. Deo Narain Singh. I. L. R., 3 Calc, 781 ; 2 C. L. R., 294 25, 32, 57, 66

Lauder r. Binod Lai Ghosh, 6 W. R., Act X, 37 ... ... ... 212

Langessar Koer v. Sukha Ojha, I. L. R., 3 Calc, 151 ... ... ... 225

Latifan r. Miah Jan, 6 W. R. 112 ... ... ... ... 234

Lattifannissa Bibi v. Pulin Bihari Sen, W. R.. F. B., 91 ... ...61, 108

Lekhraj Rai v. Kanhya Singh, 17 W. R., 485 ; I. L. R,, 3 Calc, 210 ; L. R., 4 I.

A., 223 ... ... ... ... ... ... ...41,45

Lilanand Singh v. Durgabatti, W. R., Sp. No , 249 ... ... ... 254

Lilauand Singh v. Govt of Bengal, 4 W. R , P. C, 77 ; 6 Moo., I. A,. 101 ... 253

Lilanand Singh v. Manoranjan Singh, 13 B. L. R., 124 ... ... 42, 46, 254

Lilanand Singh v. Manoranjan Singh. I. L. R., 3 Calc, 251 ... ...44,2.54

Lilanand Singh 1*. Nasib Singh, 6 W.R.. 80 ... ... ... ... 255

Lilanand Singh v. Nirpat Mahtun, 17 W. R., 806 ... ... ... 32, 57

Lilanand Singh t>. Sarwan Singh, 5 W. R., 292 ... ... ... 254

Lochan Chaudhri «. Anup Singh, 8 C. L R., 426 ... ... ... 205

Lodai MoUah v. Kali Das Rai, I. L. R., 8 Calc, 238 ; 10 C. L. R., 581 207, 208, 225

Lutf Ali Miah w. Piari Mohan Rai, 16 W. R., 223 ... ... ...95,220

Lutfulhak v. Gopi Chandra Mazumdar, I. L. R., 5 Calc, 941 ... ... 265

Madan Mohan Biswas v. Stalkart, 17 W. R., 441 ; 9 B. L. R., 97 ... ...1 1, 257

JIadhab Chandra Adit v. Ram Kalu, 16 W R.. 151 ... ... 136, 228

Madbab Chandra Chaudhri v. Pramatha Nath Rai, 20 W. R., 264 ... ... 122

Madhab Chandra Ghosh v. Nil Kant Shaha Rai. 2 W. R., 42 ... ... 32

Madhab Chandra Parumanik v. Raj Kumar Das, 14 B. L. R., 76 ; 22 W. R., 370 2

Madhab Janah t7. Raj Krishna Mukharji, 7 W. R., 86 ... ... ... 31

Madbu Prakash Singh v. Murli Manohar, I. L. R., 5 AH., 406 ... ... 217

Madhu Sudan Basu v. Bidhn Bhusan Haldar, 22 W. R., 384 ... ... 207

Madhu Sudan Das t?. Annada Prasad De ... ... ... ... 203

Madhu Sudan Singh v. Moran & Co., 11 W. R., 43 ... ... 214, 215

Magnamayi Debi r. Hara Chandra Raut, 6 W. R,, Act X, 27 .., ... 109

INDEX OF CASES CITED. XXVll

Page.
Mahamnya Gupta v. Nil Matlhab Rai. I. L. R., 11 Calc, 533
Mahbub Hossain v. Patasu Kumari, 10 W. R., 179 ; 1 B. L. R., A. C, 120
Mahmuda Bibi v. Haridhan Khalifa, 5 W. R., Act X, 12
Mahomed v. Abdullah, 12 C. L. R., 279

Mahomed Ainuddin v. Rajendra Chandra Neogi, 2 Board's Rep., 749
Mahomed Ali v. Bolaki Bhagab, 24 W. R., 330
Mahomed Ali v. Radha Raman Maudal, 4 W. R., Act X, 18
Mahomed Amir v. Dianat Ali, 9 C. L. R., 18n ; I. L. R., 7 Calc, 566
Mahomed Azmal v. Chandi Lai Paudi, 7 VV. R., 250
Mahomed Chaman v. Ram Prasad Bhagat, 8 B. L. R., 338
Mahomed Faiz Chaudhri v. Janu Gazi, I. L. R., 8 Calc, 730
Mahomed Faiz Chaudhri v. Shiib Diilari Tewari, 16 W. R., 108
Mahomed Ghazi v. Shanker Lai, 11 W. R.. 53
Mahomed Ghazi Chaudhri v Nur Mohomed. 24 W. R., 324
Mahomed Hoesein v. Abdullah, I. L. R.. 3 Calc, 727
]Mahomed Hossein Ali v. BakauUah. 6 W. R , 84
Mahomed Hossein v. Budhan Singh, 7 W. R., 374
jMahomed Ismail v. Dhandar Kishor Narain. 25 W. R., 39
Mahomed Kadir v. Podmamala. 2 W. R., i85....
Mahomed Mahmul v Safar Ali, I L. R , 11 Calc. 407 ...
IMahomed Shukurullah c. Rumya Bibi, 7 W. R., 487
JIahomed Singh v Maghi Chaudhurani, 1 W. R., 253
Mahtab Chand v Chittro Kumari, 16 W, R., 201
Mahtab Chand v. Debendra Nath Thakur, W. R., Sp. No., Act X, 68
Mahtab Chand v. Makunda Ballabh Basu, 9 B. L. R., App. 13.
Mahtab Chand v. Radha Binod Chaudhri, 8 W. R., 517 ...
Makurbhano Deo v. Kastura Koeri, 6 W. R., 215
Maloddi Noshyov. Ballabi Kant Dhar, 13 W. R., 190. ...
Mamtazal Hak v. Nirbai Singh, I. L. R., 9 Calc . 711 ; 12 C. L. R., 319
Mangal Prasad Dichit v. Girija Kant Lahiri. I. L. R., 8 Calc, 61
Mani Datta Singh v. Campbell, 1 1 W. R., 278 ; 12 W. R., 149
Manikarnika Chaudhri v. Anand Mayi Chaudhri. 10 W. R., 245
Manikarnika Chaudhurani v. Anandamayi Chaudhurani, 8 W. R., 6
Mauiklal Venilal v. Lakha. I. L. R., 4 Bom., 429
Mauiruddin t' Mahomed Ali, 6 W. R., 67
Maniruddin Mirdha v. Kennie, 4 W. R.. Act X, 45
Man Mohan Ghosh v. Hasrat Sirdar, 2 W. R., Act X, 39 ...
Man Mohan De v. Sri Ram Rai, 14 W. R., 285
Man Mohini Dasi v. Bishumayi Dasi. 7 W. R., 112
Man Mohini Debi v. Binod Bihari Saha, 25 W. R , 10
Manohar Chaudhri v. Narsingh Chaudhri, 11 W. R., 272
Manohar Das v. Manzur Ali, I. L, R., 5 All., 40
Manohar Mukhopadhya v. Ishwar Kundu, High Court Misc. case, No.

1887
Monohar Mukharji v Jai Krishna Mukharji, 6 W. R , 315
Manoranjan Singh v. Lilanand Singh, 3 W. R., 84 ; 5 W. R., 101 ; I. L. R., 3

Calc, 251 ... ... ... ... ... 41,42,253

Mansur Ahmad v. Azizuddin, W. R., Sp. No., Act X, 129 ... ... 142

Mansur Ali t'. Banu Singh, 7 W. R.. 282 ... ... ... ... 110

Mansur Ali ». Harvey, 11 W. R, 291 ... ... ... ... 87

MasyatuUa v. Nurzahan, I. L R., 9 Calc, 808 ; 12 C. L. R., 389 ... 13, 58, 61, 164
Matangini Dasi v. Haradhan Das, 5 W. R., Act X, 60 ... ... ... 12

Mathura Mohan Pal t). Ram Lai Basu, 4 C. L. R., 469 ... ... ...44,228

Mathura Nath Kundu v. Campbell, 9 B. L R., 115, note ... ... ... 12

Mati Sonar v. Gandur Sonar, 20 W. R., 129 ... ... ... 161, 164

Iilaula Baksh v. Jadu Nath Sadukhan, 21 W. R., 267 ... ... ... Ill

Mayanvanjari v. Nimini, 2 Mad. H. C, 109 ... ... ... ... 106

Meherunnissa v. Abdul Ghani, 17 W. R., 509 ... ... ... ... 20

Jlengar Mandal v. Hari Mohan Thakur, 23 W. R., 447 ... ... ... 148

ISIiahjan v. Karunamayi Debi, 8 B. L. R., 1 ... ... ... 53, 235

Mirzan Biswas v. Hills, 3 W. R., Act X, 1.59... ... ... 101, 2.52

Mitrajit Singh V. Tundan Singh, 3 B.L. R., App., 88; 12 W, R., 14... ... 109

Mochiram Manjhi v. Bissambhar Rai, 24 W. R., 410 ... ... ... 206

Modihuddin Jovvardar w. Sandes, 12 W. R., 439 ... ... ... 116

Mohan Mahtu v. Shamsul Hoda, 21 W. R., 5 ... ... ... 100, 105

Mohant Jalha v. Kaiiash Chandra De, 10 W. R., 407 ... ... ... 101

Mohar Ali Khan V. Ram Ratan Sen, 21 W. R., 400 ... ... 11,59,60,257

...

213

254

109

. . *

282

...

205

44, 131,

228

160

... 59,63

148

... 43,70

160

59," 61,

108

...

245

228

220

'2O6

,207

127

265

...

116

...

137

...

149

...

256

163

281

...

5.6

104

, 105

...

108

133

61, i'61

, 164

••«

108

..♦

205

...

210

..•

272

266

!77 of

131

266

XXviii INDKX OF CASES CITEF.

Page.

Mobemlra Singh r.Jokha Singh, 19 W. II., 211 ... ... ... 31

Mohesh Chandra Chakladar v. Ganframani Dasi, 18 W. R., 59 ... ... 263

Mohesh Chandra Chatarji v. Guru Prasad Ilai. 13 W. R., 401 ... 15, 133

Mohesh Chandra Gangopadhya v. Bishonath Das, 24 W. R , 402 ... ... 59

Moheshwar Prasad Naraiu Singh v Sheobaran Mahto. I. L. R , 14 Calc, 621 ... 250

Mohima Chandra Chakrabartti v. Puma Chandra Panarji, 11 W R., 165 ... 207

Mohima Chandra De v. Guru Das Sen, 7. W. R., 285 ... ... ... 39

Mohima Chandra Mazumdar v. Asradha Dasi. 21 W. R., 207 ... ... 209

Mohima Chandra Sen v. Pitanibar Shaha, 9 W. R ^ 147 ... ... ... 161

Mohini Dasi v. Ram Kumar Karmokar. W. R.. Sp. No., 1864, Act X, p. 77 ... 195

Mojon MoUah v. Dula Ghazi Kulan, 12 B. L R., 492, note ... ... 235

Mokhada Sundari Dasir. Karim.23 W. R., 11 ... .. ... 265

Mokha Ilarakraj Joshi v, Bissessar Das, 5 B. L. R., App. 11 ; 13 W. R., 344 ... 214

Mokunda Lall Dhobi v Crowdy. 17 W. R.. 274 ; 8 B. L. R., App. 95... 60. 61, 66
Monindra Chandra Sirkar o. Mauiruddin Biswas, 11 B. L. R„ App. 140; 20 W.

R.,2i0 ... ... ... ... ... ... ...66, 158

Moran & Co. r. Ananda Chandra Mazumdar. 6 W. R , Acfc X, 35 ... ... 110

Mothur Mohan Chaudhri ff. Ram Lall Basu, 4 C. L. R, 469 ... ... 131

Moti Lai Aduk f Jadupati Das, 2 W. R, Act X, 44 ... ... ... 203

Mozharuddin ». Gobind Chandra Nandi, I. L. R., 6 Calc, 436 ... 59, 10(J

Mritanjai Chakrabartti r. Barada Kant Rai, 6 W. R., Act X, 18 ... ... 205

Mritanjai Chaudhri ■". Khettra Nath Rai, 5 W. R., Act X, 71 ... ... 233

Mritanjai Sirkar v. Gopal Chandra Sirkar, 10 W. R., 466 ; 2 B. L. R., A. C, 131 53. 1 27

Muktakeshi Da.si v. Kailash Chandra Mitra. 7 W. R., 493 ... ...58, 119

Muktakeshi Dasi f . Piari Chaudhurani, 7 W. R., 158 ... ... ... 53.

Mulk Chand Mandal v. Madhu Sudan Bachaspati, 16 W. R., 126 ... ... 266

Mumtaz Bibi v. Girish Chandra Chaudhri, 22 W. R., 376... ... ...44, 131

Nadiar Chand Poddar i: Madhu Sudan De Poddar, 7 W. R., 163 ... 61, 161, 164

Nadiar Chand Shaha v. Meajan, I. L. R., 10 Calc, 820 ... ... ... 114

Nadir Beg I'. Muddaram, 2 W. R., Act X, 2 ... ... ... ...59,106

Nadir Ilossein v Bishnu Chand Basarat, 3 C. L. R., 437 ... ... ... 5

Naffar Chandra Pal v. Poulson, 19 W. R., 175 ... ... 109, 110

Naffar Chandra Shaha r. Gossain Jaisingh Bharti, 3 W. R., Act X, 144 ... 42

Nagu r. Yeknath, I. L. R., 5 Bom., 400 ... ... ... ... 220

Naimuddiu Jawardar v. Scott Moncrieff, 3 B. L. R.. 283 ; 12 W. R., 140 ...11. 257

Naina Misra v. Rupikan. I. L. R.. Calc. 609 ; 12 C. L. R., 300 ... ... 67, 69

Najimuddin Hossein v. Lloyd, 15 W. R., 232 ... ... ... ... 106

Nanda Kishor Lai v. Sheo Dyal Upadhya. 11 W. R., 168 ... ... 167, 230

Nanda Lai Rai v. Guru Charan Basu, 15 W. R., 6 ... ... ... 233

Nani Bibi r. Hafizullah. I. L. R. 10 Calc, 1073 ... ... ... 18

Nauku Rai v. Mahabir Prasad, 11 W. R , 405 ; 3 B. L. R., App., 35 ... ... 71

Narabdessar Prasad Rai ??. Jangli, 24 W. R., 49 ... ... ... 226

Narain Chandra Chakrabartti v. Dataram Rai, L L. R., 8 Calc, 597... ... 18

Narain Gir iJ. Gaur Saran Daiis, 23 W. R., 368 ... ... ... 142

Narain Kumari I?. Raghu Mahapatro, I. L. R., 12 Calc, 50 ... ... 217

Narain Kumari v. Ram Krishna Das, I. L. R., 5 Calc, 864 ... ... 20

Narain Rai v. Opnit Misra, I. L. R . 9 Calc, 304 ; 11 C. L. R., 417 ... ... 58

Narain Sing v. Mansur Kant, 25 W. R., 155 ... ... ... ,.. 68

Narendra Ntuain Rai v. Bishnu Chandra Das. I, L. R., 12 Calc , 182 ... 205
Narendra Narain Rai r. Ishan Chandra Sen, 22 W. R., 22 ; 13 B. L. R.,

274 ... ... ... ... ... ...60,61.71,73,74

NasurAlit'. Sadat All, W. R., Sp. No. 1864. Act X, 102 ... ... .. 12

Nawab Nazim v. Podma Lochan Mandal, 5 W. R., Act X, 26 ... ... 207

Nehalunnissa^. Dhanu Lai Chaudhri, 13 W. R., 281 ... ... 158,165

Nemai Charan Dhabal r. Kokil Bag, I. L. R., 6 Calc, 534 ... ... 18

Newaj Bandopadhya v. Kali Prasanna Ghosh, I. L. R., 6 Calc, 543 ... ... 205

Newazi v. Lloyd, 8 W. R., 464 ... ... ... ... ... 207

Niamat Khan v. Bhadu Baldia, I. L. R , 6 Calc, 319 ; 7 C. L. R., 227 ... 210

Nicholl r. Tarini Cham Basu, 23 W. R., 298 ... ... ... ... 67, 69

Nidhi Krishna Basu 17. Nistarini Dasi, 21 W. R., 386 ... ... ... 42

Nidhi Krishna Basu r. Ram Das Sen, 20 W. R.. 341 ... ... 59,60,271

Nihal Chandra Mistri v. Hari Prasad Mandal, 8 W. R., 183 ... ... 205

Nil Kamal Sen r. Danish Sheikh. 15 W. R . 469 ... ... ... 60,99

Nil Madhab Karmokar r. Shibu Pal, 13 W. R., 410 ... ... ... 237

INDEX OF CASES CITED. XXIX

Page

Nil Madhab Shah v. Srinibash Karmokar, I. L. R., 7 Calc, 442 ... ... 280

Nil Mani Dasi v Sonatan Doshayi, I. L. R., 15 Calc, 17 ... ... ... 58, 61

Nil Mani Siugh v. Hira Lai Das, I. L. R., 7 Calc, 23 ; 8 0. L R., 257 ... 211

Nilmani Singh t\ Madhab Singh, 1 B. L. R., A. C, 195 ... ... ... 256

Nilmani Singh v. Ram Chakrabartti. 21 W. R., 439 ... ... ... 37

NimChand Baruah'y. Murari Mandal. 8 W. R., 127 ... ... ... 58

Nistariniy. Kali Prasad Das, 21 W. R, 53 ... ... ... ... 280

Nitressar Singh V. Jhoti Teli. 23 W. R., 343 ... ... ... ... 226

Nityananda Ghosh v Krishna Kishor, W. R., Sp. No., 1864, Act X, 82 ... iOI

Nityananda Rai I'. Abdur Rahim, I. L R.. 7 Call., 76 ... ... ... 206

Nizabatullah i;. Wazir Ali, I. L. R., 8 Calc, 910 ... ... ... 262

Nobin Chandra Datta r. Madan Mohan Pal, I. L. R., 7 Calc, 697 ... ... 43

Nobin Chandra Rai V. Guru Gobind Mazumdar, 25 W, R., 8 ... 148,150,

Nobin Chandra Rai v. Guru Gobind Sarmah, 14 W. R., 447 ... ... 147

Nobin Chandra Rai v. Lakhi Pria Debi. 1 W. R., 20 ... ... ... 160

Nobin Chandra Sen v. Nobin Chandra Chakrabartti, 22 W. R., 46 ... ...53. 233

Nobin Chandra Sirkarv.Gaur Chandra Saha, 8 C. L. R., 161 ... ... 117

Nobin Krishna Mukharji v. Shib Prasad Pattak, 8 W. R., 96 ... ... 53

Nobo Durga Dasi v. Faiz Baksh Chaudhri, I. L. R., 1 Calc, 202: 24 W. R., 403 210
Nobo Gopal Sirkar v. Srinath Bandopadhya, I. L. R., 8 Calc, 877 ; 11 C. L. R..

.37 ... ... ... .. ... ... ... 245

Nobo Kant De i?. Barada Kant Rai, 1 W. R., 100 ... ... ... 137

Nobo Krishna Basu v. Mazamudin Ahmad Chaudhri. 19 W. R.. 338... ... 37

Nobo Krishna Kundu t). Nazir Mahomed, 19 W. R.. 202; 10 B. L , App., 30 ... 224

Nobo Krishna Mazumdar (;. Taramani, 12 W. R., 320 ... ... ... 37

Nobo Krishna Mukharji f, Harish Chandra Banarji. 7 W. R., 142 ... ... 135

Nobo Krishna Mukharji r. Rameshur Gupta, 18 W. R., 412 .. ... 134

Nobo Krishna Mukharji r. Sri Ram Rai, 15 W. R., 255 ... ... ... 165

Nobo Kumar Ghosh v. Krishna Chandra Banarji, W. R., Sp. No., Act X, 112 ... 63

Nobo Kumar Ghosh v. Uzir Shikdar, 23 W. R., 238 ... ... ... 94

Nobo Kumar Mukhan'i t\ Kissori Dasi ... ... ... ... 240

Nobo Tarini Dasi v. Gray, 11 W. R., 7 ... ... ... ... 13, 14

Nur Ali Chaudhri v. Koni Miah, I. L. R., 13 Calc, 13 ... ... ... 134

Nurzahan w. Morfan Mandal, 11 C. L. R , 91 ... ... ... ... .365

Nur Mahomed Mandal «. Hari Prasanna Rai, W. R. Sp. No., 1864, Act X, 75 ... 80

Nyamatullah v. Gobind Chandra Datta, 4 W. R., 25 ... ... ... 108

Nyamatullah Ostagar r. Gobind Chandra Datta, 6 W. R., Act X, 40 ... ... 66

Omar v. Abdul Ghaflfur, 9 W. R., 425 ... ... ... ... 19, 21

Padmanan Singh V. Baij Nath Singh, I. L. R.. 1 5 Calc, 828 ... ... 149

Panchauan Basu v. Piari Mohan Deb, 2 W. R., 225 ... ... ...42, 215

Panioty v. Jagat Chandra Datta. 9 W. R., 379 ... ... ... ... 118

Pannu Siugh v. Nirghan Singh, I. L. R.. 7 Calc, 298 ; 8 C. L, R.. 310 ... 210

Panye Chandra Sirkar v. Har Chandra Chaudhri. I. L. R., 10 Calc, 496 45, 53, 235

Paramananda Sen v. Padmamani Dasi, 9 W. R., 349 ... ... ... 80

Paras Rami'. Gardner, I. L. R., 1 AIL. 355 ... ... ... ... 282

Parbati Charan Sen v. Mandari, I. L. R.. 5 Calc. 594 ... ... 224, 225

Parbati Dasi v. Ram Chand Bharttacharji, 3 C. L. R., 576 ... ... 205

Parbati Nath Rai v. Madhu Parol. 1 C. L. R., 592 ... ... ... 272

Paresh Narain Rai v. Kashi Chandra Talukdar, I, L. R., 4 Calc, 661 68, 106, 279

Parmeswar Pratab Singh v. Podmanand Singh, I. L. R., 15 Calc, 342 ... 42

Piari Beway. Nakiir Karmokar, 19 W R., .308 ... ... ... 11

Piari Mohan Mukharji v. Aftab Chand. 10 C. L. R., .526 ... ... ... 1 15

Piari Mohan Mukharji f. Braja Mohan Basu, 22 W. R., 428 ... ... 118

Piari Mohan Mukharji v. Braja Mohan Basu, 21 W. R., 36 ... ... 136

Piari Mohan Mukharji v. Kaihish Chandra Bairagi. 23 W. R., 58 ... ... 109

Piari Mohan Mukharji v. Madhab Chandra, 23 W. R.. 385 ... ... 226

Piari Mohan Mukharji r. Raj Krishna Mukharji. 20 W. R , 385 ... ... 266

Piari Moni Dasi f. The Collector of Birbhum, 8 W. R., 300 ... ... 236

Pir Baksh v. Mia Jan, W. R.. Sp. No., F. B., 146. ... ... ... 69

Pitambar r. Nilmani Singh Deo, I. L. R., 3 Calc. 793. ... ... ... 306

Pitambar Karmakar r. Ram Tanu Rai, 10 W. R , 123 ... ... ... 96

Page,

...

...69.257

...

... 134

...

... 263

... 106

3)52

... 132

, 597

... 234
... 114
... 106
... 226

...12.

25,

26.48,258

1 C. L.

R..

, 577

25,

43,

66, 94, 258

... 209

5.S

115. 117

114, 115

XXX INDEX OF CASES CITED.

Padma Locban Mondal v. Lakhon Baruah, 2 S. D. A., 1860, 109
Pogose V, Uaju Dhobi, 22 W. R,. 51 1

Poresbnath Mamial v. Krishna Lai Datta, 23 W. R., 50 ...
Poulsou r. Modhu Sudan Pal, 2 W. R., Act X, 21.
Prablad Sen r. Itan Bahadur Singh, 12 W. R., P. C, 6 ...
Pranb.-indbu Sirkar v. Sarba Suudari Debi. 3 B. L. R., A. C, (Note) 52
Prau Gaur Mazumdar v. Hemauta Kumari Debi. I L R., 12 Calc
Pran Krishna Bagchi v. Man Mohini Dasi, 17 W. R., 34 ...
Prannath Shaba r. Madbu Khulu. I. L. R., 13 Calc. 96 ...
Prasanua Kumar Banarji v. Srinatb Das. I. L. R., 15 Calc, 231
Prasanua Kumar Chataiji v. Jaganuatb Baisak. 10 C. L. R., 25
Prasauua Kumar Debi v. Ratan Baipari, I. L. R., 3 Gale, 696 ;

Prasanna Kumar Pal v. Kailash Chandra Pal, 8 W. R., 428

Prasauuamayi Dasi r. Bbuba Tarini Dasi, 10 W, R.. 494 ...

Prasanuamayi Dasi v. Doyamayi Dasi, 22 W. R., 275

Prasannamayi Dasi v Suudar Kumari Debi, 2 W. R., Act X, 30

Prasaunamayi Debi v. Chaudro Nath Chaudbri, 10 W. R., 361 ; 2 B. L. R. S.

N., 5 ... ... ... ... ... ... ... 168

PrasidbaNarain Koer ». Man Koch, I. L. R.. 9 Calc, 330... ... ... 3

Premauand Gbosb f. Sureudra Natb Rai, 20 W. R., 329 ... ... ...58,2.52

Prem Cband Lasbkar i\ Mukhoda Debi, I. L. R.. 14 Calc, 201 ... ... 267

Prem Sahu v. Niamat Ali, 6 W. R.. Act X, 90 ... ... ... ... 109

Priag Lai r. Brockman, 13 W. R., 346 ... ... ... ... 79

Puliu Bibari Sen v. Nemai Cbaud, 7 W. R., 472 ... ... ... 108

Puriag Datta Rai r. Feku Rai, 19 W. R., 160... ... ... ... 216

Purua Chandra Rai c. Krishna Cbaudra Singh, 23 W. R., 171 ... ... 225

Puma Chandra Rai t?. Sad ut Ali, 2 C. L. R., 31 ... ... ...11,257

Purnauanda Asrum t>. Rukmiui Guptani, I. L. R., 4 Calc, 793 ... ... 108

Porrau Chandra Ghosh v. Mati Lai Ghosh Jahari, I. L. R., 4 Calc, 50 ... 263

Badha Gobinda Koer v. Rakbal Das Mukharji, I. L. R., 12 Calc, 82

Radha Gobiud Rai r. Kyamatollah Talukdar, 21 W. R., 401

Radha Krishna Hakumji c. Balvant Ramji. I. L. R., 7 Bom., 630

Radha Madhab Pal v. Kali Charu Pal, 18 W. R , 41

Radha Malakar v. Srisbti Narain Saha, 21 \\ . R., 88

Radbamaui v. Ram Narain De. 22 W. R., 440

Radha Mohan Mandal v. Baksbi Begam, Marsh,. 471

Radha Mohan Mandal v. Nil Madbub Maiidal. 24 W. R., 200

Radha Nath Cbaudhri v. Jai Sundra Moitra, 2 C. L. R., 302

Radha Nath Sirkar jj.Binod Pal, 3 W. R., Act X, 151 ...

Radha Prasad Wasti i;. Isaf, I. L. R., 7 Calc, 414 ; 9 C. L. R., 76 ..

Raghuban Tewari v. Bishun Datta, 2 W. R., Act X, 92

Rogbu Naudan Thakur v. Ram Chandra Kapali, 10 W. R., F. B., 39

Ragbu Nath Mandal v. Jagatbandbu Basu, 8 C. L. R., 393

Raghu Nath Prasad Sing v. Byjnath Sahai, 24 W. R., 349

RabmatuUab v. Shariatullab Kagchi, 1 B. L. R., F. B., 58 ; 10 W. R.,

Rai Kamal Dasi v. Laidley. I. L. R., 4 Calc, 957

Raiuey r. Naba Kumar Mukharji, 24 W. R., 128

Rajah of Pittapur v. Venkata Mahipati Surya, L. R , 12 I. A., 116

Mad., 520
Rajani Kant Nag v. Hari Mohan Guha, I. L. R., 12 Calc, 470
Raj Chandra Mazumdar v. llajaram Gop, 22 W. R., 385 ...
Rajendra Narain Rai v. Phudi Mandal, I. L. R , 15 Calc, 482
Eajendro Nath Mukbopadhya v. Bassidar Rahman Khundkur, I. L,

146; 25 W. R, 329 ...
Rajessari Debi v. Shib Nath Chatarji, 4 W. R., Act X, 42
Raj Kisbor Mukharji v. Harihar Hdukharji. 10 W. R., 117
Raj Kisbor Surma Chakrabartti v. Girija Kanta Lahiri. 25 W. R., 66
Raj Krishna Mukharji v Piari Mohan Mukharji, 24 W. R., 114
Raj Krishna Mukharji v. Srinatb Datta. 23 W. R., 408 ...
Raj Krishna Singh v. Ramjai Sarmah, 19 W. R., 8 ; I. L. R., 1 Calc, 186
Raj Kumar Rai v. Assa Bibi. 3 W. R., Act X, 170
Raj Mohan Mitra v. Guru Cham Aich, 6 W. R., Act X. 106
Raj Mohan Neogi r. Anand Chandra Chaudhri, 10 W. R., 166

61, 65, 94, 108

... 110

... 133

... 164

... 207

... 134

... 272

... 104

... 109

... 266

69,111

... 214

115, 209

... 208

B., 61... 21

69, 66

... 127

L. R., 8

... 217

... 144

... 266

... 247

, 2 Calc,

17,122

111,205

... 106

... 226

... 225

i8(

5 ... 260

... 108

... 114

... 136

INDEX OF CASES CITED. XXXI

Page.

Raj Narain Chaudhri t>. Atkins, 1 W. R., 45 ... ... ... ... 109

llakhal Chandra Mandal v. Watson, I. L. R., 10 Calc, 50 ... ... 272

Rakhal Das Basu v. Ghulam Saiwar, 2 W. R., Act X, 69 ... 109, 110

Rakhal Daa Mukharji v. Swarnomayi, 6 W. R., 100 ... ... ... 149

Rakhal Das Tewaii v. Kinuram Haldar. 7 W. R., 242 ... ... ... 108

Ram Baksh Chatlangia w. Hridoymaui Debi, 10 W. R., 446 ... ... 132

Ram Bbusan Mahbo v. Jebli Mahto, I. L. R., 8 Calc, 853 ... ... 125

Rambaddau Singh v. Sri Kunwar, W. R., Sp. No., Act X, 22 ... ... 137

Ram Chandra Datta I'. Jogesh Chandra Datta, 19 W. R., 358 ... ... 109

Ram Chandra Datta v. Romesh Chandra Datba. 2 W. R., Act X, 47 ... ... 109

Ram Chandra Rai v. Bholanath Lashkar, 22 W. R., 200 ... ... ... 61, 73

Ram Chandra Sahu v. Bangshidhar Naik, I. L. R., 9 Calc, 741 ... ... 206

Ram Chang v. Gora Chand Chang, 24 W. R., 344 ... ... 61, 161, 164

Ram Charn Bauarji v. Torita Charn Pal, 18 W. R., 343 ... ... ... 14

Ram Charn Baisaki-. Lucas, 16 W. R., 279 ... ... ... ... 115

Ram Charn Singh v. Meadhan Darji, 8 W. R., 90 ... ... ... 12

Ramdhan Khan v. Haradhan Paramanik, 12 W. R., 404 ; 9 B. L. R., 107 note 11, 60,

99, 257

Ramdin Singh «. Chandi Prasad Singh, 21 W. R., 278 ... ... ... 279

Ramen v. Kandapuni, 1 Mad. H. C, 445 ... ... ... .. 106

Ram Doyal Singh v. Latchmi Narain, 6 B. L. R., App., 25 ; 14 W. R., 388 ... ii6

Rameshwar Adhikari v. Watson & Co., 7 W. R., 2 ... ... ... 100

Ram Gobiud Rai r. Dashu OjhaDebi, 18 W. R., 195 .. ... ...53,74

Ram Jadu Ganguly v. Lakhi Narain Mandal, 8 W. R., 488 ... ... 122

Ramjai Maudal « Kali Mohan Rai, Marsh., 282 ... ... ... 203

Ramjai Singh t-. Nagar Ghazi, 5 W. R., Act X, 68 ... ... ... 265

l!am Jalban Singh v. Meheli, 3 All. Rep., 282 ... ... ... 67

Ramjan Khan v. Ramjan Chamar, I. L. R., 10 Calc, 89 ... ... ... 225

Ramjiban Chaudhri v. Piari Lai Mandal, 4 W. R., Act X. 30 ... ... 233

Ramkant Datta v. Ghulam Nabi Chaudhri, 2 Sel. Rep., 55 ... ... 39

Ram Kbelawan Singh v Makund Lai, I. L. R., 7 Calc, 710 ... ... 94

Ram Kishor Acharji v. Krishnamani Debi, 23 W. R., 106 .. ... ...53, 235

Ram Kijhor filandal v. Chand Mandal, 5 W. R., Act X, 84 ... ... 109

Ram Kriwhua Das c. Harain, I. L. R., 9 Calc, 517 ; 12 C. L. R., 141 ... 100, 125

Ram Krishna Sirkar r. Diiar Ali, W. U., Sp. Na, Act X, 36 ... ... 109

Ram Kumar Bharttacharji v. Ram Kumar Sen, 7 W. R., 132 ... ... 70

Ram Kumar Mandal v. Brajahari Mirdha, 2 B. L. R., A. C, 75 ; 10 W. R., 410 ... 19, 21

Ram Kumar Mukharji v. Raghab Mandal, 2 W. R., Act X, 2 ... ... Ill

Ram Kumar Sen v. Ram Kamal Sen, L L. R., 10 Calc. 388 ... ... 243

Ram Lai Cbakrabartti v. Tara Sundari Barmanya, 8 W. R., 280 ... ... 206

Ram Lai Ghosh c. Pekam Lai Das, Marsh., 403 ... ... ... 109

Ram Lai Shaba v. Jogendra Narain Rai, 18 W. R , 328 ... ... 119, 143

Ram Mangal Ghosh v. Lakhi Narain Saba, 1 W. R., 71 ... ... 23, 25, 58, 158

Ram Mohan Gho^h v. Madbu Sudan Chaudhri, 1 1 W. R., 304 ... ... 96

Ram Naffar Bharttacharji v. Dol Gobind Thakur, 1 C. L. R., 421 ... 59, 106

Ram Narain Cbakrabartti v. Pulin Bihari Singh, 2 C. L. R., 5 ... 115, 117

Ram Narain Mitra v. Nabin Chandra Murdafarash, 18 W. R., 208 ... ... 216

Ram Nidhi Maujhi v. Parbati Dasi, I. L. R., 5 Calc, 823 ... ... ... 113

Ram Prasad Bhagat r. Ramtahal Singh, Marsh., 655 ... ... ... 150

Ram Prasad Rai c. Sharup Paramanik, I. L. R., 8 Calc, 712 ... ... 225

Ram Ratan Maudal «'. Netro Kali Dasi, I. L. R., 4 Calc, H39 ... ... 94

Ram Katna Sirkar v. Chaudramukhi Debi, 2 W. R., Act X, 74 ... 108, 110

Ram Sahai tJ. Dodraj Mahto, 20 W. R., 395 ... ... ... ... 282

Ram Sankar Seuapati v. Birchandra Manikya, I. L. R., 4 Calc, 714... ... 280

Ram Sarau Saha c. Veryag Mahtun, 25 W. R., 554 ... ... ... 60, 66

Ram Sundar Sen f. Krishna Chandra Gupta, 17 W. R.,380 ... ... 217

Ram Sundra Sauyal v. Gopeshar Mustafi, 1. L. R., 3 Calc, 716 ... ... 282

Itam Sundra Tewari v. Sriuath Dewasi, 10 W. R., 215 ; 14 B L R., 371 ... 212

Ramzani Bibi v. Amu Baipari, 1. L. R., 15 Calc, 317 ... ... ... 281

Rang Lai Mandal i\ Abdul Ghaffur, I. L. R., 4 Calc, 314 ... 58, 106, 205

Rang Lai Sahu v. Sridhar Das, 1 1 W. R., 293 ; 3 B. L. R., App., 27 ... ... 168

Rang Lai Singh «. Rudra Prasad, 17 W. R., 386 ... ... 105,115

Rani Rama t'. Jan Mahomed, 3 B. L. R , A. C, 18 ... ... ... 69

Ranjit Singh r. Meherban Koer, I. L. R., 3 Calc, 662 ... ... ... 5

Rao Bani Ram v. Ram Nath Saha, 10 B. L. R , App., 2 ; 18 W. R., 412 ... 135

Rash Bihari Bandopadhya v. Piari Mohan Mukharji, I. L. R., 4 Calc. 346 132, 235

Rash Bihari Ghosh r. Ram Kumar Ghosh, 22 W. R., 487 ... ... ... 110

XXxii INDEX OF CASES CITED.

Page.

Rash Bihari Mukliarji v. Pitambari Chandhurani. I. L. R., 15 Calc, 237 ... 103

Rash Bihari Mukh&rji v Sakhi Sandari Dasi, I. L. II., 11 Calc, 644 79, 266

Rashum Bibi r. Bissouath Sirkar, 6 W. R.. Act X.57 ... ... ... 114

Rasik Lai Mailak v. Loknath Karmokar, I. L. R., 5 Calc, 688 ... ... 2

Ratan Chand Shri Chand v. Hanmantrav Shivbakas, 6 Bom. H. C. R., 166,

A.C.J. ... ... ... ... ... ... ... 5

Rataumani Debi t. Kamla Kant Talukdar, 12 W. R.. 364 ... ... 58

Ratnnsi Kalianji, in the matter of, I. Ti. 11., 2 Bom., 148 ... ... 5

Rati Kant Basu v. Gangadhar Biswas. W. R., F. B., 13 ... ... ... 136

Ratnessar Biswas v. Harish Chandra Basu, I. L. R., 11 Calc, 221 ... ... 14

Reazunnissa c. Tuk'an Jha, 10 W. R., 246 ... ... ... 110,111

Reed r. Krishna Siugh. 15 W. R.. 430 ... ... ... ... 191

Reily r. Har Chandra Ghosh, I. L R., 9 Calc, 722 ... ... ... 234

Reza Khan r. Bhikan Khan, 7 W. Re, 334 ... ... ... ... 21

Ridaimani Barmaui v. Sibbold, 15 W. R., 344 ... ... ... ... 220

Rohim Baksh r. Nandolal Gossami, I. L. R.. 14 Calc, 321 ... ... 248

Rohini Kant Rai v. Tripura Sundari Dasi, 8 W. R , 45 ... ... ... 149

Roshan Bibi r. Chandra Madhab Kar, 16 W. R . 177 ... ... ... 79

Roshan Bibi r. Hari Krishna Nath, I. L. R., 8 Calc, 926 ... ... ... 206

Rukmiui Ballabh Rai v. Mulk Jamania Begam, 12 C. L. R., 534 ... ... 212

Sadai Purira v. Baistab Parira, 12 B. L. R.. 84 ; 15 W. R., 261 ... 31, 61, 73

SadakSiikarr. MahamayaDebi. 5 W. R., ActX, 16 ... ... ... 108

Sadanand Mahanti v. Naurattan Mahanti, 8 B. L. R.. 280 ; 16 W. R., 289 ...31, 108

Sadaruddin Ahmad v. Beni Madhab Rai, I. L. R., 15 Calc, 145 ... ... 218

Sadhan Chandra Basu o. Guru Cham Ba.su, 15 W. R., 99 ... ... 132, 233, 234.

Sadhu Singh v. Ramanugraha Lai, 9 W. R., 83 ... ... ... 79

Safarunnissa r. Sari Dhopi, 8 W. R., 384 ... ... ... ... 132

Safdar Reza r. Amzad AH, I. L. R., 7 Calc, 703 ; 10 C. L. R., 121 ... ... 20

Saifan r. Rudra Sahai, I. L. R., 7 Calc. 582 ... ... ... ... 121

Salehunnissa Khatnn ». Mohesh Chandra Rai, 17 W. R., 452 ... ... 265

Samira Khatun v. Gopal Lai Tagore, 1 W R., 58 ... ... 79, 81, 205

Samiruddin Khalifa v. Harish Chandra Karmokar, 3 B. L. B., A. C, 49 ; 13

W. R.. 451 note ... ... ... ... ... ... 132

Samiruddin Lashkar v. Hara Nath Rai. 2 W. R., Act X, 93 ... 110, 111

Sangat Lai r. Baijnath Rai, I. L. R., 13 Calc, 164 ... ... ... 120

Saukarmaiii Debi v. Mathura Dhupini, I. L. R.. 15 Calc, 327 ... ... 226

Sankarpati Thakurani c. Saifollah Khan, 18 W. R., 507 ... ... 71

Sankar Singh v. Hari Mohan Thakur, 22 W. R., 460 ... ... ... 135

Saraswati Dasi v. Dhanpat Singh, L L. R., 9 Calc, 431 ... ... ... 125

Saraswati Dasi ». Parbati Dasi, 6 C. L. R., 362 ... ... ... 118

Sarat Sundari Debi v. Anand Mohan Sarma, I. L. R., 5 Calc, 273 ; 4 G. L.

R., 448 ... ... ... ... ... ... 111,266

Sarat Sundari Debi v. Binny. 25 W. R., 347 ... ... ... ...59, 158

Sarat Sundari Debi tJ. Brodie, 1 W. R., 274 ... ... ... ... 120

Sarat Sundari Debi r. The Collector of Mymensing, 5 W. R., Act X, 69 ... 119

Sarat Sundari Debi r. Watson, 2 B. L. R., A. C, 159 ... ... ... 266

Sarkiesr. Kali Kumar Rai. W. R.,Sp. No., 1864. Act X. 98 ... ... 53

Saroda Prasad Gauguli v. Prasanna Kumar Sandial, I. L. R., 8 Calc, 290 ... 137

Saroda Sundari Debi ».Ghani, 10 W. R.,4J9 ... ... ... ... 66

Saroda Suudari Debi I'. Mahomed Mandal, 5 W. R., Act X, 78 ... ... 161

Saroda Sundari Debi v. Tarini Charn Saha, 3 W. R., S. C, Ref., 19 ... 149

Saroda Suudari Debi r. Uma Charn Sirkar, 3 W. R., S. C. Ref., 17 ... ... 149

Satghari r. Mujidan, I. L. R., 15 Calc , 107 ... ... ... ... 5

Satyabhama Dasi v. Krishna Chandra Chatarji, I. L. R., 6 Calc, 55 ...59, 106

SatyaCharn Ghosalr. Abhoy Nand Das, 2W. R, Act X, 31 ... ... 217

Satya Charn Ghosal r. Mohesh Chandra Mifcra, 3 W. R., 178 ... ... 205

Satya Saran Ghosal v. Mohesh Chandra Mitra, 12 Moo. I. A., 263 ; 2 B. L. R.,

P. C, 23 ; 11 W. R., P. C, 10 ... ... ... ... ... 42

Saudamini Dasi v. Guru Prasad Datta, 3 W. R , 14 ... ... ... 114

Saudamini Debi v. Sarup Chandra Rai, 8 B. L. R.. App., 82 ; 17 W. R., 363 ... 101

Santi Ram Panjah v. Baikant Panjah, 19 W. R., 280 ; 10 B. L. R., 397 ... 266

Savi r. Abhoy Nath Basu, 2 W. R , Act X. 28 ... ... ... 115

Savi V. Issar Chandra Mandal, 20 W. R., i46 ... ... ... 13

Savi r. Mohesh Chandra Basu, W. R.,Sp. No, Act X, 29 ... ... 135

INDEX OF CASES CITED. XXXiu

Page.

Savi r. Panchan.in Rai, 25 W. R., i503 ... ... ... ... 60, «fi

Secretary of Stater. Poran Singh, I. L. R.. .5 Calc, 740 ... ... ... 255

Serajgange .Tute Co. r. Torabdi Akuncl, 25 W. R., 252 ... ... ... 148

Shal'gram Singh r. Kiibiian. .T B. L. R.. A. C. 61 ... ... ... 11

Shama CharirivuDrlu r. Dwarkanath Kabiraj. 19 W. R., 100 ... ... 110

Shama Sundari Debi *•. Mally.at Mandal. 11 W. R., 101 ... ... ... 20S

Shama Sundari Debi r. Nobin Cliandra Kolya, 0 (\ L R., 117 ... ...45,258

Shambhu Chandra Saha /•. Earada Snndari Debi. 5 AV. R., 45 ... ... 120

Sham Chand Ghosh r. Ram Krishna Behara, 19 W. R. .S09 ... ... 206

Sham Chand Kundu r. Broio Xath Pal, 21 W R.. 94 : 12 B. L. R., 484 53, 1.32, 234, 244

Sham.Iha /■. DurgaRai, 7 W. R., 122 ... ... ... ... IH

Sham Lai Ghosh >: Baistab Cham Mazumdar. 7 W. R., 407 ... ... 109

Sham Lai Ghosh v. Madan Gopal Ghosh, 6 W. K., Act X, 37 ... ... 108

Sham Narain Chaudhri v. Rajah of Darblianga, 2.1 W, R., 432 ... ...60,271

Shamsher All r. Dava Bibi, 8 C. L. R, 150 ... ... ... ... 106

Sheo Charn r. Bassant Sing. 3 All. Rep., 282 ... ... ... 67

Sheo Prasad Singh *•. Kali Das Singh, I. L. R., 5 Calc, 543 ... ... 41

Sheo Prasad Tewari c. Malima Bibi, 1 All., pt. Ill, 7 ... ... ... 195

Sheo Prokash IMisra v. Ram Sahai Singh. 8 B. L. R., 165 ; 17 W. R., 62 ... 58

Sheo Sahai Rai r. Gudar Rai, 8 \V. R.. 328 ... ... ... ... 206

Sheo Sankar Sahai v Hridai N.irain, I. L. R., 9 Calc, 143 ; 12 C. L. R , S4 ... 217

Sheriff V. DinonathMnkharji, I L. R.. 12 Calc, 258 ... ... ... 26.3

Shib Chandra Mahniah r. Braja Nath Aditya. 14 W. R., .301 ... ... 116

Shib Das Bandopadhya /•. Baman Das Mukharji, 8 B. L. R.. 237; 15 W.

R.. 360 ... ... ... ... ... ... G6, 69

Shib Kumari Joti v. Kali Prasad Sen, 1 B. L. R., A. C, 167 ... ... 31

Shib Narain Rai r. Chidara Das Bairagi, 6 W. R., Act X, 45 ... ... 205

Shibn Jelya v. Gopal Chandra Chaudhri, 19 W. R.. 200 ... ... ...60, 271

Shrishtidhar Biswas v. Madan Sirdar. I. L. R.. 9 Calc, 648 ... 73, 74, 164

Shri.shtidhar De??. Dnrga Narain Nag. 17 W. R., 462 ... ... ... 134

Sirdhar Rai r. Rameshar Singh, I. L. R.. 15 Calc, 166 ... ... 128, 129

Sita Nath Basu r. Sham Chand Mitra, 17 W. R.. 418 ... ... ... 115

Smithr. MohkumMahtnn. 18 W. R., 526 ... ... ... ... 208

Solano V. Ram Lai, 7 C. L. R.. 481 ... ... ... ... 18

Sonam Sukal v. Ilahi Baksh, 7 W. R., 453 ... .. ... ... 147

Southa Prasad Das v. Parasu Padhan. 26 W. R., 98 ... ... ... 20

Sridhar Nandi v. Braja Nath Kundu, 14 W. R., 286 : 2 B. L. R., 211 ... 205

Srimisra t'. Crowdy. 15 W. R.. 243 ... ... ... ... 265

Srlnath Bharttacharji v. Ram Ratan De, I. L. R . 12 Calc, 606 ... ... 280

Srinath Chandra Chaudhri v, Mohesh Chandra Bandopadhya, 1 C. L. R., 453 ... 145

Sriram Ba.su c. Bishonath Ghosh, 3 W. R., Act X, 3 ... ... ... 71

Srishtidhar Mazumdar w. Kali Kant, 1 W. R., 171 ... ... ... lOfi

Stalkart r. Bharat Lai, W. R., Sp. No., Act X, 115 ... ... ... 96

Subamm.ll fc-. Veukatarama, I. L. R., lOMad., 289 ... ... ... 144

Sudamukhi Dasi v. Ram Gati Karmakar. 20 W. R., 419 ... ... Ill

Sudri.shti Lai Chaudhri v. Nathu Lai Chaudhri, 8 W. R., 487 ... ... 109

Suhodra i;. Smith. 20 W. R., 139 ... ... ... ... ... 73

Sukhimani Haldar r. Ganga Gobind Mandal, W. R., Sp. No., Act X, 126 ... Ill

Sukar Ali r. Araala Ahalya. 8 W. R., 504 ... ... ... ...88, 115

Surahatunnis.«a Khauara i'. Gj'ani Baktaur, 11 W. R.. 142 ... ... 79

Sura Sundari Debi v Ghulam Ali, 19 W. R., 142 ; 15 B. L. R., 125 note ; 39, 217, 218. 251
Surendra Mohan Rai r. Bhagabat Chandra Gangopadhya 18 W. R., 332 : 10 B.

L. R., 40:^ ... ... ... ... ..'. ... 266

Swarnomayi r. Blumhardt, 9 W. R.. 552 ... ... ... 11, 60, 257

Swarnomayi r. Dinanath Gir Sanyasi, I. L. R.. 9 Calc, 908 ... 101, 167, 230

.Swarnomayi r. Gauri Prasad Das, 3 B. L. R., A. C, 270 ... ... 40

Swarnomayi r. Sha.shimukhi Barmani, 12 Moo. L A.. 244 ; 11 W. R., P. C, 5;

2 B. L. R., P. C, 10 ... ... ... ... ... 263

Swarnom.ayi ?•. Singhrup Bibi, W. R., Sp. No., Act X, 134 ... ... 120

Tap.si Singh v. Ram Saran Koeri, I. L. R., 15 Calc, 376 ... ... 64

Tara Chandra Ban.arji v. Amir Mandal, 22 W. R., 394 ... ... Ill, 266

Tarak Chandra Mukharji ?;. Panchu Mohini Debi, I. L. R., 6 Calc, 791 ; 8 0. L.

R.. 297 ... ... ... ... ... ... 217

Tarakmani Mukharji V. Mohendra Nath Ghosh 13 W. R., 56 ... ... 206

XXxiv INDEX OF CASES CITED.

Page.

Tarak Nath Mukharji f. Meydi Biswas, 5 W. R,, Act X, 17 ... ... 169

Tarakpodo Ghosal v. Shyama Cham Napit, 8 C. L. R., 50 ... ...43, 258

Taramaui Dasi r. Biressar Mazumdar, 1 W. R., 86 ... ... ... 71, 72

Taramani Dasi v. Kali Charu Sarma, W. R., Sp. No., 1864, Act X, 14 ... 120

Taramani Kuawaii v. Jiban Maudar, 6 W. R., Act X, 99 ... ... 127

Tara Prasad Rai t'. Surja Kant Acharji, 15 W. R., 152 ... ... ... 60

Tara Suudari Barmonya v. Sibeshwar Chatarji, 6 W. R., Act X, 51 ... 110

Tarini Cham Basu r. Deb Naraia Mistri, 8 B. L. R., App., 69 ... ... 66

Tarini Chain Ganguli r. Watson. 3 B. L. R., A. C, 437 ; 12 W. R., 413 ... 41

Tarini Debi v. Shama Charn Mitra. I. L. R., 8 Calc, 9.54 ... ... 245

Tarini Kant Labiri r. Kali Mohan Sarmah, 3 W. R.. Act X, 123 ... ... 109

Tarini Kant Lahiri r. Krishnamani Chaudhri, 5 C. L. R., 179 ... ... 208

Tarini Prasad Ghosh v. Bengal ludigo Co., 2 W. R., Act X, 9 ... ... 12

Taru Patar r. Abinash Chandra Datta, I. L. R., 4 Calc, 79 ... ... 206

Tetra Koer v. Bhanjan Rai, 21 W. R., 268 ... ... ... ... 32, 57

Thakuiani Dasi v. Bisheshar Mukharji, B. L. R,, F. B., 202 ; 3 W. R., Act X, 29,56, 57.

75, 80, 84

Thakur Prasad r. Ahsan All. I. L. R., 1 All., 668 ... ... ... 5

Thakur Prasad v. Mahomed Bakir, 8 W. R., 170 ... ... ... 56, 76

Tikaram Singh ?•. Sandes, 22 W. R., 335 ... ... ... ... 79

Tilak Chandra Chakrabaitti ?•. Madan Mohan Jogi, 12 W. R., 504 ... ... 2.33

Tilak Patak v. Mahabir P.audi, 15 W. R., 454 ; 7 B. L. R., App., 1 1 ... 162

Tileshari Koer v. Asraedh Koer ; 24 W. R., 101 ... ... ... 207

Tirthanand Thakur v. Herdu Jha. I. L. R., 9 Calc, 252 ... ... 109

Tirthanand Thakur v. Mati Lai Misra, I. L. R., 3 Calc, 774 ... ...72, 166

Tirthanand Thakur v. Paresman Jha, 13 W. R., 449 ... ... ... 132

Titu Bibi i\ Mohe-sh Chandra Bagchi, I. L. R., 9 Calc, 683 ; 12 C. L. R., 304 ... 242

Trailokhya Tarini Dasi v. Mohima Chandra Matak, 7 W. R., 400 ... ... 106

Tripp r. Kali Das Mukharji, W. R. Sp. No., Act X, 122 ... ... 115

Tulsi Pandi r. Bachu Lai, I. L. R., 9 Calc, 596 ; 12 C. L. R., 223 225, 266

TulsiPrasadSingh V. Ram Narain Singh, I. L. R., 12 Calc, 117 ... ... 42

TTda Begam v Imamudin, I. L. R., 2 AH., 74 ... ... ... 5

Udaya Charn Dhar v. Kali Tara Dasi. 2 B. L. R., App., 52 ... ... 267

TJdai Narain Sen v. Tarini Charn Rai, 11 W. R., 496 ... ... ... 109

Udit Narain Singh r. Hud.son, 2 W. R., ActX, 15 ... ... ... 119

Ujan Dewan ??. Pran Nath Mandal, 8 W. R.. 220 ... ... ... 202

Uma Charn Chatarji v. Kadambini Debi. 3 C. L. R., 146 ... ... 63

Uraa Charn Datta v. Uma Tara Debi. 8 W. R.. 181 ... ... ... 25

Uma Charn Mandal v. Bijari Bewa, I. L. R., 15 Calc, 174 ... 214, 257

Uma Charn Sett v. Hari Prasad Misra. 10 W. R., 101 ... ... ...73, 127

Uma Kant Sirkar v. Gopal Singh, 2 W. B., Act X, 19 ... ... ...60, 271

Umamayi Barmonya v. Boku Behara, 13 W. R., 333 ... ... ... 69

Uma Nath Tewari v. Kundan Tewari, 19 W. R . 177 ... ... ... 69, 66

Uma Sankar Sirkar r. Tarini Chandra Singh, I. L. R., 9 Calc, 571 ... 115

Uma Tara Debi iJ. Pina Bibi, 2 W. R.. 155 ... ... ... ... 215

Umesh Chandra Chatarji v. Kamaruddin Lashkar, 7 W. R.,20 ... ... 135

Umesh Chandra Datta v. Bhagaban Chandra Rai, 9 \V. R., 305 ... ... 207

Umesh Chandra Rai f. Nasir Mallik. I. L. R., 14 Calc, 203 note ... ... 267

Umnr Narain Puri r. Ararat Lai, 7 \V. R., 301 ... ... ... 280

Unide Rajaha Raje Bommarauze v. Pemmasamy Venkatrady Naidu, 7 Moo.

LA., 128 ... ... ... ... ... ... 26

Upendra Mohan Tagore r. Thanda Dasi, 3 B. L. R., A. C, 349 ; 12 W. R., 263 ... 165

Uzir Ali r. Ram Kamal Saha, I. L. R,, 15 Calc, 383 ... ... ... 6, 248

Venkatachellam Chettir. Andian. T. L. R.. 3 Mad., 358 ... ... 20

Virjivandas Madhab Das r. Mahomed Ali Khan Ibrahim, T. L. B., 5 Bom , 208 ... 116

Wahid Ali r. Nath Turaho, 24 W. 1?., 128 ... ... ... ... 210

Wahid Ali r. Sadik Ali, 17 W. R . 417 ... ... ... ... 132

Watson V, Gobind Chandra Mazumdar, W. R,, Sp. No., 1864, Act X, 46 ... 12

INDEX OF CASES CITED. XXXV

Page.

Watsou t'. Jogeshwar Atta, Marsh., 330 ... ... ... ...41,45

Watson t: Mohendra Nath Pal, 23 VV. R., 4R6 ... ... 206, 226

VVatsou «. Mohesh Narain Rai. 24 W. R., 176 ... ... ...41,42

Watson V. Sharat Suudari Debi. 7 W. R.. 395 ... ... 58, 60, 106

Watson & Co. i: Braja Suudari Debi, 16 W. R., 225 ... ... ... 212

Watson & Co. r. Chota Jura Mandal, Marsh, 68 ... ... ... 109

Watson & Co. v. Dhanendra Chandra Mukharji, I. L. R., 3 Calc, fi ... 263

Watson & Co. r. Jogendra Narain Rai, 1 W. R., 76 ... ... CO, 61, 66

Watson k Co. v. Nanda Lai Sirkar. 21 W. R., 420 ... ... ... 110

Watson k Co. v. Nistarini Gupta. I. L. R., 10 Calc. 544 ... ... 115

Watson & Co. «. Ramdhan Ghosh, 17 W. R.. 496 ... ... ... 226

Watson & Co. v. Ram Sundar Pandi, 3 W. R., Act X, 165 ... ... 165

Wigglesworth t'. Dallison, 1 Smith, L. C, 598 ... ... ... 260

Wise D. Bhubanmayi Debi, 10 Moo. I. A., 174 ... ... ... 38

Yaknb Hossein v. Wahid Ali, 4 W. R., Act X, 23 ... ... ... 66

Zahiruddin Paikar I'. Campbell, 4 W. R., 57 ... ... ... 114

Zamiradunnissa Khanura 1'. Phillipe, 1 W. R., 290 ... ... ... 137

Zulfan Bibi r. Radhika Prasanna Chandra, I. L. R.; 3 Calc, 560: 1 0. L.

R., .388 ... ... ... ... ... ... ... 58

COMPABATIVE STATEMENT.

xxxvu

Comparative Statement shoiving the Sections of the present Act,
which correspond with Sections of previous Rent Laws.

Section of Act VIII
of 1885.

Sectiou of
Act VIII,

B.C.,
of 1869.

Section of

Act X
of 1859.

Section of other Rent Acts.

1 (1)

Ill

1 (3)

106

107

......

3 (16)

12—18

20 (1)

21 (1) (2)

30 (a)

18 (1)

30 (0

18 (2)

a {a)

50 (1)

3, 16

50 (2)

4,17

4, 16

52 (a)

(*)

54 (3)

61 (1) («) )

62 (2) I

Sec. 4, Act VI of 1864.

63 (2) )

64 (1) ]

Sec. 6, Act VI (B.C.), 1862.

68 (1)

Sec. 2, Act VI (B.C.), 1862.

68 (2)

See. 3, Act VI (B.C.), 1862.

io*

86 U) I
(2) ]

90 (1)

Sec. 9, Act VI (B.C.), 1862.

Sec. 9, Act VI (B.C.), 1862,

Sec. 11, Act VI (B.C.), 1862.

104—109

38, 39, 40

Sec. 10, Act VI (B.C.), 1862.

116

'"e*

121

68,69

112, 113

121 (a)

(&) ]

115

Proviso (2)

113

122

123

124

126 (1)

116

(3)

116

126

118

127

133

128

86, 87

129, 130

130

86, 87

129, 130

131

130

XXZVUl

COMPARITIVE STATEMENT.

Section of Act VIII
of 1885.

Section of
Act VIII,

B.C.,
of 1869.

Section of
Act X
of 1859.

Section of other Rent Acts.

1.12

131

133

131

134

132

135

133

iH(; (1)

121

110

96, 98

139. 142

143

144

33, 35, 36

145

148 (h)

Sec. 12, Act VI (B.C.), 1862.

153 00

102

158

159

Sec. 16, Act VIII (B.C.), 1866.

IGO

Sec. 16, Act VIII (B.C.). 1865.

162—165

59, 60

1*05

Sees. 4 and 5, Act VIII (B.C.) of
1865.

170

106

171,172

Sec. 2, Act VIII (B.C.), 1865.

187

188

114

Sched. Ill (1) (3)

Sched. Ill (2, a)

Sec. 0, Act VI (B.C.), 1862.

ScLed. Ill (2, b)

29, 58

• 32, 92

INTRODUCTION.

In the following pages we propose merely to give a brief
summary of the circumstances which led to the passing of
Act VIII of 1885, and of the principal changes made by it
in the Rent Law of Bengal.

The question of a revised Rent Law for Bengal had been
under consideration for a very considerable time. The provi-
sions of Act X of 1859, which, up to the passing of the Act,
either in their original form, or as re-enacted in Act A^III
(B.C.) of 1869, governed the relations of landlord and tenant
in Bengal, were soon found to be defective. The principal
faults of Act X of 1859 have been said to be that it placed
the right of occupancy, which it recognized in the tenant,
and the right of enhancement, which it recognized in the
landlord, on a precarious footing. It gave, or professed to
give, the raiyat a right which he could not prove, and the
landlord one which he could not enforce. It also, according
to the landlords, made the recovery of their just dues a
difficult, protracted, and sometimes an impossible task.

As early as 1863, an amendment was suggested by Sir
Barnes Peacock, the Chief Justice of Bengal, and by the
Revenue Authorities of the North- Western Provinces. In
1873, disturbances broke out in the Pubna district, in Eastern
Bengal, owing to the raiyats leaguing together to resist illegal
exactions on the part of the zamindars, — short measurements,
illegal cesses, and forced delivery of agreements to pay en-
hanced rents being the main grievances they complained of.
The Lieutenant- Grovernor of Bengal, Sir George Campbell,
then expressed an opinion that Government would be even-
tually compelled to deal with the whole question of the rela-
tions of landlord and tenant in Bengal.

xl INTRODUCTION.

Subsequently, in 1876, Sir K. Temple proposed to
introduce a bill to define the principles on which the rights
of occupancy-raiyats and tenure-holders should be fixed, to
simplify the procedure for realizing arrears of rent in un-
disputed cases, to extend the definition of occupancy-raiyats,
and to render the interest of a raiyat of that class liable to
sale for default in paying rent, and transferable by private
agreement. But in 1877, before his proposal could be fully
considered and given effect to, Sir R. Temple was succeeded,
as Lieutenant-Governor of Bengal, by Sir Ashley Eden, who,
abandoning his predecessor's project; considered it advisable
merely to introduce a bill, providing for the realization of un-
disputed arrears, and to defer all further amendment of the
law for the time being. This, however, was found to be
impracticable ; and, in February 1879, a majority of the
Select Committee on the bill recommended that the revision
of the whole of the Rent Law should be undertaken. Accord-
ingly, in 1879, a Commission to prepare a digest of the
existing statute and case-law, and to frame the draft of a
consolidating bill, was appointed. Meanwhile, a Committee
of experienced Behar ofiicials, indigo-planters, and zamindars
had been sitting under orders of Government to consider and
devise remedies for the abuses prevailing in the relations
between landlord and tenant in Behar. They submitted their
report in March 1879, and proposed, as they did not consider
that the requirements of the case could be properly met by
a mere amendment of the then existing law, that the whole
of the Rent Law should be re-cast. The report of the Behar
Committee was referred to the Rent Law Commission, who,
on the 19th June 1880, submitted their Report with a draft
Landlord and Tenant Bill^ which purported not only to
amend, but to consolidate, the whole Rent Law of Bengal.
The bill was, however, not accepted in its entirety by Govern-
ment. A second draft was prepared by the Hon'ble Mr.
Reynolds, late senior member of the Board of Revenue. A third
draft was drawn up under the superintendence of Sir Ashley
Eden. Subsequently, a bill was drafted by the Government
of India, and introduced into Council, on the 2nd March

INTRODUCTION. xH

1883, by the Hon'ble Mr. Ilbert, the Legal Member of the
Governor-General's Council. A further bill was afterwards
drafted, and the present Act did not finally pass through
Council, and receive the assent of the Governor-General, till
the 14th March 1885.

Before alluding, as we propose now very brietiy to do, to
the principal changes made by this Act in the Rent Law of
Bengal, we must repeat that the project of codifying the Rent
Law and consolidating the statute and case-law on the subject
was abandoned by the framers of this Act. The task under-
taken by the Rent Law Commission had to be given up owing
to its difficulty and the opposition it excited.

The present Act, therefore, while materially altering
the previously prevailing law, does not profess to, and does
not, do more than merely consolidate existing enactments,
and to a limited extent embody the case-law on several
disputed and hitherto undecided points. It is not, therefore,
a complete digest of the law of landlord and tenant in Bengal,
the task of compiling such a digest, in short, of codifying
the Rent Law of Bengal, remaining still to be accomplished.
The present Act " was accepted by the Government of
Bengal," it is said in a minute of Sir Rivers Thompson, the late
Lieutenant-Governor of Bengal, on his administration of the
province, '' rather as an instalment of the necessary legislation
than as providing a full solution of the difficulties of the
problem. But that this want of completeness and finality
was not merely natural but inevitable was forcibly urged by
Mr. Ilbert in the course of the debate on the Bill, and the
question can hardly be better summed up than in the words
he used : — ' What the Council have to consider,' said the
Honourable Member, * as practical men is, not whether this
is an ideally perfect measure, not whether it is a final settle-
ment of questions between landlord and tenant in Bengal,
not whether it is likely to usher in a millennium either for
the zamindar or for the raiyat, but whether it represents a
step in advance, whether it does something substantial to-
wards removing admitted defects in the existing law, whether
it does not give some substantial form of security to the

xlii INTRODUCTION.

tenant, some reasonable facilities to the landlord. It is
because I believe that the measure, however it may fall short
of ideal perfection, does embody substantial improvements
in the existing law that I commend it to the favourable con-
sideration of the Council.' "

Turning to the changes made by this Act in the existing
law, we would again explain that we do not pretend to give
here a detailed or exhaustive account of them. We have
explained these changes more fully under the sections, or at
the end of the chapters, in which they occur. We here
briefly summarize them, merely to facilitate the comprehen-
sion of the scope and effect of the present Act.

The principal changes made by this Act in the previous
law are as follows : —

(1) That a raiyat becomes a " settled raiyat," and ac-
quires rights of occupancy in all the lands he holds in a
village, provided he has held any land for twelve years in the
same village. It is not now necessary that he should have
held the same particular land, or that he should have held
all the land for twelve years, as was the case before. If he
has held any land for twelve years in a village, he acquires
occupancy-rights in all the land he holds, or may in the future
hold, in that village.

(2) In any proceeding between a raiyat and his land-
lord, it is to be presumed that the raiyat is a " settled raiyat,"
until the contrary is proved or admitted.

(3) The grounds on which a settled raiyat' s rent may be
enhanced have been modified, and the enhancement of his
rent by suit has certainly been facilitated ; but, on the other
hand, the enhancement of his rent by contract has been
restricted, and a raiyat cannot now contract himself out of
almost any of the rights conferred upon him by this Act.

(4) All notices of enhancement have been abolished by
this Act, owing to the difficulty experienced in drawing them
up in accordance with the provisions of the former law, as
well as of proving their service. The institution of the
enhancement- suit is now all the notice of enhancement required
to be given to the tenant.

INTRODUCTION. xliii

(5) If an occupancy -raiy at' s rent has once been enhanced
by contract or suit, no suit for the farther enhancement of
his rent will lie until after the expiry of fifteen years.

(6) An occupancy-raiyat or his landlord is empowered to
apply for commutation of rent payable in kind to a money-
rent.

(7) A non-occupancy-raiyat can now be ejected at the
will of his landlord, only if he has been admitted to the
occupation of the land under a registered lease, and, after the
service on him of a six months' notice to quit, and within
six months of the expiration of the term of his lease.

(8) A non-occupancy-raiyat, who objects to pay an en-
hanced rent, can now have his rent fixed by the Court. If
the raiyat refuses to pay the rent so fixed, he can be ejected.
But if he agrees to pay it, he is entitled to remain in occupa-
tion of the land at the rent for five years.

(9) A landlord is now bound to retain the counterfoil
of every receipt he gives to a tenant, which receipt has to
contain certain specified particulars, and every tenant is noAV
entitled, at the end of each year, to a receipt in full, or a
statement of account up to the close of the year. Further, a
receipt which does not contain substantially the particulars
required by law will be presumed to be a receipt in full up to
date.

(10) Provision has been made for tenants making im-
provements in their holdings and for their recovering com-
pensation for them in the event of eviction. A system of
registering improvements, whether made by the tenant or the
landlord, has also now been introduced.

(11) Power has now been given to a landlord, with the
sanction of the Collector, to acquire the land of any of his
tenants,' holdings for building, religious, educational, or chari-
table purposes.

(12) Xo tenant can now be ejected except in execution
of a decree.

(13) Provision has been made for the appointment of
common managers in the case of disputes arising between the
co-owners of estates.

xliv INTRODUCTION.

(U) Act VIII (B. C.) of 1879, the Act under which all
settlements of Government and other estates have hitherto
been made by Government, is repealed by this Act. Govern-
ment is consequently placed on the same footing as other pro-
prietors with regard to its tenants, except that it retains the
certificate procedure for the speedy recovery of the arrears of
rent due to it. Further, as regards the record of the rights
and the fixing of the rents of tenants of lands under settle-
ment, such settlements will have ordinarily to be made under
the provisions of this Act.

(15) In Chapter X provision is made empowering the
Local Government, with the previous sanction of the Governor-
General in Council, to order that a survey and record-of-rights
be prepared in respect of the lands in any local area by a
Revenue-officer, and when any such records -of- rights and set-
tlement of rent is proceeding in any local area, the ordinary
Civil Courts are precluded from entertaining any suit for the
alteration of the rent, or the determination of the status of any
tenant.

(16) Power is given to the Local Government, on its own
motion, or on the application of a tenant, to survey and define
a proprietor's private or demesne land, in which rights of occu-
pancy cannot be acquired. Restriction has also been placed
on the conversion of ordinary raiyati land into khamar land,
so as to prevent a proprietor, in future, from putting obstacles
in the way of the acquisition of occupancy-rights by his
tenants.

(17) The landlord's power of distraint has been curtailed.
A landlord can now only distrain through the Civil Court,
and, notwithstanding the distraint, the tenant is entitled to
reap, gather, and store the produce, and do anything necessary
for its preservation.

(18) A landlord can no longer harass his tenant by
instituting successive suits for arrears of rent against him.
Three months must elapse between each successive rent-suit.

(19) A decree for arrears of rent can no longer be execut-
ed by any one who has not acquired the landlords' interest in
the land ; but, on the other hand, the holder of a decree for

IKTRODUCTION. xlv

arrears of rent is no longer subject to any restrictions in the
execution of his decree. He is not now bound to proceed in
the first instance against the moveable property and person
of his judgment- debtor, then, against the tenure or holding
itself on which the arrears have accrued, and, finally, against
the other immoveable property of the tenant, but is at liberty
to execute his decree in any way that is lawful under the
Civil Procedure Code ; while the tenant's tenure or holding
is hypothecated for the rent, and no transfer of it is valid,
while the arrears of rent which have accrued on it remain
unsatisfied.

(20) The disabilities of minority and lunacy do not
apply to rent- suits.

The results of the working of the Tenancy Act are thus
summed up in the minute on Sir Rivers Thompson's adminis-
tration already alluded to.

" As already stated, the Act came into operation on the
1st November 1885, and has, therefore, been too short a time
in force for a full estimate of the success or otherwise of its
working to be made. The principal work done in revenue
offices in connection with the Act has related to the issue of
notices and payment of landlords' fees on transfers of tenures.
A petition was addressed to Government on the subject of
the working of the provision that tenants holding at a rent
fixed in perpetuity must give notice and pay a fee to the land-
lords, through the Collector, on transferring their holdings.
It was alleged that raiyats not holding at fixed rates adopted
this procedure, thereby creating evidence, which in future
might be accepted as proof that they really occupied the
privileged position which they claimed. It has been pointed
out, however, that this fear does not rest on any solid founda-
tion. There were in 1885-86, 223 cases of appraisement of
produce, which occurred principally in the Patna Division.
The result has been reported to have been so far satisfactory.
During the year 1886-87, the Board of Revenue prepared a
set of rules for settlement procedure with special reference
to changes in this procedure, which have been effected by the
Act.

xl V i INTRODUCTION.

" The provisions of the Act on the subject of receipts
for rent have produced a very immediate and striking effect,
and have given matter for comment in every part of the
province. It was part of the enactment on this subject that
rent receipts shall contain certain stated particulars ; and
further, that if a receipt did not contain substantially the
particulars required, it shall be presumed, until the contrary
is proved, to be an acquittance in full of all demands up to
date. Such a change affecting every payment of rent
throughout the province, and tending to bring old disputes
to ahead, naturally gave rise to much trouble and misunder-
standings at first. The misunderstandings have been al-
ready in many cases cleared awa}^* and by degrees only
those cases will remain which the law was intended to meet,
viz., those in which the landlord has been keeping his ac-
counts so as to show a higher rent than that which is author-
ised by law, those in which illegal cesses have been collect-
ed, and those in which through former neglect the real rent
has never been ascertained. On such estates the first effect
of the new law may be to increase contention with the
ultimate effect of producing a satisfactory settlement. Even
in these cases what brings matters to an issue is merely the
insisting on the discharge of an obligation which existed
under the old law, and has always been considered necessary
in Bengal — the entry in the receipts of the period in respect
of which rent is paid. This is a necessary form of honesty
and fair dealing insisted on in business of every kind, and
if its observance in transactions between Bengal zemindars
and their raiyats causes friction, that is the best proof that
the precaution is necessary either to clear up uncertainty, or
to prevent fraud.

" With the exception of these difficulties in regard to
notices of transfer and to receipts, the working of the new
law has not appeared as yet to be likely to be attended by
any such disturbance of the relations between landlords and
tenants as was apprehended by some of those who were

* A new form of receipt has now been drawn up— see Sch. II.

INTRODUCTION. xlvii

opposed to the introduction of the measure. The other
provisions of the Act appear to be working smoothly, re-
course is being had to the sections relating to the appraise-
ment of produce rents, and to the registration of improve-
ments, and some applications have been receiv^ed for the
settlement of rents. At present, however, there are no
materials for forming an opinion on the operation of some
important sections of the law, such as the publication of
price lists, the sale of tenures subject to encumbrances, and
the modified procedure for distraint. The real benefits of
such a measure as the Tenancy Act are to be looked for, not
in the number of cases in which application may be made to
the courts to enforce its provisions, but in the peaceful
acceptance by all classes of the principles which underlie it,
that the landlord is to be secured in the enjoyment of his
fair rent and that the tenant is to be maintained in the
possession of his rightful holding."

The above quoted observations may be said to represent
the ofiicial view of the working of the Bengal Tenancy Act
up to the date on which they were written, as described in
published documents, and though we do not altogether agree
with all that has been said in the above note, yet, on the other
hand, we have no wish here to combat any of the views
expressed in it. We would, however, say that it is our
impression that the undisturbed relations at present existing
between landlord and tenant in Bengal may, to some extent,
be due to a want of comprehension of the provisions of the
Act. However this may be, we may hazard with some
confidence, an expression of the opinion that, without a survey
and record-of-rights under Chapter X of the Act, no much
greater beneficial eff'ect will result from the present enactment
than from the former laws on this subject, and that those of
its provisions, which were intended to benefit and protect the
raiyats, will produce no effect at all, in that direction, in the
province of Behdr.

THE

BENGAL TENANCY ACT. i885.

CORRIGENDA.

Page 20,

line

50,

for

" ord,"

read

" lord."

41,

„

25,

" — Calc,"

„

" 5 Calc."

41,

„

34,

"317 W. R,"

" 17 W. R. »

44,

„

40,

„

« 496,"

" 469."

46,

28,

" mortage,"

" mortgage."

64,

„

22,

" Benga,"

Bengal.

68,

„

39,

,»

" property,"

prosperity.

83,

40,

decennia,

decennial.

85,

folio heading,

" non-occupancy raiyats,'

" enhancement of rent."

89,

17,

„

" deduction,"

reduction.

.90,

" hav,"

" have."

91,

30,

„

proviso ; ,

proviso 1.

94,

30,

»,

" Earn Khelawan

Singh,'

"Chaturi Singh."

97,

Atcin,

Act in.

98,

„

36,

xcept,

except.

101,

35,

and.

land.

113,

28,

„

Kal,

Kali.

116,

„

42,

on.

in.

J»

145,

28,

co-sharers,

co-sharer.

165,

abandonmet,

abandonment.

181,

„

33,

in.

is.

236,

01 W. E.,

10 W. E.

263,

31,

fouud,

found.

266,

38,

of.

))

304,

10,

sub-secstion,

sub-sections.

1. (1) This Act may be called " The
Bengal Tenancy Act, 1885."
(2) It shall come into force on such date (hereinafter
called the commencement of this Act) as
the Local Government, with the previous
E. & F., B. T. A. 1

Short title.

Commencement.

THE BENGAL TENANCY ACT.

Chap. I. sanction of the Governor- General in Council, may, by noti-
— ' fication in the local official Gazette, appoint in this behalf.

By a notification, dated September 4th, 1885, published in the Calcutta
Gazette of September 9th, 1885, the Lieutenant-Governor, with the sanction of
the Governor-General in Council, declared that this Act should come into force
on November Ist, 1885. But by Act XX of 1885 the operation of sees. 61 to 64,
relating to deposit of rent, and of Chap. XII, relating to distraint, except such
of those provisions as confer power to make rules, was postponed to the Ist
February, 1886.

(3) It shall extend by its own operation to all the terri-
tories for the time being under the adminis-
tration of the Lieutenant-Governor of
Bengal, except the Town of Calcutta, the Division of Orissa,
and the Scheduled Districts specified in the third Part of the
First Schedule of the Scheduled Districts

XIV of 1874. 1 1 T 1 ^

Act, 1874 ; and the Local Government
may, with the previous sanction of the Governor-General in
Council, by notification in the local official Gazette, extend
the whole or any portion of this Act to the Division of Orissa
or any part thereof.

Rent Law of Calcutta.— In the town of Calcutta, the relations of landlord
and tenant are regulated by the Indian Contract Act (IX of 1872). But when
the parties are Mahomedans or Hindus, then, the relations of landlord and tenant
will, under sec. 17, chap. 70, 21 Geo. Ill, be regulated by the laws and usages
of the defendant, provided they are not inconsistent with the provisions of the
Contract Act, in which case the provisions of the Contract Act will prevail
{Madhab Chandra Paramanik v. Rajkumar Das, 14 B. L. R., 76 ; 22 W. R.,
370 ; Rassik Lai Madak v. Loknath Karmokar, I. L. R., 5 Calc, 688).

Rent Law of Orissa and the Scheduled Districts. — The Local Govern-
ment has not yet extended the whole or any portion of this Act to the Division
of Orissa or any part thereof. In the greater part of the districts of the Division
of Orissa the settlement is a temporary one, and Act X of 1859 and its amending
Acts (VI, B. C, of 1862, and IV, B. C, 1867) are in force. The Scheduled Districts
of Bengal, according to the First Schedule of the Scheduled Districts Act (XIV of
1874), are the districts of Darjeeling and Jalpaigori, the Hill Tracts of Chittagong,
the Santhal Parganas, the mehals of Angul and Banki in Orissa, and the districts
of the Chutia Nagpur Division. The rent law prevailing in these districts is as
follows : In the Darjeeling district, Act X of 1859 has hitherto been, and for the
present continues to be, in force. The district of Jalpaigori consists of two tracts
of country, namely, of a tract which may be described generally as the tract lying
to the south of the river Teesta, which formerly belonged to the Rungpore
district ; and of a tract which may be described generally as the tract lying to the
north of the Teesta, and which was annexed from Bhutan in 1866. In the portion
of the district which formerly belonged to the Rungpore district, the settlement
is permanent, and Act X of 1859 is now in force, and will, for the present,

LOCAL EXTENT.

continue to prevail there. In the tract north of the Teesta, there is a special Act Chap. I.

in force, namely, Act XVI of 1869 (The Bhutan Dvars Act). This may be briefly Skc^2.

described as no law at all, for it merely excludes " the ordinary Civil Courts from

the cognizance of suits relating to immoveable property, revenue and rent,"

without laying down any law or rules for the guidance of the officers appointed

by Government to exercise jurisdiction in this tract of country. The Bhutan

Dvars Act still prevails in this portion of the Jalpaigori district, notwithstanding

the passing of this Act. The Hill Tracts of Chittagong have, by Act XXII

of 1860, been removed from the jurisdiction of tribunals established under the

general Regulations and Acts ; but, by letter No. 2461, dated April 17th, 1867,

the Local Government has directed that the Courts in the Hill Tracts shall

be guided by the general tenor and spirit of the Code of Civil Procedure and

such laws as may be applicable. In the Santhal Parganas, Reg. Ill of 1872, made

under the thirty-third of Victoria, Cap. 3, the Bengal Regulations mentioned

in its Schedule, and the Santhal Parganas Rent Regulation, 1886, are in force.

The mehal of Banki in Orissa was, but is no longer, a scheduled district. It has

been annexed to the district of Katak by Act XXV of 1881. The mehal of

Angul in Orissa is still a scheduled district, but Act X of 1859 has not been

formally extended to it. In the districts of the Chutia Nagpur Division, the

provisions of the Chutia Nagpur Tenures Act (II of 1869, B. C.) are in force. In

Manbhum, Act X of 1859 ; and in Hazaribagh, Lohardugga and Singbhum, the

Chutia Nagpur Landlord and Tenant Procedure Act (I of 1879, B. C.) also

prevail.

The Bengal Tenancy Act may, under sec. 5, Act XIV of 1874, be extended to
any of the Scheduled Districts of Bengal, or to any part of such district.

Rent Law of Assam. — The districts of Assam are no longer under the
administration of the Lieutenant-Governor of Bengal, and consequently are not
affected by this Act. It may, however, be useful to note here that, by the decision
of the High Court in the case of Prasidha Narain Koer v. Man Koch (I. L. R., 9
Calc, 330),* it is now settled that the provisions of Act X of 1859 are not in force
in the Assam Valley districts, viz., Goalpara, Kamrup, Darrang, Nowgong, Sibsagar,
and Lakhimpur. In these and all the other districts of Assam, except Sylhet, the
law on the subject of rent is in an unsettled and uncertain state. But in the
district of Sylhet, now one of the districts of the Chief Commissionership of Assam,
but formerly under the administration of the Lieutenant-Governor of Bengal, the
provisions of Act VIII of 1869, B. C, now prevail, having been extended to it by
Grovernment Notification of the 24th February, 1870 (see Calcutta Gazette of Mai-ch
2nd, 1870, p. 361). They continued in force in Sylhet on its incorporation with
;he Chief Commissionership of Assam under Government Notification, No. 1111, of
;he 22nd August, 1878 (see Government of India Gazette, of August 24th, 1878,
Part I, p. 533), and, of course, continue to prevail there since the passing of this
Act.

2. (1) The enactments specified in Schedule I hereto
annexed are repealed in the territories to

Bepeal. t i •

which this Act extends by its own operation.

Dates of commencement of various rent laws. — Act X of 1859 came
ato operation on the 29th April, 1859. It was amended, on the 1st May, 1862, by

* See also I. L. R., 4 Calc, 547 ; 6 Calc, 196 ; 7 Calc, 441.

THE BENGAL TENANCY ACT.

Chap. I. Act VI of 1862, B. C, which was, in its turn, amended by Act IV of 1867, B. C,
Skc. 2. on the 21st May, 1867. Act VIII of 1869, B. C, came into operation on the 13th
'""' April, 1870, corresponding with the 1st Bysakh of the Bengali year 1277 ( see

Government Notification of 24th February, 1870, published in the Calcutta
Gazette of 2nd March, 1870). All these Acts are repealed in the territories within
which this Act came into operation on the 1st November, 1885. Besides these,
another Act, it will be observed on reference to Schedule I, is also repealed by
this Act, viz., Act VIII of 1879, B. C, which was an Act "to define and limit the
powers of Settlement Officers." This is an important change ; as the repeal of
that Act, taken in connection with the definitions of "landlord" and "estate"
in sec. 3, makes it clear that this Act applies to Government estates. Further,
in the great majority of cases, settlements of estates and tenures belonging to, or
managed by. Government or the Court of Wards, have now to be made under
the provisions of Chap. X of this Act. The present Act, therefore, contains, not
only the Law of Landlord and Tenant, but the Settlement Law of Bengal, in the
districts to which it applies, whenever a settlement involves an enhancement of
rent, and it is intended that such enhancement shall be binding on the raiyats.

Regulations partially repealed. — Certain Regulations are also partially
repealed by this Act. The portions of these Regulations and the subject-matter
of each section repealed are as follow : —

Reg. VIII OF 1793.
Sec. 51. Enhancement of Talukdars. Penalty for exaction.
Sec. 52. Right of Proprietors to let remaining lands ; conditions to be

specific. Penalty for exactions.
Sec. 53. Amilnamahs necessary.
Sec. 54. Abwabs to be consolidated with asl.
Sec. 55. No new abwabs. Penalty.
Sec. 64. Instalments to be regulated by harvests.
Sec. 65. No engagements contrary to this Regulation.

Reg. XII OF 1805.
Sec. 7. Period for delivery yf pottahs in Cuttack.

Reg. V OF 1812.
Sec. 2. Proprietors may grant leases for any period.
Sec. 3. And in such form as the conti-acting parties prefer ; but cesses not

to be imposed.
Sec. 4. Leases may not be annulled for collusion in case of attachment or

sale without decision of Court.
Sec. 26. Judge may appoint manager of ijmali estate.
Sec. 27. Removal of such manager.

Reg. XVIII of 1812.
Preamble. Recites doubts as to sec. 12, ~&eg. V of 1812.
Sec. 2. Leases grantable for any period and at any rent.
Sec. 3. Leases remain in force notwithstanding partition, transfer, &c.

Reg. XI OF 1825.
Sec. 4. CI. 1. — The words " nor if annexed to a subordinate tenure " to
end of the clause. This part of the clause provides that an
under-tenant shall not be considered exempt from an increase
of rent for land annexed to his tenure by alluvion.*

♦ Field's Kent Law Digest, p. xxi.

ENACTMENTS REPEALED.

(2) When this Act is extended to the division of Orissa cuap. i.

. . Sicc. 2.

or any part thereof, such of those enactments as are m force m —
that Division or part, or, where a portion only of this
Act is so extended, so much of them as is inconsistent with
that portion, shall be repealed in that Division or part.

As to the enactments now in force in Orissa, see the note to the previous
section.

(3) Any enactment or document, referring to any
enactment hereby repealed, shall be construed to refer to
this Act or to the corresponding portion thereof.

(4) The repeal of any enactment by this Act shall not
revive any right, privilege, matter or thing not in force or
existino; at the commencement of this Act.

Proceedings commenced under old law. — In sec. 6, Act I of 1868 (The General
Clauses Act), it is provided that " the repeal of any Statute, Act or Regulation
shall not affect "anything done, or any offence committed, or any fine or penalty
incurred or any proceedings commenced, before the Repealing Act shall have
come into operation." The meaning of the word " proceedings " in this section
has formed the subject of discussion in many cases. In Ratan Chand Shri Chand
v. Haii'mantrav Shivhakas (6 Bom. H. C. R., 166, A. C. J.), it was said that the
words " proceedings commenced " in sec. 6 of the General Clauses Act include
a sviit in which a decree has been given, and that the word "proceedings" must
be taken to include all the proceedings in the suit from the date of its institution
to its final disposal. In Ranjit Singh v. Meherban Koer (I. L. R., 3 Calc, 662),
Garth, C. J., quoted the above ruling of the Bombay High Court with approval,
and said that the words " any proceeding " in sec. 6, Act I of 1868, must be held
to include proceedings in appeal. In the same case, it was ruled by Jackson, J.,
that sec. 6 of Act I of 1868 covered all proceedings taken in execution of decree,
which had been commenced before Act X of 1877 came into force. In " In the
matter of Ratansi Kalianji" (I. L. R., 2 Bom., 148), it was held that a judg-
ment-debtor imprisoned in execution of a decree under Act VIII of 1859 was
not entitled to be released under the provisions of Act X of 1877 on the coming
into operation of the latter Act. In Thakiir Prasad v. Ahsan Alii^. L. R., 1 All.,
668), it was said that "proceedings in execution of decree instituted under
Act VIII of 1859 are to be governed by the provisions of that code," notwith-
standing its repeal by Act X of 1877 (see also Uda Begam v. Imam-ud-din,
I. L. R., 2 All., 74 ; Nadir Hossein v. Bissen Chand Bassarat, 3 C. L. R., 437 ; and
Mahomed Hossein v. Abdullah, 1. L. R., 3 Calc, 727). Again, in Jlaro Sundari
Dehi V. Bhajo Hari Das (I. L. R., 13 Calc, 86), it was said that the words
"any proceedings commenced before the repealing Act shall have come into
operation" in sec. 6, Act I of 1868, include an appeal against a decree made
before the passing of the repealing Act, as such appeal must be considered a
proceeding in the original suit." Then, in Satghari v. Mujidan (I. L. R., 15
Calc, 107), it was said that the word proceedings in sec. 6, Act I of 1868, as applied
to a suit, mean the suit as an entirety, that is, down to the final decree, and
include a second appeal. Further, in Mangal Prasad Diehit v. Qirija Kant Lahiri

THE BENGAL TENANCY ACT.

Chap. I. (I. L- R-, 8 Calc, 51), it has been ruled by their Lordships of the Privy Council
Skc. 2. tjjat » an application for the execution of a decree is an application in the suit
in which the decree was obtained." This ruling was followed in the case of
Behari Lai v. Gobardhan Lai (I. L. R., 9 Calc, 446) ; but in the case of Ouru-
padapa Basapa v. Virbhadrapa Inangapa (I. L. R., 7 Bom., 459), it was said by
West, J. : " We think that where a decree has been obtained, the application for
execution initiates a new set of proceedings, and, therefore, the rule of the
General Clauses Act (1 of 1868) is not to be held to govern all the remotest
ministerial consequences of a suit arising in applications made years afterwards
according to the procedure in force at its institution, but only to bring under
the same law such series of proceedings as group themselves naturally together^
as, e. g., those on a particular application." This ruling of the Bombay High
Court does not seem, however, to have been followed by the Calcutta High Court ;
for in Jagmohan Mahto v. Lachmessar Singh (I. L. R., 10 Calc, 748), it was said by
Mitter, J. (Norris, J., concurring) : " As to proceedings being identilied with suit,
it seems to me that we held that proposition to be correct on the authority of
the Privy Council decision in Mangal Prasad Dichifs case, and after hearing
the arguments in this case, and after considering the judgment quoted, I still
adhere to that opinion, — viz.^ that an application for execution of a decree is an
application in the suit which resulted in the decree. That was distinctly held
in Mangal Prasad Dichifs case, and we are bound by that decision." The Privy
Council decision in Mangal Prasad Dichifs case was also followed in Becharam.
Datta V. Abdul Wahid (I. L. R., 11 Calc, 55), in which it was said : " The Judicial
Committee of the Privy Council has held in Mangal Prasad Diehit v. Girija Kant
Lahiri, that the provisions of Act IX of 1871 do not apply to any suit, or to any
application in a suit, instituted before the 1st April 1873, and that an application
for the execution of a decree is an application in the suit in which the decree
was obtained."

It has, however, been said by Wilson, J., in Bhobo Sundari Debt v. Rakhal
Chandra Basu (I. L. R., 12 Calc, 583), that " it is a general rule in construing
statutes that in a matter of substantive right they are not to be so read as to
take away vested rights, but that in matters of procedure they are general in their
operation." In Lai Mohan Mukharjiv. Jogendra Chandra Bai{l. L. R., 14 Calc, 636),
it was held that the provisions of an Act, which create a new right, cannot, in the
absence of express legislation or direct implication, have a retrospective effect ;
and, accordingly, a judgment-debtor's right under sec 174 of the Bengal Tenancy
Act to set aside a sale does not avail, where the sale is held in pursuance
of a decree, the execution whereof was applied for before that Act came into
operation. This judgment was followed in Uzir AH v. Jlam Kamal Saha
(I. L. R., 15 Calc, 383), which lays down that in similar circumstances sec. 174,
Act VIII of 1885, will not avail an auction-purchaser. But these rulings would
seem to have no application to cases in which the provisions of sec. 6, Act I of
1868, are applicable, i.e., to cases in which proceedings have actually been com-
menced under the old law.

The result of these cases would, therefore, seem to be that the word " pro-
ceedings " in sec 6, Act I of 1868, includes all proceedings in a suit from its
institution to its final disposal, including appeals and execution-proceedings of
every kind ; and that, consequently, when a suit has been instituted under the
provisions of an Act which is subsequently repealed, all proceedings in that suit
must be continued under the provisions of that Act after its repeal, even
in matters of mere procedure. In cases in which proceedings have not been

DEFINITIONS.

commenced under the old Act, the provisions of the new Act must be followed Chap. I.
in matters of procedure as well as in all other respects ; but the new Act must Skc. 3.
not be interpreted as taking away rights which have arisen under the old Act,
nor, in the absence of express or implied enactment, as having retrospective
eflfect.

A similar rule would seem to be applicable to proceedings taken for the
recording or enhancing of rents in the course of settlement proceedings.
Settlement proceedings begun under Reg. VII of 1822, however, may no doubt
be continued under Chap. X of this Act ; for the settlement of revenue is a
distinct proceeding from the recording and settling of rents payable by the
tenants.

3. In this Act, unless there is some-
Definitions. - , . , , .

thing repugnant in the subject or context —

(1) "Estate" means land included under one entry in

any of the general registers of revenue-paying lands and

revenue-free lands, prepared and maintained under the law

for tlie time being in force by the Collector of a district, and

includes Government khds mahals and revenue-free lands not

entered in any register.

" Estate " means the interest immediately below the paramount interest, which
Government has in the land.

Khar^ja Taluks.— In Bengal many estates are called taluks, though the term
taluk was originally applied only to tenures subordinate to estates. At the time
of the Permanent Settlement, however, the proprietors of certain taluks were
allowed to pay their revenue direct to Government. These taluks were, therefore,
called independent taluks, —in the vernacular, Huziiri or Khdrijd taluks. All such
taluks, and all similar taluks subsequently created, the revenue of which is pay-
able directly to Government, are estates. Shikmi taluks, or taluks left dependent on
the zamindars at the time of the Permanent Settlement, and Patni taluks, which
have all been created subsequently, are not estates, but tenures in the language
of this Act. (See note to sec. 6.)

Land-Revenue Registers.— The Collector's Land-Revenue Registers, A,
B, C, and D, prepared under the provisions of the Land-Registration Act, VII of
1876 (B. C), show, or rather are supposed to show, the different estates (161,485
in number, according to the Board of Revenue's Report on the Land-Revenue
Administration for 1887-88) into which the country is sub-divided, with the names
and the character and extent of the interest of the proprietors, managers,
and mortgagees of estates and revenue-free properties. A is a register of
revenue-paying lands ; B, of revenue-free lands ; C, a mauzawar register of
all lands, revenue- paying and revenue-free ; and D, an intermediate register of
changes.

Government Estates. — The inclusion of Government khds mahd,ls in the
definition of estate is noticeable, as it makes quite clear, what indeed follows
from the repeal of Act VIII of 1879, B. C, by this Act, namely, that the
ordinary rent law of Bengal, as contained in this Act, applies to Government

THE BENGAL TENANCY ACT.

Chap. I. estates as well as to estates managed by the Court of Wards, and to ordinary
''^' ' estates. The only advantage in regard to questions connected with the assess-
ment and recovery of rent, which Government now claims over ordinary zamin-
dars, is, it was said dui-ing the debates on the Tenancy Bill, the Certificate Proce-
dure authorized by Acts VII of 1868, B. C, and VII of 1880, B. C, which is
a summary procedure for the recovery of public demands, apjjlicable to Govern-
ment estates as well as to estates managed by the Court of Wards.

(2) "Proprietor" means a person owning, whether
in trust or for his own benefit, an estate or a part of an
estate.

Meaning of " Proprietor. " — The term " proprietor," as used in this Act,
includes Government as well as the owners of revenue-free lands. As the word
"person" imder sec. 2, cl. 3, Act I of 1868, includes a company, association,
or body of individuals, whether incorporated or not, the term " proprietor " will,
in this Act, denote any number of proprietors as well as one. The term " pro-
prietor," as far as the Permanent Settlement is concerned, includes zamindars,
talukdars, chaudhries, mortgagees, and, in case of dispute, the party in possession.
" Proprietor," within the meaning of the Land-Registration Act (VII of 1876,
B. C), includes every person in possession of an estate or revenue-free property,
or of any interest in an estate or revenue-free property, as owner thereof, and
every farmer or lessee who holds an estate or revenue-free property directly from
or under the Collector.

Effect of non-registration of proprietary interests. — Every proprietor
of an estate or revenue-free property, or of any interest therein, being in posses-
sion of such estate or revenue-free property at the commencement of Act VII
of 1876, B. C, — every joint proprietor of an estate or revenue-free property,
being in charge of such estate or revenue-free property, or any interest therein,
on the part of the other proprietors, at the commencement of that Act, — every
person succeeding after the commencement of that Act to any proprietary right
in an estate or revenue-free property, whether by purchase, inheritance, gift,
or otherwise, — every joint proprietor assuming charge on behalf of the other
proprietors, — and every person assuming charge of an estate or revenue-free
property, or of any interest therein, as manager, after the commencement of
that Act, is bound to have his name, and the chai-acter and extent of his interest,
registered in the Collector's Registers under that Act (sec. 38), within six months
from the date of his succession by purchase, inheritance, gift, or otherwise
(sec. 42), and no person is bound to pay him rent (sec. 78), unless and until his
name has been so registered. There is evidence to show that proprietors, mana-
gers, and mortgagees of proprietary interests and of revenue-free properties
have hitherto been very remiss in causing their names and interests to be regis-
tered, or mutations (on transfer or succession of properties) to be made in the
Collector's Registers. It would be well for landlords to remember that, in suits
for arrears of rent, brought by a proprietor, who has failed or neglected to
register his name in the Collectoi-'s Registers, the suit must be dismissed, if the
tenant should set up the plea that the proprietor's name has not been duly register-
ed. It is also to be remembered that, in proceedings under Chap. X of this Act,
a Revenue-officer may, under Rule 12 (d), Chap. VI of the Rules framed by the
Local Government under this Act (see Appendix I), at his discretion, refuse to

DEFINITIONS.

recognize as proprietor any person who is bound to have his name registered, Chap. I»
unless and until it appears that his name and the character and extent of his Skc. 3.
interest have been duly registered under the Land-Eegistration Act. A Revenue-
officer making a settlement of rents under Chap. X may, therefore, refuse to
entertain an application for enhancement or settlement of fair rents from a
proprietor who is not registered.

Meaning of " Lakhirajdar." — The term " lalchirajdar" the vernacular ex-
pression for " owner of revenue-free %nd," is commonly applied, it may be men-
tioned, not only to (a) owners of lands held free of Government revenue, but also
to (6) occupants of lands held re?it-iree under the owner of a revenue-paying estate
or revenue-free property. The former class of lakhirajdars, who are properly so
called, are " proprietors " within the meaning of this Act ; the latter are tenure-
holders, or raiyats, according as they come under the first or second clause of
sec. 5. Tenants holding under owners of revenue-free property (class a) may be
either tenure-holders or raiyats. Tenants holding under holders of rent-iree land
(class b) are under-tenure-holders, raiyats or uuder-raiyats, according as the
lakhirajdar himself is a tenure-holder or a raiyat. If the lakhirajdar is a tenure-
holder, his tenants may be either under-tenure-holders or raiyats ; but if he is a
raiyat within the meaning of sec. 5, sub-sec. 2, his tenants will be under-raiyats,
and cannot acquire occupancy-rights, save where under-raiyats acquire such rights
by local custom.

(3) "Tenant" means a person who holds land under
another person, and is, or but for a special contract would be,
liable to pay rent for that land to that person.

Meaning of "Land" in this sub-seotion.— The term "land" has not
been defined in this Act. The omission is an intentional one. The Rent Com-
mission in their bill (sec. 3) defined land as follows : " Land includes woods and
water thereupon ; when applied to land cultivated or held by a raiyat, it means
land used or intended to be used for agricultural or horticultural purposes, or
the like. In Chap. XVIII" (a chapter relating to procedure in suits for re-
covery of arrears of rent and certain other suits), " it means (a) tenures, under-
tenures, and holdings ; (6) land used or let to be used for agriculture or horti-
culture, pasture, or other similar purpose, or for dwelling-houses, manufactories, or
other similar buildings ; and (c) rights of pasturage, forest rights, fisheries, and
the like. Explanation. — Bastu or homestead land is land used for agricultural
purposes, when it is occupied by a raiyat, and together with the land culti-
vated by the said raiyat forms a single holding." This definition was, how-
ever, not approved, and finds no place in the present Act. Land is defined in
Act V (B. C.) of 1867 ; but as this is not a Bengal Council Act, the definition
therein given will not apply to the word " land," when used in this Act.
There is, therefore, no legislative enactment by which the term " land " in this
sub-section can be interpreted. During the progress of the Tenancy Bill through
Council a proposal was made by the Maharaja of Darbhanga to restrict the
provisions of the Act to " land which is the subject of agricultural or horti-
cultural cultivation, or is used for purposes incidental thereto." This proposal
was, however, negatived. The absence of any definition of the term " land "
in the Act, and the rejection of the Maharaja of Darbhanga's proposal in
Council have given rise to the impression that the provisions of the Tenancy

10 THE BENGAL TENANCY ACT.

Chap. I. Act are applicable to all land, whether agricultural or non-agricultural. It is
Sk<^3. submitted that this view is incorrect for the following reasons : By section 4 of
the Act, tenants are divided into the following classes : (a) tenure-holders ;
(6) raiyats ; and (c) under-raiyats. Now, from the definition of "raiyat" given
in sec. 5 (2) and from the remarks made by the Hon'ble Mr. Ilbert in introducing
the Bill, it is evident that the term raiyat applies only to those tenants who hold
land for purposes of agriculture and horticulture, or pasture, or who have come
into possession for such purposes.* No doubt the term " tenure-holder " is not
restricted to the holders of agricultural land ; but tenants of the classes inferior
to them must be cultivators, or persons who hold land originally let mainly for
purposes of cultivation. It is true that the Rent Commission in their Report
(para. 11) observe : " It has never been doubted that the rents of tenures and under-
tenures are recoverable under these Acts " (Acts X of 1859 and VIII, B. C,
of 1869), " and these commonly include much more than land used for agricultural
or horticultural purposes." But, on the other hand, it is to be added that the
- Maharaja of Darbhanga's proposal was rejected, because it was considered that,
" if the amendment were carried," as observed by the Hon'ble Mr. Reynolds,
" it would have the effect of excluding from the operation of the Bill not merely
all waste lands but all the lands not actually under cultivation at the time
the question might be raised. It would leave it open to a landlord to contend
that a raiyat's right of occupancy did not extend to those lands of his holding
which were not actually under cultivation at the time. It is in my opinion
better for the Council to leave the question to be decided by the Courts." +
The Hon'ble Sir Steuart Bayley remarked : " The Hon'ble Mr. Reynolds has
pointed out that this amendment will have the effect of limiting the raiyat's right
of occupancy, as he would thereby lose the rights as to all waste lands and lands
not used for agricultural and horticultural purposes. I may point out also that the
effect would be to remove from the scope of the Bill, which deals with tenants
generally, all such parts of a tenure, as may be used momentarily for other
purposes than agriculture or horticulture. It is much safer to trust to the
Courts to apply the law to these cases. "J It will be seen that the Maharaja of
Darbhanga's proposal was rejected, not because the Council considered that the
provisions of the Act were applicable to all land, but because it was considered
that its adoption would exclude from the operation of the rent-law waste
land and all land not actually used for cultivation at the time when any dispute
on the subject arose. It would seem probable that the Council intended to make
no radical change as to the nature of the land to which the provisions of the
Rent Law are applicable, but to leave the law in the same state as before.
In the North-Western Provinces Rent Act (XII of 1881, recently amended by
Act XIV of 1886), it is enacted " that save as provided by sections 171 and 172 "
(these sections refer to the execution of decrees), " nothing herein contained
applies to land for the time being occupied by dwelling-houses or manufactories,
or appurtenant thereto, so long as such land is not let to agricultural tenants."
There is no such provision in the Bengal Tenancy Act ; but it seems most
probable that its provisions are of similarly limited application.

Rulings under old Aots as to their application to non-agricultural
land.— There was of course no question as to the applicability of the old Acts,

* See Selections from papers relating to the Bengal Tenancy Act, 1885, p. 54.
t See Selectiong from papers relating to the Bengal Tenancy Act, 1885, p. 482.
t See Selections from papers relating to the ficugal Teuaucy Act, 1885, p. 482.

DEFINITIONS. H

as there can be none as to the applicability of the present Act, to agricultural land ; Chap. I.
but as to non-agricultural land, the rulings under the former Acts are very con- Sbc^.
flicting. There are some decisions under Acts X of 1859 and VIII of 1869, B. C,
which go so far as to say that the rent-law does not apply to such land at all.
Thus, in the case of Kalikrishna Biswas v. Janki (8 W. R., 250), it was said, " that
the occupation intended to be protected by sec. 6, Act X of 1859, is occupation
of land, the subject of agricultural and horticultural cultivation, and used for
purposes incidental thereto, such as for the site of the homestead, the raiyat or
mali^s dwelling-house, and so on, and does not include occupation, the main
object of which is the dwelling-house, and when the cultivation of the soil,
if any there be, is entirely subordinate to that." Then, in Mahtah Chand
v. Makund Ballabh Basu (9 B. L. R., App., 13), it was said that the Revenue
Courts had no jurisdiction to entertain a suit for rent of land with buildings
upon it, when the rent included the rent of the buildings as well as of the
land. The cases of Bipra Das De v. Wollen (1 W. R., 223), Ramdhan v. Haradhan
Paramanik (9 B. L. R., 107, note ; 12 W. R., 404), and In re Bramamayi (9 B.
L. R., 109, note), support this view. In another case, Hari Mohan Sirkar v.
Scott Moncrieff (9 B. L. R., App., 14), it was ruled that a suit for rent of
land, where the rent comes from arhats, ghdts and bazars situated upon it, as
well as from the land, will not lie in the Revenue Court. In Aditya Pal v.
Kamala Kant Pal (Marsh., 401), it was held that the rent-law was not applicable
to a rent payable for an Indigo factoiy, which included land, buildings and the
sattas or contracts by the raiyats for the growth and supply of indigo. Further,
in Khalat Chandra Ghosh v. Minto (1 Ind. Jur., N. S., 426), in which land with
extensive mining rights had been let to the plaintiff, the land being necessary and
accessory to the enjoyment of the mining rights, and in Shdlgrdm Sing v. Kuhiran
(3 B. L. R., A. C, 61), in which the plaintiff sued for the rent of land leased for
quarrying purposes, and for a yearly tax, which he had reserved the right of
levying on the parties, it was held that Act X of 1859 did not apply. Other
decisions, however, do not go so far, and merely lay down that the right of
occupancy and the enhancement provisions of Acts X of 1859 and VIII of 1869,
B. C, do not apply to land not used for agricultural or horticultural purposes.
Thus, in Mohar Ali Khan v. Ram Ratan Sen (21 W. R., 400), it was held
that rights of occupancy cannot be acquired in lands occupied exclusively by
buildings ; and in Sharnomayi v. Blurr.hardt (9 W. R., 552), it was decided
that Revenue Courts had no jurisdiction in a suit for arrears of rent at an en-
hanced rate from a tenant, to whom land had been leased for the purpose of
building a school-house and a church. In Kali Mohan Chatarji v. Kalikrishna Rai '

(11 W. R., 183 ; 2 B. L. R., App., 39), it was held that Act X of 1859
does not apply to a suit for the enhancement of rent of land, situated in the
midst of land used for building purposes ; while the cases of Madan Mohan
Biswas V. Stalkart (17 "W. R., 441 ; 9 B. L. R., 97), Durgasundari Dasi v.
Umdatunnissa (18 W. R., 235 ; 9 B. L. R., 101), Naimudin Jawardar v. Scott-
MonGrieff(8 B. L. R., 283), Khairvdin Ahmad v. Abdul Baki (9 B. L. R., 103, note).
Church V. Ramtanu Shaha (9 B. L. R., 105, note), and Purna Chandra Rai v. Sadut
Ali (2 C. L. R., 31), lay down that lands used for building purposes, and not used
for agricultural and horticultural purposes, but situated in a town, are not liable
to enhancement of rent. See also Jai Kishor Chaudhrani v. Nabi Baksh, 17 W. R.,
178 ; Ookul Chand Chatarji v. Mosahru Kandu, 21 W. R., 5, and Piari Bewa v.
Nakur Karmokar, 19 W. R., 308. This, then, may be regarded as settled law under
the former Acts. But an exception to this general rule, if it be now applicable,

2 THE BENGAL TENANCY ACT.

Chap. I. is made by clause 4, sec. 167 of this Act, which provides that a purchaser, at a
JSkc. 8. gj^je under this Act, of a tenure or holding sold on account of arrears of rent
" due in respect thereof, may, if he has power to avoid all incumbrances, sue to

enhance the rent of land, which is the subject of a " protected interest " of the
nature specified in cl. (c), sec. 160. The " protected interest," specified in cl (c),
sec. 160, is " any lease of land, whereoTi dwelling-houses, manufactories, or other
permanent buildings have been erected, or permanent gardens, plantations, tanks,
canals, places of worship, or burning or burying grounds have been made."
Other rulings are to the effect that the provisions of Acts X of 1859 and VIII
of 1869, B. C, as to the recovery of arrears of rent, apply to the rent of land
irrespective of the purpose for which it is used. Thus, in Oaetri Dehi v. Thakur
Das (W. R, Sp. No., 1864, Act X, 78) it was held that a suit for arrears of rent
of a hAt was cognizable by a Revenue Court ; while in Watson v. Govind Chaiidra
Mazumdar (W. R., Sp. No., 1864, Act X, 46) it was said that the class of cases
made cognizable by a Collector under cl. 4, sec. 23, Act X of 1859, is described
in terms wide enough to extend his jurisdiction in suits for rent to cases of tenan-
cies not strictly agricultural, provided the subject of the lease is land, and the
rent issues out of the land, and is due on account of, and for the use of, the
land, whatever may be the purpose for which the surface of the land is used,
(See also the case of Nasur Aliv. Sadat Ali,'Sff. R, Sp. No., 1864, Act X, 102.)
The late Mr. Justice Dwarkanath Mi tter maintained this view of the question
in the cases of In re Bramamayi (9 B. L. E., 109), Durga Sundari Dasi v.
Umdatunnissa (9 B. L. R., 101), and Brajanath Kundu y.Loivther (9 B. L. R., 121);
but his opinion was overruled. In several cases it was held that Act X applied,
when rent was sought to be recovered merely for the land upon which houses
stood, but not for the houses themselves, or when the rent of the land was the
more important item. See Tarini Prasad Ghosh v. Bengal Indigo Co. (2 W. R.,
Act X, 9), Matangini Dasi v. Haradhan Das (5 W. R., Act X, 60), Ram Cham
Singh v. Meadhan Darji (8 W. R., 90), Mathuranath Kundu v. Campbell (9 B. L.
E., 115, note), Brajanath Kundu v. Gopinath Shaha (17 W. R., 183), and
Chandessari v. Ghinah Pandi (24 W. R., 152).

Classes of agricultural land. — Agricultural land, it may be mentioned,
is either (a) raiyati, to which the provisions of the Act, excepting Chap. XI, are
generally applicable, or (6) proprietor's private land, that is, khamar, nij-jote,
sir, or zerat land, to which the provisions of Chap. XI apply. Waste land
may be either raiyati or proprietor's private land, but is ordinarily raiyati.
In determining whether a particular parcel of land is raiyati or khamar, regard
must be had to local custom, to the character of the land before this Act
came into force, and to other relevant facts, described in sec. 120 ; but the pre-
sumption is that all land is raiyati until the contrary is proved. See sec. 120 (2)
and (3).

Origin of tenancy to be coasidered.— When determining the question as to
whether land is agricultural or non-agricultural, the origin of the tenancy should
be considered. If land has originally been let for agricultural purposes, the
presumption is that it will continue subject to the incidents of agricultural land.
Thus, it has recently been held, that a raiyat may, with consent of his landlord, erect
buildings on his land, or iise part of it for tanks and gardens without losing his
right of occupancy in it {Prasanno Kumar Chatarji v. Jaggannath Bysak, 10
C. L. R, 25). Under the provisions of sees. 76 to 83 of the present Act, a raiyat
has every right to erect permanent buildings suitable to the holding, and make

DEFINITIONS. 13

other improvements on his land, even against the wishes of his landlord, without Chap. I,

losing any of his rights as an agricultural tenant.

Payment of rent not necessary to constitute or maintain tenancy. —
It is to be noticed that, according to this definition of " tenant," it is not necessary
either to constitute or maintain a tenancy that rent should actually be paid.
It is suiRcient if the tenant is liable to pay rent, though he may not pay it, or
is exempt from payment under some contract made with his landlord. Thus,
the land may be let to him at a pepper-corn rent, or rent-free for a term of years
under a reclaiming lease, or he may render service to his landlord in lieu of rent.
In all these cases, he is a " tenant," and continues to be so, though he does not pay
his rent {Masyatulla v. Nurzahan, I. L. E., 9 Calc, 808 ; 12 C. L. E., 389),
or render the stipulated service {Chandra Nath Rai v. Bhim Sirdar, W. E.,
Sp. No., Act X, 37).

(4) *' Landlord " means a person immediately under
whom a tenant holds, and includes the Government.

A raiyat, thikadar, ijaradar, or any person to whom rent is payable, is a
"landlord" under the Act. It may be well to point out that " landlord " has a
very different meaning from " proprietor " under this Act. Neither are all pro-
prietors necessarily "landlords," nor are all landlords necessarily proprietors.
An owner of an estate or revenue-free property, who cultivates his estate himself,
or by hired labour, and has no tenants, is a " proprietor," but not a landlord ;
while a raiyat, who collects rent from an under-raiyat, is a " landlord," but not a
" proprietor."

(5) " Rent " means whatever is lawfully payable or deli-
verable in money or kind by a tenant to his landlord on
account of the use or occupation of the land held by the
tenant :

In sections 53 to 68, both inclusive, sections 72 to 75, both
inclusive, Chap. XII and Schedule III of this A.ct, " rent "
includes also money recoverable under any enactment for the
time being in force as if it was rent.

Rent,— The word " lawfully " in this definition implies that there must be a
lawful contract, express or implied, between the parties. Whatever is payable or
deliverable in money or kind under such circumstances, if for the use and occupation
of land, is rent. If there be no contract, or if the action of either of the parties
has not been lawful, or if the money or produce be not payable or deliverable for
the use of land, then it is not rent. Thus, there is nothing illegal in a contract
under a farming lease from the owner of a hat, to collect a portion of the proceeds
of sale from persons exposing their goods for sale in the hdt under temporary
sheds, or in open places, and such collections are not, in the nature of internal
duties, but of rent for the use of land {Bangsho Dhar Biswas v. Madhu Mahaldar,
21 W. E., 383 ; but see contra, Savi v. Issar Chandra Mandal, 20 W. E., 146).
A number of mangoes to be supplied yearly for the use of land is rent {Nobo Tarini
Dasi V. Gray, 11 W. E., 7). But damages for not giving up the land (Bhvban

Sicc. 3.

4 THE BENGAL TENANCY ACT.

.Chap. I. Mohan Basil v, Chandra Nath Banarji, 17 W. R., 69) ; and compensation for
Skc. 3. the use and occupation of land {Krishna Gopal Maxoar v. Barnes, I. L. R., 2 Calc,
374), are not rent So also damages for the wanton destruction of trees, though
stipulated for in the kahulyat {Nobo Tarini Dasi v. Gray, 11 W. R., 7), and
goats, straw, and other articles, the delivery of which was stipulated for in a
separate agreement, entered into simultaneously with the interchange of a pottah
and kahulyat {Bhubo Sundari Debi v. Jynal Abdin, 8 W. R., 393), are not rent.
Money payable by a lessee in consideration of a lease granted, whether called
nazar or salami, cannot be looked upon as rent, but is simply a debt due
upon a contract {Dinonath Mukharji v. Dehnath Mallik, 13 W. R., 307). It is
important to notice that ddk cess is not recoverable as rent ; for it is not payable
for the use and occupation of land, and is not made recoverable as rent by the
Zamindari Dak Act (VIII, B. C, of 1862). Under sec. 12 of the Act, however,
it is lawful for a zamindar to contract with any person holding under him for
the payment by him of this cess ; but it must be recovered as money due on a
conti-act, and not as rent. Similarly, patwaries' dues (neg or hisdbdnd) are not
lawfully payable or recoverable as rent, for they are not payable for the use or
occupation of land. If payable by the landlord, they can be recovered from
him as arrears of public revenue under sec. 36, Reg. XII of 1817 ; but they cannot
be recovered by the landlord from his tenants under the provisions of this Act.
Further, rent must be either money or produce. Services rendered for the use
or occupation of land are, therefore, not rent, and accordingly service-tenures,
even if they had not been specially excluded from the operation of this Act, as
they are (sec. 181), cannot be affected by its provisions. The imposition of abwabs
or mahtuts is prohibited by sec. 74, and, not being lawfully payable, they are
of course not rent. (See note to sec. 74.) The word " payable " in this definition
shows that the term " rent " is not restricted to what is " lawfully recoverable ; "
so that it would appear that an amount paid by an under-raiyat in excess of
the limits laid down by els. (a) and (6), sec. 48, may be lawfully payable, and
come under the definition of " rent," though it may not be lawfully recoverable
under the provisions of that section. A raiyat-landlord, therefore, if this view be
correct, when collecting an amount in excess of the amount lawfully recoverable,
will not render himself liable to the penalty provided in sec. 75, for the exaction
of a sum in excess of the amount of rent lawfully recoverable, provided the
amount collected is lawfully payable. Similarly, a proprietor whose name has
not been registered under Act VII, B. C, of 1876, or who has not lodged
the returns required of him under Act IX, B. C, of 1880, and the transferee of a
permanent tenure, who has not given notice to the Collector and paid him the
landlord's fee, as required by sec. 16 of this Act, may yet collect rent from their
tenants, though unable to recover it from them by suit (see notes to sees. 48 and 75).
It is to be further noted that, to be rent, the amount payable or deliverable
must be payable or deliverable to the landlord. Hence, a sum of money pay-
able in accordance with an agreement between the tenant and his landlord, not
to the landlord himself, but to a third person (for instance, a superior land-
lord), is not rent, and cannot be recovered as such. It can, however, be recovered
as damages (Ratnessar Biswas v. Harish Chandra Basu, I. L. R., 11 Calc, 221).
In another case, in which a zamindar sold a taluk, but stipulated for the
annual payment to him of a small sum called dasturat, by the purchaser, it was
held this annual demand was not rent, as the relation of landlord and tenant did
not exist between the parties {Ram Cham Banarji v. Torita Cham Pal, 18 W. R.,
343).

DEFINITIONS. 15

Money recoverable under any enactment for the time being in force Chap, I.
as rent.— Sums payable to the proprietors of lands under the Hugli and Sicc^3.
Burdwan Drainage Act (V of 1871, B. C), to zamindars and tenure-holders under
sec. 38 of the Bengal Survey Act (V of 1875, B. C), to the holders of estates or
tenures under sec. 47 of the Cess Act (IX of 1880, B. C), and to zamindars or
tenure-holders under sec. 74 of the Bengal Embankment Act (II of 1882, B. C),
are recoverable as " rent."

Rent is moveable property. — It has been held that for the purposes of
Acts VIII and X of 1859 rent comes within the terms " property " and " move-
able property " (Mohesh Chandra Chatarji v. Owni Prasad Rai, 13 W. R, 401).

(6) " Pay," " payable," and " payment," used with re-
ference to rent, include " deliver," " deliverable " and " deli-
very."

(7) "Tenure" means the interest of a tenure-holder
or an under-tenure-holder.

See note on the definition of tenure-holder given in sec. 5, el. 1.

Another definition of "tenure" is given in sec. 1, Act VII of 1868, B. C.

Throughout this Act, the term " tenure " is used in its strict sense of the
interest of a tenure-holder ; but in the rulings of the High Court under the old
law, it is often used as syaonymous with " tenancy," and sometimes in the sense of
a raiyat's interest. The reader should guard himself against concluding that iu
these rulings the word "tenure" necessarily applies only to the interest of a
tenure-holder as defined in this Act.

(8) " Permanent tenure " means a tenure which is herita-
ble and which is not held for a limited time.

See note under sec. 10.

(9) "Holding" means a parcel or parcels of land held
by a raiyat and forming the subject of a separate tenancy.

The term "holding" is often popularly used to denote a tenure or under-
tenure, and is sometimes confused with "tenancy." But this is incorrect. A
"holding" is the interest of a '■^raiyat." Strictly speaking, the interest of an
" under-raiyat " is not a " holding ; " but this would appear to be an inadvertence
on the part of the framers of this Act.

Suppose a raiyat was let into occupation of certain plots at a particular time,
and was let into occupation of other plots at a subsequent time at the same rate
of rent. Do the latter plots form a " separate tenancy," or is the holding one ?
The answer to this question will depend on the arrangement made by the raiyat
with the landlord. Ordinarily, the question of one or two holdings will be a
matter of contract, but, contract apart, there would appear to be two separate
holdings in the case above supposed.

(10) "Village" means an area included in a village
map of the revenue-survey within the same exterior boundary,

1 n THE BENGAL TENANCY ACT.

^"'cT's^' ^^» ^^^^^^ ^^ ^^^^ maps have been prepared, such area as

— any officer appointed by the Local Government in this behalf

may determine after local inquiry held on such notice as the

Local Government considers sufficient for giving information

to all persons interested.

Village — It is to be noted that the Tillage, as above defined, is limited to
the area included in a map of the revenue-survey within the same exterior
boundary (where such maps have been prepared), though the village boundary
may have been altered by decrees of the Civil Courts since the revenue-
survey was made, and though the boundary by possession may not be in harmony
with the boundary shown on the map. As rights of occupancy under sec. 20
accrue to " settled raiyats " in all lands which they hold in the village, it becomes
necessary that the village boundary, for the purpose of ascertaining the " en-
velope " of the occupancy right, be demarcated according to the revenue-survey
maps, and the rules for the demarcation of village boundaries framed by the
Local Government under Chap. X of this Act (see Chap. VI, Rule 4, Appendix I)
provide that this shall be done. They, however, further provide that when the
boundary according to possession is different from the revenue-survey village
boundary, the boundary according to possession shall also be shown on the
map.

Revenue-survey maps have been prepared for all the territories subject to
the Lieutenant-Governor of Bengal, to which the provisions of this Act apply,
except the Jungle Mehals of Midnapore and certain hilly tracts in the district
of Chittagong. No officer has as yet been appointed by the Local Government to
determine village areas in these localities.

(11) "Agricultural year" means, where the Bengali
year prevails, the year commencing on the first day of Bysak ;
where the Fasli or Arnli year prevails, the year commencing
on the first day of Asin ; and, where any other year prevails
for agricultural purposes, that year.

Agricultural year —The FasK or Amlf year prevails in all the districts of
the Patna Division, in the districts of Bhagulpur and Monghyr, in the Dha-
rampur Pargana in the west of the Purneah district, and in the Godda Subdivision
of the Santhal Parganas. The 1st November, 1885, the date of commencement of
this Act, corresponded with the 9th Kartick, 1292, according to the Faslf or Amlf
year. The Villaiti year prevails in Orissa. It commences each year on a vary-
ing date. The 1st November, 1885, corresponded with 18th Kartick, 1293, of
the Villaiti year. The Maghi year prevails in the district of Chittagong. It
begins, like the Bengali year, on the 1st Bysdk ; and on the 1st November, 1885,
it was the 17th Kartick, 1247, according to the Maghi year. The Bengali year
prevails in all other parts of Bengal. On the 1st November, 1885, it was the
17th Kartik, 1292, according to the Bengali year. "When the agricultural year
is not referred to in the Act, the words " year " and " month " in the Act mean
a year and month reckoned according to the British Calendar (cl. 4, sec. 2, Act I
of 1868).

DEFINITIONS. 1J

Q2) "Permanent Settlement" means the Permanent Ch**'-„''

^ ' ^ ^ Skc. 3.

Settlement of Bengal, Behar and Orissa, made in the year —
1793.

The Permanent Settlement dates from the 22nd March, 1793. (Dhanpat Singh
V. Guman Singh, W. R., Sp. No., 1864, Act X, 61 ; Rajessari Debi v. Shibnath
Chatarji, 4 W. R., Act X, 42.)

(13) "Succession" includes both intestate and testa-
mentary succession.

(14) "Signed" includes "marked" when the person
makino- the mark is unable to write his name; it also includes
" stamped " with the name of the person referred to.

(15) " Prescribed" means prescribed from time to time
by the Local Government by notification in the official
Gazette.

(16) "Collector" means the Collector of a district or
any other officer appointed by the Local Government to
discharge any of the functions of a Collector under this
Act.

Deputy Collectors and Sub- Deputy Collectors do not come within this definition
of " Collector, " unless specially empowered by Government to exercise any of the
powers of a Collector under this Act. By a notification, dated the 7th October,
1886, published in the Calcutta Gazette of the 13th October, 1886, all officers in
charge of sub-divisions were under the provisions of this sub-section vested with
the powers of a Collector for the purpose of discharging the functions referred
to in sections 12, 13, and 15 of the Act. By a notification, dated the 21st April,
1886, all officers in charge of sub-divisions were vested with the powers of a
Collector for the purpose of discharging the functions referred to in sections 69
to 71 of the Act.

(17) " Revenue-officer " in any provision of this Act
includes any officer whom the Local Government may ap-
point by name or by virtue of his office to discharge any
of the functions of a Revenue-officer under that provi-
sion.

The Board of Revenue in a letter. No. 883, dated the 4th August 1886,
addressed to the Commissioner of Patna, have said that the Collector has ex-officio
the powers of a Revenue-officer under the provisions of this Act. In the Board's
Settlement rules, it is pointed out that " under sec. 3 (17) of the Tenancy Act,
officers cannot be vested with the general powers of a Revenue-officer, but with
certain functions only as specified in certain provisions of the Act." (Bd.'s Settle-
ment Manual, Ch. I, rule 14, p. 5.)

11. & F., B. T. A. 2

1 j^ THE BENGAL TENANCY ACT,

cmap. I. (18) " Registered " means registered under any Act for

— the time being in force for the restriction of documents.

Documents relating to the relations of landlord and tenant may be divided
into the following classes : (1) deeds of sale or transfer of the interest of the
landlord or tenant ; (2) leases ; (3) contracts of enhancement of rent ; and (4)
documents creating incumbrances on tenures and holdings.

Registration of Deeds of sale or transfer. — Deeds of sale or transfer of
rights in or of tangible immoveable property of the value of one hundred rupees
and upwards must be registered. (Sec. 17, Act III of 1877, and sec. 54, Act IV
of 1882.) Formerly, the registration of deeds of sale and transfer of such rights
in or of such property of value less than one hundred rupees was optional
(sec. 18, Act III of 1877) ; but since the passing of Act IV of 1882, such sales or
transfers cannot be made by unregistered deed, but only by registered instrument or
by delivery of the property. {Narain Chandra Chakrahartiv. Dataram liai, I. L. R.,
8 dale, 597.) All registered non-testamentary deeds relating to moveable or im-
moveable property take effect against oral agreements or declarations relating to
the same property, unless accompanied or followed by delivery of possession
(sec. 48, Act III of 1877), and all registered non-testamentary instruments creating
rights of the value of one hundred rupees and upwards in immoveable property,
take effect as regards the property comjirised therein as against all unregistered
instruments relating to the same property, not baing decrees or orders (sec. 50,
Act III of 1877). Previous to the passing of Act IV of 1832, there was considera-
ble controversy as to the effect of sec. 50, Act III of 1877, and as to whether
priority should be given to registered over unregistered deeds relating to immove-
able property, when the latter were accompanied by possession. The result of the
High Court rulings, however, was that in the absence of fraud or other circum-
stances, which would in equity protect the unregistered purchaser, the title of
the registered purchaser would prevail. {Fazludin v. Fakir Mahomed, I. L. R., 5
Calc, 336 4 C. L. R., 257.) But if the subsequent registered purchaser took with
notice of the prior unregistered purchase, the title of the prior unregistered
purchaser would prevail. {N'emii Charn Dhahcd v. Kokil Baj, I. L. R., 6 Calc,
534 ; Dinonath Ghosh v. Aulak Mani Debi, I. L. R., 7 Calc, 753 ; Narain Chandra
Chakraharti v. Dataram Rai, I. L. R., 8 Calc, 597 ; Chandra Xath Rai v. Bhairah
Chandra Sarmah, I. L. R., 10 Calc, 250 ; Bnma Sundari Dasi v. Krishna Chandra
Dhar, I. L. R., 10 Calc, 424 ; Nani Bibiv. Hafizvllah, I. L. R., 10 Calc, 1073 ; BluiU
Rai V. Jakhu Rai, 11 Calc, 667 ; Solano v. Ram Lai, 7 C. L. R., 481 ; Ahxd Hossain
V. Raghunath Saha, I. K R., 13 Calc, 70). Since the passing of Act IV of 1882-,
no conflict between registered and unregistered deeds of sale of tangible immove-
able property can arise, as there can be no unregistered deeds for the sale of such
property of less value than rupees one liundred. All deeds for the sale of such
property, whether of the value of rupees one hundred and upwards, or under, must
be registered. The above provisions of law are, however, subject to the provisions
of sees. 12 to 18 of this Act. Sections 12 to 17 make the registration of deeds of
transfer of permanent tenures by sale, gift or mortgage compulsory. Under the old
law, dependent talukdars and other persons posse.ssing a permanent transferable
interest in land, intermediate between the proprietor and the cultivator, were bound
to register in the sherista of the zamindar, or superior tenant to whom rents were
payable, all transfers of such taluks, but were not bound to register before a
registering officer. The changes made in this respect are described in detail in

hegistration. jg

the notes to sees. 12 to 17. Section 18 makes the same rule applicable with Chap. I.
regard to the transfer of the holdings of raiyats holding at fixed rates. Hence, Skc^3.
oral agreements or declarations relating to the transfer of permanent tenures or
raiyati holdings at fixed rates are of no effect, even if accompanied or followed
by possession. However, the provisions of sec. 48, Act III of 1877, will be appli-
cable to ordinary raiyati holdings, which, when transferable, may be validly
transferred by delivery of possession. But all deeds of sale of such interests,
whatever may be their value, must under sec. 54, Act IV of 1882, be registered.

Meaning of " lease " in this Act.— The term "lease" is not defined in the
present Act. In sec. 3, Act III of 1877, it is defined as including " a
counterpart, kabiiliyat, an undertaking to cultivate or occupy, and an agreement
to lease." In sec. 3, cl. 12, Act I of 1879, it is defined as meaning "a lease of
immoveable property," and as including " (a) a pattd, (6) a kabiiliyat or other
undertaking in writing, not being a counterpart of a lease, to cultivate, occupy
or deliver or pay rent for immoveable property, (c) any instrument by which
tolls of any description are let, and (d) any writing on an application for a lease
intending to signify that the application is granted." These definitions are, how-
ever, too wide for the purposes of this Act. Perhaps, the best definition of the
term is that given in Field's Digest, p. 3, where it is defined as meaning " a
contract creating or continuing the relation of landlord and tenant, and executed
by the landlord in favour of the tenant." It is to be observed that, in this Act,
the word " lease " is sometimes used alone, and sometimes the words " written
lease " are used. In all these cases, " lease " would appear to mean a written
lease, and not to include a parol contract of letting, though there is room for
doubt on this point.

Cultivators' leases exempt from stamp-duty. — Art. 13, Sched. II, Act I
of 1879, exempts from stamp-duty a lease executed in the case of a cultivator
without the payment or delivery of any fine or premium, when a definite term
is expressed, and such term does not exceed one year, or when the annual rent
reserved does not exceed one hundred rupees (see In re Bhavdn Bddhar, I. L. E.,
6 Bom., 691), and the counterpart of a lease granted to a cultivator. By the
term "cultivator" is meant only those persons, who actually cultivate the soil
themselves, or who cultivate it by members of their household, or by their
servants or by hired labour, and with their own or hired stock, and not farmers,
middlemen, or lessees, even though cultivation may be carried on to some extent
by such persons in the area covered by their lease (I. L. E., 5 AIL, 360).

Registration of agricultural leases, when compulsory. — Under cl. (c?),
sec. 17, Act III of 1877 (The Indian Eegistration Act), the "registration of leases
of immoveable property from year to yeai-, or for any term exceeding one year,
or reserving a yearly rent," is compulsory. There is no exemption in favour of
agricultural leases ; so that all agricultural leases for a term above one year,
however small the value of the property leased, must be registered. (Omar v.
Abdul Gaffur, 9 W. E., 425.) When the form of a pottah is expressed by the
words sanbasan (or year by year), a year-by-year tenancy is meant, and such a
pottah is a lease for a term exceeding one year, and must therefore be registered.
{Ram Kumar Mandal v. Brajahari Mirdha, 2 B. L. E., A. C, 75 ; 10 W. E., 410).
A lease for moi'e than a year is not the less a lease, because a condition is attached
i' to the consideration, and because its terms may be lessened on the payment of a
!i sum of money by the lessor. Such a le^se must be registered. {Baksh AH Bhumya
V. Nohotara, 13 W. E., 468.) But, under the proviso to clause .((^), sec. 17, the

20 THE BENGAL TENANCY ACT.

Chap. I, Local Government may exempt leases in any particular district for a term of less
Skc. 3. than five years, and of a rental of less than Rs. 50, from compulsoiy registration.
Under this proviso, the Local Government exempted leases in the districts of Gya
and Shahabad, if for a term of two years only, from compulsory registration (see
Notification in the Calcutta Gazette of Aug. 15th, 1866), but this notification has
now been cancelled (see Notification of May 17th, 1886.) Under this section
it has been held that, when a kahuliyat for one year contains a provision extend-
ing its term to more than a year, its registration is indispensable {Krishna Kali
MuTishi v. Agemona Bewa, 15 W. R., 170), and a lease, which is to remain in force
until another is granted, must be registered. ( Venkatachellam Chetti v. Audian^
I. L. R., 3 Mad., 358.) A proposal to lease, if accepted, and if the propo.sal and accept-
ance constitute a contract in writing, must also be registered. {Safdar Reza
V. Amzad AH, I. L. R., 7 Calc, 703 ; 10 C. L. R., 121 ; Lai Jha v. Negru, I. L. R.,
7 dale, 717.) On the other hand, a lease for one year certain, containing
an expression on the tenant's part of readiness to hold the land longer at the same
rent, if the landlord should desire it, has been held not to be a lease for a
term exceeding one year, and therefore need not be registered. {Apu Badgavda
V. Narhari Annaji, I. L. R., 3 Bom., 21.) See also Jagadish Chandra Biswas
v. Ahedullah Mandal (14 W. R., 68), and Southo Prasad 3as v. Parasu Fadhan (26
W. R., 98). Registration is also not required in the case of an amaldastak, executed
for the purpose of giving possession, pending the execution of the formal instru-
ment {Banwari Lai v. Sangam Lai, 7 W. R., 280) ; of a daul, and of an
amaldari, which are mere preliminaries to a lease {Golak Kishor Acharji v.
Nanda Mohan Be, 12 W. R., 394 ; Lachmessar Singh v. Dukho, I. L. R., 7 Calc,
708 ; 10 C. L. R., 127) ; of a daul fihrist, which is merely a memorandum by a
zamindar's agent of the rates of rent agreed upon, and to which the tenants affix
their signatures in token of such agreement {Oanga Prasad v. Gogan Singh,
I. L. R., 3 Calc, 322 ; Kartik Pandi v. Khakan Singh, 1 C. L. R., 328), and of a
datd darkhast, or petition asking for a lease {Chuni Mandar v. Chandi Lai
Das, 14 W. R., 178 ; Meherunnissa v. Ahdul Ghani, 17 W. R., 509 ; Safdar
Reza v. Amzad AH, I. L. R, 7 Calc, 703 ; Lai Jha v. Negru, L L. R., 7 Calc, 717).
Further, an entry in a book of the lessor and signed by the lessee, which shows
the extent of the holding and the rent payable in respect of it, is not a lease, or
an agreement to lease, but an admission, and need not be registered. {Narain
Kumari v. Ram Krishna Das, T. L. R., 5 Calc, 864.)

Registration of agricultural leases, when optional. — Under cl. (c), sec
18 of Act III of 1877, the registration of leases of immoveable property for any
term not exceeding one year, and leases exempted by the Local Government from
registration, is optional. The provisions of sec. 54, Act IV of 1882, do not apply to
leases of immoveable property ; so that leases of land of less value than one hundred
rupees, if committed to writing, need not be registered, if for a term not exceed-
ing one year. Parol contracts of letting, if accompanied or followed by possession,
will, of course, under sec. 48, Act III of 1877 be valid, even against subsequent
registered leases, and under sec. 50 of the same Act registered leases will prevail
against unregistered documents of the same class, even when accompanied by
possession, subject, however, no doubt to the rule laid down in the High Court
decisions quoted above, that the subsequent lessee under the registered lease has
not taken with notice of the previous unregistered lease.

Registration of under-raiyats' leases. — A lease executed by a raiyat land-
ord in favour of an under-raiyat must be registered, if the rent payable by the

REGISTRATION. 21

under-raiyat exceeds that paid by the raiyat-landlord by more than 25 per cent. Chap. I.
(sec. 48). Further, a lease- executed by a raiyat in favour of an under-raiyat is not Skc^3.
valid against the landlord of the raiyat, without that landlord's consent, unless it be-
registered ; and no such lease can be admitted to registration, if it purjwrts to
create a term exceeding nine years. Finally, a registered sub-lease executed with-
out the consent of the landlord of the raiyat before the commencement of the
Tenancy Act is not valid for more than nine years from the commencement of
the Act (sec. 85).

Unregistered leases, the registration of which is compulsory, cannot
be received in evidence.— Under sec. 49, Act III of 1877, no document, the
registration of which is compulsory, can be received in evidence, unless it has been
duly registered, and, in this case, under sec. 91 of the Evidence Act no secondary
evidence of its contents is admissible. {Manmohini Dasi v. Bishnu Mayi Dasi,
7 W. R., 112 ; Omar v. Abdul Gaffur, 9 W. R., 425 ; Rahmatullah v. Shanatullah
Kagchi, 1 B. L. R., F. B., 58 ; 10 W. R., F. B., 51 ; Ram Kumar Mandal v.
Brajahari Mirdha, 2 B. L. R., A. C, 75 ; 10 W. R., 410 ; Kabulan v. Shamsher
All, 11 W. R., 16 ; Dino Nath Mukharji v. Deh Nath Mallik, 13 W. R., 307 ; Crowdie
V. Kullar Chaudhri, 21 W. R., 307.) But where the contract between the parties
to a rent suit is in no way disputed or denied, and the fact of certain lands having
been taken at a certain rent is admitted, the only issue being whether the rent
has been paid or not, the case may be tried, notwithstanding that the kabuliyat
is inadmissible by reason of non-registration. {Dino Nath Mukharji v. Deh Nath
Mallik, 14 W. R., 429 ; see also Reza Khan v. Bhikan Khan, 7 W. R., 334.)
The plea as to the inadmissibility of evidence for want of registration must be
taken in the Court below ; otherwise it cannot be allowed in special appeal. (Currie
V. Chatty, 11 W. R., 520 ; Grish Chandra Rai v. Amina Khatun, 3 B. L. R.,
App., 125.)

Registration of contracts for enhancement of rent. — Contracts for the
enhancement of the rent of both occupancy and non-occupancy-raiyats must, under
the provisions of sees. 29 and 43 of this Act, be registered ; but this will not prevent
a landlord from recovering rent at the rate at which it has been actually paid
for a period of not less than three years immediately preceding the period for
which the rent is claimed.

Registration of incumbrances on tenures and holdings.— The term "in-
cumbrance," used with reference to a tenancy, means any lien, sub-tenancy, easement,
or other right or interest, created by the tenant on his tenure or holding or in
limitation of his own interest therein, and not being a " protected interest," as
defined in sec. 160 of this Act (see sec. 161). Chap. XIV, which deals with the
subject of sales for arrears of rent, provides that tenures and holdings sold for
arrears shall first be sold subject to all registered and notified incumbrances (sec.
164), and if the bidding does not reach a sum sufficient to liquidate the decretal
tmount, the tenure or holding can then be sold with power to avoid all incum-
brances (sec. 165). Under sec. 175 a document, creating an incumbrance and
i jxecuted before the commencement of this Act, and Jiot required to be registered
inder sec. 17 of the Registration Act, must be admitted to registration, if presented
vithin a year of the commencement of this Act, and notwithstanding anything
iontained in Part IV of the Registration Act, which prescribes four months from
.he date of execution as the time within which documents must be presented for
•egistration. Under sec. 176, the registering officer is bound to notify the incum-
jrance to the landlord.

THE BENGAL TENANCY ACT.

Chap. II. Documents, except sub-leases, even if invalid, must be registered. —

S»rB. 4, 5. jj; would appear that a registering officer cannot refuse to admit to registration
a contract made between a landlord and a tenant, purporting to bar in perpetuity
the acquisition of an occupancy-right, or contravening in any other way the pro-
visions of sec. 178 of the Act, though such contract would be illegal and invalid.
The illegality or immorality of a contract is no ground for refusing to admit it to
registration. A sub-lease for a term of more than nine years cannot, however,
under sec. 85 (2), be admitted to registration ; and it is a curious fact that this
is apparently the only instance in which registration may be refused on the
ground of the illegality, immorality or invalidity, of the document.

CHAPTER II.

Classes of Tenants.

4. There shall be, for the purposes of this Act, the
Classes of tenants. following classes of tenants, (namely) : —

(1) tenure-holders, including under-tenure-holders,

(2) raiyats, and

(3) under-raiyats, that is to say, tenants holding whether
immediately or mediately under raiyats ;

and the following classes of raiyats, (namely) : —

(a) raiyats holding at fixed rates, which expression

means raiyats holding either at a rent fixed in
perpetuity, or at a rate of rent fixed in perpetuity,

(b) occupancy- raiyats, that is to say, raiyats having a

right of occupancy in the land held by them, and

having such a right of occupancy.

It is to be observed that occupancy rights, whether transferable or non-
transferable, are distinctly excluded from the category of tenures. The ruling
of the High Court in the case of Krishtendra Rai v. Aina Beica (I. L. R, 8 Calc,
675 ; 10 C. L. R., 399), that the interest of any raiyat who has a transferable
jote is an " under-tenure," is accordingly set aside by the provisions of this
section.

5. (1) "Tenure-holder" means primarily a person who
Meaning of ' tenure- has acquired from a proprietor or from an-

hoider" and "raiyat." other tenuve-holdcr a right to hold land
for the purpose of collecting rents or bringing it under cul-
tivation by establishing tenants on it, and includes also the

CLASSES OF TENANTS. 23

successors in interest of persons who have acquired such a c«ap. ii.
right.

Definition of " tenure-holder,"— The definition of tenure - holder, given in
this section, is not an exhaustive one. It has been found impossible, the Eent Com-
mission Report says (see paragraph 20, p. 10), " to discover any principle of distinc-
tion between raiyats and tenure-holders, or under-tenure-holders, which will hold
good universally, or even in a large majority of cases. If cultivation be taken as
the test whether the interest of a particular tenant is a tenure, (or under-tenure),
or a raiyati holding, a talukdar, tenure-holder, or under-tenure-holder may cul-
tivate land forming part of his taluk, tenure, or under-tenure, while the person
commonly called a raiyat may have sublet his entire holding, and may not him-
self cultivate a single square foot. It is impossible, therefore, to say that, under
all circumstances, the person who cultivates is a raiyat, and the person who does
not cultivate is a tenure-holder. If the receipt of rents from persons in the
actual occupation of the land be considered the essence of a tenure-holder or
under-tenure-holder, then we find raiyats also sub-letting and receiving rents
from their tenants in actual occupation. If hereditability be tried, the raiyat'a
interest, the raiyat's holding is heritable as well as the taluk. Is transferability the
test ? The raiyat's jama, independently of Acts X of 1859, and VIII of 1869, is
commonly transferable by custom. Is saleability for its own arrears set up as the
true distinction ? The landlord, of his own option, brings raiyats' holdings to sale in
execution of decrees for rent ; while a tenure or under-tenure is not subject to the
special law for the sale of uuder-tenures for the recovery of arrears of rent due in
respect thereof, unless it is so saleable by the title-deeds or established usage of the
country. If the quantity of rent paid by the tenant be supposed to be the point
of distinction, then, in Rungpore the rent of a jote varies from one rupee to half a
lakh of rupees ; while in other districts the rent of many taluks is but a few rupees."
As the law stood before the commencement of this Act, the decision of the
question whether a particular individual was a tenure-holder or a raiyat, was
entirely dependent on the discretion and judgment of the individual officer who
had to decide it ; and as each individual was a law to himself, it was impossible to
forecast the decision in any particular case. The definition of " tenure " in this Act,
if not complete, at least affords some indication of the principle on which the Courts
should proceed. The principle of the definition is the same as that of the High Court
decision in the case of Durga Prasanno Ghosh v. Kali Das Datta (9 C. L. R., 449),
in which it is said, " the only test of a raiyat's interest is to see in what condition
the laud was when the tenancy was created. If raiyats were already in posses-
sion of the land when the interest was created, and the interest was a right, not
to the actual physical possession of the land, but to collect the rents from the
raiyats, the interest is not raiyati " (in other words, it is a tenure). " If, on the
other hand, the land was jungle, or uncultivated, or unoccupied, and the tenant
was let into physical possession of the land, the interest would be raiyati, and
the nature of that interest would not be altered by the fact of the tenant sub-
sequently sub-letting to under-tenants." (See also Ram Mangal Ohosh v. Lakhi
Narain Shaha, 1 W. R., 71 ; Karu Lai Thakur v. Lachmipat Dugar, 7 W. R., 15 ;
and Kali Cham Singh v. Amirudin, 9 W. R., 579.) Further assistance is giveil
to the Courts in the task of distinguishing between a tenure-holder and a raiyat
by the provisions of sub-sec. 5 of this section, which prescribe that when a
tenant holds more than a hundred bighas of land, he shall be presumed to be
a tenure-holder, and not a raiyat ; but there is no corresponding presumption as

24 THE BENGAL TENANCY ACT.

Chap. II. to the status of a tenant holding le.s8 than one hundred bighas of land, who
bKc^. jjiay consequently be either a tenure-holder, under-tenure-holder, or raiyat. The
following illustrations, taken from the Rent Commission's Draft Bill, sec. 3, will
further elucidate the question of what is a tenure-holder.

llluBtrationt, -

(a.) " kpatni interest is a tenure."

(6.) " An ijarah, or farm for a term of years, is a tenure."

(c.) " A holds 120 biglias of valid revenue-free lan«l, situate within the limits of B's
revenue-paying estate, and nor, included under any entry in the General Uei^ister of Uevenue-
free lands, maintained by the Collector of the district, under the law for the time being in force.
This land is in the actual possession of raiyats, who pay their rents to A. The interest of A in
such land is a tenure."

(<f.) " B, the proprietor of a revenue-paying estate, makes a rent-free grant to A of 50
bighas of land, included in such estate, and in the actual possession of raiyats. A by virtue
of such grant, becomes entitled to the rents payable by these raiyats. A's interest in these
60 bighas is a tenure."

The third of these illustrations applies to the case of a lakhirajdar, who holds
revenue-free land. The fourth applies to a lakhirajdar, who is the holder of rent-
free land. The land mentioned in illustration (c) is, under this Act, an estate ;
and the lakhirajdar, a proprietor. The lakhirajdar, mentioned in illustration {d)
is, in the case supposed, a tenure-holder ; but if the land were in his own actual
occupation, he would be a raiyat.

Right to hold land for the purpose of collecting rents.— The words " for
the purpose of collecting rents " in this definition of the term " tenure-holder " no .
doubt give room for the contention that the land referred to in this sub-section is
not necessarily agricultural or horticultural land. As has already been pointed out,
the Rent Commission in their Report (paragraph 11, p. 9), obsei-ved, " it has never
been doubted that the rents of tenures and under-tenures are recoverable under
these Acts" (X of 1859 and VIII, B. C, of 1869), " and these commonly include
much more than land used for agricultural or horticultural purposes." But the
fact that the tenants of a tenure-holder must be either raiyats, or under- raiyats,
that is, tenants who have taken land, at least in the first instance, for the purpose of
cultivating it, shows that the land, which can form the subject of a tenure, to which
the provisions of this Act will apply, must be land, wholly or mainly agricultural
or horticultural, including of course waste land, fit for purposes of agriculture,
horticulture, pasture, forestry, or purposes akin thereto.

(2) " Raiyat " means primarily a person who has acquired
a right to hold land for the purpose of cultivating it by
himself, or by members of his family, or by hired servants,
or with the aid of partners, and includes also the successors
in interest of persons who have acquired such a right.

Explayiation. — Where a tenant of land has the right to
bring it under cultivation, he shall be deemed to have acquired
a right to hold it for the purpose of cultivation notwithstand-
ing that he uses it for the purpose of gathering the produce
of it or of grazing cattle on it.

CLASSES OF TENANTS. 2Sl

Definition of raiyat.— The definition of "raiyat" here given is in accor- Crap. II.
dance with the High Court rulings under the old law in the cases of Dhanpat Singh Skc\ 5.
V. Guman Singh, (W. R., Sp. No., Act X., 61) ; Ram Mangal Ghosh v. Lakhi
Narain Saha (1 W. R., 71) ; and Kali Cham Singh v. Amiruddin, (9 W. R., 579).
In Dhanpat Singh v. Guman Sing, it was said : " It is veiy difficult to lay
down any general interpretation of the word " ryots." As a general rule, they
are the cultivating tenants, but they may not be cultivators at all themselves :
they may cultivate their land by hired labour, or by nnder-tenants." In Ram
Mangal Ghosh v. Lakhi Narain Saha " raiyat," was defined as " one who held land
under cultivation by himself or others, who took " {qtuere, work) " for him under
his supervision as a superior cultivator," and in Kali Churn Singh v. Amiruddin,
it was explained that " the benefits of sec. 6, Act X of 1859 are not restricted
to those who with their own hands till the soil, but extend to those who are
bond fide actually cultivators in the sense that they derive the profit from the pro-
duce directly." The definition of raiyat given in this sub-section is not an exhaustive
one. It is to be noted that it is not necessary that a raiyat should either be an
actual cultivator, or that his land should actually be under cultivation. It is
sufficient if he has a right to cultivate it. Thus, in Uma Cham Datta v. Uma
Tara Debi (8 W. R., 181), in which case the defendant had taken a pottah to clear
and cultivate a chak, or large area of land in the sundarbans, at a progressive
rate of rent it was said that, " if he cleared some of the land not by his own
labour, but by settling raiyats under him on the said chak, this does not alter the
original character of his holding." Again, in Khajurunnissa Begam v. Ahmed Reza,
(11 W. R., 88), it has been said that "a raiyat does not become a middle-man,
simply because, instead of cultivating the land, he erects shops on it, and receives
profits from the shop-keepers." These rulings, though under Act X of 1859, are
in complete accordance with the provisions of this sub-section.

(3) A person shall not be deemed to be a raiyat unless
he holds land either immediately under a proprietor or imme-
diately under a tenure-holder.

(4) In determining whether a tenant is a tenure-holder
or a raiyat, the Court shall have regard to —

(a) local custom ; and

(6) the purpose for which the right of tenancy was origi-
nally acquired.

Clause (a). — This clause must be read in connection with sec. 183, which
lays down that " nothing in this Act shall affect any custom, usage, or customary
right not inconsistent with, or not expressly, or by necessary implication, modified
or abolished by, its provisions. On this subject, see note to sec. 183.

Clause (b). — Clause (6) is of much importance in connection with cases in
which the tenant has erected buildings on the land. It has been repeatedly held
by the High Court that, when a tenant has taken land for agricultural purposes,
and has erected buildings on it, he still continues a "raiyat." See Khajurun-
nissa Begam V. Ahmad Reza (11 W. R., 88) ; Lai Sahu v. Deo Narain Singh (I. L. R.,
3 Calc, 781 ; 2 C. L. R., 294) ; Prasanno Kumar Chatarji v. Jagannath Baisak
(10 C. L. R., 25) ; Prasanno Kmnari Debi v. Ratan Baipari (I. L. R., 3 Calc, 696).

2 (J THE BENGAL TENANCY ACT.

CiiAP. n. On the other hand, where it appears that the land was originally let for building
Skc. 5. purposes, or that the tenant has, with his landlord's consent, erected houses on it,
and resided there for a long time, it has been held that a Court will be justified
in presuming that the grant was of a permanent nature. The tenant is then
not a " raiyat," and the rent law will probably not be applicable to the land.
{Prasanno Kumar Chatarji v. Jagannath Baisak, 10 C. L. R., 25 ; Gangcvdhar
Shikdar v. Ayimuddin Shah Biswas, I, L, R, 8 Calc, 960 ; 11 C. L. E., 281.)

(5) Where the area held by a tenant exceeds one hundred
standard bighas, the tenant shall be presumed to be a tenure-
holder until the contrary is shewn.

The presumption raised by this sub-section is, of course, a rebuttable one ;
and although the tenant, who holds more than one hundred bighas, shall be pre-
sumed to be a tenure-holder (or under-tenure-holder), whether he or his landlord
wishes it or not, there is no such presumption as to the tenant who holds one
hundred bighas or less. He may be a tenure-holder, or raiyat, as he and his land-
lord wish and agree at the time of commencement of the tenancy, or subsequently,
accordingly as he comes under the definition of tenure-holder or raiyat, as given
in this Act.

Can a tenant belong to more than one class ?— It has been asked with
reference to the provisions of this chapter, " must a tenant belong to only one of
the classes of tenants mentioned in sec. 4, or can he belong to more than one of
them ? " The answer would seem to be that, in respect to the same tenure or
holding, a tenant cannot belong to more than one of these classes of tenants, but
there is nothing to prevent his belonging to more than one of them in respect to
different tenures or holdings.

Interests in land in Bengal.— Jagirs, Altamgha, and Madadmash
grants, Kharija Taluks, and Mukaddami interests. -It is almost impossible
to give an accui-ate and exhaustive list of the different kinds of tenancies prevalent
in the Lower Provinces of Bengal, but it may be useful to note here some of the
principal ones, to explain their nature and the designations by which they are
known, and to distinguish, as far as possible, to which class, whether to the class
of tenures, or to that of holdings, they properly belong. Before doing so,
however, it may be as well to point out that there are certain so-called tenures
prevalent in Bengal, such as Jagirs, Altamgha, Madadmash, and Ohatwali tenures,
which do not properly come within the category of tenures as defined in this Act.
Thw&, jagirs {irom ja, a place, and gir, taking or occupying) are assignments of
the public reveime, made by the Mohammedan Government. They are, therefore,
"estates," and jagirdars are "proprietors." They were originally life-grants
only, but have now become estates of inheritance. It has been held that the
Courts can entertain suits for the possession of the land of such grants. {Forester
V. The Secretary of State, 12 B. L. R., 120.) Certain grants of land made rent-
tree by zamindars are also caXXeA. jagirs. Such lands are tenures, and not estates.
Similarly, Altamgha grants (from al, red, and tamgha, a stamp) are grants made
by the former native rulers of India, of revenue-free land, and they also are estates.
They are grants in perpetuity not resumable by the zamindar, {Unide Rajaha
Raje Bommarauze v. Pemmasamy Venkatradry Naidu, 7 Moo. I. A., 128) ; though
the terms Altamgha or Altamgha Enam in a royal grant do not of themselves

INTERESTS IN LAN'D. 27

convey an absolute proprietary right to the grantee {Jewan Das Sahu v. Shah Cii»p. II.
Kahirudin, 2 Moo. I. A., 390). Madadmash grants (from madad, assistance, and Shc. o.
'inash, livelihood) are also assignments of revenue by the Government for the
support of learned and religious Mohammedans, or of benevolent institutions.
(Kaniz Fatima v. Sahiba Jan, 8 W. E., 313.) They are, therefore, not tenures, but
estates according to this Act. Many taluks are also estates, and not tenures, as
the term would seem to imply ; for the term taluk comes from the Arabic word,
alak, to depend upon. A taluk, therefore, originally meant in Bengal an interest
subordinate to that of a zamindar. But at the time of the Permanent Settlement
some taluks were made independent of the zamindars, and their revenue was
made payable directly to the Government. Such taluks, and all similar taluks
subsequently created, are known as Kharija or Haziiri taluks, as distinguished
from Shikmi or Mazkuri taluks, the rent of which continued payable to the
zamindar. Certain interests in land to which the designation of Mukaddami
(from Mukaddam, the headman of a village) is applied, are also " estates." " In
Cuttack," it is said by Wilson, " the Mukaddams are divided into two classes, the
Mazkuri Mukaddams, who pay revenue direct to Government, the term Mazkuri
having here the reverse of its usual meaning, and the Zati or Jati Mukaddams,
who pay through an intermediate revenue - payer, or Malguzar." (Wilson's
Glossary, p. 351.) Mukaddami interests are to be met with in the Bhaghalpore
district as well as in Cuttack. The ghatwali lands in pergunnahs Singhal and
Deoghar, in the district of Bhirbhum, the revenue of which is payable directly
to Government under the provisions of Reg. XXIX of 1814, would also seem
to be " estates " in the language of this Act.

Tenures. — Turning now to tenures properly so called, they may be divided
into two classes, viz., (1) rent-free, and (2) rent-paying tenures. Brahmatter,
dehatter, and piratter lands granted by proprietors rent-free are examples of the
first class. Of the second, taluks are the most common instances. As previously
explained, besides independent or Kharija and Huziiri taluks, certain other taluks
were at the time of the Permanent Settlement left dependent on the zamindars.
These are Shikmi taluks (from Shikm, the belly). They are also called Mazkuri,
or specified taluks, because they were specified in the zamindars' engagements
with Government. They are also known as Shamili or Muffassal taluks (from
Shamil, extending to, or including, and mufassal, separate or distinct). Such
taluks " ai'e heritable and transferable, but not necessarily held at a fixed rate,
which cannot be raised, unless there is a special stipulation to this effect "
(Field's Laud-holding, p. 705). Other taluks are known as patni taluks (from ,

pattan, letting to, or settling). They originated in the estates of the Maharaja of
Burdwan, and are dealt with in Reg. VIII of 1819, which describes them as
taluks granted by the zamindar to be held at a rent fixed in perpetuity by the
lessee and his heirs for ever. These tenures are not only heritable, but capable
of being transferred by sale, gift or otherwise, at the discretion of the holder,
as well as answerable for his personal debts and subject to the process of the
Courts of Judicature in the same manner as other real property. They can be
sold summarily twice a year on application to the Collector, if the rent is not paid ;
and if the proceeds of the sale do not cover the arrears, the remaining
property of the defaulter is answerable for the balance. Another class of
taluks is peculiar to the Chittagong district. "The talukdars of Chittagong,"
Mr. Cotton says, " enjoy a title based on original reclamation of the soil. The
taluk is the unit of the Chittagong revenue administration : its possession still

18 THE BENGAL TENANCY ACT.

Chap. II. implies a proprietary interest. A taluk is transferable and heritable. A taluk
Skc. 5. carries with it,* the right of fixity of tenure, fair rent, and free sale. The entire
cultivated area of Chittagong is, roughly speaking, divided among the holders of
these taluks, most of whom cultivate personally. The account given of this
district by the Collector, Mr. Fryer, on the 25th August 1794, the year
after the Permanent Settlement, is equally applicable at the present day.
He writes : ' The minute sub-division of the landed property of this province
has given existence to a body of land-holders unknown elsewhere. Though
nominally mere tenants of a larger estate, they, in fact, feel themselves confirmed
by custom and a series of precedents of the adawlat as the actual proprietors of
the soil of even the smallest portion into which land can be divided. Secure in
their possessions, independent of, and unconnected with, each other, each in-
dividual family forms an independent household in the neighbourhood of its little
hereditary estate, and supports itself on the surplus produce of its cultivation.' "
" The average size of a taluk," Mr. Cotton goes on to say, " is not more than five
or six acres ; but where the holding is of any size, or where a person owns more
than one, a portion only is reserved as nij-jote, and the rest is leased to itmaradars,
or cultivators. An itmam + is, like the taluk, Kaimi, and carries with it fixity
of tenure and of rent. The itmaradar is also generally a cultivator, but he enjoys
the same power as the talukdar of granting permanent leases to under-tenants ;
hence, the creation of dar-itmams and kaimi raiyati leases. According to the
practice of the district, these permanent holdings are brought by the terms of
their leases under tlie patni procedure, and are saleable for arrears of rent under
Reg. VIII of 1819." (Government of Bengal Report, 1884, Vol. II, p. 213.)
The taluks and other tenures of Chittagong have been described by Mr.
E. E. Lowis, late Commissioner of that division, in connection with the settle-
ments of the Government estate called Noabad, in that district, as follows :
" We have first the tarafdarSy who were originally collectors of revenue on the
part of Government, and representatives of the vast number of small proprietary
interests, scattered over the country. These estates were not grouped into compact
and convenient circles, but the original clearers of waste land seem to have elected
their own representative. The Permanent Settlement was concluded with these
revenue collectors, and hence, the estates on the rent-roll are of a very scattered
description, and form to this day mere aggregate of taluks, some of new
creation, but a great many of them dating from a period anterior not only to
the Decennial Settlement but even to our occupation of the country. Under the
tarafs, we have the taluk, which originally conveyed a distinct proprietary title,
the land being held in virtue of original reclamation from jungle, subject to a
fixed rate, which it was the intention of the framers of the Permanent Settle-
ment should remain fixed, and not subject to enhancement. The holding also
carried with it certain rights and privileges, which have been in many cases
lost and allowed to lapse ; but, shorn though it is of much of its former value,
the taluk continues to be a valued holding, and does still carry with it distinct
proprietary rights, such as the right to grant permanent leases ; while in popular
estimation, the talukdar is still the zamindar. Under the taluk again, come
itmams, dar-itmams and kaimi raiyati leases ; while there are some holdings,

* This must be understood as applj'ing only to the tahiks of Chittagong.

f The word Itmam or Etmam is a corruption of Jhtimam, an Arabic word, meaning " trust."
It is applied in early financial reports to the large zamiudaries of Burdwan, Rajshahye, and
Tipperati.

Sec. 5.

INTERESTS IN LAND. 29

which originally only unprivileged ones, have come to be fixed and permanent. Chap. II.
All of the above, with the exception of the tarafdar, do sometimes cultivate ;
and below them again is the actual tiller of the soil, who holds on what is
practically a yearly engagement, and whose rate of rent is subject to variation,
up or down, according to the state of the rice market and the demand for
land." (See Commissioner of Chittagong's No. 72 ct., dated 8th December 1882,
to the Secretary to Board of Revenue, paragraph 46.) As regards the Noabad
talukdars, Mr. Lowis observes that " they base their claims on exactly the
same grounds as do other talukdars, viz., original reclamation of the soil.
The term 'Noabad' signifies new cultivation, and it was one well understood
under Mahommedan rule, the increase of revenue due to new lands being a
recognised item in the accounts under the head of ' ezafa ' " (see paragraph 48 of
the same letter). "Since 1841, however," he adds, "it was practically held that
the Noabad talukdars had no rights, except the right of settlement at any rate
of rent the Government may choose to impose." The Board of Revenue did not,
however, accept the Commissioner's views of the status of the Noabad talukdars,
as above stated, and after full and careful scrutiny of all the documents bearing
on the subject, they held that the incidents of a Noabad taluk, as now recognised,
differ from those of a full proprietaiy or zamindari right in temporarily settled
estates in many important respects. " In common with such estates," they remark-
ed, " the Noabad talukdar's right is recognized as being heritable, transferable
and divisible ; the revenue demand is liable to be settled periodically at such an
amount as the Government shall think fit ; at a re-settlement the revenue officers
are bound, under the existing laws, to record the amount of rent demandable
from each raiyat, and the amount so recorded, unless altered by the Civil Court,
is binding both on the raiyat and his landlord for ten (now fifteen) years. At each
renewal of settlement, the talukdar is entitled to an offer of re-settlement on the
amount of revenue assessed by Government. The following are the principal
points in which the tenure falls short of a complete proprietary zamindari right.

* " Clause 2. — The talukdar is not entitled to claim partition of his taluk.
" Clause 3. — On the occurrence of an arrear in the payment of revenue, his

taluk is liable to sale under sec. 11 of Act VII (B. C), of 1868, or liable to
be brought under khas management on cancellation of the engagement, the
arrears being recovered under the certificate procedure.

"Clause 7. — The talukdar is bound to offer a lease at current rates to any
person who clears jungle.

" Clause 13. — For violation of any of the conditions of his engagement, the
Government has power to cancel the engagement, and thereupon the talukdar
loses all right in the taluk. Under special conditions, imposed by order of Go-
vernment, the protection against enhancement of the rents recorded as payable
by them is extended beyond ten years till the settlement expires, and similar
protection is extended to many raiyats, who had not acquired rights of occupancy
at the time of settlement ; and, lastly, the most material distinction between
the taluk and the proprietary zamindari right is contained in the 14th clause."

" In case of my refusal to engage for the payment of the amount of revenue,
which Government may hereafter deem expedient to fix for the land included in
this engagement, I shall be liable to ejectment from the land, and I, having no
proprietary right, shall not have any claim for the malikana." (Board of

♦ The clauses here referred to are clauses of a kabuliyat which the raiyats of the Noabad
estate have to execute in favour of Government.

O THE BENGAL TENANCY ACT,

Chap. II. Revenue's No. 693 A, dated 18th August 188.3, to Government of Bengal, para-
Skc. 5. grabs 8 and 9.) The views of the Board just quoted were accepted by Govem-
"""" ment. They were, moreover, acted upon in the settlement proceedings, in which,
in some cases, the rent or revenue previously paid by certain talukdars was
enhanced, and they were not contested by the talukdars. They may, there-
fore, be now regarded as authoritative on the points noted. The itniamdars of
Chittagong are under-tenure holders, subordinate to the talukdars and created
by them. If the talukdars do not themselves enjoy tenancies at fixed rents, it is
evident that they caimot have created such tenancies binding as against Govern-
ment, though they may have created subordinate tenures at fixed rates, which
may be binding as against themselves. The refusal by a Settlement Officer to
recognise an under-tenure at fixed rates created by a talukdar as binding on
Government in its assessment of the revenue demand, because it was created
without proper authority, is not tantamount to a cancelment of the contract
between the talukdar and his undertenant as regards the collection and pay-
ment of rent. Sarharakari tenancies (from Sarharakar, a manager or steward),
appear to be service tenures. They are prevalent in the districts of Orissa.
The status of the Sarbai-akars of Khurdah in the district of Pooree is thus
described by the Bengal Government ( letter No. 124T, dated 5th May 1881,
to the Board of Revenue ) in the late settlement proceedings of that estate.
"They are in some respgcts Government servants only, but nevertheless are
responsible for the full rent of their villages. Their status is, in fact, a mixed and
peculiar one. They will be public accountants, liable primd facie for the full
rents ; but, if on the issue of certificates against them, it is found that they really
have not been able to collect more than they have paid, and that the failure to
collect is, from some cause beyond their control, then the certificates will not be
made absolute against them, and they will be allowed time to take out cer-
tificates against the defaulting raiyats.' ( Khurdah Settlement Selections, 1882,
Vol. Ill, p. 74.) The Sarbarakars in Government estates are allowed either in
the shape of land, for which they pay no rent, or money, a percentage of 20 per
cent, on their collections, and other perquisites, such as the rent they collect on
lands newly cultivated, the proceeds from dead wood and unsettled fruit trees,
and a share of all fish caught. Tliey have the further right of taking possession
of lands, which have been abandoned, or which have become vacant by the death
of raiyats without successors. They are in return responsible for the collection
of the revenue, the keeping of the raiyats' accounts, and the correction and main-
tenance of the settlement records and maps. Mr. "Wilkinson in his settlement
report expressed an opinion " that the office of Sarbarakar in Khurdah was
hereditary and divisible under the Hindoo Law of inheritance ; " but Mr. Halli-
day, then at the Sudder Board, differed from him. The Government agreed with
Mr. Halliday, and in paragraph 5 of its orders, dated 22nd August, 1837, remark-
ed : " As regards the Sarbarakars who, as has been found by Mr. Wilkinson,
are merely collectors of certain fixed rents, receiving in land and in a share of
the rental about 20 per cent, on the collections. His Lordship entirely agrees
with Mr. Halliday that neither the engagements with Government, nor the lands
by which the service rendered is remunerated, should be matters of inheritance
and liable to sub-division among heirs. The Government has clearly the power
to forbid its offices — and such the Sarbarakarships of Khurdah clearly are — or the
lands by which the holders of those offices are remunerated, from being sub-
divided, and the determination to assert and use this power should be distinctly
notified to the parties coucerued in the manner suggested by Mr. Halliday in

INTERESTS IK LAND. 3|

paragraph 7 of his Memorandum. The Board will be pleased to direct according- Chap. II.
ly that on all future occasions, except in very particular cases, individuals only Skc. 5.
should be recognised and dealt with as Sarbarakars." In Government order,
No. 1650, dated 31st July 1874, the following passages occur, in which the
disability of Sarbarakars to alienate their jagir lands is affirmed. " With reference
to the Commissioner's recommendation that the Sarbarakars are not to be
permitted to sell, mortgage, or in any way incumber any sort of Jagir lands,
the Lieutenant-Governor fully concurs in the necessity of enforcing the rule
as regards service lands only, as distinguished from the lakhiraj or non-official
jagirs, held by the Sarbarakars, to which latter class the proliibition is not to
apply ; " while in Government order. No. 1640, L. R, dated 28th April 1880, it
is said : " It must be clearly understood that such dulhehras and dalloees, as have
been admitted to engage as Sarbarakars, are on precisely the same footing as other
Sarbarakars, and that their tenure of the jagir lands is not a right personal to the
holders, but is attached to the post of Sarbarakar, — a post which is held at the
pleasure of Government." (Khurdah Settlemeut Selections, 1882, Vol. Ill, p. 62.)
There are also numerous judicial rulings to the effect that Sarharakari tenures
are indivisible and inalienable without the zamindar's consent. (See Podmalochan
Mandal v. Lakhan Barraah, 2 S. D. A., 1860, 109 ; Diirjodhan Das v. Chuya Dayi,
1 "W. R, 322 ; Sadai Piirira v. Boistoh Purira, 12 B. L. R, 84 ; 15 W. R, 261 ;
Kashi Nath Pani v. Lakhmani Prasad Patnaik, 19 W. R, 99 ; Dassorathi Hari
Chandra Mahapatra v. Rama Krishna Jana, I. L. R., 9 Calc, 526 ; and Bhuhan
Pariw. Shamanand De,\. L. R., 11 Calc, 699). There is one ruling, however,
in which such tenures have been held to be transferable. (See Sadanand Mahanti
V. Nauratan Mahanti, 8 B. L. R., 280 ; 16 W. R., 290.) Other tenancies coming
under the head of tenures are Zati Mokadami tenures, already described, and Birt
tenures (from the Sanskrit word Vritti, maintenance). The latter tenures are
heritable {Mohendra Singh v. Jokha Singh, 19 W. R., 211) and "transferable, and
the annual rent is fixed in perpetuity, but sometimes part of the land is to
be held rent-free and the rest of it is to be subject to enhancement." (Field's
Landholding, p. 739.) Birt tenures prevail principally in the North-West-
ern Provinces, and particularly in the Gorukpore district, but hekhhirt tenures
(probably from hhikh, begging, alms), are said to exist in the Sarun district,
and to be often of a considerable size. Mirasdari tenures (from Waras to
inherit) prevail in Sylhet. Miras pottahs are freely granted in the district of
Dacca and in East Bengal. The interests created by such pottahs are
no doubt permanent and heritable, and the rent fixed in perpetuity. But they
are probably not, strictly speaking, tenures, but rather raiyati holdings at fixed «

rates. There is also a tenure current in the Rungpore district, called upanchaki,
from panchaki, a cess of one-fifth. It is an istimrari or perpetual tenure {Shih
Kumar Joti v. Kali Prasad Sen, 1 B. L. R., A. C, 167), but apparently not a
mokarari one ; for in Madhah Janah v. Raj Krishna Mukharji (7 W. R., 86), it was
held that a zamindar may sue to enhance panchaki lakhiraj land, without pre-
viously suing for its resumption. The cause of action in this suit, however, arose
in the Hooghly district. Many ghativali and other service tenures are also
tenures in the language of this Act.

Temporary tenures or farming leases, are known in Bengal as Ijaras,
from ijara, price, profit, and in Behar, as Thikas (from thik, exact). Mustajir is
also a term applied to a farmer, but it seems to be no longer in general use.
Zar-i-peshgi leases are also common in Behar. Zar-i-p3shgi, means " an advance

32 THE BENGAL TENANCY ACT.

Chap. II. of money on the security of a farm. A low-rent, called Hak-a-giri is usually
Skc. 5. reserved to the lessor-mortgagor, and the lessor's right of re-entry at the end
of the term is contingent upon the payment of the advance, either in money or
by the usufruct of the land ." SaUia Patua and Siidhharna leases are leases under
which " the whole rent is retained by the lessee until the entire interest and prin-
cipal of the debt are liquidated." * These leases are peculiar to Behar, and, it is
said, that Satua Patua leases are common in the Sarun district.

Under-tenures. — According to the Rent Commis3ioners,+ the under-tenures
of the Backergunge district are as follows : (1) Zimma taluk ; (2) Sharailat taluk ;
(3) Ashat taluk ; (4) Nim ashat taluk ; (5) Howla ; (6) Ashat howla ; (7) Nim ashat
howla ; (8) Nim howla ; (9) Ashat nim howla ; (10) Miras karsha ; and (11) Kaim
karsha. (See Jagat Chandra Rai v. Ram Narain Bhattacharji, 1 W. R., 126 ; Madhah
Chandra Ghosh v. Nilkant Shaha Rai, 2 W. R., 42 ; Mahomed Kadir v. Podmamala,
2 W. R, 185 ; Durga Chum Kar v. Anand Mayi Debt, 3 W. R., 127 ; Hari Cham
Basu V. Meharunissa Bibi, 7 W. R., 318 ; Gopal Lai Thakur v. Tilak Chandra Rai,
10 Moo. I. A., 183 ; 3 W. R., P. C, 1.) Ashat comes from an Arabic word, wast,
meaning middle, and zimma and howla (a corruption of howala) signify trust. A
former Collector of Backergunge, Mr. R. C. Dutt, has said that " Kaim karsha means
permanent cultivating right, and miras karsha means heritable cultivating right,
but both these rights are permanent and heritable by custom, and are reckoned as
tenures, and not as raiyati holdings. (Government of Bengal Report, 1884, Vol. II,
p. 228.) The under-tenures subordinate to patni taluks are dar-patni, se-patni and
chahar-piitni taluks. The holders of such under-tenures posse&s all the rights and
immunities belonging to patnidars ; but these under-tenures cannot be sold
summarily as the tenure of the patnidar can. On the other hand, their interests
are liable to be annulled by the summary sale of the patni. Tenures subordinate
to Ijaras and Thikas are known as dar-ijaras, katkinas, and dar-katkinas.

Raiyati holdings. — The word " raiyat," it may be here explained, means " sub-
ject," and comes from an Arabic word meaning to pasture, feed, or protect. The
highest class of raiyati interests is that of raiyati holdings at fixed rents. It is
generally considered that the guzasta holdings of Shahabad and the gorahandi
holdings of Bhaghalpore and Monghyr belong to this class. Thus, the conference
of officers assembled at Patna in 1884, to report on the provisions of the Rent
Bill, expressed an opinion that Guzastadars hold at fixed rates (Government of
Bengal Report, 1884, Vol. II, p. 81) ; but this has not yet been settled by the
Courts. (See Jatto Moar v. Basmuti Koer, 15 W. R., 479 ; Tetra Koer v. Bhanjan
Rai, 21 W. R., 268, and Lai Sahu v. Deo Narain Sing, I. L. R., 3 Calc, 781 ; 2 C. L. R.,
294.) Gorahandi holdings are described by Sir William Hunter in his accounts
of the Bhaghalpore and Monghyr districts (see Hunter's Gazetteer, Vol. XIV,
p. 143, and Vol. XV, p. 117) as raiyati holdings at fixed rents, and the Bhaghalpore
Conference declared that they were satisfied that the term gorahandi is now used
and understood by the raiyats as meaning a raiyati holding at fixed rates.
(Government of Bengal Report, 1884, Vol. II., p. 113.) But this point has not
yet been decided by the Courts. (See Lilanand Singh v. Nirpat Mahtun, 17 W. R.,
306 ; Buti Singh v. Murat Singh, 13 B. L. R., 284, note ; 20 W. R., 478 ; and
Chattarbhuj Bharti v. Janki Prasad Singh, 4 C. L. R., 298.) All mukarrari holdings
are, of course, holdings at fixed rates.

* Whiiifield'g Law of Landlord and Tenant, p. 38.

t Report of the Rent Law Commission, paragraph 15, p. 7.

INTERESTS IN LAND. 33

Ordinary raiyati holdings.— Ordinary raiyati holdings are known througli- Chap. II.
out Bengal as Jotes. The Rent Commissioners give an extract from a letter from Skc. 5.
the Collector of Rungpore (Mr. Glazier), written in 1876, in which he says :
"The raiyat who holds direct from the zamindar is called a jotedar, and liis hold-
ing is a jote, whatever its size, which may, and does vary, from one jjaying a I'ent

of one ru})ee, to one of which the rent is half a lakh Jotes are saleable

quite irresjiective of the term during which they have been held, whether jotes
held direct from the zamindar, or chukani jotes, which are held from a jotedar.
If a man gets a jote to-day, he can legally transfer it by sale to-morrow. Such
sales of jotes by registered deed or on decree of Court are of daily occurrence."
(Rent Commission Report, Vol. I para. 14, p. 10). The transferability of the jotes
of Rungpore, has been admitted by the Courts in the case of Haro Mohan Mukkarji
v. Lalaii Mani Dasi (1 W. R., 5) ; but this characteristic does not necessarily
apply to the jotes of other parts of Bengal. The same interest is known in other
districts of Bengal by names peculiar to the district. Thus, in Nuddea, Jessore,
and the 24-Pergunnahs it is called a ganthi, which is a Sanskrit word, meaning
a knot or engagement. (See Bipin Bihari Chaudhri v. Ram Chandra Rai, 5 B. L.
R., 234.) In parts of the 24-Pergunnahs it is known as a thika, in the Sundarbans,
as a chak\ in Backergange as a karsha^ and in Chittagong as an etinani (properly
Ihtimam) — though, as already pointed out, an etmam seems, in Chittagong to have
all the characteristics of a tenure. In Jessore, jotedar and ganthidar seem to
mean the same thing. A jotedar or ganthidar may or may not have the right to
hold at fixed rates ; but he has not necessarily such a right, simply because he is
called jotedar or ganthidar. There, therefore, appears to be no inherent distinction
in Jessore between jotedar, ganthidar, and praja, and the incidents of a holding
belonging to a tenant, who is known by one or other of these designations, must
be determined by evidence, and must not be assumed to be of any particular
description, simply because of the designation by which the owner of the holding
is known. (Government of Bengal Report on the Tenancy Bill, 1883, Vol. II
p. 588.) In Behar, a raiyat is called kashtkar or asami. A jote is often called
a jama, but this term is properly applicable to the rent payable for it. Other
terms applied to jotedars in Bengal are aimadars, mandals, and jangalburi raiyats.
The word Aima is the plural of Imam, a saint, and aimas are, strictly speaking,
grants, either rent-free or subject to the payment of a small quit-rent, made by
the Moglial Government to learned and religious persons of the Mahomedan
faith, or for religious and charitable uses in relation to Mahomedanism. But
the Rent Commission state that the aimadars of Midnapore have been decided
by the Civil Courts to be only raiyats having a right of occujiancy. (See Rent
Commission Report, Vol. I, para. 16, p. 11 ). Aimas are common not only in Midna-
pore, but in the neighbouring districts of Hooghly and Burdwan. Another class of
raiyats, the Mindals of Midnapore, are said by the Rent Commission to have
come into existence in the following manner : " The zemindar granted a tract
of waste land to a substantial raiyat, termed an abadkar, who undertook to bring
it under cultivation, paying the zamindar a stipulated lump sum as rent. This
abadkar, partly by the labour of his own family and dependants, and partly by
inducing other raiyats to settle under him, gradually reclaimed the greater part of
the grant and established a village upon it, to which he usually gave his name, and,
as the head of the settlement, he was called mandal or headman. The zamindar
and the mandal from time to time re-adjusted the terms of their bargain but the
zamindar never interfered between the mandal and his under-tenants. In Settle-
ment Proceedings of 1839 these mandals were declared to have only the rights of
R. & F., D. T. A. o

THE BENGAL TENANCY ACT.

Chap. II. Sthani or khudkaxht ryots, and not to be entitled to any munafa or profit ; but
Site. 6. thougli not exactly recognized as talukdars, they gradually acquired rights superior
to those of ordinary khiidkasht raiyats ; and, as they were left to make their own
terms with the raiyats settled by them, they must have had a very considerable
profit, besides what they obtained from any land cultivated by themselves. Their
mandali right became transferable by custom ; and when at the Settlement they
came into immediate contact with Government, though not recognized as regular
talukdars, they were held entitled to the consideration which in Bengal has usually
been accorded to the first reclaimer of the virgin-soil. The Government in Settle-
ment-proceedings deducted fifteen per centum from the gross jama in their favour ;
and, after some demur, they accepted this as a sufficient vecognitiou of their
Btatua." (Kent Commission Report, Vol. I, para. 17, p. 11.) Jangalhuri leases
{buri means cutting) are reclaiming leases. Sec. 8, Reg. VIII of 1793, now re-
pealed, describes jangalhuri taluks as hereditary and transferable taluks, granted
for the clearance of jungle-land at first rent-free, and after the expiration of a
certain time subject to a specific rent on so much of the land as is brought into
cultivation, the rent being adjusted according to pargana rates. But such
leases would create tenures or raiyati interests according as it was intended that
the original lessee should merely establish tenants on the land, or bring the land
into cultivation by means of his own labour, and that of his family and servants.
Another raiyati interest is the utbandi tenancy, sometimes called a nuksan jote,
which prevails in the Nuddea district. It is a tenancy from year to year — and
sometimes from season to season — the rent being regulated according to the area
under cultivation by the appraisement of the crops on the ground, and according
to its character. The cultivators may change their lands every year; but,
as a rule, they can keep them for certain for three years, if they elect to
do so. Generally, the lands under this system are cultivated from one to
five years, and then left fallow for the same period. (See note to sec. 181.)
Another similar system of cultivation is known as the halhasili system, under
which lands are held from year to year, the rent varying sometimes according
to the area of land cultivated, and sometimes according to the crop raised each
year. This system prevails in the Patna district (where it is also called bar
ahara fasl patta), in North Bhaghalpore, in Purneah, and in Maldah. In Patna,
it is said, the cash-rent is determined on the spot on inspection of the crops as
they stand. In North Bhaghalpore, the lands cultivated each year are measured,
and rent is charged for at the prevailing rate for the class of land under cul-
tivation. No allowance is made for partial failure. In Purneah, the rates former-
ly varied with the actual crops grown, but now, as a general rule, one rate pre-
vails for all crops. In Maldah, two kinds of halhasili tenancies prevail. In the
south of the district, the tenants take a lease of a specified area of land, for
which they are bound to pay a specified rent for the rabi crop, whether cul-
tivated or not, and an additional rent, at a specified rate, for such lands of the
holding as bear a bhadoi or second crop. In the north of Maldah, the halhasili
system involves a cliange of lands by individual raiyats at least once in every
three years, if not oftener. But a tendency has grown up to retain continuously
under cultivation the most favoured qualities of land, and only to exchange the
more distant and less fertile lands. A local peculiarity, as regards exchange of land,
is, if the land, not required for the cultivation of the season, is remote from the
bank of a river, the zamindar at once resumes it on the tenant ceasing to use
it. If it is near a river, the tenant does not give up his lien, but has to pay the
zamindar a small rental on each bigha of vuiused laud, generally calculated on the

INTERESTS IN LAND. 35

supposition that the land has yielded one crop during the year. This arrangement Chap. II.
is again modified by conditions of population. Where the demand for land is small, Skc. 5,
the zamindar is glad to accept anything he can get from the holder of the disused
land. The Patna Conference reported that the following other systems of tenancy
prevail in Behar: (1) The hastbudi system, the name of which is derived from hast
(that which exists), and bud (that which did exist). This is veiy similar to the
utbandi system. The rate of rent is fixed at so much a bigha, but rent is charged
oidy for so much area as is actually bearing crops at the time of the harvest.
(2) The balkat, a tenancy similar to the kalhasili, and in which the rent is fixed
by calculation, on the field, of the quantity of the produce and its price. (3) Jaidddi
a peculiar system adopted on bad and uncertain lands such as deara, or riparian,
land subject to inundation, the principle of which is that the full rent agreed
upon is paid on land in any year in which any crop whatever is grown upon it.
(4) The mani bandobast (from man, a maund), under which the rent (calculated
in money) varies with the price of grain. The Bhaghalpore Conference reported
that the following additional systems of tenancy prevailed in the Bhaghalpore
division : (1) the hussoaphar, which is said to prevail in the Muddehpurah sub-
division on the banks of the Kosi and Gugri, and under which the i-aiyats pay
rent only for lands on which crops are reaped, — the reason for this being the danger
of destruction by inundation ; (2) the hastabudi, which prevails in the north-east
of Bhaghalpore, where the raiyat pays a separate rent for each crop he cultivates
according to area ; and (3) the sairdbddi, under which a raiyat cultivates for the
season any lands he can get possession of, and pays cash rent according to
the area on which the crop is raised. Many service-tenancies, such as tenancies
of chuukidari and chakeran lands, are probably raiyati interests and not tenures ;
but their incidents are not affected by this Act (see sec. 181).

Under-raiyats, — An under-raiyat is generally known in Bengal as kurpha
praja. When under-raiyats halve the produce with their raiyat-landlord, they
are called burgadara or adhiyadars. In Rungpore they go by the name of chukani-
dars, and dar-chukanidars, in Backergunge by that of kole kurshadars, in Behar
by that of Shikmi, petao, or kaloiti raiyats. In certain parts of the Purneah
district a ploughman's interest is called dhotar. The under-raiyat finds his own
plough, and pays half the produce as the rent of the land. In Behar, a system
of sub-letting to indigo-planters, called the kartaoli system, has sprung up. The
Collector of Sarun describes it thus : " A kurtaoU lease is a sub-lease by a raiyat
of his whole holding to the indigo-planter with the condition that the planter
is to retain a certain specified portion of the land for indigo, and that he is to re- ,

sub-let the rest to the raiyat lessor." .... In " nine cases out of ten, it is a defensive
alliance between the planter and the raiyat against the interference and exactions
of the zamindars. The planter assumes the whole of the raiyat's responsibility in
regard to the payment of the rent of the holding and effectually protects him

from harassment and illegal exactions The raiyat, at the same time, is safe,

under the terms of the lease, in the possession of his other lands (viz., those which

the planter does not require for indigo) The planter, on the other hand,

is safe from being suddenly ousted, and having his indigo-crops distrained and
sold in a rent-suit by the zamindar against the raiyat." (Government of Bengal
Report, 1884, Vol. II, p. 95.)

But with regard to all the interests in land described above, it is to be re-
marked that it is most unsafe for the Courts to base any conclusions as to the in-
cidents of any particular interest on the fact of its bearing a particular designation.

36 THE BENGAL TENANCY ACT.

Chap. III. As pointed out above, the incidents of a jote in Rungpore are very different
Skc. 6. fi'om those of a jote in Jessore. Shikmi land in Gya is alleged by the tenants
to be land held at a fixed rate of rent ; while in other parts of Behar and Bengal
ahikmi tenants are under-raiyats with very limited rights. The incidents of a
aarharakari tenure in the Balasore district are not necessarily identical witli those
of a tenure of the same name in Pooree, and the incidents of a sarbarakari tenui-e
may differ, even in the same district, according as it is held vuider Government
or under a private zamindar. It is, therefore, advisable for Courts to take evidence
on the subject before coming to any conclusion as to what the incidents of a
tenure or holding are.

CHAPTER III.
Tenure-holders.
Enhancement of Rent.
, , , . 6. Where a tenure has been held from

Tenure held since

Permanent Settlement the time of the Permanent Settlement, its

liable to enhancement i -n i t i i

only in certain cases. rent shall not be liable to enhancement ex-
Keg, viii of nys.s.oi ^ J,

cept on proof —

[a) that the landlord under whom it is held is entitled
to enhance the rent thereof either by local custom
or by the conditions under which the tenure is
held, or

[h) that the tenure-holder, by receiving reductions of his
rent, otherwise than on account of a diminution
of the area of the tenure, has subjected himself to
the payment of the increase demanded, and that the
lands are capable of affording it.

This section applies to tenures not held at a fixed rent or rate of
rent. — This section applies to tenures which have been held from the time of the
Permanent Settlement, but not at a fixed rent, or fixed rate of rent. Tenures
which have been held from the time of the Permanent Settlement at a fixed rent,
or fixed rate of rent, are dealt with in sec. 50 ; and it will be seen, on reference
to that section, tliat the rent of such tenures cannot be enhanced except on proof
of increase in area. It would at tii-st sight appear, from there being no mention
of alteration in area in this section (i.e., sec. 6), that tenures held from the time
of the Permanent Settlement, but not at a fixed rent, or fixed rate of rent, ai-e
not liable to enhancement on the ground of increase in area ; while, from the
terms of cl. {b) it would seem, as if there were no provision made for the reduc-
tion of a tenure-holder's rent on account of a diminution in the area of his tenure.
But this is not the case. The present section must be read in connection with
sec. 52, which provides that every tenant shall be liable to pay additional rent
for all land i)roved by measurement to be in excess of tlie area for which rent

ENHANCEMENT OF RENT OF TENURES. 37

has been previously paid by liiui ; and shall be entitled to a reduction of rent in Chap. III.
respect of any deficiency proved by measurement to exist. S^o. 6,

This section founded on Sec. 51, Reg. VIII of 1793.— In the present sec-
tion are embodied the provisions of cl. I, sec. 51, Eeg. VIII of 1793. The terms
of the two sections are nearly identical ; but in the present section the expression
" local custom " has been substituted for the words " special custom of the district,"
which are used in the Regulation of 1793. Further, the words "otherwise than
on account of a diminution of the area of the tenui'e " have been inserted in
cl. (6) of the present section, so as to make it clear that a i-eduction in the rent
of a tenure, the area of which has been diminished by diluvion or other causes,
does not, on this account, render the rent of the tenure liable to subsequent
enhancement, provided that the tenure has existed from the time of the Perma-
nent Settlement.

Reductions of rent entitling landlord to enhance.— The reductions
alluded to in this section are clearly express reductions of rent for special reasons.
The simple fact that the rent has become less by degrees has been held not to be
an abatement of rent as contemplated by sec. 51. Reg. VIII of 1793 {Xobo
Krishna Mazumdar v. Tara Maui^ 12 W. R., 320) ; and in a suit by a zamindar
against his talukdar for an increase of rent under Reg. VIII of 1793, s. 51, the
notice nerved was held to be defective, because it did not state when, and for
what reason, the talukdar had received an abatement of his jama, and thereby
rendered himself liable for the increase demanded. (Noho Krishna Basu v. Mazam-
ndin Ahmad Chaudhri, 19 W. R., 338.)

No notices of enhancement now required.— Hitherto, before a proprietor
could proceed to enhance the rent of his tenure-holder under sec. 51. Reg. VIII
of 1793, he has been required by a long series of High Court decisions* to give
the talukdar a notice, specifying the grounds on which he is about to enhance,
though the law itself was silent on the subject. The present Act does not pre-
scribe the issue of any notices of enhancement. So large was the percentage of cases
that failed in the past, owing to absence of proof of service of these notices, or
owing to the notices being defective in form, that the issue of notices of enhance-
ment has, in this Act, been altogether dispensed with. The institution of the
enhancement-suit is now all the notice that is required to be given to the tenant.

Evidence of tenure being held from time of Permanent Settlement.—
As to the amount of evidence required to show that a tenure has been held from
tlie time of the Permanent Settlement, it is to be observed that it is not necessarv
that a taluk should have been registered at the time of the Decennial Settlement.
It is sufficient to show that the tenure existed, and was capable of being registered
at the time of the Decennial Settlement {Bama Sundari Dasi v. lladhikxt Chau-
dhurani, 13 Moo. I. A., 248 ; 4 B. L. R., P. C, 8 ; 13 W. R., P. C, 11 ; Nilmani
Singh V. Ram Chalrabarti, 21 W. R., 439 ; Ishan Chandra Banarji v. Harish
Chandra Shaha, 24 W. R., 146) ; and the fact that a shikmi taluk is not mentioned
in the Decennial or Quinquennial Settlement as such, and that the lands are
included in the Decennial Settlement as part of the zamindari for which the
jama is assessed on the zamindar, does not afford any strong inference against
the existence of the taluk at that time ; for the taluk, being only a shikmi taluk,

♦ 3 W. R., Act X, 26 ; 12 W. R., 112, 320, .506 ; 14 W. R., 251, 274 ; 15 W. R., 335 ; 7 B.
L. U., App. 44, 45, 47 ; 19 W. 1{., 338 ; 20 W. R., 459 ; 21 VV. R., 439 ; 25 W. R., 200 ; I. L. R.,
2 Calc, 125 ; I. L. R., 5 C.alc, 823.

THE BENGAL TENANCY ACT.

Chap. Hi. paying rent to the zainimlar, the talukdars were not required to mention it, nor
Skc. 7. y^as it necessary for the zaraindar to do so. ( Wise v, Bhuhan Mayi Dehi, 10 Moo.
I. A., 174.)

Onus of proof.— The onus of proof, when the question arises as to whether
a tenure has been held from the time of the Permanent Settlement or not, will
ordinarily lie on the tenure-holder, who raises this plea. {Oopal Lai Thakur v.
Tilak Chandra Rai, 10 Moo. I. A., 183 ; 3 W. R, P. C, 1.) But where it is found
that a taluk is a dependent taluk within the purview of sec. 51, Reg. VIII of
1793, the burden rests upon the plaintiff-zamindar to show that the rent is
variable. (Bama Sundari Dost v. Radhika Chaudhurani, 13 Moo. I. A., 248 ;
4 JB. L. R, P. C, 8 ; 13 W. R, P. C, 11.) In the case of lakhiraj lands, however,
which have been resumed by Government, and subsequently purchased by a
zamindar, who seeks to enhance the rent, it lies on the zamindar to show that the
land was included in the zamindari at the time of the Permanent Settlement.
{Ahsanullah v. Bassarat Ali Chaudhri, I. L. R, 10 Calc, 920.)

7. (1) Where the rent of a tenure-holder is liable to

Limits of enhance- enhancement, it may, subject to any con-

mentofrentof tenures. ^^,^^^ between the parties, be enhanced up

to the limit of the customary rate payable by persons holding
similar tenures in the vicinity.

(2) Where no such customary rate exists, it may, subject
as aforesaid, be enhanced up to such limit as the Court thinks
fair and equitable.

(3) In determining what is fair and equitable, the Court
shall not leave to the tenure-holder as profit less than ten
per centum of the balance which remains after deducting from
the gross rents payable to him the expenses of collecting
them, and shall have regard to —

(a) the circumstances under which the tenure was creat-
ed, for instance, whether the land comprised in the
tenure, or a great portion of it, was first brought
under cultivation by the agency, or at the expense,
of the tenure-holder or his predecessors in interest,
whether any fine or premium was paid on the
creation of the tenure, and whether the tenure was
originally created at a specially low rent for the
purpose of reclamation ; and

{h) the improvements, if any, made by the tenure-holder
or his predecessors in interest.

(4) If the tenure-holder himself occupies any portion

ENHANCEMENT OP RENT OP TENURES. 39

of the land included in the area of his tenure, or has made ^"ap. iir.
a grant of any portion of the land either rent-free or at a —
beneficial rent, a fair and equitable rent shall be calculated
for that portion and included in the gross rents aforesaid.

Customary rate. — The expression " customary rate " now takes the place of
" the pargana or current rates," which was the limit up to which a zamindar,
proceeding under sec. 51, Reg. VIII of 1793, could hitherto enhance. {Bama
Sundari Dan v. Radhika Chaudhiorani, 13 Moo. I. A., 248 ; 4 B. L. R., P. C, 8 ;
13 W. R., P. C, 11.) The Courts have hitherto held that the rents of talukdars are
not to be enhanced on the same grounds as those on which the rents of occupancy-
raiyats were enhanceable under the old law. Accordingly, in numerous cases,
it has been laid <lown, that talukdars' rents are to be enhanced according to the
rates paid by talukdars of a similar description, and holding the same quality of
land, and with similar advantages, and hot according to raiyatwari rates {Oauri
Prasad Das v. Swarnamayi, 6 W. R., Act X, 41 ; Mohima Chandra De v.
Guru Das Sen, 7 W. R., 285 ; Haro Sundari Chaudhuranix. Ananda Mohan Ghosh,
7 W. R., 459 ; Dhanpat Singh v. Guman Singh, 9 W. R., P. C, 3 ; Manikarnika
Chaudhri v. Anando Mayi Ckaudhri, 10 W. R., 245 ; Surasundari Dehi v. Ghulam
All, 19 TV". R., 142) ; and in a recent case (Bisheshari Dsbi Chaudhurani v. Hem
Chandra Chaudhri, I. L. R. 14 Calc, 133) it has been held that the rate of rent to
be fixed as payable by the tenure-holder must ordinarily be fixed with reference
to the rents paid by raiyats within the tenure itself, and not with reference to
those paid by raiyats in the neighbourhood outside the limits of the tenure. The
words " full customary rates " do not imply that the rates are permanently fixed,
and cannot be enhanced (Bharat Chandra Aich v. Gaur Mani Dasi, 11 W. R., 31 ;
Kasimuddin Khundkar v. Nadi Ali Tarafdar, 11 W. R., 164) ; and there is nothing
to prevent the rent of a dependent taluk, which has been once enhanced, from
being enhanced again {Bisheshari Dsbi Chaudhurani v. Hem Chandra Chaudhuri,
I. L. R., 14 Cal., 133.) But under sec. 9 of this Act, when the rent of a tenure-
liolder has been enhanced by the Court or by contract, it cannot be enhanced
again for fifteen years.

Limits up to which a tenure-holder's rent may be enhanced.— A Court,
when enhancing a tenure-holder's rent, may fix it at any rate which it thinks fair
and equitable, provided it leaves him a profit of 10 per cent, on the net collections.
In the case of tenure-holders there is no presumption as to the fairness and equity of
existing rents, as there is with regard to the rents of occupancy-raiyats (sec. 27), ,

and the provisions of sec. 104, which make such a presumption applicable to all
rents, only apply when settlement-proceedings under Chap. X of this Act are in
progress.

Tenure -holder's profits . — The case of Banchanand v. Hargopal Bhadri
(1 Sel. Rep., 145) first laid down the rule to be followed when it is impossible to
ascertain what the pargana-talukdari rates are, and fixed the customaiy profit of
the talukdar at 10 per cent. The principle laid down in this decision was
afterwards adopted by the Legislature in Reg. V, 1812, sec. 8 ; and thougli this
section was repealed by Act X of 1859 without any rule being substituted in its
place, its principle was generally recognized in the assessment of such tenures.
(See Mahomed Ainuddin v. Rajendra Chandra Neogi, 2 Board's Rep., 749.) In the
case of Ramkant Datta v. Ghidam JVabi Chaudhri (2 Sel. Rep., 55), however, the
Court, following " local custom," held, that the talukdar was entitled to hold free

40 THE BENGAL TENANCY ACT.

Chap. III. of assesHinent 4 kanee^s in every drone, as jihka (or land granted for the main-
Sk. s. X. j*. 10. tenance of a family), and 2 kanees, 4 gandas per drone, as 'inattan (or laud allotted
as remuneration for bringiiig waste lands into cultivation). In Bama Sundari
Dasiv. liadhika Chaitdhurani (1 W. R., 339), it was merely said that the talukdars,
not being common raiyat«, were entitled to a deduction for expenses of collection.
In the case of Sioamomayi v. Gauri Prasad Das (3 B. L. R., A. C, 270), only
6^ per cent, was allowed as the talukdar's profit ; but this was partly because it
was proved that he was realizing for bastu and other lands higher rates than tliose
allowed in the estimate on which the percentage was calculated. He was further
held entitled under a local custom, known as " Bishan Kancha" to a deduction of
2 kattas per bigha for certain lands, called "dokundah" lands, that i.s, lands
bearing two crops in the year, as well as 8^ per cent., as collection-cliarges.
The Legislature in sub-section (3) of the present section follows the rule laid
down in Banchanand v. Hargopal Bhadtiri and sec. 8, Reg. V of 1812, to this
extent, that it fixes 10 per cent, as the minimum percentage of profit to be left
' to the tenui'e-holder ; but it fixes no maximum. At one time it was proposed to

restrict the tenure-holder's profits to 30 per cent., and, on the other hand,
to provide that the enhanced rent should not be more than double the previous
rent. But both these restrictions were ultimately abandoned, and the section
now provides that a profit of at least 10 per cent, must be left to the tenure-
holder, while he can obtain as much more as the Court may think fair and
equitable.

8. The Court may, if it thinks that an immediate in-
Power to order gra- urease of rent would produce hardship,

dual enhancement, direct that the enhancement shall be gra-

dual ; that is to say, that the rent shall increase yearly by
degrees, for any number of years not exceeding five, until the
limit of the enhancement allowed has been reached.

9. AVhen the rent of a tenure-holder has been enhanced

by the Court or by contract, it shall not

Rent once enhanced , . , i i i /-i i •

may not be altered for 06 again enhanced by the Court during
n years. ^j^^ fifteen years next following the date

on which it has been so enhanced.

The provisions of this section may be compared with those of sec. 37 (1)
which limit a landlord's right of enhancing an occupancy-raiyat's rent to a
much greater extent than his right of enhancing a tenure-holder's rent is limited
by this section.

Oilier incidents of tenures.

10. A holder of a permanent tenure shall not be

Permanent tenure- ^J^^^^^ ^^ ^'^ landlord CXCCpt On the

holder not liable to ffround that he has broken a condition on

ejectment. r^

breach of which he is, under the terms

EJECTMENT OF TENURE-HOLDERS.

of a contract between him and his landlord, liable to be Chap. hi

ejected :

Provided that where the contract is made after the com-
mencement of this Act, the condition is consistent with the
provisions of this Act.

Permanent tenures how created.—Tenures become permanent, (l)by law,
(2) by contract, express or implied, and (3) by custom and course of dealing there-
with. Pattii tenures, under Reg. VIII of 1819, ai'e instances of tenures, which
are permanent by express provision of law.

Tenures permanent by contraot.— When tenures are made peiTnanent by
the express contract of the parties, there is no difficulty. Thus, words making
the tenures heritable, such as, "with your sons and grandsons in succession"
{Watson V. Jogeshioar Atta, Marsh., 330), or " do you, and the generations born of
your womb, successively enjoy the same " {Bhuhon Mohini Debt v. Harish Chandra
Chdiidhri^ I. L. E., 4 Calc, 23) clearly create permanent tenures, and the grant of an
absolute (jnusUikkil) inokarari to the grantee and her children from generation
to genei-ation gives a transferable interest of the most absolute kind which
does not revert to the grantor on failure of heirs {Himmat v. Sunit Koer
15 W. R. 549). But there is often very great difficulty in determinino-
whether tenures, which are not made permanent by law or exi^ress contract, are
of a permanent nature or otherwise. In such cases it is important to consider
the name and conditions of the tenure, the terms of the instrument by which
and the circumstances in which, it was created, and, as far as can be ascertained
the intention of the parties. (See Watson and Co. v. Mohesh Narain Rai, 24
W. R., 176 ; a,nd Sheo Prasad Singh v. Kali Bas Singh, I. K R,, Calc, 543.)
Sometimes the name of the tenure in itself will settle the question. Thus, in
Tarini Charn Gangidi v. Watson (3 B. L. R., A. C, 437, 12 W. R., 413), it was
held that the term "/)«;«* to^;*^" pri»if>,/acie imports a hereditary tenure, and in
Krishna Chandra Gupta v. Safdar Ali (22 W. R., 326) it was said that the word
'^ taluk" imports a permanent tenure, and where a chitta describes the laud to which
it relates as a " taluk," the pi-esumption in the absence of any evidence to the
contrary is that it implies a permanent interest. In other cases, the conditions of
the tenure help to determine its nature. Thus, in Lekhraj Rai v. Kanhya Singh
317 W. R., 485, (I. L. R., 3 Calc, 210; L. R., 4 I. A., 223) it was held that, though the
lease contained no words importing an hereditary character, it yet had the effect of
being hereditary, as the period of its continuance was not dependent on the life
of any party, whether lessor or lessee, but on the continuance of the superior
tenure. A jangalburi lease, under which no rent was payable for the
first year, but rent was payable at varying rates for three years, and after-
wards at "the full customary rate "of Rs. 5 per kani, has been held to convey
a permanent tenure. {Ohnlam Ali v. Oopal Lai Thakicr, 9 W. R., 65, and
19 W. R., 141.) Khxrakpore ghatwidi tenures (in Monghyr) have also been held
to be permanent and hereditary tenures. {Manoraiijan Singh v. Lilanand Singh
3 W. R., 84 ; 5 W. R., 101 ; I. L. R., 3 Calc, 251.) As to the terms of the in-
strument creating the tenure, it is to be observed that in several cases it has been
held, that the word mokarari alone in a pottah does not necessarily import per-
petuity {Government of Bengal v. Jafar Hossain Khan, 5 Moo. I. A., 467 ;
Sheo Prasad Singh v. Kali Das Singh, I. L. R., 5 Calc, 543 ; Bilrismoni Da.ti v. Shea

Skc. 10.

THE BENGAL TENANCY ACT.

Chap. III. Prasad Siiigh, I. L. R., 8 Calc, 664 ; 11 C. L. R, 215), or inheritance {Parmeswar
Skc. 10, Pratab Singh v. Padmanand Singh, I. L. R., 15 Calc, 342). The words " tikka mohto"
in a pottah have been held not to be tantamount to maurasi or istimrari, and
not to import a permanent and hereditary lease at a fixed rent. {Nafar Chandra
Shaha V. Gossain Jaisingh Bharati, 3 W. R., Act X, 144.) The words " year by
year " in a pottah have also been held not to convey a hereditary lease at a fixed
rent. {Panchanan Basu v. Piari Mohan Deh, 2 W. R., 225.) There are, however,
conflicting rulings as to the etfect of the use of the terms mokarari istimrari in an
instrument creating a tenure. Thus, it has been held that these words in a pottah
must be taken in themselves to convey a hereditary right in perpetuity. {Manaran-
jan Singh v. Lilanand Singh, 3 W. R., 84 ; Lakhu Koer v, Hari KrvthTia
Singh, 3 B. L. R., A, C, 226 ; 12 W. R., 3 ; Karunakar Mahanti \ . Niladhro Chaudhri,
5 B. L. R., 652 ; 14 W. R., 107.) But in Lilanand Singh v. Manaranjan Singh (13
B. L. R., 124) a qucere wa.s raised as to whether, in the absence of any iisage, the
words mokarari istimrari mean permanent during the life of the grantee, or per-
manent as regards hereditaiy descent, and in a recent case — Tulsi Prasad Singh v.
Ram Narain Singh (I. L. R., 12 Calc, 117) — it has been said by their Lordships of the
Privy Council that the words " istimrari mokarari, " in a pottah granting land, do not
" of themselves, denote that the estate granted is an estate of inheritance. Not that
such an estate cannot be so granted unless, in addition to the above words, such
expressions as ' ha farzandan ' or ' naslan had naslan,' or similar terms are used.
Without the latter, the other terms of the instrument, the circumstances under
which it has been made, or the conduct of the parties may shew the intention with
sufficient certainty to enable the courts to pronounce the grant to be perpetual ;
the above words not being inconsistent therewith, though not in themselves
importing it."

Tentires permanent by custom and course of dealing therewith. —
The howlas and nim-howlas of Backergunge may be cited as instances of tenures
which are permanent and hereditary by custom. {Haro Mohan Mukharji v. Lalan
Mani Dasi, 1 W. R., 5.) There are numerous decisions which show that tenures
become permanent by the course of dealing therewith by the parties. Thus, it has
been held that though a pottah does not contain the word mokarari, or equivalent
words of limitation as " from generation to generation," and, therefore, cannot be
presumed primd facie to grant a mokarari istimrari tenure, yet evidence of long un-
interrupted enjoyment at a fixed unvarying rent will supply the want of words
of limitation in a pottah. {Dhanpat Singh v. Ouman Singh, 11 Moo. I. A., 433 ;
GopalLal Thakur\. Tilak Cliandra Rai, 10 Moo. I. A., 191 ; 3 W. R., P. C, 1 ;
Satyasaran Ghosal v. Mohesh Chandra Mittra, 12 Moo. I. A., 263 ; 2 B. L. R., P. C.,
23 ; 11 W. R., P. C, 10 ; Kolodip Narain Singh v. Government of India, 14 Moo.
I. A., 247 ; 11 B. L. R., 71 ; Watson v. Mohesh Narain Rai, 24 W. R., 176.) Apply-
ing the maxim of optimus interpres rerum usris, it may be shown by evidence
as to the nature of the enjoyment of any immoveable property what the
grant in its origin really was. Accordingly, the frequent transfer of an interest
in a tank without any change in the terms of the holding or in the amount of
rent paid, extending over more than 60 years was held to pi-ove that the interest
was a permanent and transferable one, which could be maintained against the pro-
prietor of the taluk in which the tank was situate. {Nidhikrisna Basu v. Nistarini
Dasi, 21 W. R., 386). In another case, mere continuous payment of rent for about
a hundred years was held to give rise to a presumption that the tenant held
under a maurasi title. (Brajanath Kundic v. Lakhi Narain Addi, 7 B. L. R., 211.)

EJECTMENT OF TENURE-HOLDERS. 43

But in a recent case {Nabin Chmidra Datta v. Madan Mohan Pal, I. L, R, 7 Calc, Chap. III.
697), it has been held that the mere fact of long possession does not raise the pre- Sicc. 10.
sumption that a tenure is a permanent one.

Effect of occupation of land with buildings.— The rulings as to whether
the long occupation of land with buildings will raise a presumption that the nature
of the tenure is permanent, are somewhat conflicting. In Addoi/to Charan De v.
Peter Das (13 B. L. E., 417 ; 17 W. R., 383), no such presumption was held to
have arisen. In Prasanno Kumari Debi v. Ratan Baipari (I. L. R., 3 Calc, 696), it
was said that there was no law in this country which converts a holding at will
from year to year, or for a term of years, into a permanent tenure, merely because
the tenant, without any arrangement with his landlord, builds a dwelling-house
upon the land demised. This ruling was followed in the case of Tarakpodma
Ohosal V. Shyamacharan Napit (8 C. L. R., 50), in which it was said that there
is no law in this country, which gives anything in the way of a protected
tenure or holding to a pei'son who has occupied homestead-land, however
long may have been the period of his possession. Then, in Arat Sahu v. Prandhan
Paikara (I. L. R., 10 Calc, 502), it was held in the case of a tenant of some
homestead-land in Orissa, who in some Settlement-proceedings had been re-
corded as the tenant at a stated rent, that the Court was not bound to presume
that the origin of the tenant's title was a grant to continue in permanent
possession. On the other hand, in Brajanath Kundu v. Stewart (8 B. L. R.,
App. 51 ; 16 W. R., 216), in which a landlord had allowed his lessee to invest
capital in erecting buildings on land let for cultivation, and had raised no objection
for a considerable number of years, he was not allowed to disturb the holding ; and
in Jahari Lai Sahu v. Dear (23 W. R., 399), it was laid down that, when land is given
to a lessee for the purpose of building a house to live in, without any term being
fixed for the tenancy, the tenure of the house and land cannot be taken away from
the lessee's heir or his vendee, so long as he continues to pay the rent assessed on
it. Then, in Prasanno Kumar Chatarji v. Jagannath Baisak (10 C. L. R., 25), it
was held that, though the mere circumstance of a tenant occupying buildings
upon property would not justify the Court in presuming a permanent grant,
unless it could be shown that they were erected by him or his predecessors, yet,
when land was let for building purposes, or the tenant, with the knowledge of his
landlord, laid out large sums upon the building, that fact, coupled with a long
continued enjoyment of the property by the tenant or his predecessors, might
justify a Court in presuming a permanent grant. Finally, in Gangadhar Shikdar v.
Ayimvddin Shah Biswas (I. L. E,, 8 Calc, 960 ; 11 C. L. R., 281), it has been said that
when it is conceded that lands were not let out for agricultural purposes, and
when they had apparently been let out more than sixty years before the suit for
building purposes, and the defendant's ancestors had erected thereon buildings of
a substantial character, and had, with the defendants, resided thereon from first to
last, the Court is at liberty to presume that the grant was of a permanent character.

Ejectment of permanent tenure-holders. — It is important to notice that,
under this section, a permanent tenure-holder cannot be ejected from his tenure
except on the ground that he has broken a condition of his tenancy which, if the
contract of tenancy has been made after the commencement of this Act, must be
one consistent with its provisions, and on breach of which he is, under his contract,
liable to be ejected. This was also the case under the former law. (See Alam
Chandra Shaha v. Moran, W. R., Sp. No., Act X, 31 ; Augar Singh y. Mohini Datta
Singh, 2 W. R., Act X, 101 ; Mahomed Faiz Chaudhri v. Shib Didari Tewari,

THE BENGAL TENANCY ACT.

Chap. III. 16 W. R., 103 ; Balaram Das v. Jogendronath Mallik, 19 W. R., 349 ; Mumtaz
Shc. II. Jim V Grish Chandra Chaiulhri, 22 W. R., 376.) A periuanent tenure-holder caii-
not, therefore, be ejected for non-payment of his rent (sec. 65). The remedy of his
landlord in this case is to bi'ing the tenure to sale. In this respect, an wcupancy-
raivat stands on the sanie footing as a tenure-holder ; but he can also be ejected
on the ground that he has used the land in a manner which renders it unfit for
the purposes of the tenancy (sec. 25). This provision, of course, does not apply to
tenure-holders. Non-occupancy raiyats stand in a much inferior position to
tenure-holders and occupancy -raiyats. A non-occupancy -raiyat can be ejected, (a)
for non-payment of arrears of rent, (b) for rendering the land unfit for the purposes
of. the tenancy, (c) for breaking a condition of his conti-act, on breach of which lie
is liable to be ejected, (d) on the ground of expiry of his initial lease, if it be a
registered one, and (e) for refusing to pay a fair and equitable rent (sec. 44), or on
the ground that the term for which he is entitled to hold at such rent has expired.
As to what breach of the conditions of the contract will render a tenure-
holder liable to ejectment, it may be noted that though, in the case of service-
tenures, which, though unaffected by this Act (sec. 181) are yet analogous to
tenures affected by it, the landlord may not, at his own pleasure, dispense with
the services and take back the lands {Kidodip Narain Singh v. Mahadeo Singh,
6 W. R., 199 ; Ktdodip Xarain Singh v. Government, 14 Moo. I. A., 247 ; 11 B. L. R.,
P. C, 71 ; Lilanand Singh v. Manoranjan Singh, I. L. R., 3 Calc, 251), yet
a distinct refusal to perfonu the services will be such a breach of the
conditions of the tenancy as will subject the tenant to ejectment {Harogobind
llaha v. Ram Ratiw De, I. L. R. 4 Calc, 67). But whatever conditions the tenure-
holder may agree on with his landlord as rendering him liable to be ejected, he
cannot make a contract enabling his landlord to eject him, otherwise than in
accordance with the provisions of this Act (sec. 178, sub-sec. (1), cl. (c) ), that
is to say, except in execution of a decree (sec. 89).

Suits to eject a tenure-holder on the ground of a breach of a condition, in
respect of which there is a contract expressly providing that ejectment shall be
the penalty of such breach, must, under Art. 1, Sched. Ill of this Act, be brought
within one year of the date of the breach ; and, under sec. 155, before ejecting
him, the landlord is bound to give him a notice and afford him an opportunity
of remedying and pacing reasonable compensation for the breach of the conditions
of his lease complained of. Under the former law, the Courts have in such
cases always granted relief from forfeiture, and declined to eject the tenant for
a breach of a condition of his lease which is susceptible of being remedied.
(Jan Ali Chaudhri v. ^ittyanand Basu, 10 W. R., F. B., 12 ; Didi Chand v. Meher
Chand Sahu, 12 B. L. R., 439 ; Mathura Mohan Pal v. Ram Lai Bami, 4 C. L. R.,
496 ; Mahomed Amir v. Dianat Ali, 9C. L. R., 185 ; I. L. R., 7 Calc, 566 ; Duli
Chand v. Raj Kishor, I. L. R., 9 Calc, 88 ; 11 C. L. R., 326.)

11. Every permanent tenure shall, subject to the pro-
visions of this Act, he capable of beino-

Transfer and trans- ' ^ ^ ^

mission of permanent transferred and bequeathed in the same
manner and to the same extent as other

immoveable property.

Transferability of permanent tenures. -The provisions of this section
make a change in the law ; for liitherto some permanent tenures have been

TRANSFER OF TENURES. 45

transferable, and others, non-transferable. Now, all permanent tenures are made Chap. ill.
transferable and heritable, " subject to the provisions of this Act." These words, Si«c^l.
no doubt, have reference inter alia to the provisions of sec. 183, which lay down
that nothing in this Act shall affect any custom, usage, or customary right not
inconsistent with, or not expressly, or by necessary implication, modified or
abolished by, its provisions. It is, therefore, an open question whether permanent
tenures, not transfei'able before, are made transferable now. Cases of per-
manent tenures, which are not transferable, are not numerous. Of these, the
ghatwali tenures of Bhirbhum are instances ; such tenures, as already pointed
out, ai'e by sec. 181, specially exempted from the provisions of the Act. But
even such tenures become transferable, if the zamindar avssents to and accepts
the transfer. Such assent and acceptance it has, in a recent case, been said, may
be presumed from the fact of the zamindar's having made no objections to a
transfer for a period of over twelve years ; and when such a fact has been found,
a Court ought to recognize such a transfer. {Anando Rat v. Kah Prasad Singh,
I. L. R., 10 Calc, 677.) Maiorasi Surbarakari tenures in Orissa also are not
transferable without the consent of the zamindar, though they are heritable.
(See note on p. 31.) Instances of permanent tenures held to be transferable are more
numerous. (See Jagat Chandra Rai v. Ram Narain Bhartacharji, 1 W. R., 126 ;
Brajanath Kundu v. Lakhi Narain Addi, 7 B. L. R., 211 ; Panye Chandra Sirkar
V. Har Chandra Chaudhri, I. L. R., 10 Calc, 496.) In certain cases the Courts have
held, that tenures granted for the purposes of building are transferable. Thus, in
Beni Madhah Banarji v. Jai Krishna Mukharji (7 B. L. R., 152 ; 12 W. R., 495), it
was held, that such tenui'es are, by the custom of the Hooghly district, transferable.
In this case. Peacock, C. J., expressed an opinion that when land was leased for the
purpose of living upon such land, the tenure, in the absence of evidence to the
contrary, is assignable. In another case, the cause of action arising in the Tipperah
district, in which the tenant had been permitted to erect a thatched dwelling-house
with mud walls, and to dwell in it for more than forty years, it was held that he had
an assignable interest in the house and land, which coxxld, therefore, be seized and
sold in execution of a decree. {Durga Prasad Misra v. Brindaban Sukal, 7 B. L. R.,
159.) In one case, it was held that a building tenure, which was not permanent,
might be transferable under the custom prevailing in the locality (^Shama Sundari
Debt V, Nobin Chandra Kolya, 6 C. L. R., 117.) This was a Hooghly case.

Onus of proof as to transferability of tenures under old law.— There
is no presumption that any tenure held is not a ti'ansferable tenure ; and a land-
lord, who sues for khas possession on the ground that a tenure sold was not trans-
ferable, must establish his case as an ordinary plaintiff (Daya Chand Shaha v.
Ananda Chandra Sen, I. L. R., 14 Calc, 382) ; but in a more recent case in which
the defendant pleaded that his tenure was of a permanent and transferable nature,
it was held that the onus of proving its transferability was upon the defendant
{Kripa Mayi Debi v. Durga Gobind Sirkar, I. L. R., 15 Calc, 89).

Heretability of permanent tenures. — Formerly permanent tenures were
almost invariably held to be heritable, even when not transferable ( Watson v.
Jageshar Atah, Marsh., 330; Lakhu Koer v. Hari Krishna Singh, 3 B. L. R.,
226 ; 12 W. R., 3 ; Karunakar Mahanti v. Niladhro Chaitdhuri, 5 B. L. R., 652 ;
14 W. R., 107 ; Lekhraj Rai v. Kanhya Singh, 17 W. R., 485; I. L. R., 3 Calc, 210);
though in Lilanand Singh v, Manoranjan Singh (13 B. L. R., 124) a qucere was raised
as to whether, in the absence of any usage, words implying permanency in the
tenure implied anything more than permanent for the life of the grantee. Now,

THE BENGAL TENANCY ACT.

Cif Ap III however, as in sec. 3 (8) the words " permanent tenure " are defined as meaning a
Skc. 12. tenure which is heritable and which is not held for a limited time, all permanent
tenures must be heritable.

Sub-letting of permanent tenures.— A further incident, which attaches
to permanent tenures, is subsequently dealt with in sec. 179, in which it is said
that nothing in this Act shall be deemed to prevent a proprietor or holder of a
permanent tenure in a permanently settled area from granting a permanent moku-
rari lease on any terms agreed on between him and his tenant.

Abandonment of permanent tenures.— A voluntary abandonment of a
permanent and transferable tenure for a long period without any inevitable
force major or other cause beyond the power of the holder, is tantamount to an
express relinquishment ; and neither the holder nor any one under him can reclaim
it. {Chandramani Xyahhitsan v. Samhhu Chandra Chakrabarti, W. R., Sp. No.,
1864, 270.) But such a tenure cannot be put an end to at the option of the
tenure-holder. A patnidar cannot, of his own choice, throw up his patni, andj
by so doing, escape his liability to pay rent. The contract, though not indissoluble,
can only be dissolved by an act of the Court and after proper enquiry. {Hira Lai
Pal V. Nilmani Pal, 20 W. R., 383.) In a recent case (Jadunath Ghosh v. Schoene,
Kilhurn and Company I. L. R., 9 Calc, 671), it was ruled that a tenure under a
maurad mokarari lease of land, which is not let for agricultural purpose, cannot
be put an end to by a mere relinquishment on the part of the lessee, although
after notice to the landlord. In the same case, it was held by Field, J., that the
principle laid down in Hira Lai Pal v. Nilmani Pal, viz., that a patnidar cannot
of his own option relinquish his tenure, is applicable to all intermediate tenures
between the zamindar and cultivator of the soil, except those held on farming
leases.

12. (1) A transfer of a permanent tenure by sale,
Voluntary transfer 8"^^^ or mortage (otlier than a transfer by
of permanent tenure. ^y\Q \j^ execution of a decree or by sum-
mary sale under any law relating to patni or other tenures)
can be made only by a registered instrument.

(2) A registering officer shall not register any instru-
ment purporting or operating to transfer by sale, gift or
[usufructuary] mortgage a permanent tenure unless there is
paid to him, in addition to any fees payable under the Act
for the time being in force for the registration of documents, a
process-fee of the prescribed amount and a fee (hereinafter called
" the landlord's fee ") of the following amount, namely : —

(a) when rent is payable in respect of the tenure, a
fee of two per centum on the annual rent of the
tenure : provided that no such fee shall be less than
one rupee or more than one hundred rupees ; and

(b) when rent is not payable in respect of the tenure, a
fee of two rupees.

TRANSFER OF TENURES,

(3) When the registration of any such instrument is Cfiap. hi.

. . "^ Skc. 12.

complete, the registering officer shall send to the Collector — —
the landlord's fee and a notice of the transfer and reoistration

in the prescribed form, and the Collector shall cause the fee
to be paid to, and the notice to be served on, the landlord in
the prescribed manner.

The word " usufructuary " in sub-section ( 2 ) has been added by Act VIII
of 1886.

Payment of the landlord's fee in the case of rent-free tenures. —
It has been asked, who is the landlord of a rent-free tenure, to whom the fee
mentioned in sub-section 2 (6) is to be paid ? The landlord in this case will be
the owner of the estate, within which the rent-free tenure is situated, and to
whom rent would have been payable for the tenure, if it had not been rent-free.
" Landlord" means a person immediately under whom a tenant holds (sec. 3 (4)),
and " tenant " means a person who holds land under another person, and is or,
but for a special contract, wo\ild be, liable to pay rent for that land to that person.
A person may, therefore, be a landlord, though he receives no rent for liis land ; and
in the case of a rent-free tenure, there is, of course, a special contract between the
parties under which no rent is payable for the land. It has, however, been
contended that the word " rent " in cIs. (a) and (6) means money-rent, and that
the fee of Rs. 2 referred to in cl. ( 6 ) is payable when no money-rent but a pro-
duce-rent is payable for the tenure. But this contention would seem not to be
warranted by the terms of the section ; though it is difficult to see how a register-
ing officer, if a produce-rent is payable for the tenure, is to collect and to trans-
mit through the Collector the fee of 2 per cent, on the annual rent, referred to in
cl. (a), or why a landlord, to whom no rent is payable, should receive a fee on a
transfer of a tenure, which he does not register, and with which he has little or
no concern.

Q-overnment entitled to landlord's fee in case of transfer of tenures
or holdings in Grovernment estates. —Government is entitled to the landlord's
fee under sees. 12 to 18 of the Bengal Tenancy Act in the case of the transfer
of tenures or holdings by tenure-holders or raiyats holding at fixed rates of
rent in Government estates. (Board of Revenue's No. 414 A of the 13th April,
1888, to the Inspector-General of Registration, and also para. 2, Board of
Revenue's No. 278 A of 15th April, 1886, to the Commissioner of Presidency
division.)

A single fee chargeable for a tenure consisting of several plots.—
A separate fee should not be charged under sec. 1 2. (2) (6), on each of the several
plots comprising a tenure, but a single fee for the whole tenure, when transferred
by one instrument. (Board of Revenue's No. 283-A of the 4th May, 1887, to the
Commissioner of the Presidency division.)

Remittance of landlord's fee.— When the landlord resides in another
district the fee should be sent to him by remittance transfer receipt. (Accountant

General's Circular No. ^g ' of the 10th June, 1886.) Sub-Registrars located at a
distance from the sadar or sub-divisional head-quarters (where the absence of
a treasury makes remittances difficult) should remit the landlord's fees to the
Collector or Sub-divisional Officer concerned by means of money -orders, the

4g THE BENGAL TENANCY ACT,

Chap. III. commission i)ayable on them being defrayed by the Sub-Registrars out of their

Skc. 1'2. permanent advance. Remittance transfer receipts are available at par for such

renii-ssions, and should be used, if possible ; but as they can only be obtained on

sadar treasuries, they cannot be used in every case. (Insjjector-General of

Registi-atiou's Circular No. 20 of July 28th, 1887.)

When landlord's fee is to be placed in deposit.— It has been lield by
the Board of Revenue that, when the landlord's fee is payable to co-sharers, the
Collector should pay the fee to the co-sharers in accordance with the amount of
their shares recorded in the Land Registration department of the CoUectorate.
If any objection is made before payment, the amount should be placed in revenue
deposit, and the parties referred to the Civil Court. The fee should also be
placed in deposit when a landlord refuses to receive the fee tendered to him
under sec. 12, or is dead, or cannot found. Any one claiming a fee so deposited
must establish his claim to the satisfaction of the Collector. If no claim is
advanced or established within three yeai-s from the date of the deposit, or if
a suit relatin"- to the deposit is pending in the Civil Court, the dei)osit should
be credited to Government, after which it cannot be paid without Government
sanction. The rules relating to ordinary revenue deposits apply in all respects
to depoKsits under the Tenancy Act. (Board of Revenue's No. 201 of 6th May,
1886, to the Commissioner of Rajshahye.) The Board of Revenue have also
recently issued directions that in order to guard against the needless accumulation
of fees in the hands of the Nazir and his peons, the fees should be placed in
deposit in the first instance, when it is apparent on the notice accompanying
the fee that the fee cannot be tendered personally. (Board of Revenue's Land
Revenue Report, 1887-88, para. 152, p. 28. See also Board's instruction on Rule 1,
Chapter V, of the Government Rules under the Tenancy Act, Appendix I.)

Landlords' fees payable to Government how to be credited.— Fees
under sees. 12 to 15 payable to Government as landlord are to be credited as miscel-
laneous revenue receipts after being realized in cash, and should be shown by
Collectors in Table V of Return No. X, under heading (1) as " Fees under Act
VIII of 1885." (Board of Revenue's C. O. No. 2 of September, 1886.)

Court-fee Duty on applications for the payment of landlords' fees.—
Applications for the payment of landlords' fees placed in the deposit must be
made on stamped paper. (Government letter No. 70 — 25L.R., dated 7th January,
1887, to the Board of Revenue.) Applications for the refund of landlords' fees
must be stamped under Art. 1, Sch. II, Act VII of 1870 (Board of Revenue's
No. 170A of the 22nd March, 1888, to the Commissioner of Dacca). The Court-fees
payable on the application would seem to be 1 anna, if the amount of the deposit
is less than Rs. 50 (cl. (a), pai-a. 4), and 8 as., if the amount of the dejwsit exceeds
Rs. 50 (cl. (6), para. 2). If, howevei', the amount of the deposit does not exceed
Es. 25, and the application is made within three months of the date when
the deposit became payable to the applicant, the application is exempt from
Court-fee duty. (Government of India Notification, No 849 of February 16th
1883, Lidia Gazette, Pt. I, p. 122.)

Sub-divisional Officers.— Sub-divisional Officers have been vested with
powers of a Collector under sees. 12, 13, and 15 of the Bengal Tenancy Act
by Government Notification of the 7th October, 1886, published in the Calcutta
Gazette of the 13th idem.

Procedure when fee is payable to several landlords residing in
different districts.— When a tenure transferred is held jointly by several

TRANSFER OF TENURES.

proprietors residing in different districts, the landlord's fee should be remitted to Chap. III.
the Collector within whose jurisdiction the transferred tenure is situated. Sue. 13.
(Board of Eevenue's No. 779A of the 7th September, 1887, to the Inspector-
General of Eegistration, and No. 655A of the 14th October, 1887, to the Com-
missioner of the Presidency Division.)

Procedure when tenure-holder is resident in Calcutta.— When notices
under the Tenancy Act have to be served on landlords residing in Calcutta,
registering officers sliould send the notices and fees direct to the Collector of
the 24-Parganas, who is also the Collector of Calcvitta and who will take the
necessary steps for tlieir service. The Deputy Collector of Calcutta cannot
legally be vested with powers under the Act, but it is open to the Collector of the
24-Parganas to use the Deputy Collector's office as the channel for the service
of notices, etc., on tenure-holders residing in Calcutta. (Board of Revenue's
No. 89 A of the 16th February, 1888, to the Commissioner of the Presidency
Division.)

No notice required when the landlord himself purchases the tenure.—
On a reference from the Board of Revenue, the Legal Remembrancer has expressed
an opinion that when the landlord has himself purchased the tenure, there is
no necessity for a second notice being given with its consequent charge. (Legal
Remembrancer's No. 686 of the 27th August, 1887, to the Secretary to the Board
of Revenue.)

Mode of service of notice of transfer.— The mode of service of notices
of transfer is presci'ibed in Rule 1, Chapter V of the Government Rules under
the Tenancy Act, to which and to the notes on it reference is invited (see
Appendix I).

Rules of the Registration department.- The rules of the Registration
department for the registration of documents under this section will be found
in Appendix IV.

13. (1) When a permanent tenure is sold in execution
Transfer of perma- of a decree Other than a decree for arrears
"rexecXon o? decrle ^f rent duc in rcspect thereof, [or when
other than decree for ^ mortgage of a permanent tenure, other
* XIV of 1882. than a usufructuary mortgage thereof, is

foreclosed] the Court shall, before confirming the sale under
section 312 of the Code of Civil Procedure,* [or making a de-
cree or order absolute for the foreclosure] require the purchaser
[or mortgagee] to pay into Court the landlord's fee prescribed
by the last foregoing section and such further fee for service
of notice of the sale [or final foreclosure] on the landlord as may
be prescribed.

i' (2) When the sale has been confirmed, [or the decree or
order absolute for the foreclosure has been made] the Court

shall send to the Collector the landlord's fee and a notice of
R. & F., B. T. A. 4

50 THE BENGAL TENANCY ACT.

Chap. III. the Sale for final foreclosure] in the prescribed form, and the
Sbc. 13, L ^ . .

— Collector shall cause the fee to be paid to, and the notice to

be served on, the landlord in the prescribed manner.

The words in brackets in this section have been added by Act VIII of 1886.

Object of the Amending Act, VIII of 1886.— The Hon'ble Mr. Evans, in
moving for leave to introduce into Council the Bill which has now become Act VIII
of 1886, and which received the assent of His Excellency the Governor-General
on the 8th "March, 1886, remarked as follows : — "The object of this Bill is stated
in the Statement of Objects and Reasons as follows : ' It is to limit the registi-a-
tion of mortgages in landlords' records to those mortgages which are accompanied
by possession and usufruct, and thereby to give effect to what was, in fact, the
intention of the Legislature when the Bengal Tenancy Act was passed.' The
necessity for this very small measure arises in this way. The object of these two
sections, 12 and 13, of the Bengal Tenancy Act, is to siibstitute an official record
in the first instance, and an official machinery for recording the transfer of perma-
nent tenures, providing that the fee which the landlords are entitled to receive
upon such transfers should be sent to the Collectors, who should themselves notify
the ti'ansfers to the zamindars, who are to be able to make the necessary entries
in their sheristas for their own guidance in dealing with the tenures. Formerly
the state of the law was, that it was necessary, when any transfer by gift, sale, or
otherwise took place of a permanent tenure, that this transfer should be registered
in the zamindari sherista, and on that registration the zamindars were in the
habit of getting a small fee. It was found inconvenient, for many reasons which
I need not dilate upon ; and it was proposed in the new law that the Registrar
should take the fee and register, and that no such transfer should take place
without registry and the payment of a fee and a notification through the Collec-
tor to the zamindar. This was the machinery which was substituted for the former
one, and considered more effective. It will be noted, from what I have said, that
the old words were ' a transfer by gift, sale, or otherwise ; ' and it had not, as a
matter of fact, been held that a mortgage came within this definition dt all, nor
was it the practice that zamindars should demand that mortgages should be regis-
tered in their sheristas, and the reason, of course, is not far to seek. It was be-
cause, while the mortgages were simply intended to raise money on lands, without
any transfer or the creation of new tenants by such mortgage, it did not, as a mat-
ter of fact, concern them at all. When the new Act was being made, and when
provisions were being introduced for the transferability of raiyati holdings, it was
feared by the zamindars that, under the giiise of mortgages by which a mortgagee
was to be put in possession, a transfer would, in point of fact, be effected of these
occupancy-holdings, so as to defeat their right of pre-emption. A good deal of
discussion took place in regard to that matter ; but although some proposals were
made for limiting the operation of this word 'mortgage' to a mortgage involving
immediate possession, the matter was dropped out of sight owing to the abandon-
ment by the Government of the provisions with regard to the transferability of
occupancy -hoi dings, and so it came to pass that, when there existed the correspond-
ing words in the provisions with regard to the registration and transfer of perma-
nent tenures, the matter was also, more or less, lost sight of. The result is that, as
the words stand at present, in certain classes of mortgages, particularly in mort-
gages after the English form, which are declared by the Transfer of Property Act
to be tranfers of property with the right of reconveyance — the result is, that, whereas

TRANSFER OF TENURES. 5^

an English mortgage is really only a method of raising money, which allows the Chap. III.
tennre-holder to remain in possession, the transaction being one with which the S^cs. 14, 15.
landlord has nothing to do, yet this transaction may not take place without all
those formalities, the description of the tenure, the payment of a fee, and notices
to the landlord, and all the rest of it ; and although it is probable that simple
mortgage-bonds, which do not carry possession with them, can be made without
this difficulty, still it is very certain that mortgages in English form may not be
made without this result. The result of the law has been very serious incon-
veniences. Although the number of mortgages registered in Calcutta since the
passing of the Act is very small, yet a very considerable number of mortgages are
kept back owing to this difficulty."

According to the Transfer of Property Act (IV of 1882), there are four kinds
of mortgages : (1) Simple mortgage, (2) mortgage by conditional sale, (3) usufruc-
tuary mortgage, and (4) English mortgage. By a simple mortgage, neither title
nor possession passes. By a mortgage by conditional sale and by an English
mortgage, title passes, but not necessarily possession. By a usufructuary mort-
gage, possession passes, but not title. The object of Act VIII of 1886 would seem
to be to exempt mortgages, by which possession, but not title, passes, from pay-
ment of the landlord's fee prescribed by sec. 12. It, therefore, provides that,
in cases of mortgages other than usufructuary mortgages, the landlord's fee
shall not be leviable until a decree or order absolute for foreclosure is made
by a Court. But should possession be subsequently delivered without a suit
being instituted or a decree for foreclosure being made, then, it would appear as
if, in the cases of mortgage by conditional sale and English mortgage, the
whole rights of the mortgagor may virtually pass to the mortgagee without the
landlord's fee being recoverable under the provisions of this Act.

14. When a permanent tenure is transferred by sale

in execution of a decree for arrears, of rent
nent tenure by sale in duc in rcspcct thereof, the Court shall send
execution of decree for ^^ ^^^ Collector a noticc of the sale in the

prescribed form.

The object of the provisions of this section is not apparent. The Collector has
no duty to discharge with regard to this notice, and the information given in it
does not concern him. The section was, perhaps, framed with reference to the Bill
for the registration of permanent tenures, which it was at one time proposed to
introduce.

15. When a succession to a permanent tenure takes
Succession to perma- P^'^ce, the pcrson succeeding shall give no-

nent tenure. ^[qq Qf i]^q succession to the Collector in

the prescribed form, and shall pay to the Collector the pre-
scribed fee for the service of notice on the landlord and the
landlord's fee prescribed by section 12, and the Collector shall
cause the landlord's fee to be paid to, and the notice to be
served on, the landlord in the prescribed manner.

52 THE BENGAL TENANCY ACT.

Chap. III. 16. A pei'son becominoj entitled to a permanent tenure

Skc8. 16,17. ^ , .11, 1 . , -,

— , by succession shall not be entitled to re-

Bar to recovery of *' . ,. .

rent pending notice of cover by suit, distraint or other proceeding
any rent payable to him as the holder of
the tenure, until the Collector has received the notice and fees
referred to in the last foregoing section.

Forms of and rules for the service of notices under these sections.—
Forms of notices under sees. 12, 13, 14, and 15 will be found in Schedule I,
appended to the Government Kules under the Tenancy Act. Eules for their service
will be found in sec. 1, Chap. V, of these rules. (See Appendix I.)

17. Subject to the provisions of section 88, the fore-
ffoins: sections shall apply to the transfer of,

Transfer of , and sue- ° ° . i •

cession to, share in per- or succcssiou to, a sliarc in a permanent

manent tenure.

tenure.

The provisions of sec. 88 simply reproduce the proviso to sec. 27, Act X of
1859, and sec. 26, Act VIII (B. C.) of 1869, to the effect that no division of a
tenure or holding, or distribution of tlie rent payable in respect thereof, will be
binding on the landlord, unless it is made witli his consent in writing.

Procedure to be adopted by Registering officers under this section.—
The Inspector-General of Registration has issued the following Circular on
this point: "The question whether the procedure prescribed in section 12 of
the Tenancy Act should be carried out by Eegistering Officers in the case of the
transfer of parts of a tenure or holding, when the partition has not been made
with the landlord's consent in writing, has been recently referred to the Legal
Remembrancer. That officer has given his opinion that section 12 of the Tenancy
Act in no way recognises, or provides for, the ti'ansfer of a fractional interest in a
tenure ; and unless such a transfer is lawful under some other law, it gains no
validity from this section. The provisions of the section having no application,
the rule it makes as to landloixl's fee .will be equally inapplicable." (Inspector-
General of Registration's Circular No. 15 of 20th June, 1888.) It would seem,
then, that when a deed purporting to transfer a part of a tenure or holding
at fixed rates, made without the consent of the landlord in writing, is presented
for registration, registering officers should register it, but should not apply the
procedure prescribed by sec. 12 of the Act, — that is to say, they should exact no
landlord's fee and should send no notice of the transfer to the Collector.

Former law regarding the registration of transfers of permanent
tenures.— The provisions of sees. 12 to 15 take the place of those of sec. 27, Act X
of 1859, and sec. 26, Act VIII (B.C.) of 1869, which provided that all dependent
talukdars and other persons po.ssessing a permanent transferable interest in land,
intermediate between the zamindar and cultivator, should register in the sherista
of the zamindar or superior tenant, to whom the rents of these taluks or tenures
were payable, all transfers of such taluks or tenures, or portions of them, by sale
gift, or otherwise, as well as successions thereto and divisions among heirs in cases of
inheritance, and that all zamindars or superior tenants .should admit to registry and
otherwise give effect to all such transfers, when made in good faith, and to all such

REGISTRATION OF TENURES.

successions and divisions. There are numerous rulings to the effect that transfers Chap. III.
made without notice to, and unrecognized by, the landlord were invalid. {Sarkies v. Skc. 17.
Kali Kumar Rai, W. E., Sp. No., 1864, Act X, 98 ; Hari Cham Bam v. Mahanc- '

nissa Bibi, 7 W. E., 318 ; Mritanjai SM-ar v. O'opal Chandra Sirkar, 2 B. L. E., A. C,
131 ; 10 W. E., 466 ; Jfiajaii v. Karmia Mai/i Bebi, 8 B. L. E., 1 ; Kashinath Pani v.
Lakhmani Prasad Patnaik, 19 W. E., 99 ; Sham Chand Kvmdu v. Brajanath Pal, 21
W. E, 94 ; 12 B. L. E, 484; Uma Cham Chattarjiv. Kadamhmi Dehi, 3 C. L. E,, 146;
Panye Chandra Sirkar v. Har Chandra Chaudhari, I. L. E.. 10 Calc, 496.) But it
has been held that the receipt of rent by the landlord will cure the defect of non-
registration. (See Nobo Kumar Ghosh v. Krishna Chatidra Banarji, W. E., Sp. No.,
Act X, 112 ; Bharat Rai v. Ganga Narain Mahapatra, 14 W. E., 211 ; Dhanpat
Singh v. Villai/at AH, 15 W. E., 211 ; Ananda Mayi Dasiv. Mohendra Narain Das,
15 W. E., 264 ; Allender v. Dwarkanath Rai, 15 "W. E., 320 ; Nobin Chandra Sen v.
jVobin Chandra Chakrabarti, 22 W. E., 46.) In the case of Mritanjai Sirkar v.
Gopal Chandra Sirkar (2 B. L. E., A. C, 131 ; 10 W. E,, 466), it was said that the
mere deposit of rent in the Collector's office by the purchaser of an under-tenure in
his own name and that of the registered tenant is not sufficient notice to the
zamindar of such purchase ; nor is the mere acceptance by the zamindar of rent
so paid an acknowledgment on his part of the purchaser as his under-tenant ; but it
is otherwise when there is acceptance with notice, notwithstanding that the
transfer had not been registered. So, in Ram Gobind Rai v. Dashu Ojha Debi
(18 W. E., 195), it was held that a landlord, by having allowed the sums paid into
the Collectorate by a third party to be caiTied to his credit, had clearly recognized
the transfer from the tenant to the third party, although such transfer had not
been registered. Further, in Ram Kishor Acharji v. Krishna Mani Debi (23 W. E.,
106), it was held that where a zamindar makes a transferee a party to a suit for
rent, and aocepts a decree against him jointly with other persons, he must be held
to have recognized the transferee as a tenant, although the latter's name may not
have been entered as such in the zamindai-'s books. Similarly, when a landlord
sells his tenant's interest, in execution of a decree for arrears of rent, he must be
held to accept the auction-purchaser as his tenant. {Prasanno Mayi Dasi v. Bhuho
Tarini Dasi, 10 W. E., 494.) Then, there are rulings to the effect that, notwith-
standing an invalid transfer of a permanent tenure, the landlord is not entitled
to recover possession either from the transferor or the transferee. Thus, in
Kashinath Pani v. Lakhmani Prasad Patnaik (19 W. E., 99), it has been said that
while a zamindar is not bound to recognize the transfer of a permanent heritable
tenure effected without his consent, yet the fact of such improper transfer does not
deprive the old sarbarakar of his rights, or entitle the zamindar to get khas posses-
sion. (See also Haro Molian Mukharji v. Chintamoni Rai, 2 W. E., Act X, 19 ; Jai
Krishna Mukharji v. Raj Krishna Mukharji, 5 W. E., 147.) Again, the unregistered
transferee of a transferable tenure cannot be treated by the zamindar as a trespasser ;
as against the zemindar, who has evicted him, he has a right to be restored to posses-
sion. {Nobin Krishna Mukharji v. Shib Prasad Pattak, 8 W. E., 96 ; Harish Chandra
Mukharji V. Anando Chandra Chatarji, 9 W. E., 279 ; but see contra, MuktakesM Dasi
V. Piari Chaudhurani, 7 W. E., 158.) He is also entitled, as a person interested in the
protection of the tenure, to stop its sale in execution of a decree under Act VIII
(B.C.) of 1865, by paying into Court the amount of the decree ; though he is not enti-
tled, unless the transfer is registered, to come in and allege that the person against
whom the decree has been obtained was not the proprietor of the under-tenure, and
was not in legal possession. (Aiiand Lai Mukharji v. Kalika Prasad Misra, 20 W. E.,
59 ; Khettra Pal Singh v. Lakhi Narain Mitra, 15 W. E., 125.) Substantially the same

THE BENGAL TENANCY ACT.

Chap. III. principle was laid down in the recent case of Krishna Chaiulra Ghosh v. Rajkrishna
Skc. 17. Bandopadhya (I. L. R, 12 Calc, 24), the facts of whicli are as follows : K, the re-
corded tenant of a maurasi mokaran tenure, died leaving G, his son and heir, who
sold the tenure, which eventually came into the hands of the plaintiffs, who, though
they made attempts to do so, never obtained the registration of their names as
tenants. R, one of the two shareholdeis in the zamindari, brought a suit for
arrears of rent of the tenure against S, and in execution of the decree he obtained
in that suit, the tenure was sold and purchased by the other zamindar, by whom
the plaintiffs were dispossessed. It was accordingly held that the ])lahitiffs were
not precludedj by the fact that their names were not registered as tenants uudei-
sec. 26 of Act VIII of 1869 (B.C.), from bringing a suit to recover possession of
the tenure. The holder of the decree, in execution of which the tenure was sold,
assuming him to be only a shareholder in the zamindari right, had no right
under sec. 64 to sell the tenure, but only the interest of the person against whom
the decree was passed. The onus was on the defendant to show that the sale under
the decree for rent was of such a nature as to give him jiriority over the plaintiffs.

Present system of registration of transfers of, and successions to,
permanent tenures. — The provisions of sees. 12 to 15 of this Act now provide
a different system. They provide a system of official registry of the transfers
of, and successions to, permanent tenures, under which the landlord is enabled,
but not compelled, to register such transfers and successions, and under which,
provided the provisions of the sections are complied with, his registration or non-
registration is immaterial, the transfer or succession taking effect irrespective of
his wish or pleasure. The system is briefly this. As regards voluntary transfers
(sec. 12), every such transfer has to be registered under the ordinary law relating
to the registry of assui'auces. The parties applying for registration are requii-ed to
pay to the registering officer the landlord's fee (sec. 12, sub-sec. 2), and a process
fee for the service of notice on the landlord. When the registration has been com-
pleted, the registering officer forwards to the Collector the landlord's fee and a
notice of the transfer containing all necessaiy particulars, and tlie Collector, there-
upon, causes the landlord's fee to be paid to the landlord, and the notice to be
served upon him, at the same time taking any such steps as may hereafter be
prescribed for the entry of the transfer in the official registers. Similar provi-
sions have been made in cases of sale for an ordinary decree (sec. 13) and of
succession (sec. 15). In case of sale for arrears of rent (sec. 14), the Court hold-
ing the sale gives notice to the Collector, but there is no necessity for the latter
to give notice to the landlord, who has himself brought the tenure to sale, and there
is, consequently, in this section no provision for service of notice on the landlord.
There is, however, no penalty provided for non-compliance with these provi-
sions, except in the case of succession (sec. 15), when the person succeeding to the
tenure cannot recover by legal proceedings any rent until he has given the Collector
notice of his succession and paid the jjrescribed fees. In case of a non-compliance
with the provisions of sec. 12, on the part of a transferee of a permanent tenure,
the landlord's only remedy would seem to be to refuse all recognition of the
transfer, which of course is invalid, and to continue recovering the rent from the
former tenure-holder. If he does not i)ay, the landlord can sue him for arrears of
rent, and sell the tenure ; but the tenure cannot be dealt with as cancelled, or
possession of it recovered either from the transferor or ti-ansferee.

Effect of the present system. — The Board of Revenue's Land-Revenue
Repoi't for 1887-88 shows that the jirovisions of sees. 12 to 15 are not working in

RAIYATS AT FIXED RATES.

a satisfactory manner. With regard to sec. 15, the Board observe (para. 154, p. 28) Chap. IV.
that — " it is clear that this section is no more than a dead letter. It is evident that Shc^8.
so long as rent is paid and received, neither the landlord nor the tenure-holder
cares to take the trouble of causing the name of the tenure-holder to be changed."
On the subject of the payment of landlords' fees, the Board remark (pai'a. 155,
p. 28) : " The feeling of reluctance on the part of landlords to accept these fees
continues to prevail, and in many cases, therefore, the fees are deposited in the
Treasury, and will ultimately lapse to Government, The refusal to accept is due to
a belief on the part of the landlords that, by accepting, they will preclude them-
selves from contesting the validity of the transfer afterwards. There is no real
foundation for this impression ; but it exists, as the local reports sufficiently show,
in all portions of the province."

Proposed rescission of sees. 12 to 15.— On this subject, the Board, in the
above cited report, go on to say (para. 155, p. 28) : " It has already been suggested
by the Board that, as the Bill for the registration of permanent tenures has been
allowed to drop, there seems no sufficient ground for retaining in the Tenancy
Act, the sees. 12 to 15, which were intended by the framers of that Act to
supplement the provisions of a law, which it was understood would be introduced
in the Bengal Council for the registration of tenures. There is no doubt of the
great increase of work, which the operation of these sections has created in
Collectors' offices ; and it is not apparent that any corresponding advantage has
been obtained from them. In some respects these sections remain a dead letter ;
in others they appear to fail in their object, because the zemindar refuses to be
bound by them. The time appears to have arrived, when the opinion of officers
and of the landholding clasees generally, both landlords and tenants, should be
invited whether the sections should be retained in the law or not. It should not
be difficult in those districts, where permanent under-tenures are common, to
ascertain the feeling of tenure-holders on the subject."

CHAPTER IV.

Raiyats holding at fixed Rates.

Incidents of holding 18- ^ I'^iyat holding at a rent, or rate

at fixed rates. Qf ^'ent, fixed in perpetuity —

(a) shall be subject to the same provisions with respect

to the transfer of, and succession to, his holding
as the holder of a permanent tenure, and

(b) shall not be ejected by his landlord except on the

ground that he has broken a condition consistent
with this Act, and on breach of which he is, under
the terms of a contract between him and his land-
lord, liable to be ejected.

status of raiyats holding at fixed rates.— The effect of cl. (a) of this
section is to place a raiyat holding at a rent, or rate of rent, fixed in perpetuity
in substantially the same position as a permanent tenure-holder. The provisions

THE BENGAL TENANCY ACT.

Chap. IV. of sees. 10 to 17 will, therefore, apply to a raiyat holding at a fixed rate of I'eut.
Skc. 18. It ig to be uoted that it is immaterial whether the raiyat has held at a fixed rate
for a long or for a short period, and whether he is a " settled raiyat " or not. If
a i-aiyat's rent is fixed in perpetuity, he at once acquires all the rights of a per-
manent tenure-holder with regard to the transfer of, and succession to, his holding-
But the provisions of sees. 7 to 9 with regard to the enhancement of rent are not
applicable to him ; as his rent, being fixed in perpetuity, cannot be enhanced. He
is, however, liable to have his crops distrained for arrears of rent (sec. 121), which
is not the ease with a tenure-holder. A raiyat holding at a fixed rate of rent is
also in the same position as a permanent tenure-holder as regards ejectment. He
can' only be ejected on the ground that he has broken a condition of hislease, for a
breach of which he is expressly liable to be ejected ; but his landlord's right to
eject him on this ground is of course subject to the provisions of sec. 155. A suit
to eject on this ground must be brought within a year from the breach. (Sch. Ill,
art. 1.) But there is this difference between his case and that of a tenure-holder,
that, while the condition of his lease, for a breach of which he is liable to be
ejected, must be consistent with this Act, whether it be made before or after the
cummencement of this Act, a tenure-holder can be ejected for a breach of a con-
dition of his lease, which is inconsistent with this Act, provided it has been
made before the commencement of the Act. (See sec. 10.)

Produce-rents are not rents at fixed rates. — The rulings of the High
C'ourt on this point are conflicting. In Thakuixmi Dasi v. Bisheshar Mukharji
(B. L. E., F. B., 326 ; 3 W. E., Act X, 29) ; Ram Dayal Singh v. Lachmi Narain
(6 B. L. E., App., 25 ; 14 W. E., 388) ; Jatto Moar v. Basmati Koer (15 W. E., 479),
and Hamiman Prasad v. Kauhsar Pandi (I. L. E., 1 All., 301), it has been
held that a rent in kind, which, though it varies yearly in amount with the vary-
ing amount of the yearly produce, is fixed as to the proportion it is to bear as to
such produce, is a fixed rent within the meaning of sec. 3 of Act X of 1859.
On the other hand, in Yahih Hossain v. Wahid Ali (4 W. E., Act X, 23) ; Hanu-
'Dutn Pramd v. Ramj^ig Singh (H. C. E., N. W. P., 1874, 371), and Thakur Prasad
^.Mahomed Bakir (8 W. E., 170), it has been held that Khhaolivewi, varying
yearly with the varying amount of the gross produce of the land, though fixed as
to the proportion which it is to bear to such produce, is not a fixed unchangeable
rent, to wliicli the presumption of law, laid down by sec. 4, Act X of 1859, is appli-
cable. The Select Committee on the Bengal Tenancy Bill also came to the conclusion
that produce-rents are not rents at fixed rates, for they finally decided on omit-
ting a sub-section, which it was at first proposed to introduce into the Act, making
the presumption of sec. 50, that a tenure-holder or raiyat who has held for twenty
years at an unchanged rate shall be jn-esumed to have held at that rate from the
time of the Permanent Settlement, applicable to produce-rents. Sir Steuart
Bayley, in introducing the Bill, explained the Select Committee's reasons for omit-
ting this sub-section as follows : " It seemed clear to us," he said, " that where the
lent is paid in kind, although the projjortion of the gross i)roduce remains the
same, yet by a self-acting machinery this very fact discounts the rise in prices,
and rents ai'e thus of necessity enhanced or reduced as prices rise or fall. There
is here no room therefore for the jiresumption." (Selections from Papers relating
to the Bengal Tenancy Act, 1885, p. 421.)

G-uzastha holdings of Shahabad.— There is a kind of tenure current in
the district of Shahabad, which is called a gicMstha tenure. It would appear
that a gazasthadar is a raiyat having a light of o(.cui)ancy and whose rent can be

OCCUPANCY-RAIYATS.

enhanced. {Lai Sa/m v. Deo Narain Singh, I. L. E., 3 Calc, 781 ; 2 0. L. E., 294.) Chap, V.
In another case, it has been said, that " a 6'w2asiAa tenure may or may not be a S"*^- '^»
tenure at a fixed rent." {Jatto Moar v. Basmati Koer, 15 W. E., 479 ; Tetra Koer '

V. Bhanjan Red, 21 W. E., 268.) The conference of officers assembled at Patna in
1884 to consider the provisions of the Bengal Tenancy Act, however, reported that
giizasthadars held at fixed rates. (Govt, of Bengal Eeport, 1884, Vol. II, p. 81.)

Gorabandi holdings.— In Chatterhhuj Bharti v. JanH Prasad Singh (4 C. L.
E., 298), it was said that there are no decided cases to show that gorabandi rights
are more extensive than rights of occui)ancy, or, if more extensive, that they are
transferable. The Bhagalpore conference, however, observed : " Without offering
an opinion as to the exact original meaning of the term gorabandi, we are satisfied
that it is now used and understood by the raiyats to mean a raiyati-holding at fixed
rates. There ai-e many instances of these holdings being transferred." (Govt, of
Bengal Eeport, 1884, Vol. II, p. 113.)

CHAPTER V.

OCCUPANCY-RAIYATS.

This chapter must be read with sec. 116, which provides that nothing in this
chapter shall confer a right of occupancy in a proprietor's private or demesne
lands, where any such land is held under a lease for a term of years, or ixnder a
lease from year to year.

General.
19. Every raiyat who immediately before the com-
continuance of exist- Hiencemeiit of this Act has, by the opera-
iug occupancy-rights. ^[qj^ of j^^-^y enactment, by custom or

otherwise, a right of occupancy in any hmd, shall, when this
Act comes into force, have a right of occupancy in that land.

Occupanoy-rights could be acquired by custom under the old law,—
The saving of custom, enacted by this section, is in accordance with previously
existing law ; for, though it was formerly generally assumed that a raiyat
could not acquire occupancy -rights, except under the provisions of Acts X of
1859 and VIII of 1869, B. C, this was not the case. Act X, it has been said,
" did not take away the right of any raiyat who had a right by grant, contract,
prescrijotion, or other valid title to hold at a fixed rate of rent." {Thakurani
Basi V. Bisheshar Miikharji, B, L, E,, F, B., 326 ; 3 W, E., Act X, 108. See also
Inhar Ghosh v. Hills, W, E., Sp. No. F. B., 148, and Lilanand Singh v, Nirpat
Mahtun, 17 W. E., 306.)

Acquisition of rights of occupancy under the old law. — Under the jjro-
visions of sec. 6, Act X of 1859, and sec. 6, Act VIII of 1869, B. C., raiyats who
cultivated or held the same land for a period of twelve years, acquired rights of
occupancy in that, but in no other, land, whether in the same village or not. The
rulings of the High Coi;rt, in interpreting the terms of these sections, arc very

5g THE BENGAL TENANCY ACT.

Chap. V. numerous. We reprotluce here a few of them, showing (1) who acquired, and
Skc. 19. ^2) who did not acquire, rij^hta of occupancy under the old law.

Who acquired oocupancy-rights under the old law. — Tenants holding
lands under hye-hoicladari tenures can acquire rights of occupancy. {Ratanmani
Debiv. Kamlakant TaluJcdar, 12 W. R., 364.) Tenants holding land under t/iagrcfert
or hhaoli tenures {i. e., tenures in which a portion of the pioduce is ^laid as
1 ent) can acquire rights of occupancy. {Harihar Mukharji v. Bueshar Banarji, 6
W. E., Act X, 17 ; Jatto Moar v. Dasmati Koer, 15 W. E., 479.) Uthandi tenants,
that is, tenants who hold from year to year and season to season such parcels of
land as they choose to cultivate, — the rent being regulated by an ajipi-aisement of
the crop on the ground, and according to its character and to the area sown year
by year, — can acquire occupancy -rights. (Premanand Ghosh v. Surendra Nath Raiy
20 W. R., 329. (See sec. 180.) Eaiyats having gorabandi rights have rights of
occupancy in their land. {ChatterWmj Bharti v. Janki Prasad Shigh, 4 C L. E.,
298.) Eaiyats holding land for more than twelve years, but under several
written leases or pottahs, each for a specific term of years, were entitled to claim
rights of occu])ancy, unless there was an express stipulation to the contrary.
{Sheo Prokash Misra v. Ram Sahai Singh, 8 B. L. E., 165 ; 17 W. E., 62 ; Narain
Singh v. Mansur Raut, 25 W. E., 155.) Eaiyats let into land on a lease for a limited
term, but allowed to hold on after the expiry of the term, acquired rights of
occupancy, if their total occupation exceeded twelve years. {Ihadatidla v.
Mahomed AH, 25 W. E., 114. See contra, Kahil Shaha v. Radha Krishna Mallik,
16 W. E., 146.) Eaiyats were entitled to add the occupation of their fathers or
other persons from whom they inherited, to their own, to make up the period of
twelve years. ( Watson v. Sharat Sundari Dehi, 7 W. E., 395 ; Xiin Chand Baruah
V. Murari Mandal, 8 W. E., 127 ; Lai Bahadur Singh v. Solano, I. L. E., lOCalc,
45 ; 12 C L. E., 559.) Members of a firm owning an indigo concern, and taking a
cultivating lease of land, can acquire rights of occupancy in that land. {JUddley v.
Gaiir Gohind Sirkar, I. L. E., 11 Calc, 501.) Eaiyats might acquire rights of
occupancy, even though the person to whom they paid rent had no title to the
land. {Amir Hossein v. Sheo Suhai, 19 W. E., 338 ; Sheo Prakash Misra v. Ram
Sahai Singh, 8 B. L. E., 165 ; Zidfan Bihi v. Radhika Prasanno Chandra, I. L. E.,
3 Calc, 560 ; 1 C. L. E., 388 ; Ghulam Panja v. Harish Chandra Ghosh, 17
W. E., 552.) A raiyat who, instead of cultivating the land, set up shops on it and
received profits from the shopkeepers, could acquire a right of occupancy. {Kha-
jarunnissa Begum v. Ahmad Reza, 11 W. E., 88.) Eaiyats could acquire rights
of occupancy whether they cultivated the laud with their own hands, or whether
the cultivation was carried on at their risk and on their behalf by members of
their families, by servants, or by hired laborers. {Ram Mangal Ghosh v. Ltikhi-
narain Shaha, 1 W. E., 71 ; Kali Cham Svngh v. Amiruddin, 9 W. R., 579.)
Non-payment of rent did not bar the acquisition of occupancy-rights {Xarain Rai
V. Opnit Misra, 11 C. L. E., 417 ; I. L. E., 9 Calc, 304) ; involve a forfeiture of
them {Masyatulla v. Nurzahan, I. L. E., 9 Calc, 808 ; Brajendra Kumar Rai v.
Bango Chandra Manckd, 12 C. L. E., 389 ; Nilmoni Dasi wSonatan Doshayi, I. L.
E., 15 Calc, 17), or put an end to the relation of landlord and tenant {Rango
ImI Mandal v. Abdul Ghaffur, I. L. E., 4 Calc, 314 ; Paresh Narain Rai v. Kashi
Chandra Talukdar, I. L. E., 4 Calc, 661). A right of occupancy could be acquired
in respect of an undivided share of an estate. {Jardine, Skinner S Co. v. Sarat
Sumlar Dehi, 25 W. E., 347 ; 3 C. L. E., 140. See also Muktakeshi Dasi v. Kailash
Chandra Mitra, 7 W. R., 493 ; Guru Prasanno Rair. Gohindo Prasad Das, 1 W. R., 34 ;

OCCUPANCY-RIGHTS.

Kali Prasad v. Shah Latafat Hossein, 12 W. E., 418. See contra, Roghuhan Tewari chap. V.
V. Bishen Datta, 2 W. R, Act X, 92 ; and Sarat Sundari DeU v. Binny, 25 W. E., Skc. 19.
347.) A right of occupancy could be gained in land used for grazing horses.
{Fitzpatrick v. Wallace, 11 W. E., 231.) A right of occupancy could be acquired
by a cultivator in that portion of the land which was used for his habitation, as
well as in that portion which was cultivated. {Mohesh Clmndra Gangopadhya v.
Bishonath Das, 24 W. E., 402 ; Pogose v. Raju Dhohi, 22 W. E., 511.) Aright
of occuj^ancy in land includes the same right in respect of a tank apjjurtenant to
it. (Nidhi Krishna Basu v. Ram Das Sen, 20 W. E., 341.) A right of occupancy
can be acquired in spite of eviction for a time, provided the eviction be wrongful.
{Mahomed Gazi ChavAhri v. Nur Mahomed, 24 W. E., 324.)

Who did not acquire oooupancy-rights under the old law.— A tres-
passer could not acquire a right of occupancy. {Vir Baksh v. Miahjan, W. E.,
Sp. No., F. B., 146 ; Ghanh Mandal v. Bhuhan Mohan Sen, 2 W. E., Act X, 85 ;
Ghulam Haidar v. Purna Chandra Rai, 3 W. E., Act X, 147 ; Bhvhanjai Acharji v.
Ramnarain Chaiidhri, 9 W. E., 449 ; Ishan Chaiidra Ghosh v. Harish Chandra
Banarji, 10 B. L. E., App., 5 ; 18 "W. E., 19.) Mere permissive possession
without any right conferred no right of occupancy. {Mohar Ali Khan v.
Ram Ratan Sen, 21 W. E., 400.) Possession in the capacity of a servant did
not create the right. (Unia Mayi Barmanya v. Boku Belmra, 13 W. E., 333.)
A person occupying as the assignee of a zamindar and cultivating, because
of the opportunity thus afforded, could not acquire rights of occupancy. (JJmanath
Tewari v. Kundan Tewari, 19 W. E., 177.) An " Indigo Concern or firm "
cannot acquire a right of occupancy, as it has no corporate or legal existence.
A right of occupancy can only be recognized in particular individuals. {Cannan
V. Kailash Chandra Rai, 25 W. E., 117.) A firm of capitalists taking an ijara
lease from a zamindar, and transmitting their rights to the changing members of
the firm, cannot acquire rights of occupancy. {Rai Kamal Dasi v. Laidley, I. L. E.,
4 Calc, 957.) A raiyat cultivating nijjote land, belonging to a proprietor of
an estate, acquired no right of occupancy, if the land was leased to him for a
term of years, or year by year ; but he did acquire a right of occupancy, if
it was not so leased to him. {Gaur Han Sing v. Behari Raut, 3 B. L. E., App., 138 ;
12 W. E., 278 ; Bhagwan Bhagat v. Jag Mohan Rai, 20 W. E., 308 ; Ashraf v.
Ram Kishor Ghosh, 23 W. E., 288.) A raiyat setting up a title hostile to his land-
lord could not claim a right of occupancy, such an act amounting to a disclaimer
and forfeiture of all his rights of occupancy. {Nadir Beg v. Muddaram,
2 W. E., Act X, 2 ; Bissonath Rai v. Bhairah Sing, 7 W. E., 145 ; Ram
Naffar Bhattacharji v. Dhol Gohind Thakur, 1 C. L. E., 421 ; Dehi Misra v. Mangar
Miah, 2 C. L. E., 208 ; Satyabhama Dasi v. Krishna Chandra Chattarji, I. L. E.,
6 Calc, 55 ; Mozharuddin v. Gohind Chandra Nandi, I. L. E., 6 Calc, 436 ; Ishan
Chandra Chattopadhya v. Shama Cham Datta, I L. E., 10 Calc, 41.) A defend-
ant whose pottali had been rejected, could still show that he had acquired a
right of occupancy. {Bydaath Saha v. Jadav Chandra Saha, 3 W. E., 208.) Occu-
imtion as a joint raiyat could not be added to occupation as a sole raiyat to
make up the period of twelve years. {Mahomed Chaman v. Ram Prasad Bhagat,
8 B. L. E., 338.) But it might be so added if the occupation, in its inception
joint, became occupation as a sole raiyat owing to the death of co-sharers.
{Forbes v. Ram Lai Biswas, 22 W. E., 51.) Occupation by a predecessor in title,
other than a father or other person from whom a raiyat inherits, is not such
an occupation as will create in the holder of land any right of occupancy

Q THE BENGAL TENANCY ACT.

Chap. V. {Lai Bahadur Singh v. Solano, I. L R., 10 Calc, 45 ; 12 C. L. R., 559 ; Dinabandhu
Skc. 19. 2)e V. Ramdhan Rai, 9 W. R., 622 ; Durga Sundari v. Brindaban Chandra Sirkar,
11 W. R., 162; Narendra Narain Rai v. Ishan Chandra Sen, 22 W. R., 22; 13
B. L. R., 274 ; Khirod Chandra Rai v. Gordon, 23 W. R., 237), eveu witli the consent
of the landlord {Tara Prasad Rai v. Surjo Kant Acharji, 15 "W. R., 152 ; Haidar
Baksh V. Bhubendro Deb Kumoar, 17 W. R., 179 ; but see contra, Haro Chandra
Gnho V. Dunn, 5 W. R., Act X, 55), unless the tenant has a transferable interest
( Watson V. Sharat Sundari Debi, 7 "W. R., 395). The period during which the
occupant of land was in possession as proprietor cannot be included in considering
whether he has acquired a right of occupancy. Such a right must be acquired
against somebody, and cannot be acquired by a man against himself. {Lai Bahadur
Singh V. Solano, .1 L. R., 10 Calc, 45 ; 12 C. L. R., 559.) An ijaradar or farmer
cannot acquire a right of occupancy, but a right of occupancy once acquirpd
will not be lost by subsequently holding the land in farm. {Gilmore v. Srimant
Bhumik, W. R., Sp. No., 1864, Act X, 77 ; Watson <& Co. v. Jageiulro Narain Rai,
1 W. R., 76 ; Mokuivda Lai Dhobi v. Crowdy, 17 W. R., 274 ; 8 B. L. R., App., 95 ;
Savi V. Panchanan Rai, 25 W, R., 503 ; Ram Saran Sahu v. Veryag Mahtan,
25 W. R., 554.) This is now expressly made law by sec. 22 (3) and the explana-
tion thereto. No right of occupancy could be acquired in land exclusively occu-
pied by buildings {Mohar Ali Khan v. Ram Ratan Sen, 21 W. R., 400 ;
Swarno Mayi v. Blmnhardt, 9 W. R., 552'; Addaito Cham De\. Peter Das, 17
W. R., 383) ; or when the main object of the occupation is the dwelling-house, and
when the cultivation of the soil, if any there be, is entirely subordinate thereto
{Kali Krishna Biswas v. Janki, 8 W. R., 250 ; Ramdhan Khan v. Haradhan
Paramanik, 12 W. R., 404.) No right of occupancy could be acquired in a jalkar.
( Uma Kant Sirkar v. Gopal Singh, 2 W. R., Act X. 19 ; Sham Narain Chaudhri.
V. Rajah of Darbhangah, 23 W. R., 432 ; Jaggabandhu Saha v. Pramothonath Rai,
I. L. R., 4 Calc, 767.) A right of occupancy cannot be acquired in a tank used
only for the preservation and rearing of fish, and not forming a jmrt of any grant
of land, or an appurtenance to any land. {Sibu Jelya v. Gopal Chandra CImudhri,
19 W. R., 200.) A right of occupancy cannot be acquired in a tank with only so
much land as is necessary for its banks. {Nidhi Krishna Basil v. Ram Das Sen, 20
W. R., 341.) In the case of Hargobind RaJui v. Ramratno De (I. L. R., 4 Calc, 67),
it has been suggested that no rights of occupancy accrue in lands held under a
service tenure. (See also Dinabandhu De v. Ramdhan Rai, 9 W. R., 522.) This^
however, is an obiter dictum. But whatever the incidents of such a tenure may
be, they are not affected by the provisions of this Act {vide sec. 181). No rights
of occupancy could be acquired in lands sublet for a term or year by year by a
raiyat having a right of occupancy, or in lands held by a sub-lessee from a raiyat
having a right of occupancy. {Gilmore v. Sarbessari Dasi, W. R., Sp. No., Act X,
72; Jamiatunnissa Bibiw. Nur Mahomed, Ibid, 77; Ketal Gain v Nadir Mistri,
6 W, R., 168 ; Abdul Jabar\. Kali Cham Datta, 7 W. R., 81 ; Kali Kishor Chatarji
v. Ram Clmrn Shaki, 9 W. R., 344 ; Haran Cliandra Pal v. Mukta Sicndari, 10 W. R.,
113 ; 1 B. L. R., A. C, 81 ; Ramdiian Khan v. Haradhan Paramanik, 12 W. R.,
404 ; Nil Katnal Sen v. Danish Sheikh, 15 W. R., 469 ; Islmn Chandra Ghosh v.
Harish Chawlra Banarji, 18 W. R., 19 ; Annapurna Dasi v. Radha Mo/ian Pattro,
19 W. R., 95.)

Determination of occupancy-riglits under the old law — Occupancy-
rights may be determined by quitting and abandoning the land, in which case
there is nothing to prevent the zamindar from re-letting the land and settling it

SETTLED RAIYATS.

with others {Nadiar Chand Podar v. Madlm Sudan De, 7 W. E., 153 ; Haro Ciiap V
Das V. Gohiyid Bhattacharji, 3 B. L. E., App., 123 ; 12 W. E., 304 ; Ram Clmndra Sec.*20.'
Bxii V, Bholanath Lashkar, 22 W. E., 200 ; Narendra Narain Rai v. Ishan Chandra
Sen, 22 W. E., 22 ; 13 B. L. E., 274 ; Ram Chang v. Gora Chand Chang, 24
W. E., 344), even if tlie abandonment has been involuntary in consequence of
ti'ansportation (Domaa v. Shubal Kulal, 10 W. E., 253). The relinquishment
need not be in writing. {Manirudin v. Mahomed Ali, 6 W. E., 67.) If a raiyat
abandons his holding and ceases to pay rent for five years, he loses his rights
of occupancy. {Ghulam Ali Mandal v. Golap Sundari Dasi, I. L. E., 8 Calc, 612.)
A raiyat loses his right of occupancy, if he is dispossessed and fails for some years
to pay rent. {Hem, Clmndra Chaudhri v. Chand Akund, I. L. E., 12 Calc, 115.)
Where land held by tenants with rights of occupancy was completely sub-
merged for a number of years, and during the period of such submersion no
rent was paid by the tenants, it was held that the tenants had by non-payment
of rent during the period of submersion forfeited their rights of occupancy.
{Hemnath Datta v. Ashgar Sirdar, I. L. E., 4 Calc, 894.) The right of occupancy
is a right given to a raiyat continuing only so long as he pays rent for the land
he holds, and though it cannot be affected by a wi'ongful eviction, still, when
the zamindar acquires the land by purchase and takes possession even benami in
the name of a third party, seeing that he cannot pay rent to himself, the right is
gone, and cannot be subsequently revived. {Radha Gohind Koer v. Rakhal Das
Miokharji, I. L. E., 12 Calc, 82.) A raiyat, even if he fails to pay rent for five
years, does not necessarily forfeit his right of occupancy, unless he abandons the
land. {Masyatidla v. Nurzahan, I. L. E., 9 Calc, 808 ; Brajendra Kumar Rai v.
Bango Chandra Mandal, 12 C. L. E., 389 ; Nilmani Dasi v. Sonatan Doshayi,
I. L. E.J 15 Calc, 17.) If a raiyat is unlawfully evicted, the holding does not
necessarily cease to exist. {Lattifunnissa Bibi v. Pidin Behari Sen, W. E., F, B., 91 ;
Mahomed Gazi Chaudhri v. Nur Mahomsd, 24 W. E., 324.) Where a person held
raiyati lands alternately as cultivator and as ^/w.f'a lessee or farmer for a period
of fifty years, it was held that his cultivation of the lands for broken periods
would not deprive him of his right of occupancy, and that the doctrine of merger
would not apply to such cases. (Mokundo Lai Dhobi v. Croiody, 17 W. E., 274 ;
8 B. L. E., App., 95.) A raiyat with a right of occupancy does not lose his right
by sub-letting the land. {Kali Kishor Citattarji v. Ram Cham Saha, 9 W. E., 344 ;
Haran Clmndra Pal v. Mukta Sundari Chundhurani, 10 W. E., 113 ; 1 B. L. E.,
A. C, 81 ; Jamir Gazi v. Gonai Mandal, 13 B. L. E., 278 note.) A right of
occupancy is not lost by making an invalid transfer. {Saddai Purira v. Baistab
Purira, 15 W. E., 261 ; 12 B. L. E., 84 note ; Gorachand Miistafi v. Madan
Mohan Sikdar, 13 B. L. E., 279 note ; 11 W. E., 94 ; Dioarkanath Misra v.
Kanai Sirdar, 16 W. E., 111.) A right of occupancy is not lost by subsequently
taking the land in farm. ( Watson & Co. v. Jogendra Narain Rai, 1. W. E., 76.)

20. (1.) Every person who for a period of twelve years,
Definition of "settled ""^^lether wholly or partly before or after

iai.yat." the commencement of this Act, has con-

Act x of i859,s. 6 ; Act .11-

VIII of 1869, B.C., tinuously held as a raiyat land situate m

any village, whether under a lease or other-
wise, shall be deemed to have become, on the expiration of
that period, a settled raiyat of that village.

Q2 THE BENGAL TENANCY ACT.

("HAP. V. (2.) A person shall be deemed, for the purposes of this

— section, to have continuously held land in a village notwith-
standing that the particular land held by him has been
different at different times.

('6.) A person shall be deemed, for the purposes of this
section, to have held as a raiyat any land held as a raiyat by
a person whose heir he is.

(4.) Land held by two or more co-sharers as a raiyati
holding shall be deemed, for the purposes of this section, to
have been held as a raiyat by each such co-sharer.

(5.) A person shall continue to be a settled raiyat of a
village as long as he holds any land as a raiyat in that village
and for one year thereafter.

(6.) If a raiyat recovers possession of land under sec-
tion 87, he shall be deemed to have continued to be a settled
raiyat notwithstanding his having been out of possession
more than a year.

(7.) If, in any proceeding under this Act, it is proved or
admitted that a person holds any land as a raiyat, it shall,
as between him and the landlord under whom he holds the
land, be presumed for the purposes of this section, until
the contrary is proved or admitted, that he has for twelve
years continuously held that land or some part of it as a
raiyat.

Acquisition of rights as a settled-raiyat.— This section makes a great
change — perhaps the greatest change made by the Act — in the Eent-law hitherto
current in Bengal. A raiyat no longer needs to hold the same particular land
for twelve years in order to acquire a right of occupancy in it, as was formerly
the case. (Amur Ghand Lahatta v. Bakshi Paikar, 22 W". R., 228.) It is sufficient,
if he has held as a raiyat any land in the same village for twelve years, either
liefore or after the passing of the Act, and either himself or through the person
whose heir he is. If he has done so, he then becomes " a settled raiyat." But
this does not apply to iithandi raiyats, or to raiyats of char or dearah lands (see
note to sec. 180 for an explanation of these terms), who must hold the same land
for twelve years before they acquire occupancy-rights in it. Nor does it confer a
right of occupancy on raiyats occupying proprietoi''s private or demesne lands,
under leases for a term of years or fi-om year to year. This provision, giving
raiyats rights of occupancy, provided they have held any land in the village for
twelve years, has been introduced to prevent zamindars from debarring their
raiyats from acquiring rights of occupancy by shifting them, so as not to allow
them to occupy the same land for the full period of twelve years. At one time
it was proposed to allow a settled raiyat to acquire rights of occupancy, in all

SETTLED RAIYATS. gg

lands held by him in an estate, provided he had held any land for twelve years in Chap. V.
that estate. But this proposal was finally, after much discussion, rejected. S"^- 21.

Distinction between a settled raiyat and an occupancy-raiyat.—
Sub-section (3) is important, as it makes a distinction — the only distinction made
by the Act— between a " settled raiyat " and " an occupancy-raiyat," which terms
might appear to be synonymous. But they are not synonymous. By this sub-
section the status of a " settled raiyat " is made heritable, though not transferable,
and a raiyat in the acquisition of such a status is entitled to the benefit of the
occupation of the person whose heir he is. But the status of a settled raiyat,
whether inchoate or complete, cannot be acquii'ed by purchase or sale, as rights
of occupancy can, in districts where such rights are, by custom, transferable. On
the contrary, the i^urchaser of a raiyat's right cannot, on the acquisition of rights
as a settled raiyat, benefit by the occupation of his predecessor, and the pur-
chaser of an occupancy-raiyat' s rights does not acquire rights of occupancy in
lands other than those which he may have purchased, — that is to say, he does not
by his purchase acquire rights of occupancy in other lands held by him, or which
he may in future hold, in the same village. In this respect, the Act makes no change
in the law. (See note to sec. 19.) But a settled raiyat at once acquires rights of
occupancy in all lands held by him in the village, however he may acquire them,
and for however short a period he may have held them (see sec. 21).

Co-sharer raiyats.— The co-sharers alluded to in sub-sec. (4) are not
co-sharer landlords, or co-sharers in an undivided estate. They are co-sharer
raiyats, and the meaning of the clause would appear to be that, when two raiyats
hold land jointly, they shall each be considered to be a raiyat of the holding,
and may each become a " settled raiyat " of the village in which it is situate.
Consequently, when a raiyat has held land for twelve years jointly with other
co-raiyats, or partly jointly and partly solely, he, nevertheless, has acquired the
status of a settled raiyat in the land. In this respect, the sub-section follows the
High Court ruling in the case of Forbes v. Ram Lai Biswas (22 W. R., 51), and
sets aside that in the case of Mahomed Chaman v. Ram Prasad Bhagat (8 B. L. R.,
338).

Retention and recovery of rights as a settled raiyat.— Section 87 pi'o-
vides for the recovery of possession by a raiyat on proof that he has not volun-
tarily abandoned his holding, in which case his rights as a settled raiyat are not
affected by his dispossession. But if he has voluntarily abandoned his holding,
and returns within a year and takes the same or another holding in the same
village, he will, under sub-section (5), still be a settled raiyat of the village. ,

Onus of proof.— Sub-section (7) makes another great change in the law.
It relieves the raiyat of the onus of proving his occupancy-rights. It throws
on the landlord the onus of disproving the raiyat's claim to rights of occupancy.
It has been inserted in the Act in consideration of the great practical difficulty
experienced by raiyats in proving their occupancy-rights, owing to the general
non-interchange of pottahs and kabidiyats under the previous law.

21. (1.) Every person who is a settled raiyat of a

Settled raiyats to have village wlthin the meaning of the last

occupancy-rights. foregoing section shall have a right of

THE BENGAL TENANCY ACT.

Chap. V. occupancy in all land for the time being held by him as a
•~ ' raiyat in that village.

(2.) Every person who, being a settled raiyat of a village
within the meaning of the last foregoing section, held land as
a raij^at in that village at any time between the second day of
March, 1883, and the commencement of this Act, shall be
deemed to have acquired a right of occupancy in that land
under the law then in force ; but nothing in this sub-section
shall aiFect any decree or order passed by a Court before the
commencement of this Act.

Retrospective effect of provisions of sub-section (2).— March 2nd, 1883,
is the date on which the motion was made in the Legislative Council for leave to
introduce the Bengal Tenancy Bill. The object of sub-sec. (2) is to protect
raiyats who may have been induced, while this Act was passing through Council,
to contract themselves out of its provisions. It is to be observed that this sub-
section makes the provisions of sec. 20 retrospective from the 2nd March, 1883.
They, therefore, take effect from the 2nd March, 1871. This sub-section applied
to suits pending at the time the Act came into force, viz., 1st November, 1885,
which had not then resulted in a decree. In a suit instituted on 8th October,
1885, to eject the defendants after notice to quit, it was held that, although the
defendant had held the land from which it was sought to eject him for less than
twelve years, and, therefore, would not, if Benga Rent Act VIII of 1869 had been
applicable, have acquired a right of occupancy, yet the effect of sees. 20 and 21
of the Bengal Tenancy Act was to give him a right of occupancy, and, therefore,
he could not be ejected, {Jogessar Das v. Aisani Kaibarto, I. L. E.., 14 Calc, 553.)
This ruling was followed in the Full Bench case of Tapsi Singh v. Ram Saran
Koeri (I. L. R., 15 Calc, 376), in which it was held that sec. 21, sub-sec. (2)
of Act VIII of 1885, is expressly retrospective, and applied to suits pending at
. the date of the commencement of that Act.

An occupancy-raiyat cannot contract himself out of his status.—
Under the provisions of sec. 178 (pos<) -(1) nothing in any contract between a
landlord and a tenant made before or after the passing of this Act, shall (a) bar
in perpetuity the acquisition of an occupancy-right in land, or {h) take away an
occupancy-right in existence at the date of the contract ; (2) nothing in any
contract made between a landlord and a tenant since the 15th day of July, 1880
(which is the date of the Government orders directing the publication of the
Rent Law Commission's Report and Draft Bill), and before the passing of this
Act, shall prevent a raiyat from acquiring, in accordance with this Act, an occu-
pancy-right in land ; and (3) nothing iu any conti-act made between a landlord
and a tenant after the passing of this Act shall prevent a raiyat from acquiring,
in accox'dance with this Act, an occupancy-right in land. It would appear, however,
that the object of these restrictions may, in certain cases, be defeated owing to the
provision in sub-sec. (7) of sec. 20, under which, in a proceeding under
this Act, a raiyat may admit that he has not for twelve years held any part of
his land as a raiyat, and if he does so, the Court or Revenue-officer before whom
he makes this admission would appear to be bound to accept it as correct. In

OCCUPANCY-RIGHTS. Q

other words, the raiyat may admit he is not a settled -raiy at, and his admission Chap. V.
must be accepted, even though it be contrary to the real facts of the case. Skc^2.

22. (1) When the immediate landlord of an occupancy-

„^ , ^ . .,. holding is a proprietor or permanent ten-
Effect of acquisition ^ r r r^

•f occupancy-rigbt by ure-holder, and the entire interests of the
landlord and the raiyat in the holding be-
come united in the same person by transfer, succession, or
otherwise, the occupancy-right shall cease to exist ; but no-
thing in this sub-section shall prejudicially affect the rights of
any third person.

(2) If the occupancy-right in land is transferred to a
person jointly interested in the land as proprietor or permanent
tenure-holder, it shall cease to exist ; but nothing in this sub-
section shall prejudicially affect the right of any third person.

(3) A person holding land as an ijardddr or farmer of
rents shall not, while so holding, acquire a right of occupancy
in any land comprised in his ijara or farm.

Explanation. — A person having a right of occupancy in
land does not lose it by subsequently becoming jointly interest-
ed in the land as proprietor or permanent tenure-holder, or
by subsequently holding the land in ijara or farm.

Merger.— Sub-sections (1) and (2) introduce a rule of merger. The meaning
of sub-section (1) is, that if a landlord buys or otherwise comes into possession
of an occupancy -right, the right shall be de facto extinguished. The land, how-
ever, continues part of the raiyati stock of the country, and the under-raiyats in
it, if any, become elevated to the status of raiyats. Sub-section (2) lays down the
same rule in the case of an occupancy-right coming into the possession of a co-
sharer-landlord or permanent tenure-holder. Though these provisions are new,
they are in accordance with the previous rulings of the High Court on the subject.
Thus, in Lai Bahadur Singh v. Solano (I. L. K, 10 Calc, 45 ; 12 C. L. R., 659), it
was held that the period during which an occupant of land was in possession as
proprietor cannot be included in considering whether he has acquired a right of
occupancy, as such a right must be acquired against somebody, and cannot be
acquired by a man against himself. In an unreported case, Krishna Prasad Singh
V. Eadha Prasad Singh, cited in the case of Lai Bahadur Singh v. Solano, it was
said by Garth, C. J., that a man cannot occupy the double character of landlord
and raiyat, or make a pretence of paying rent to himself for the purpose of
acquiring an occupancy-right against other people. Finally, in the case of Radha
Oovind Koer v. Raklial Das Mukharji (I. L. R., 12 Calc, 82), it was held that
when a zamindar acquires the land of an occupancy-raiyat by purchase, and takes

I possession, even henami in the name of a third party, seeing that he cannot pay
rent to himself, the occupancy-right is gone, and cannot be revived.
I ■"

Q THE BENGAL TENANCY ACT.

Chap. V. Ijaradars.~Sub-section (3) and the explanation to it embody the law laid down

Skc^23. ^y ^|jg jjjgl^ Court in the cases of Gilmore v. Srimant Bhximik (W. R., Sp. No. 1864,
Act X, 77) ; Watson & Co. v. Jogendra Narain Rai (1 W. R., 76) ; Mokundo Lai
Dhobi V. Crowdy (8 B. L. R., App., 95, 17 W. R., 274) ; Umanath Tewari v.
Kundan Teioari{\% W. R., 177) ; Savi v. Panchanan Rai (25 W. R., 503) ; Ram Saran
Sahit V. Veryag Mahtan (25 W. R., 554) ; Jardine, Skinner S Co. v. Sarat Sundari
Debt (25 W. R., 347 ; 3 C. L. R., 140) ; RaiKamal Dad v. Laidley (I. L. R., 4 Calc,
957) ; and Lai Bahadur Singh v. Solano (I. L. R., 10 Calc, 45 ; 12 C. L. R., 559).

It is said to be a common practice in Behar for thikadars to sell the rights of
the occupancy-raiyats of their ijdras in execution of decrees for rent, and them-
selves to purchase these rights at the sales. But under the provisions of sub-section
(3) they acquire nothing by their purchase but a bare right of possession in the
raiyats' lands. They acquire only the right to hold the lands as raiyats, and, on
the expiry of their interests as thikadars, they will have no occupancy-rights in the
lands purchased by them until the expiry of twelve years from the date of taking
possession of such lands.

The effect of the provisions of this section appears to be that a proprietor, or
joint-proprietor, or a permanent tenure-holder, or joint permanent tenure-holder,
or an ijdrdddr, or farmer of rents, cannot acquire a right of occupancy ; but a
person who has a right of occupancy does not lose it by subsequently acquiring
the rights of a proprietor or joint-proprietor, of a permanent tenure-holder, or
joint permanent tenure-holder, or of an ij6/rdddr with respect to the same land.

Incidents of Occupancy -right.

23. When a raiyat has a right of occupancy in respect

Rights of raiyat in of any land, he may use the land in any

respect of use of land. ^^^^ner whicli does not materially impair

the value of the land or render it unfit for the purposes of the
tenancy ; but shall not be entitled to cut down trees in con-
travention of any local custom.

Hitherto, a raiyat has been debarred from cutting trees {Abdul Rahinan v.
Dataram Bashi, W. R., Sp. No. 1864, 367) unless planted by himself {Golak Rana.
V. Nobo Sundari Dasi, 21 W. R., 344), or unless he holds a lease in perpetuity at
a fixed rent, in which the lessor reserves no reversionary interest in the land or
the trees growing on it (Saroda Sundari Debi v. Ohani, 10 W. R., 419). But he is
entitled to the possession of trees growing on land leased to him, till the contrary
be proved. {Mahomed Alt v. Bolaki Bhagat, 24 W. R., 330.)* A raiyat has also
been hitherto debarred from digging tanks {Tarini Cham Basu v. Deb Narain
Mistri, 8 B. L. R., App., 69 ; Monindra Chandra Sirkar v. Maniruddin Biswas,
11 B. L. R., App., 40 ; Kedarnath Nag v. Khetra Pal Shibratna, 6 C. L. R., 569),
erecting brick houses {Sibdas Bandopadhya v, Bamandas Mukharji, 8 B. L. R., 237 ;
15 W. R., 360 ; Jagat Chandra Rai v. Ishan Chandra Banarji, 24 W. R., 220 ;
Prasanna Kurruari Debi v. Ratan Baipari, I. L. R., 3 Calc, 694 ; Lai Sahu v. Deo
Narain Singh, I. L. R., 3 Calc, 781 ; 2 C. L. R., 295 ; but see contra, Nyamatulla
Ostagar v. Oovind Chandra Datta, 6 W. R., Act X, 40), excavating earth for making
bricks {Kadambini Debi v. Nabin CImndra Adukh, 2 W. R., 157 ; Anand Kumar

* See also All. H. 0. Rep., 1870, 251, and I. L, R., 2 AIL, 896.

INCIDENTS OF OCCUPANCY-RIGHT. g7

Mukharji v. Bissonath Banarji, 17 "W. R., 416), and even, according to the North- Chap. V.
Western Provinces High Court, from digging wells or planting trees on his land Sec^4.
{Kunja Behari Pdtak v. Shiva Balak Singh, 1 Agra, F, B., 119 ; Jewa Ram v. Fnt-
teh Singh, 1 Agra, F. B., 125 ; Sheocharn v. Bassant Singh and Ro,m Jalban Singh
V. Meheli, 3 All. Eep., 282), without his landlord's consent. If, however, the
tenant had a permanent and transferable interest in the land, he might build a
well, or do anything that did not entirely destroy the laud, so as to endanger the
landlord's ground-rent {Dliepat Singh v. Halal Khuri Chmidhri, "W. R., Sp.
No., 279), and if the landlord had stood by and allowed the tenant to erect brick
houses {Beni Madhub Banarji v. Jai Krishna Mukharji, 7 B. L. R., 152 ; 12 W. R.,
495 ; Braja Nath Kundu v. Stewart, 8 B. L. R., App., 51 ; 16 W. R., 216 ; Durga
Prasad Misra v. Brindabun Sukal, 7 B. L. R., 159), or acquiesced in the excavation
of earth for brick-making {Nicholl v. Tarini Cham Basu, 23 W. R., 298), the
Courts would not allow him to eject the tenant, at least without giving him com-
pensation. In another case, in which the tenant had planted his jote with mango
trees to the knowledge, but without the consent, of his landlord, who took no
action in the matter for three years, it was held that the landlord was not entitled
to a mandatory injunction for the removal of the mango trees. {Naina Misra v.
Rupikan, I. L. R., 9 Calc, 609 ; 12 C. L. R., 300.) Now, however, by Chap, IX
of the Act, the law is changed. A raiyat holding at fixed rates and an occupancy-
raiyat may (sec. 76) dig a well, tank, water-channel, make an enclosure or other
permanent improvement of land for agricultural purposes, and erect a suitable
dwelling and out-offices, with or without his landlord's consent. A non-occupancy
raiyat may (sec. 79) dig ^ well and construct a dwelling-house on his land, with or
without his landlord's consent. But a tenant may not now, without his landlord's
consent, dig earth from it for purposes of brick-making, or do anything else,
which will permanently impair the value of the land and render it unfit for the
purposes of cultivation. Further, a raiyat may cut down the trees on his land
without his landlord's consent, unless there be a custom to the contrary in his
district. The landlord's remedy in the case of a raiyat's materially impairing the
value of the land would be a suit for damages, or for the restoration of the land
to its former condition. He might also obtain an injunction against the raiyat,
restraining him from doing further injury to the land. He cannot eject the
raiyat on this ground. Nor can he eject the raiyat for cutting down the trees in
contravention of a local custom. His remedy in this case would be a suit for
damages, or an injunction. But the landlord may eject the raiyat, if he renders
the land unfit for the purposes of the tenancy, though, before doing so, he will,
under the provisions of sec, 155, have to serve on the raiyat a notice specifying
the particular misuse complained of, and requiring him to remedy and pay com-
pensation for the same. Under sec. 178, sub-sec. (3), cl. (6), an occupancy-raiyat
cannot, after the passing of this Act, contract himself out of the provisions of this
section.

24. An occupancy-raiyat shall pay
to pay rent. *^^* rent for his holding at fair and equitable
rates.

Meaning of "fair and equitable rates."— This expression "fair and equit-
able rates " is not defined either in this Act or in Act X of 1859, or in any other
Act of the Indian Legislature. Its meaning may be gathered from sec. 27, read

gg THE BENGAL TENANCY ACT.

Chap; V. ■with seca. 30 and 38. The existing rent is, under sec. 27, to be presumed to be
Skc. 25. fg^jj,^ until the contrary is proved. Proof of the contrary would be proof of the
~~" existence of the grounds of enhancement specified in sees. 30 to 34, or of the grounds
of reduction mentioned in sec. 38. The presumption in favour of the existing rent
being the fair and equitable rent may be rebutted by shewing, (a) that the average
prices of staple food-crops have risen during the currency of the present rent,
that the rent paid by the raiyat is below the prevailing rate, or that the productive
powers of the land have increased by an improvement eflfected by the landlord,
in which cases the existing rent must be enhanced in order to arrive at a " fair
and equitable " rent ; or (6) that there has been a fall in 'the average prices of
staple food-crops during the currency of the present rent, or that the soil has be-
come deteriorated by a deposit of sand or the like (sec. 38), in which latter cases
the existing rent would have to be reduced in order to arrive at a fair and equi-
table rent, within the meaning of the Act. It would, therefore, appear that a " fair
and equitable rent " under the Act, means, in the case of occupancy -raiyats, the
existing rent, phts or miniis a rise or fall, as the case may be, on the grounds specified
above. It may be worth while to point out that, in practice, the " fair and equit-
able rent " under this Act must, in the vast majority of cases, ordinarily, be either
the existing rent — be it ever so high — or that rent, together with an enhancement
of it. It is known that prices have risen, and that their tendency is to rise further.
Hence, on the ground of rise in prices, existing rents must be enhanced, and cannot
be reduced, in order to arrive at fair rents. Again, the rents of occupancy-raiyats
who are paying at less than prevailing rates can be enhanced to prevailing
rates, while the rents of raiyats who are paying at more than prevailing rates
cannot be reduced to those rates. On this ground, then, so far as existing rents
are changed at all, in order to get at fair rents, the change must be in the direct-
tion of enhancement, and cannot be in the direction of reduction. There is no
class of cases likely to arise in actual practice, in which an occupancy-raiyat's rent
can be reduced, in settling fair and equitable rents, except the few cases in which
the soil may have deteriorated by a deposit of sand or the like. The provisions
of this section would, therefore, be likely to prove disastrous to the raiyat, were it
not for the provisions of a subsequent section, viz., sec. 35, in which it is said that,
" notwithstanding anything in the foregoing sections, the Court shall not, in any
case, decree any enhancement which is, under the circumstances, unfair and in-
equitable." But see the note to that section. It may be added that the Eent
Commission stated their idea of a fair and equitable rate of rent to be " such a
share of the produce of the soil, as shall leave enough to the cultivator to enable
him to carry on the cultivation, to live in reasonable comfort, and to participate,
to a reasonable extent, in the progress and improving property of his native land."
(Rent Law Commission Eeport, Vol. I., p. 24, § 46.)

-,,,.. . 25. An occupancy-raiyat shall not

Protection from evic- , tr j j

tion except on specified be ejected by his landlord from his hold-
ing, except in execution of a decree for
ejectment passed on the ground —

{a) that he has used the land comprised in his holding
in a manner which renders it unfit for the purposes of the
tenancy, or

INCIDENTS OF OCCUPANCY-RIGHT.

(b) that he has broken a condition consistent with the Chap. v.

provisions of this Act, and on breach of which he is, under
the terms of a contract between himself and his landlord, lia-
ble to be ejected.

This section must be read in connection with sec. 155, which provides that,
before bringing a suit for ejectment against a tenant on either of the grounds speci-
fied in this section, the landlord must serve on the tenant a notice specifying the
particular misuse or breach complained of, and giving the tenant the option of
either remedying the misuse or breach, or paying reasonable compensation for the
same. The tenant is only liable to ejectment, if he has failed within a reasonable
time to comply with the terms of this notice. A raiyat cannot, therefore, be
ejected for merely materially impairing the value of the land. The landlord's
remedy, in this case, will be a suit for damages, or for the restoration of the land
to its former condition, and he may also obtain an injunction against the tenant,
restraining him from doing further injury to the land. He will also have these
remedies against a tenant who has rendered the land unfit for the purposes of
the tenancy or broken a condition of his lease, and may have recourse to them
without serving a notice on the tenant, or suing for his ejectment. The provisions
of this section cannot be evaded, for in sec. 178, sub-sec. (1), clause (c), it is
provided that nothing in any contract between a landlord and a tenant made
before or after the passing of this Act, shall entitle a landlord to eject a tenant
otherwise than in accordance with the provisions of this Act.

Danger of landlord's sleeping on his rights.— Even when an occupancy-
raiyat has rendered himself liable to be ejected, it is dangerous for a landlord to
sleep on his rights. Under the old law, the Courts have frequently refused the
relief of ejectment to landlords who have done so, and have stood by and allowed
tenants to invest labour and capital in the land without taking any action. (Beni
Madhah Banarjiv. Jai Krishna Mukk&rji, 7 B. L. R., 153 ; 12 W. R., 495 ; Shih Las
Banarji v. Baman Das Mukharji, 8 B. L. R., 237 ; 15 "W. R., 360 ; Brajanath Kundio v.
Stewart, 8 B. L. R., App., 51 ; 16 W. R., 216 ; Durga Prasad Misra\. Brindaban Sukal,
7 B. L. R., 159 ; Rani Rama v. Jan Mahomed, 3 B. L. R., A. C, 18 ; Nicholl
V. Tarini Cham Basu, 23 W. R., 298 ; Kedar Nath Nag v. Khetra Pal Shihrattia,
6 C. L. R., 569 ; Naina Misra v. Rupikan, I. L. R., 9 Calc, 609 ; 12 C. L. R., 300.)

Protection from eviction under the old law — Under the old law, too,
the Courts have always protected the tenant from eviction or forfeiture of his ten-
ancy, except when provided for in the conditions of his lease. Thus, in Alam
Chandra Shaha v. Moran & Co. (W. R., Sp. No., Act X, 31), it was said that, in
strict law, a farmer forfeits his lease by the withdrawal of the personal security
given by him at the time of taking the farm. But cases of forfeiture are not
favoured, where no injury has resulted, or where a money-compensation is a sufl[i-
cient remedy. Mere unpunctuality in the payment of rent is no ground of for-
feiture. The zamindar, if endamaged by the unpunctuality, may sue for interest
and conditional forfeiture ; but he cannot demand, at once, the absolute forfeiture of
the property. Then, in Axigar Singh v. Mohini Datta Singh (2 W. R., Act X, 101),
it was said that in the absence of a proviso in a lease that it shall be cancelled, or
that the landlord shall have the right of re-entry on breach of any of the condi-
tions of it, a breach of contract does not cancel the lease or give a right to eject.

Sec. 25.

70 THE BENGAL TENANCY ACT.

Chap. V. On the other hand, in Ratn Kumar Bharttacliarji v. Ram Kumar Sen (7 W, E.,
Skc. 26. 132), it was held that whei-e the Collector has to enquire into contracts between
parties, he must enforce the contracts, and cannot, upon supposed considerations of
equity, set aside that which the parties have deliberately agreed upon between
themselves. Every breach of an agreement for a lease does not entail forfeiture
of the lease ; but where forfeiture is provided as the penalty for tlie breach of a
particular clause, it may be enforced for such breach. {Mahomed Faiz Chamlhri v.
Shib Dulari Tewari, 16 W. R., 103.) Where a tenant covenants not to excavate a
tank, and agrees, if he does so, to be liable to eviction, and to pay the cost of fil-
ling in the tank, the landlord is entitled to sue for cancellation of the lease, or for
damages, and is not bound to wait for the expiration of the lease ; but he cannot
be permitted to claim possession of a fractional portion of the lands covered by the
lease. {Dir Chandra Manik v. Hossein, 17 W. R., 29.) There is nothing incom-
j>atible in the two remedies of damages and forfeiture for breach of the conditions of
a lease. Where there is an obligation to do several successive acts, the obligation
is broken, if any one of the acts is omitted when the time comes for its perform-
ance, and the lessor is not bound to wait until the expiration of the term of the
lease, but may sue at once for liquidated damages or forfeiture. Receipt of rent
would be evidence of a waiver of the forfeiture, only if accepted for a period sub-
sequent to the forfeiture. {Chandranath Misra v. Sirdar Khan, 18 W. R., 218.)

26. If a raiyat dies intestate in respect of a right of
Devolution of occu- occupancy, it shall, subject to any custom
pancyright on death. ^o the Contrary, descend in the same man-
ner as other immoveable property : provided that, in any case
in which under the law of inheritance to which the raiyat is
subject his other property goes to the Crown, his right of
occupancy shall be extinguished.

Heritability of occupancy-rights.— The provisions of this section set at
rest the question of the heritability of occupancy-rights. It was generally assumed
that occupancy-rights were heritable ; but doubts on this point were expressed by
Peacock, C. J., in the case of Ajodhya Prasad v. Imam Bandi Begam (7 W. R.,
628), and the question seems never to have been decided.

Transferability or non-transferability of occupancy- rights.— It is to
be noticed that the above section.s, dealing with the incidents of occupancy-rights,
omit all reference to the incident of their transferability or non-transferability.
The omission is intentional. It was at first proiwsed to make all occupancy-rights
transferable. Subsequently, it was proposed to make occupancy-rights in Bengal
transferable, anil to leave the transferability of occupancy-rights in Behar to be
regulated by custom. Ultimately, it was determined to leave the question of the
the transferability of all occupancy -rights, whether in Bengal or Behar, to be settled
by custom, as before, and the Act, therefore, omits all reference to the subject, leav-
ing the matter to be regulated by sec. 183, which provides that " nothing in this
Act shall artect any custom, usage, or customary right, not inconsistent with, or
not expressly or by necessary implication modified or abolished hy, its provisioiis."
The application of this section to the question of the transferability of occupancy-
rights ie specially pointed out by illustration 1, appended to sec. 183, which runs

TRANSFERABILITY OF OCCUPANCY- RIGHT. 71

thus : "A usage, under which a raiyat is entitled to sell his holding without the Chap. V.
consent of his landlord, is not inconsistent with, and is not expressly or by neces- one. 26.
sary implication modified or abolished by, the j^rovisions of this Act. That usage,
accordingly, wherever it may exist, will not be affected by this Act."

Oocupancy-rigTits not transferable save by custom. — That occupancy-
rights are not necessarily, that is, save by custom, transferable, seems to have been
laid down, for the first time, in the case of Sriram Basic v. Bishonath Ghosh (3 "W. E.,
Act X, 3), which was at variance with a previous decision, TaraTnani Dasi
V. Biressar Mazumdar (1 W. R., 86), in which it had been held that a right of
occupancy was a transfei'able tenure. The question was, however, settled by
the Full Bench ruling of Ajodhya Prasad v. Lnam Bandi Begum (7 W. R., 528).
This ruling has been followed ever since. (See Durga Sundari v. Briadahan Chandra
Sirkar, 2 B. L. E., App., 37 ; 11 W. R., 162 ; Nanku Rai v. Mahabir Prasad,
11 W. R., 405 ; 3 B. L. R., App., 35 ; Buti Singh v. Murat Singh, 20 W. R., 478 ;
13 B. L. R., 284, note ; Narendro Narain Rai v. Ishan Chandra Sen, 13 B. L. R.,
274 ; 22 W. R., 22.) In order to make a right of occupancy transferable, it has
been said, it must be shown, that it is so transferable according to the custom of
that part of the country in which the tenure is situated. (Anno Pvj'na Basi v.
Umachiirn Das, 18 W. R., 55 ; Sankarpati Thakurani v. Saifollah KJian, 18 W. R.,
507.) Further, the sale of a jote in execution of a decree does not prove it to
be transferable, nor does the purchaser acquire a right of occupancy by his pur-
chase, where the right is not dependent on custom, but is the mere creature of
the Rent Law. {Knpanath Chaki v. Doyal Chand Pal, 22 W. R., 169.) Again,
in a recent case {Dwarkanath Misra v. Harish Chandra, I. L. R., 4 Calc, 925) it
has been held that, in the absence of clear and well-defined custom, the right of
occupancy acquired by a cultivating raiyat under Sec. 6 of Bengal Act VIII of
1869 cannot be transferred either by a voluntary sale, or gift, or sale in execution
of a decree.

Ooeupancy-riglits transferable by custom — That occupancy-rights are
transferable in districts where the custom of their transferability exists, is now
a well-established fact. There are numerous judicial rulings to this effect. One
of the earliest of these, is the case of Sriram Basu v. Bissonath Ghosh (3 "W. R.,
Act X, 3), in which it was laid down that the determination of the fact whether
or not a tenui-e with right of occupancy is transferable depends on local custom.
Again, in Jai Krishna Mukharji v. Raj Krishna Mukharji (1 "W. R., 153), it is said
that "in every district of Bengal, there is a different custom. In some parts
the khudkasht tenants are allowed to sell without reference to their landlords ;
in other parts the practice has not been allowed, and the only method by which '

the question in each case can be decided is by reference to local custom." Then,
in Haro Mohan Mukharji v. Lalanmani Basi (1 W. R., 5) it was said, that " it is not
essential that a raiyat should have a mokarari jote in order to dispose of his rights
in a holding. There are various descriptions of tenures, other than mokarari, that
can be sold, and are sold every day ; the howalahs and neem howalahs of Backer-
gunge, and the jotes of Rungpore, for example. Neither of these holdings, are
properly speaking mokarari, but they are maurasi and contain hereditary rights,
which are, and always have have been, considered transferable." In Jagat Chandra
Rai v. Ram Narain BJiarttacharji (1 W. R., 126), it was said that, " neem howalahs,
and all such rights of occupancy, established by the ancient prescription and
custom of the country, are trausfei-able tenures." In Chandra Kumar Rai v.
Kadirmani Dasi (7 W. R., 247), a custom, according to which rights of occupaucy

72 THE BENGAL TENANCY ACT.

Chap. V. in land, on which a brick house had been built, were transferable, was held to
Skc. 26. have been proved ; and in Beni Madhab Banarji v. Jai Krishiut Mxikharji (7
"^^ B. L. E., 152 ; 12 W. E., 495), it was found that, according to the custom of the
Hooghly District, a tenure granted for building-purposes is transferable. (See
also Durga Prasad Misra v. Brindahan Sukal, 7 B. L. E., 159 ; 15 W. E., 274.) In
a recent case {Tirthjaivanid Thakur v. Mati Lai Misra, I. L. E., 3 Calc, 774), the High
Court has pointed out that a portion of an occupancy-holding cannot be transferred.
In this case it was found that occupancy-raiyats had, by custom, a right in a
certain locality to transfer their rights generally, but not to sub-divide their
holdings and to transfer different parts of them to diflferent people, and it was
held that the persons who took the different parts of the holdings could be treated
as trespassers and ejected.

Prevalence of custom of transferability It has, however, been con-
tended by some that occupancy-rights are much more generally transferable than
these judicial rulings would seem to show. It is said that the custom of transfer-
ring them prevails, not merely in certain particular localities, but all over Bengal.
In tlie Bengal Government Eeport of 1883 on the Bengal Tenancy Bill, Vol. I,
p. 14, statistics were given as to the sales of occupancy-rights in Bengal in 1881-82.
It was shown that there had been 32,633 such sales in that year, and it was said
that in every district of Bengal and Behar, except Darjeeling, occupancy-rights
were " more or less freely sold, as a matter of private agreement, without objec-
tion on the landlord's part." It was contended, however, that the sales, of which
the Government of Bengal produced statistics, were dependent on the landlord's
consent. Further enquiries were, therefore, made, and their results are embodied
in the appendices to the Government of Bengal Eeport of 1884 on the Tenancy
Bill. The result of them is, according to the Government Eeport of that year,
Vol. I, p. 18, that " wherever, throughout these provinces, the custom of free sale
is well established, there, occupancy-rights are bought and sold without inter,
ference on the part of the zamindar. The utmost extent to which interference pro-
ceeds, is the levy of a fee, when the purchaser's name is registered (which it often
is not) in the landlord's serishtaP

Proof of custom of transferability. — A most difficult point in connection
with this question, however, remains, that is, how is the custom of the transfera-
bility of occupancy-rights in any particular locality to be proved to the satisfac-
tion of a Court, — with how many years' proof of the existence of such a custom
should the Court be satisfied, and would be justified in finding the custom to be
well established ? On this point, reference is invited to the notes to sec. 183, in
which the subjects of custom, usage, and customary right, are discussed.

Onus of proof as to transferability of occupanoy-rights — The onus
of proving the transferability of a raiyat's holding is upon the party who alleges
it to be of a permanent and transferable nature. {Kriparmyi Devi v. Durga Go-
hinda Sirkar, I. L. E., 15 Calc, 89.)

No registration of transfers of ordinary raiyati-holdings required.—
■ When an ordinaiy raiyati-holding is transferable, it is not necessary that the
transfer should be registered in the landlord's serishta. This was required by
the old law only in the case of dependent talukdars and holders of permanent
transferable interests in land intermediate between the zamindar and the culti-
vator {Tarainani Dasi v. Biressar Majumdar, 1 W.^E., 86 ; JIaro Mohan Mukharji
V. Chintamoni Rai, 2 W. E., Act X, 19 ; Kane Lai T/iakur v. Latchmipat Dugar^

TRANSFERABILITY OF OCCUPANCY-RIGHT. 73

7 W. R., 15 ; Uma Cfiarn Sett v. ffari Prasad Misra, 10 W. R., 101 ; Jai Krishna chap. V.
Muklmrji v. Durga Narain Nag, 11 W. R., 348), and sees. 12 to 16 of the present Sec^6.
Act are only applicable to permanent tenure-holders and to raiyats holding at
fixed rates ; but when an occupancy-raiyat transfers his holding, he is bound, under
sec. 73, to give notice of the transfer to his landlord in the manner prescribed by
Rule 7, Chap. V of the Government Rules under this Act. (See Appendix I.)

Effect of the transfer of oooupancy-rights, -when not transferable by
custom. — The transfer of a tenure not transferable by the custom of the country,
gives the zamindar no right to take actual possession, so long as the rent is paid by
the recorded tenant or his heirs, and not by a stranger. {Jai Krishna Muklmrji v.
Raj Krishna Mukharji, 5 W. R., 147.) If a raiyat not having a transferable tenure
quits possession, makes over his interests and gives over the land to a third per-
son, he may be treated as having abandoned all rights formerly possessed by him
in the land. When a purchaser takes possession of a non-transferable tenure, and
interposes himself between the zamindar and the raiyats on the land, he thereby
commits a wrong, and the zamindar may sue to declare that no interest is vested
in such purchaser, or to restrain him from interfering with the collection of rent.
{Harihar Mukharjiy. JoAunath Ghosh,! W.'R., 114.) Wliere a raiyat makes an
invalid transfer to a third party, the landlord is entitled to look to the former
tenant for the rent, and, as the parties revert to their former status, he is not
entitled to klias possession. (Saddai Purira v. Boistab Purira, 12 B. L. R., 84, note ;

15 W. R., 261.) The mere transfer of a right of occupancy does not work as a for-
feiture of the rights and interests of occupancy-raiyats in the lands. {Gora CJiand
Mttstafi v. Barada Prasad Mustafi, II W. R., 94 ; 13 B. L. R., 279, note.) A mere
right of occvipancy derived from a person who had only such a right gives no title
to the transferee against the zamindar. {Durga Sundari v. Brindaban Clmndra
Sirkar, 2 B. L. R., App., 37 ; II W. R., 162.) A tenant who alienates his tenure
does not thereby subject it to forfeiture. {Dwarkanath Misra v. Kanai Sirdar,

16 W. R., 111.) When a transfer of an occupancy-right has been made, and the
transferee is in possession, the zamindar has a right to evict him as a trespasser,
and to claim damages to the extent of so much of his rents and profits as the
trespasser prevented him from enjoying. {Suhodra v. Smith, 20 W. R., 139.)

When an occupancy-raiyat sells his holding, his right of occupancy ceases ; it
cannot protect the purchaser from ejectment. {Narendro Narain Rai v. Ishan
Chandra Sen, 22 W. R., 22 ; 13 B. L. R., 274.) When a tenure is not transfera-
ble, and the transfer has not been consented to, or adopted by, the zamindar,
the zamindar is entitled to treat the raiyat as a trespasser, and to evict him, even
in the middle of the year. {Haro Molmn Mxhkharji v. Chintamoni Rai, 2 W. R.,
Act X, 19.) A right of occupancy under the Rent law not being transferable,
tenants who have such a right, by quitting the land sever all connection between
themselves and it ; and the landlord is entitled to re-enter. {Ram Chandra Rai v.
Bholanath Lashkar, 22 W. R., 200.) A right of occupancy cannot be trans-
ferred either by voluntary sale or gift, or by a sale in execution of a decree ;
and when the former occupant of the land remains in possession as tenant-at-
will of the transferee, he as much abandons the right of occupancy as if he had
abandoned the land. {Bioarkanath Misra v. Harish Chandra, I. L. R., 4 Calc,
925.) A raiyat having a right of occupancy is not liable to ejectment by his
superior landlord, because he has asserted a transferable right in the lands, and
sold that right to a stranger, without giving up possession of the land. {Shrishti'
dhar Biswas v. Madan Sirdar, I. L R., 9 Calc, 648.)

7^ THE BENGAL TENANCY ACT.

Chap. V. The rule to be deduced from the above rulings would seem to be that, when

Skc. 26. an occupancy-raiyat transfers his rights in the lands, which are not transferable
by custom, and quits the land, and ceases to pay rent for it, the landlord can enter
on it, or bring a suit for the ejectment of the transferee. But if the transferor
continues to pay rent for the land, or continues to occupy the land as any kind
of tenant, the landlord cannot re-enter on it, or eject the occupant. The ruling in
the case of Dimrkanath Misra v. Harish Chandra may seem to conflict with these
views ; but they are in accordance with the decision in the case of Srishtidhar
Biswas V. Madan Sirdar, I. L. E., 9 Calc, 648, which would seem to over-i-ule
that in Dwarkanath Misra v. Harish Chandra.

Effect of the receipt of rent by the landlord from the transferee of
a non-transferable right of occupancy.— It has been held that in certain
circumstances the receipt of rent from the transferee of a non-transferable right
of occupancy does not bind the landlord. In Khudiram Chatarji v. Rukhini
Boistahi (15 W. E., 197), it was said that payment of rent marfatwari (i. e.,
on behalf of another) confers no raiyati title on the marfaticar. Then, in
Bhajohari Banik v. Aka Ghulam Ali (16 W. E., 97), it was said that the pur-
chaser of a raiyati-tenure is bound to communicate with the zamindar, and obtain
his consent to the transfer, and without this being done, a gomasta's receipts are
not binding on the zamindar. In another case {Gaurlal Sirkar v. Rameshwar
Bhumik (6 B. L. E., App. 92), it has been said that a zamindar does not, by the
mere receipt of rent from a purchaser from a tenant having a right of occupancy,
sanction the sale to the purchaser, so as to give him a right of occupancy. There
are some cases, however, in which it has been ruled that the receipt of rent by
the landlord from the transferee validates the transfer of a non-transferable
occupancy-right. In the first of these, Allender v. Dwarkanath Rai (15 W. E.,
320), it has been said that where rent is recovered, without objection, by succes-
sive landlords from the date of such transfer, such receipt acts as a full and com-
plete acknowledgment by the proprietor that he accepts the new tenant in place
of the old one. Again, in Amin Baksh v. Bhairo Mandal (22 "W. E., 493), it has
been laid down that the conduct and acts of a zamindar may be such as to take a
case out of the purview of the Full Bench decision in Narendro Naraiii Rai v.
Ishan Chandra Sen (13 B. L. E., 274 ; 22 W. E., 22) which declares that a right of
occupancy is not transferable, e. g., when a zamindar has clearly recognized a
transfer, and done everything in his power in accepting the transferee as his
tenant. In another case — in which, however, it does not appear whether the
tenancy was a transferable tenure or a non-transferable right of occupancy — it
was laid down that a landlord, by having allowed the sums paid into the CoUec-
torate by a third party to be carried to his credit, had clearly recognized the
transfer from the tenant to the third party. {Ram Gohind Rai v. Dashu Ojha
Debi, 18 W. E., 195.)

When a non-transferable occupancy-right can be bequeathed — Tlie
rights of permanent tenure-holders and of raiyats holding at fixed lates can be be-
queathed as well as inherited (sees. 11 and 18). The Act makes an occupancy-right
heritable (sec. 20 (3) ), but contains no provision for its being bequeathed. Unless,
then, the bequest of such a right is sanctioned by custom, no testamentary dis-
position of an occupancy-right will be valid. But the framers of the Act clearly
held that customs both of transferring and bequeathing occupancy-rights may
exist ; for, in clause (d), sub-sec. (3), sec. 178 of this Act, it is provided that no

ENHANCEMENT OF RENT. . 75

raiyat can, after the passing of this Act, contract himself out of his right to Chap. V.
transfer or bequeath his holding in accordance with local usage. Sv-c. Jl,

Effect of transfer of oocupanoy-rights-when transferable by custom.—
When occupancy-rights are transferable by custom, it is clear that all that the
raiyat has now to do, in order to make the transfer binding against the landlord,
is to give him notice of the transfer (see sec. 73). Under the old law it has been
held that if the landlord of a transferable holding receives rent from the transferee
and is fully aware of the transfer, this is sufficient to put an end to the connection
of the transferor with the holding. {Abdul Aziz Khan v. Ahmad Alt, I. L. E.,
14 Calc, 795.)

Transfer of oc cupancy-rigbts how to be effected.— Un der sec. 54, Act IV
of 1882, (Transfer of Property Act), a sale of tangible immoveable property of
the value of one hundred rupees and upwards, or of a reversion or other intangible
thing, can be made only by registered instrument. In the case of tangible immov-
able property of a value less than one hundred rupees, sucli transfer may be made
either by registered instrument or by delivery of the property. Hence, if a raiyat
pui-ports to sell his land, he must execute a registered deed of sale with regard to
it, if it be worth Es. 100 and upwards, and if it be worth less, he may execute such
a deed of sale ; but he may also effect a valid transfer by putting the purchaser in
possession of it. If, however, he purports to sell his rights in the land, which are
intangible, he must execute a registered deed of sale.

A raiyat cannot create an intermediate tenure between Mmself and
his landlord.— It was said in Harihar Mukharji\. Jadunath Ghosh (7 W. E., 114),
that " whatever may be the rights of a person to whom a tenant having a right of
occupancy transfers his title with possession, we do not think that a tenant having
a right of occupancy can create a tenure intermediate between himself and the
talukdar."

Sub-letting — This chapter is silent as to an occupancy-raiyat's right of sub-
letting. This subject is, however, dealt with in sec. 85, on reference to which it
will be seen that any raiyat may sublet his land : (a) if without the consent of his
landlord, by means of a registered lease, which shall be valid for only nine years,
whether i-egistered before or after the passing of the Act ; or (6) with the consent
of his landlord, in any way he pleases, and for any term not exceeding the term
of his own holding, if he holds it on a terminable lease.

Enhancement of Rent

27. The rent for the time being payable by an occu-

Presumption as to pancy-raiyat shall be presumed to be

fair and equitable rent, f^-^, ^^^ equitable Until the Contrary is

proved.

A similar presumption arose under sec. 5, Act X of 1859, and VIII of 1869,
B. C. {Isliar Ghosh v. Hills, W. E., Sp. No., F. B., 148 ; Thakurani Dasi v. Bisheshar
Mukkarji, 3 W. E., Act X, 29 ; B. L. E., F. B., 202.)

7(3 THE BENGAL TENANCY ACT.

Chap. V, „ , . ,. 28. Where an occupancy-raivat pays

Sues. 28, 29. Restriction on en- , '^ , ti i

— hancement of money- his rent in money, his rent shall not be

enhanced, except as provided by this Act.

The effect of this section is, that enhancement, except by suit or by contract,
is absolutely prohibited, and that if a money -rent is enhanced by contract, the
contract must be written and registered, save as provided in proviso 1, sec. 29.

Enhanoement of produce-rents. — From the omission of all reference in this,
and in subsequent sections, to the enhancement of rent payable in kind, it would
seem as if a rent payable in kind, or, in other words, as if the rent of a hhaoli hold-
ing, cannot be enhanced under this Act. This is no doubt the case. None of the
provisions of this sub-chapter, except those of sec. 27, are applicable to rents pay-
able in kind, so that a rent payable in kind or a hhaoli rent cannot be enhanced
under this Act as long as it remains payable as such. But either a landlord or an
occupancy-raiyat can always, under sec. 40, apply to have a rent payable in kind
commuted into a money-rent, and if the commutation is allowed, the landlord
can proceed to enhance the commuted money-rent in accordance with the Act.
It would further seem that there is nothing to prevent the enhancement of
a produce-rent otherwise than under this Act, The provisions of sec. 178 place
no restriction on its enhancement by contract out of Court, and it has been
ruled that the fact of a raiyat having paid rent in kind for a number of years is
no bar to enhancement. {Thakur Prasad v. Mohamed Bakir, 8 W. R., 170.)

Enhancement of rent ^9. The money-rent of an occu-

by contract. pancy- raiyat may be enhanced by contract,

subject to the following conditions : —

{a) the contract must be in writing and registered ;

{h) the rent must not be enhanced so as to exceed by
more than two annas in the rupee the rent previously payable
by the raiyat ;

(c) the rent fixed by the contract shall not be liable to
enhancement during a term of fifteen years from the date of
the contract :

Provided as follows —

(i.) Nothing in clause (a) shall prevent a landlord from
recovering rent at the rate at which it has been actually paid
for a continuous period of not less than three years immediate-
ly preceding the period for which the rent is claimed.

(ii.) Nothing in clause {b) shall apply to a contract by
which a raiyat binds himself to pay an enhanced rent in con-
sideration of an improvement which has been or is to be
effected in respect of the holding by, or at the expense of,

ENHANCEMENT OF RENT.

Src. 29.

his landlord, and to the benefit of which the raiyat is not chap. v.
otherwise entitled ; but an enhanced rent fixed by such a
contract shall be payable only when the improvement has
been effected, and, except when the raiyat is chargeable with
default in respect of the improvement, only so long as the
improvement exists and substantially produces its estimated
effect in respect of the holding.

(iii.) When a raiyat has held his land at a specially
low rate of rent in consideration of cultivating a particular
crop for the convenience of the landlord, nothing in clause
(b) shall prevent the raiyat from agreeing, in consideration
of his being released from the obligation of cultivating that
crop, to pay such rent as he may deem fair and equitable.

Enhancement by contract.— Agreements to enhance must be in wi'itmg,
and must be registered, and the enhanced rent must not exceed the rent previously
paid by more than twelve and a half per cent., but if, as in the case of proviso (i),
a i-aiyat actually pays an enhanced rent for not less than three years, under an oral
or written, but unregistered contract, he cannot say that he was unaware of the
nature of the contract he was entering into. He is, therefore, to be held liable for
the enhanced rent, subject, however, to the provisions of clause (6). Again, when a
raiyat, as in the case of proviso (ii), agrees to pay an enhanced rent, in consideration
of an improvement effected by his landlord, he is paying, not so much an enhanced
rent, as interest on the capital invested by the landlord. He is, therefore, liable
to pay at an enhanced rate even exceeding his former rent by more than twelve
and a half per cent., but only so long as the improvement lasts and produces its
estimated effect. Finally, proviso (iii) is intended to permit of the unrestricted
enhancement of the rents of raiyats, who may have agreed to sow indigo or other
special crops in consideration of their being allowed to hold at specially low rates.
In connection with proviso ( i ), the case of Barlianadi Haidadar v. Mohan
Chandra Ouha (8 C. L. E., 511) may be cited. In this case an agreement to pay
enhanced rent had been made by one of several co-tenants, and the enhanced
rent had been paid for several years. It was, therefore, held that all the co-
tenants were liable, as it was to be assumed that they knew of, and acquiesced
in, the arrangement made by their co - sharer. Further, it should always be
remembered that sec. 20, Act IX of 1880, B. C. (the Cess Act), provides that the
holder of an estate or tenure cannot recover rent at a higher rate than that men-
tioned m his return under the Cess Act, unless he proves that the rent has been
lawfully enhanced subsequently to the lodging of his return.

This section does not apply to settlements.— It may be observed that
sec. 29 does not apply to proceedings under Chap. X of this Act, and that a Eevenue
Officer settling rents, under Chap. X, is not bound by its provisions, except that he is
bound to give effect to the terms of any contract made by the parties in accordance
with sec. 29, before they have come before him. But a Collector enhancing rents,
not as a Eevenue or Settlement Officer, but as a landlord, is bound by the provi-
sions of this section.

g THE BENGAL TENANCY ACT.

Chap. V. 30. Thc landlord of a holding held at a money-rent by

*!!_ ■ . an occupancy-raiyat may, subject to the

Enhancement of rent . . ^ V. i . a . .

by suit. provisions 01 this A-Ct, institute a suit to

Act X of 1859, B. 17 ; i .lU i. r xU

Act VIII of 1869 (B.C.), enhance the rent on one or more ot the
"• ^^' following grounds, (namely) : —

(a) that the rate of rent paid by the raiyat is be-
low the prevailing rate paid by occupancy -raiyats
for land of a similar description and with similar
advantages in the same village, and that there is
no sufficient reason for his holding at so low a
rate ;

(b) that there has been a rise in the average local prices

of staple food-crops during the currency of the pre-
sent rent ;

raiyat have been increased by an improvement effect-
ed by, or at the expense of, the landlord during the
currency of the present rent ;

(d) that the productive powers of the land held by the

raiyat have been increased by fluvial action.

Explanation. — " Fluvial action " includes a change in the
course of a river rendering irrigation from the river practica-
ble when it was not previously practicable.

Notices of enhancement no longer required.— This section makes a great
change in the law with regard to enhancement-suits. The provisions of sec. 13,
Act X of 1859, and sec. 14, Act VIII of 1869 (B.C.), have been done away with, and
the issue of a notice of enhancement is no longer a necessary preliminary to the
enhancement of an occupancy-raiyat's rent, or indeed to the enhancement of the
rent of any tenant. The reason for this change is that a very large percentage of
enhancement cases under the old law failed, (1) because of absence of proof of the
service of the notice of enhancement, and (2) because of defects in the form of
notice, which merely delayed and impeded the decision of the real question at
issue between the parties, and at the same time gave rise to much unnecessary liti-
gation. Under the present law the institution of the enhancement-suit will be
the notice of enhancement to the tenant. This will not bear hardly on the tenant,
for, under sec. 154, a decree for enhancement, if passed in a suit instituted within
the first eight months of the agricultural year, shall not ordinarily take effect till
the commencement of the agricultural year next following ; and, if passed in a
suit instituted within the last four months of the agricultural year, shall not ordi-
narily take eflfect till the commencement of the agricultural year next but one
following. But the Ck)urt may, for special reasons, fix a later date from which any
such decree shall take effect.

ENHA.NCEMENT OF RENT. 79

Who may institute a suit for enhancement.— "Landlord" is defined in Chap. V.
sec. 3, (4) as " a person immediately under whom a tenant holds." It has been Sec^O.
held that an ijaradar is entitled to enhance the rent of raiyats holding under him,
when there is no condition or stipulation in the lease precluding him from so doing
{Dmga Prasad Mahantiv. Jai Narain Hazrah, I. L. R., 2 Calc, 474) ; but a manager
appointed under sec. 243 of Act VIII of 1859 merely to collect rents and other
receipts and profits of land, and to carry on the existing state of afiuirs, as the
proprietor himself had been doing, cannot do so {Khetra Mohan Datta v. Wells,
I. L. R., 8 Calc, 719). One co-sharer cannot enhance the rent of his share, — such an
enhancement being inconsistent with the continuance of the lease of the whole
tenure. {Ghani Mahomed v. Moran, I. L. R., 4 Calc, 96 ; Jogendra Chandra Ghosh
V. Nobin Chandra Chattopadhya, I. L. R., 8 Calc, 353 ; Kashi Kishor Rai
V. Alip Mandal, I. L. R., 6 Calc, 149 ; Kali Chandra Singh v. Raj Kishor Bhadro,
I. L. R., 11 Calc, 615 ; Rash Behari Mukharji v. Sakhi Sundari Dasi, I. L. R., 11
Calc, 644 ; but see contra, Durga Prasad Mahanti v. Jai Narain Hazrah, I. L. R.,
2 Calc, 474) ; and the provisions of sec. 188 of this Act certainly preclude him
from doing so now.

Clause (a). Prevailing rate. — The ground of enhancement specified in
this clause is the same as the first ground mentioned in sec. 18, Act VIII of 1869,
modified to the extent that " village " is substituted for " in the places adjacent, "
and that the words " and that there is no sufficent ground for his holding at so
low a rate " have been added. As to the meaning of the term " prevailing rate, "
it has been held by the High Court that it means the rate generally prevalent, or
paid by the majwity of the raiyats in the same neighbourhood. " The evidence of
twenty raiyats," it has been said, simply showing that they paid " their rents at a
certain rate, does not go to prove the prevailing rate or the rate paid by the
majority of the raiyats." {Sadu Singh v. Ramanugralia Lai, 9 W. R., 83. See
also Surahatunissa Khanam. v. Gyani BaJctaur, 11 W. R., 142). Again, in the case
of Dhunraj Kumoar v. Ugar Narain Kunwar (15 W. R., 2), it was said that the
meaning of the term " prevailing rate " is the rate paid by so large a majority of
the same class of tenants for adjacent lands with similar advantages, as would
justify one in holding it to be the prevailing rate. The adoption of an average
rate from the difterent rates given by several witnesses is an incorrect and unsafe
mode of fixing the proper rate. (Samira Khatun v. Gopal Lai Tagore, 1 W. R., 58 ;
Roshan Bihi v. Chandra Madhah Kar, 16 "W. R., 177 ; Audh Biliari Singh v. Dost
Mahomed, 22 W. R., 185 ; but see contra, Dina Ghazi v. Mohini Mohan Das, 21
W. R., 157.) In one case, Priag Lai v. Brockman (13 W. R , 346), the evidence of
three patwaries, who pi^t in their jamabandis, showing the rates paid by almost
all the raiyats, was held sufficient to prove the prevailing rate. In Tikaram Singh
v. Sandes (22 W. R., 335), where the Lower Appellate Court went on the principle
that, although the plaintiflf had not given evidence as to the rate of rent payable
by tenants of the same class as defendants, holding adjacent lands of similar
quality, yet he had given evidence as to such lands so occupied, of a somewhat
better quality, and that the rate of rent allowed, regard being had to the diifer-
ence, was proper to award in conformity with the spirit of the rent-law, the deci-
sion was held to be reasonable, and was accordingly affirmed.

The words " and that there is no sufficient reason for his holding at so low a
rate " introduce a new element of consideration. A sufficient reason for the
tenant's holding at a low rate may be, it is said, that he belongs to a superior
caste, the members of which are, by custom, allowed to hold land at a lower

THE BENGAL TENANCY ACT.

V ^*® ^^^^ members of other castes, or that he or his ancestors originally reclaimed
Skc.81.* the land, and made it culturable by his own labour or at his own expense (iVwr

Mahomed Mandal v. Hari Prasanna Rai, W. R., Sp. No., 1864, Act X, 75 ;

Paramananda Sen v. Paddo Mani Dasi, 9 W. R, 349 ; ffaro Prasad Rai v. Charuli
Charan Bairagi, I. L. R., 9 Calc, 505 ; 12 C. L. R., 251), or that the tenant is a
village-headman, mandaly or jeth-raiyat^ who, according to custom, is allowed to
hold at less than the prevailing rates (see sec. 31, cl. (c.)).

Clause (b). Rise in prices.— This clause, it is to be observed, authorizes an
enhancement of rent only on the ground of a rise in the average prices (see
Thakurani Dasi v. Bissesar Mukharji, 3 W. R., Act X, 142 ; Bhagrath Das v. Mo-
Iiasup Rai, 6 W. R., Act X, 34) of the staple food-crops, irrespective of the parti-
cular crops — such as jute, indigo, opium, and gayija — grown by the raiyat. The
raiyat can grow what crop suits him best, without thereby subjecting himself to
pay enhanced rent. A rise in prices can be more easily proved than a rise in the
value of the produce, which, under the old rule, it was necessary to prove. As to
the kind of evidence, which was considered relevant to prove the increased value
of produce, see ffaro Prasad Rai v. Umatara Dehi (I. L. R., 7 Calc, 263 ; 8 C. L. R.,
449). Under this Act (sec. 39) Government is bound to prepare price-lists of
the staple food-crops, which are made presumptive evidence of the correctness of
the prices mentioned in them.

Clause (c). Increase in productive powers of lands.— By sec. 18, Act
VIII of 1869 (B. C), the raiyat's rent was enhanceable on the ground that the
productive powers of the land had been increased otherwise than by the agency,
or at the expense, of the raiyat. The terms of this clause show that a raiyat's rent
is no longer enhanceable on the ground of an increase in the productiveness of
the soil, due to natural agency other than fluvial action. This ground of enhance-
ment is said to have been given up, owing to the difficulty found in proving such
an increase. (But see Ahhoy Chandra Sirdar v. Radha Ballabh Sen, 1 C. L. R., 549,
and Churaman Singh v. Dunraj Rai, I. L. R., 5 Calc, 56.) The alteration made
in favour of the raiyat would, however, seem to be more apparent than real,
for it is not easy to see how the productive powers of the land can have increased
otherwise than by fluvial action, except by the labour, or at the expense of the rai-
yat or landlord. Provision is hereafter made (Chap. IX) for the making, register-
ing, and recording evidence of improvements made by the landlord.

Clause (d). Fluvial action.— This clause provides for the enhancement of
rent in alluvial tracts, which are fertilized by alluvial deposits brought down by
the great rivers which water Bengal. It is not by this clause intended, it is saiil
in the Government of Bengal Report of 1884 on the Tenancy Bill (Vol. I, p. 24),
to " justify claims for enhancement over such areas as are not riparian or alluvial,
but still are inundated in years of heavy rainfall, when rivers overflow their chan-
nels, or burst through their embankments."

A tenant is also liable to pay additional rent for all land proved by measure-
ment to be in excess of the area for which rent has been previously paid by him,
but this is strictly not an enhancement of rent. The matter is, therefore, dealt
with in a subsequent section (sec. 52).

^ . 31. Where an enhancement is claimed

Rules as to enhance-
ment on ground of pre- on the grouncl that the rate of rent paid is

vailing rate. i_ i ii, -t ,

below the prevailing rate —

ENHANCEMENT OP RENT. g

(a) in determinino: what is the prevailinGj rate the Court ^"^\'^'

^ ' o . . . Skc. 31.

shall have regard to the rates generally paid d uring a period —
»f not less than three years before tiie institution of the suit,
md shall not decree an enhancement, unless there is a substan-
tial difference between the rate paid by the raiyat and the pre-
vailing rate found by the Court ;

(b) if in the opinion of the Court the prevailing rate

of rent cannot be satisfactorily ascertained
°^ ° ■ without a local inquiry, the Court may direct
that a local inquiry be held under Chapter XXV of the Code of
Civil Procedure* by such Revenue-officer as the Local Govern-
ment may authorize in that behalf by rules made under section
392 of the said Code ;

( c) in determining under this section the rate of rent paya-
ble by a raiyat his caste shall not be taken into consideration,
unless it is proved that by local custom caste is taken into
account in determining the rate ; and whenever it is found that,
by local custom, any description of raiyats hold land at favoura-
ble rates of rent, the rate shall be determined in accordance
with that custom ;

(d) in ascertaining the prevailing rate of rent, the amount
of any enhancement authorized on account of a landlord's im-
provement shall not be taken into consideration.

Clause (a). Effect of expression " have regard to."— As regards the ex-
pression " have regard to, " used in this and other sections, the Hon'ble Mr. Evana
remarked, in the course of the debates on the Bill, *' that every lawyer knows
that if, into a definition of the ground on which an enhancement is to take place,
you incorporate a number of things, which the Courts may have regard to, you
make those things so positively a part of the definition, that, in an appeal on a
point of law to the High Court, if the whole of the matters contained in the de-
finition have not actually been found on evidence, the case will fall to the ground."
" I fear," he adds, " it will be exceedingly difficult for a Court to conduct an in-
vestigation in this way, and that there will hardly be a case, which will not be
capable of being upset on appeal to the High Court." (Government of India Gazette,
1885, p. 523.)

Clause (a). "Working of rules for ascertaining prevailing rate.—
It is difficult to predict how the rules laid down in this section will work. Accord-
ing to some authorities the effect of the direction given to the Courts in clause
(a), " to have regard to the rates generally paid during a period of not less than
three years before the institution of the suit," will be that the Courts will ascer-
tain the prevailing rate by taking an average of the existing rates — a principle
which was said, in the case of Samira Kkatun v. Gopal Lai Tkahir (1 W. R., 58),
R. k F.. B. T. A. 6

82 THE BENGAL TENANCY ACT.

Chap. V. to be incorrect and unsafe, and in Audh Behari Singh v. Dost Mahomed (22 W. R.,
Skc%31, \9,b), to be a wrong mode of fixing the proper rate ; and which, it is further said,
if once introduced, will have the effect of levelling all rates up to the maximum.
According to others, the rulings of the High Court Avhich prohibit the striking of
•an average, except in special cases, apply under this Act as well as under the old
law. If the prevailing rate is not to be an average of the rates actually paid, it
would appear to be the rate paid by a majority of the raiyats for the same class
of land under the old law, or if not this, it is not easy to say exactly what it is.
The Hon'ble Mr. Evans, in the course of the debates on this section, illustrated
the manner in which he conceived the section will work as follows: "Say,
there are two rates, one of Rs. 5 and one of Rs. 2. Merely to strike an average
will not be in compliance either with this Act or the old law. But the class of
judgments, which I have more than once referred to, in which the Judge says :
* This man has been holding at Re. 1. The claim is to have his rent enhanced
up to Rs. 2, on the ground of prevailing rate ; and there is a great deal of
contradictory evidence as to wliat the prevailing rate is. I doubt the evidence which
makes it Rs. 2 ; but I find, except in isolated cases, land of this description is never
held under Re. 1-8 ; therefore, I shall be safe in finding that the prevailing rate
is not less than Re. 1-8.' That is the sort of way in which the Courts have fre-
quently given judgments in regard to these discrepant matters, and, I think,
rightly so."

Clause (b). Government Notifloation regarding rank of Commissioner.
— In the Calcutta Gazette of November 4th, 1885, p. 988, is published the follow-
ing notification, with reference to the provisions of cl. (&) of this section : —

"Under sec. 392 of Act XEV of 1882, the Lieutenant-Governor has been
pleased to make the following rules as to the persons to whom commissions shall
be issued under the Bengal Tenancy Act.

" Whenever, under sees. 31 (b) and 158 (2) of the Bengal Tenancy Act, a Court
directs that a local enquiry ba held under Chap. XXV of the Code of Civil
Procedure, the commission shall be issued to such person, not being below the
rank of an Assistant or Deputy Collector, as the Collector of the district may,
from time to time, select for the purpose.

" The Court shall issue a precept to the Collector requiring him forthwith
to nominate a fit person as above to conduct the enquiry, and the commission shall
be issued to the person so nominated."

Fees payable on commissions.— The fees payable on such commissions are
prescribed by the High Court Rules, Chap. IV, rule 8 (published in the Calcutta
Gazette of the 6th February, 1878). They are as follow : — " When the commission
is issued by the High Court, a Coui"t-fee of Rs. 3 is payable on the commission, and
Buch sum as the Court may direct is payable as remuneration to the Commissioner ;
when issued by a District or Subordinate Judge, a Court-fee of Rs. 2 is jmyable
on the commission, and the Commissioner is to be paid at the rate of Rs. 3 per
diem ; when issued by a Munsif or Small Cause Court, a Court-fee of Re, 1 is
payable on the commission, and a fee of Rs. 3 per diem is payable to the Com-
missioner." No higher fees than these are payable on commissions issued under
sec. 31 (6) of the Tenancy Act.

Clause (c). Consideration of casts and custom in determining rate of
rent. — The provisions of cl. {c) are based on those of sec. 20 of the North-Westeni
Provinces Tenancy Act (Act XII of 1881). The custom alluded to in this clause
must be a local custom, and not a mere family custom. Thus, a mei"e family

ENHANCEMENT OF RENT. 83

custom by which the relations of the zamiudar hold at favourable rates could uot Chap. V.
be taken into consideration {Bholu v. Zorawar, L. E., 2 E. & K, 72 ; see Sicc^32.
Eeynolds's N.-W. Provinces Eent Act, p. 35) ; but when it is the local custom to
allow a particular class of raiyats — such as the mandals of Bengal, or jeth raiyats
of Behar — to hold at favoured rates, it would appear from this clause that their
rents must be determined in accordance with that custom.

As to the meaning of the term " custom," see note to sec. 183.

Clause (d). Eahancement on ground of landlord's improvement — The
provisions of cl. {d) are manifestly just, as an enhancement authorized on account
of a landlord's improvement is to be regarded in the light of interest on capital
expended, and should, consequently, not be taken into consideration in ascertain-
ing the rate of rent prevailing for lands in which no such improvement has been
effected.

Rules as to enhance- 32. Where an enhancement is claimed

ment on ground of rise

in prices. on the ground of a rise in prices —

[a) the Court shall compare the average prices during
tlie decennial period immediately preceding the institution of
the suit with the average prices during such other decennial
period as it may appear equitable and practicable to take for
comj)arison ;

{b) the enhanced rent shall bear to the previous rent the
same proportion as tke average prices during the last decen-
nial period bear to tlie average prices during the previous
decennial period taken for purposes of comparison : provided
that, in calculating this proportion, the average prices during
the later period shall be reduced by one-third of their excess
over the average prices during the earlier period ;

(c) if, in the opinion of the Court, it is not practicable to
take the decennial periods prescribed in clause (a), the
Court may, in its discretion, substitute any shorter periods
therefor.

Clause (a). What deaennial periods may be taken for comparison.—
Sir Steuart Bayley, iu introducing the Tenancy Bill into Council, with reference to
this section, said : " Formerly it was necessary for the landlord to prove when the
rent was last fixed, in order to enter it into a comparison at all. But now, the
Court may take any period daring the currency of the rent that may be equitable and
practicable for comparison. As a rule, in order to eliminate the effect of special
seasons, decennial periods will be taken, but the Courts may, if necessary, substi-
tute shorter periods." {Government of India Gazette, March 14th, 1885, p. 51.)
It is, howevei-, an open question whether the Court is bound to take two decennia
periods " during the currency of the rent " for comparison, or whether it can take
for the purpose a decennial period anterior to the currency of the present rent. If

84 THE BENGAL TENANCY ACT.

Chap. V. for example, the present rent was fixed ten years ago, and an enliancenient is
Skc^3. claimed on the ground that prices have risen during the past ten years, can the
Court compare prices in the last decennial period with the prices in the previous
decennial period, 1869 to 1879 ? If the answer be in the negative, that is to say,
if the comparison can be made only between decennial periods within the cur-
rency of the present rent, then, there will not ordinarily be sufficient time for
comparison, except where the present rents have been current twenty years or
more. But if the Court may, in its discretion, take any anterior decennial period,
into consideration and institute a comparison between the prices in the last
decennial period and the prices in any former decennial period, what is it to do
in case it finds the rise in rents has outrun the rise in prices ? May the Court,
for example, in its discretion, take the prices prevailing in the decennial period
1830-40 for purposes of comparison with the period 1879-89, and if it find that
prices have risen since the period 1830-40 by 70 per cent., while rents have risen
500 per cent., may it refuse to decree any further enhancement of rent till the rise
in prices becomes proportional to the rise in rents, which has already taken
place ? If the Court may do this, it would appear equitable, in the case sup-
posed (which is said to be the actual case in parts of Behar), that the Courts
should exercise the power, which would mean " no further enhancement for a
century in such parts " ; but if the Courts cannot take a decennial period anterior
to the currency of the present rent, how are they to have two decennial periods
in fifteen yeai's, on the expiration of which term occupancy-raiyats' rents can ordi-
narily be enhanced ? In order to justify an enhancement on the ground of rise
in prices, there must, under sec. 30, be an increase in average prices during the
cun-ency of the present rent ; but the question is, as compared with the
average prices of what other period must this rise have taken place ? In order
to facilitate comparison, the Local Government may draw up (see sec. 39)
statements of past prices, publish them for criticism, and finally, after revision,
publish statements of annual average prices, which the Courts will receive
as presumptive evidence (cl. 6). It is understood, however, that the Local
Government has determined not to do so at present for want of necessary data.

Clause (b ) Proportion to be borne by enhanced rent to previous rent.
— In cl. (6) the rule laid down by the majority of the Judges in the well-known
rent-case of Thakurani Dasiv. Bisheshor Mukharji(E. L. E,., F. B., 202 ; 3 W. B.,
Act X, 29) is followed. The reduction prescribed in the latter part of cl. (6) is
to allow for costs of production, which, it is said, have increased in a greater ratio
than the prices of staple food-crops.

Rules as to enhnnce- 33. (1) Where an enhancement is

meiit ong^rouudof laud- ^ . ^ , t r> tut

lord's improvement. clauned on the gi'ouna or a landlords
improvement —

{a) the Court shall not grant an enhancement unless the
improvement has been registered in accordance with this Act;

(b) in determining the amount of enhancement, the Court
shall have regard to —

(i) the increase in the productive powers of the land
caused or likely to be caused by the improvement,

NON-OCCUPANCY RAIYATS. ' §5

Chap. V.
Sues. 34, 35.

(ii) the cost of the improvement, ^^"^T; ^•

(iii) the cost of the cultivation required for utilizing the
improvement, and

(iv) the existing rent and the ability of the land to bear
a higher rent.

(2) A decree under this section shall, on the application
of the tenant or his successor in interest, be subject to
re-consideration in the event of the improvement not pro-
ducing or ceasing to produce, the estimated effect.

The registration of landlords' improvements is provided for by sec. 80. The
improvement cannot, under sec. 80, be registered until it is made. A decree for
enhancement cannot, therefore, be passed until the work is completed. This,
however, does not apply to a contract for enhancement made out of Court, but
the enhanced rent settled by contract out of Court cannot be realised, unless the
enhancement exists and substantially produces the estimated effect (sec. 29,
proviso ii).

Rniea as to enhance- Q^ Where an enhancement is

ment on ground or in-
crease in productive claimed ou the ground of an increase in

powers due to fluvial . ., n • i •

action. productive powers due to nuvial action —

(a) the Court shall not take into account any increase

which is merely temporary or casual ;

(6) the Court may enhance the rent to such an amount

as it may deem fair and equitable, but not so as to give the

landlord more than one-half of the value of the net increase

in the produce of the land.

The rule embodied in clause (a) had already been laid down by the High
Court under the old Acts in the cases of Krishna Mohan Patro v. Hari Sankar
Mtikharji (7 W. E., 235), and Ahdul Ghani v. Bhattu Sheikh (22 W. R., 350).

35. Notwithstanding anything in the foregoing sec-
Enhancement by suit tions, the Court shall not, in any case,
tobe fair and equitable. ^^^^.^^ ^^^ enhancement which is under

the circumstances of the case unfiiir or inequitable.

As pointed out in the note to sec. 24, it is not clear what is meant in this
section by an unfair and inequitable enhancement. If it means any enhancement
which the Court considers unfair and inequitable, the question arises, by what
standard is the Court to judge what is fair and equitable ? If " fair and equitable "
means fair and equitable as indicated in this Act, then the existing rent must bft
held to have been fair when it was fixed, and it must be enhanced if prices have
risen since it was fixed. If the fairness is to be determined by any other

gg THE BENGAL TENANCY ACT.

Chap. V. standard, the question arises, what is that standard ? If, for example, a Revenne-
Skcs. 36, 37. officer finds that the existing rent is so high tliat a raiyat who pays it cannot
live and prosper, or that it does not leave the ordinary profits of capital to the
cultivatoi', would he or the Court, be justified in refusing to enhance such rents
on any ground whatever, though prices may have risen during the currency of the
tenancy, or though the rate is below the prevailing rate ? Probably it is meant
that the answer to the last question should be in the affirmative, and, if so, the
Courts may, under this section, refuse enhancements wherever rents are already
excessive, notwithstanding a rise in prices during the currency of the present
rent, or that the rates in individual cases may be below the prevaling rates.

36. If the Court passing a decree for enhancement
Power to order pro- considers that the immediate enforcement

gresBive enhancement. gf ^he dccreC in itS full CXtcnt will be

attended with hardship to the raiyat, it may direct that the
enhancement shall be gradual ; that is to say, that the rent
shall increase yearly by degrees for any number of years not
exceeding five until the limit of the enhancement decreed has
been reached.

37. (1) A suit instituted for the enhancement of the

rent of a holdino^, on the ground that the

Limitation of right ^\ • ^ ^

to bring successive en- rate of rent paid IS below the prevaihng

Laucement-suits, , , ^ . .

rate, or on the ground ot a rise in prices,
shall not be entertained if within the fifteen years next pre-
ceding its institution the rent of the holding has been enhanc-
ed by a contract made after the second day of March, 1883,
or if within the said period of fifteen years the rent has been
commuted under section 40, or a decree has been passed
under this Act, or any enactment repealed by this Act en-
hancing the rent on either of the grounds aforesaid or on any
ground corresponding thereto or dismissing the suit on the
merits.

(2) Nothing in this section shall affect the provisions
^,^,, of section 373 of the Code of Civil Pro-

XIV of 1882.

cedure.

The 2nd March, 1883, is, as already pointed out, the date on which leave to
introduce the Bengal Tenancy Bill into Council was obtained. Sub-section (1) is
meant to protect raiyats who, after this date and before the passing of this Act,
(after which time their rents, of course, cannot be enhanced otherwise than in
accordance with its provisions), have been induced to enter into contracts for the
enhancement of their lent.

REDUCTION OF RENT. 87

Section 373 of the Civil Procedure Code provides for a Court allowing a Chap, V.
plaintiff to withdraw his suit or abandon part of his claim, with liberty to bring Skc^8.
a fresh suit, on account of (a) some formal defect, or (ft) other sufficient grounds,
in which case the Court may pass such order as to costs as it thinks fit. A plain-
tiff cannot bring a fresh suit, if he withdi-aws his suit or abandons part of his
claim without the permission of the Court, or, if, being one of several plaintiffs,
he does so without the consent of the others.

Reduction of Rent,

38. (1) An occupancy-raiyat holding at a money-rent
may institute a suit for the reduction of

Reduction of rent. •, . , ,^ n ^^ - i i

Sec. 18 Act X, 1859, his Tcut on the lollowing grounas, and,
gc^i9 Act VIII 1869, except as hereinafter provided in the case
of a diminution of the area of the holding,
not otherwise, (namely) : —

{a) on the ground that the soil of the holding has
without the fault of the raiyat become permanently deteriorat-
ed by a deposit of sand or other specific cause, sudden or
gradual, or

{b) on the ground that there has been a fall, not due to
a temporary cause, in the average local prices of staple food-
crops during the currency of the present rent.

(2) In any suit instituted under this section, the Court
may direct such reduction of the rent as it thinks fiiir and
equitable.

A tenant cannot contract himself out of the provisions of this section.
(Sec. 178, sub-sec. (3), cl. (/).)

An instance of a tenant having been held entitled to an abatement of rent
under the old law on the ground of part of his land having been covered with
sand, will be found reported at W. R, Sp. No., 1864, Act X, 42 {Inayatullah v.
Ilahi Baksh). The grounds on which the raiyat could claim an abatement of >

rent must have resulted from causes beyond his control. {Mansur Alt v. Harvey,
11 W. E., 291.)

Occupancy-raiyats cannot sue for abatement of rent on any ground
not mentioned in the section. — It is to be noted that by the insertion of the
words "and, not othenoise" in this section, the legislature expressly pre-
cludes the occupancy-raiyat from applying for an abatement on the ground that
his rent is above the " prevailing rate," or on any other ground not mentioned in
this section. It would, therefore, appear that if an occupancy-raiyat is de facto
paying a rent so exorbitant as to leave no profit at all on his capital and no
return for his labour, still the Court or a Revenue-officer, in proceeding under
Chap. X, must presume that the rent is fair, and cannot reduce it, unless prices
.have fallen during the currency of the tenancy or the soil has deteriorated by a

THE BENGAL TENANCY ACT.

Chap. V. deposit of sand. Tlie old law was, however, to the saine effect — see the case of
Site. 39. Bahan Mandal v. Shih Kumari Barmani (21 W, R, 404), in which it was held,
that a raiyat could not sue for abatement of rent simply because the lands he
held were rated higher than those of the same description with similar a<lvantage»
held by raiyats of the same class in the vicinity. It was decided under the old
law that a landlord receiving a remission of his revenue from Government on
condition that he would similarly reduce his raiyats' rents could be compelled to
allow them an abatement of their rents. {Baikantha Paraki v. Surendro Nath
Itai, 1 W. R., 84 ; Golak Chandra Mahantiv. Parbati Charan Das, 15 W. E., 168.)
But no such abatement could now be claimed under the provisions of this section.
An abatement of rent cannot be applied for even on the ground of fraud.
The person injured by fraud may apply to be relieved of his contract ; but he
cannot apply under this section for an abatement of rent. {Sukur Ali v. A mala
Ahali/a, 8 W. R, 504.)

Whether reduction of rent can be claimed in a snit for arrears
of rent. — Under the old law, a raiyat who was entitled to an abatement of
rent could wait till sued for arrears of rent, and could then raise a plea of abate-
ment by way of a set-off ; and it was competent to the court to adjudicate on this
plea {Afsarudin v, Sharashi Bala Debt, Marsh., 558 ; Din Dyal Lai v. Thakru
Kunwar, 6 W. R., Act X, 24 ; Gaur Kishor Chandra v. Bonomali Chaudhri,
22 W. E., 117) ; but it is doubtful whether he can do so now. Section 19,
Act VIII of 1869 (B. C), provided that a raiyat having a right of occupancy
was " entitled to claim " an abatement of rent on certain grounds, while sec. 38
of the present Act says that he " may institute a suit " for the reduction of
his rent on the grounds specified therein. Further, the provisions of sec. Ill,
C. P. C, allow only of an ascertained sum being set-off against the plaintiff's
claim in a suit for the recovery of money ; but they do not take away from parties
any right to set-off, legal or equitable, which they would have independently of
that Code. {Bhagbat Panda v. Bamdeb Panda, I. K R, 11 Calc. 557.

Price-lists.

39. (1) The Collector of every district shall prepare,
Price-lists of staple ^lonthly, or at shorter intervals, periodical
food-crops. lists of the market-prices of staple food-

crops grown in such local areas as the Local Government may
from time to time direct, and shall submit them to the Board
of Revenue for approval or revision.

(2) The Collector may, if so directed by the Local Go-
vernment, prepare for any local area like price-lists relating to
such past times as the Local Government thinks tit, and shall
submit the lists so prepared to the Board of Revenue for
approval or revision.

(3) The Collector shall, one month before submitting a
price-list to the Board of Revenue under this section, publish

PIUCE-LISTS. g9

it in the prescribed manner within the local area to which it ^-"^p- v.

^ ^ , ^ Skc. 40.

relates, and if any landlord or tenant of land within the local —
area, within the said period of one month, presents to him in
writing any objection to the list, he shall submit the same to
the Board of Revenue with the list.

(4) The price-lists shall, when approved or revised by
the Board of Revenue, be published in the official Gazette ;
and any manifest error in any such list discovered after its
publication may be corrected by the Collector with the sanc-
tion of the Board of Revenue.

(5) The Local Government shall cause to be compiled,
from the periodical lists prepared under this section, lists
of the average prices prevailing throughout each year, and
shall cause them to be pubhshed annually in the official
Gazette.

(6) In any proceedings under this chapter for an en-
hancement or deduction of rent on the ground of a rise or
fall in prices, the Court shall refer to the lists published under
this section, and shall presume that the prices shown in the
lists prepared for any year subsequent to the passing of this
Act are correct, unless and until it is proved that they are
incorrect.

(7) The Local Government, subject to the control of the
Governor-General in Council, shall make rules for determin-
ing what are to be deemed staple food-crops in any local area
and for the guidance of officers preparing price-lists under
this section.

The Local Government has determined, for the present, not to prepare price-
lists relating to past times, owing to the absence of necessary data. Rules have i
been framed by the Local Govei-nment, under this section, for the preparation of
price-lists relating to present and future times. They will be found in Chap. II
of the Government Rules under this Act, which, with Board of Revenue's instruc-
tions regarding them, are printed in Appendix I.

Commutation.
40. (1) Where an occupancy -raiyat pays for a holding

Commutation of rent ^'^^^^ ^^ ^^^^^ ^r on the estimated value of
payable iu kind. a portiou of the crop, or at rates varying

with the crop, or partly in one of those ways and partly in

90 THE BENGAL TENANCY ACT.

C'j^*p- V. another, either the raij^it or his landlord may apply to hav
— the rent commuted to a money-rent.

(2) The application may be made to the Collector or Sab-
divisional Officer, or to an officer making a settlement of rents
under Chapter X, or to any other officer specially authorized
in this belialf by the Local Government.

(3) On the receipt of the application the officer may de-
termine the sum to be paid as money-rent, and may order
that the raiyat shall, in lieu of paying his rent in kind, or
otherwise as aforesaid, pay the sum so determined.

(4) In making the determination the officer shall have
reo;ard to —

(a) the average money-rent payable by occupancy-raiyats
for land of a similar description and with similar advantages
in the vicinity ;

(b) the average value of the rent actually received by
the landlord during the preceeding ten j^^ears or during any
shorter period for which evidence may be available ; and

(c) the charges incurred by the landlord in respect of
irrigation under the system of rent in kind, and the arrange-
ments made on commutation for continuing those charges.

(5) The order shall be in writing, shall state the grounds
on which it is made, and the time from which it is to take
effect, and shall be subject to appeal in like manner as if it
were an order made in an ordinary revenue proceeding.

(6) If the application is opposed, the officer shall consider
whether, under all the circumstances of the case, it is reason-
able to grant it, and shall grant or refuse it accordingly. If
he refuses it, he shall record in writing the reasons for the
refusal.

This section is intended to provide for the commutation of rent payable
under the hhaoli system, which prevails extensively in the South Gangetic Dis-
tricts of Behar.

Under cl. (^r), sub-sec. (3X sec. 178, no raiyat can now contract himself out of
the provisions of this section.

Procedure when the application is opposed. — Sub-sec. (6) provides for
the case when the application is opposed on the ground that the opposite party
is unwilling to have the produce-rent commuted. It gives the officer to whom
the application is made power to grant or refuse the application as he thinks

NON-OCCUPANCY-RAIYATS. 91

reasonable. But no provision is made for the case when the application is opposed Chap. V.
on the ground that the rent is not payable in kind, but is a money-rent payable "

at a rate already fixed. It is, therefore, an open question what course the officer
to whom the application is made shovdd adopt in these circumstances, — whether
he should decide the question himself, or refer the parties to the Civil Court. The
Board of Revenue, on a reference being made to them as to the course to be
adopted on a similar objection being raised to the valuation of produce under
sec. 69 of this Act have expressed an opinion " that a mere unsupported denial by
one of the parties that the land is held hhaoli does not bar the Collector's juris-
diction ; but when there is a bond fide dispute whether rent is or is not taken by
appraisement or division of the produce, the Collector has no power to make an
order under sec. 69 of the Tenancy Act." (Board of Revenue's No. 662A of the
30th June, 1888 to the Government of Bengal.) Probably the officer to whom an
application, under sec. 40, is made, had better, in the case above alluded to,
be guided by this opinion of the Board's.

Changes made by the A.Gt in the position of occupancy-raiyats.—
Before leaving this subject of occupancy-raiyats, it will be useful to note the
changes made by the Act in the position of a tenant of this class. They may be
briefly summarized as follows : — (1) Instead of, as formerly, having to prove that
he has held every particular field for more than twelve years, an occupancy-raiyat
has now (sec. 20, cl. 1) only to have held any land in the village for twelve years,
and he at once acquires rights of occupancy in all the lands held by him in that
village ; and in any proceeding between himself and his landlord, it is presumed
(sec. 20, cl. 7), in the absence of proof to the contrary, that he is an occupancy-
raiyat of the land which he is found to be holding. (2) He cannot now — sec. 178,
cl. (3) (a) — contract himself out of his occupancy status, though he may admit
that he is a non-occupancy raiyat, and the Couits may act on his admission —
sec. 20 (7). (3) His rent can only (sees. 29 and 30) be enhanced by a Court, or by
written and registered agreement. If enhanced by contract, the enhanced rent can-
not, except in one specified case, (proviso ;) exceed by more than two annas in the
rupee the rent previously paid by the raiyat, and if once enhanced, whether by suit
or by contract, it cannot (sec. 29, cl. (c), and sec. 37) be enhanced again for fifteen
years. (4) The raiyat has now (sec. 77) power to make improvements, and can
(sec. 82) recover compensation for his improvements in case of eviction. (5)
Three months must (sec. 147) intervene between the institution of successive suits
for arrears of rent. (6) An occupancy-raiyat (sec. 65) cannot now be evicted in
execution of a decree for arrears of rent ; but the holder of a decree for arrears of
rent may bring the tenancy to sale. (7) The provisions of the law regarding
distraint (Chap. XII) have been made less open to abuse. Against all this, must
be set the facts, that the enhancement of his rent has been greatly facilitated ; and
that in no case which is ordinarily likely to arise can he obtain a reduction of his
rent, though his existing rent be ever so high.

CHAPTER YI.

NON-OCCUPANCY-RAIYATS.

This chapter must be read in connection with sec. 116, which provides that
nothing in this chapter shall apply to a proprietor's private lands, where any

92 THE BENGAL TENANCY ACT.

Chap. VI. such land is held under a lease for a terra of years, or under a lease from year to
Skc8. 41—43. year. This chapter is also subject to the provisions of sec. 180 (2), which excludes
raiyats holding under the custom of uthandi (see note to sees. 20 and 180 for an
explanation of this term) from the provisions of the chapter.

41. Tills chapter shall apply to raiyats not having a
Application of chap- ^'ig^^^ of occupancy, who are in this Act

^^- referred to as non-occupancy-raiyats.

From the sequel it will be seen that the term " tenants-at-will," which has
hitherto been popularly applied to non-occupancy-raiyats, is now no longer appli-
cable to them ; and, indeed, according to some authorities, the term never was
applicable to any class of raiyats in Bengal.

42. When a non-occupancy-raiyat is admitted to the
Initial rent of non- occupatioii of Lind, he shall bccome liable

occupancy-raiyat. ^o pay siich rent as may be agreed on

between himself and his landlord at the time of his admission.

The contract between a non-occupancy-raiyat and his landlord may be an oral
or a written one. If it be a written one, it must be registered, if it be from year
to year, or for any term exceeding one year, or reserving a yearly rent. In one
respect a non-occupancy-raiyat holding under an oral or written but unregistered
lease (for example, a lease for a term not exceeding one year, the registration of
which is optional) would seem to be in a better position than a raiyat of the same
class holding under a written and registered lease, as he would seem not to be
liable to be ejected on the expiry of its term. (See sec. 44, cl. (c).)

43. The rent of a non-occupancy-rai3"at shall not be
Conditions of en- enhanced except by registered agreement

bancement of rent. or by agreement under section 46 :

Provided that nothing in this section shall prevent a land-
lord from recovering rent at the rate at which it has been actu-
ally paid for a continuous period of not less than three
years immediately preceding the period for which the rent is
claimed.

There is nothing to prevent the rent of a non-occupancy-raiyat being en-
hanced so as to exceed by more than two annas in the rupee the rent previously
paid by him, and it can be enhanced not merely after the expiry of fifteen years
from the last enhancement, as in the case of occupancy-raiyats, but after the
expiry of five years. After this period he can be ejected, or his rent can, if the
Court thinks fit, be enhanced again, unless he has, in the meantime, acquired the
rights of an occupancy-raiyat.

NON-OCCUPANCY-UAIYATS.

Grounds on which ,. ^^^ \ non-occupancy-raiyat shall, sS^V^.

1) on- occupancy -raiyat SUDject tO the prOVlSlOnS 01 thlS Act, be

™Ycfc^xr?859i 8. 21; liable to ejectment on one or more of the
Ac^t^viii, 1869 (B. c), following gi'ounds, and not otherwise,
(namely) : —
(a) on the ground that he has failed to pay an arrear of rent ;
{b) on the ground that he has used the land in a manner
which renders it unfit for the purposes of the
tenancy, or that he has broken a condition con-
sistent with this Act, and on breach of which he is,
under the terms of a contract between himself and
his landlord, liable to be ejected ;

land under a registered lease, on the ground that
the term of the lease has expired ;

(d) on the ground that he has refused to agree to pay a

fair and equitable rent determined under section
46, or that the term for which he is entitled to
hold at such a rent has expired.

Clause (a). — Section 65 protects a tenure-holder, a raiyat holding at fixed
rates, and an occupancy-raiyat, but not a non-occupancy-raiyat, from ejectment
for arrears of rent. But a non-occupancy-raiyat cannot be ejected except in exe-
cutioVi of a decree (sec. 89), and under the provisions of sec. 66, he can always save
lumself from ejectment, even after the passing of a decree against him, by paying
in the amount of the decree with costs, within fifteen days from the date of the
decree, or within such further period of grace as the Court may allow him.

Clause (b). — Under sec, 155, a non-occupancy-raiyat, before he can be ejected
on either of the above specified grounds, is entitled, just as much as an occupancy-
raiyat, to a notice specifying the misuse or breach complained of, and requiring
him to remedy the same where possible, and in any case to pay reasonable com-
pensation for the misuse or breach of condition of his lease.

Clause (c). — From the words " and not otherwise " in sec. 44, it appears that,
unless a non-occupancy-raiyat's initial lease is written and registered, he cannot
be ejected on the expiry of its term merely on the ground of its expiry. In other
words, a non-occupancy-raiyat, if admitted to the occupation of any land on a
verbal, or on a written but not registered, lease, cannot be ejected on its expiry,
except on the grounds specified in els. (a), (6), and {d) of this section.

45. A suit for ejectment on the ground of the expira-

condition, of eject- ^^^^ ^^ the term of a lease shall not be

meutou gronndcf ex- instituted a2;ainst a non-occupancy-raiyat

piration of lease. . . i i i

unless notice to quit has been served on

94 THE BENGAl. TENANCY ACT.

Chap. VI. tlic Faiyat not less than six months before the expiration of
■■ — ■ the term, and shall not be instituted after six months from
the expiration of the term.

This notice would seem only to be required in tlie cases referred to^in cl. (c),
sec. 44, and cl. (b) (7), sec. 46. No notice to quit can be issued to a non-occupancy-
raiyat holding under an oral, or written but unregistered lease, for 'he/is not
liable to be ejected on the ground of expiiation of the term of his lease.

If a suit for ejectment be instituted against a raiyat whose tenancy can only be
determined by a reasonable notice to quit, expiring at the end of the year, without
the notice to quit having been' given, it must be dismissed. (Rajendra Nath
Muhhopadhya v. Dassidar Rahman Khundkar, I. L. E., 2 Calc, 146 ; 25 W. R. 329.)

Rule 2, Chap. V of the Government rules under the Tenancy Act (see Appen-
dix I) provides that a notice to quit under this section shall be served through
the Court having jurisdiction to entertain a suit for ejectment from the holding
in the manner prescribed for the service of a summons on a defendant under the
Code of Civil Procedure, and shall be subject to the same process fee.

Former law as to notices to quit. — Under the former law, a non-occupancy-
raiyat was entitled to a reasonable notice to quit. {Bakrcuiath Mandal v. Binod-
ram Sen, 1 B. L. R., F. B., 25 ; 10, W. R., F. B., 33 ; Banwari Lai Rai v. Mohima
Chandra Kunal, 4 B. L. R., app. 86 ; 13 W. R., 267 ; Naho Ktomar Ohosh v. Uzir
Shikdar, 23 W. R., 238 ; Betts v. Jamai Sheikh, 23 W. R., 271 ; Ahdvl Karim
V. Amar Chand Lahata, 24 W. R. 461.) If he continued in occupation of the
land after receipt of this notice to quit, he was taken to have agreed by implica-
tion to the rent demanded from him by the landlord. {Janu Mandar v. Brojo
Singh, 22 W. R., 548). A tenant-at-will or from year to year is liable to be
ejected upon a reasonable notice to quit, unless some local custom to the contrary
is proved. {Prasanna Kumari Dehi v. Ratan Baipari, I. L. R., 3 Calc^ 696.)
A raiyat holding on after the expiry of his lease cannot be treated as a trespasser,
and is entitled to have his tenancy determined by a reasonable notice to quit.
{Ram Khelawan Sing v. Makund Lai, I. L. R., 7 Calc, 710.) What is a reason-
able notice is a question of fact, which must be decided in each case according
to the particular circumstances and the local customs as to reaping crops and
tilling land. It is not necessary that the notice must expire at the end of the year.
{Jagat Chandra Rai v. Rup Chand Chango, I. L. R., 9 Calc, 48 ; 11 C. L. R., 143 ;
Bidhumukhi Dehi v. Kifaiyat-ullah, I. L. R., 12 Calc, 93.) It need not be a notice
to quit on a certain day. {Hem Chandra Ghosh v. Radha Prasad Palit, 23 W. R.,
440.) A ten days' notice is not sufficient. {Ram Ratan Mandal v. Netro Kali
Dasi, I. L. R., 4 Cal., 339.) A thirty days' notice at a time when the crops are
ripening, is not sufficient. {Jubraj Rai v. Mackenzie, 5 C. L. R., 231.) Neither
is a two months' notice expiring in Falgun, when cultivation began. {Bidhu-
mukiDebi v. Kifaiyat-xdlah, I. L. R., 12 Calc, 93.) The notice to quit need not neces-
sarily be a three months' notice. {Radha Gobinda Koer v. Rakhal Dass Mukharji,
I. L. R., 12 Calc, 82) ; but a three months' notice may be a reasonable notice to
quit. {Janu Mandar v Brojo Singh, 22 W, R., 548.)

Service of notice to quit. — Where a notice to quit was sent by a registered
letter, the posting of which was proved, and which was produced in Court in the
cover in which it was despatched, that cover containing the notice with an en-
dorsement upon it, purporting to be by an officer of the Post Office, stating the

NOX-OCCUPANCY-TIAITATS. 95

refusal of the addressee to receive the letter, it was held that this was a sufficient Chap. "VI.

service of the notice. (Jogendro Chandra Ohosh v. Dwarkanath KarmoTcar, I. L. R., _J

15 Calc, 681 ; Lutf All Miah v. Piari Mohan Rai, 16 W. R, 223.)

46. (1) A suit for ejectment on the ground of refusal
Conditions of eject- to agree to an enhancement of rent shall
rXlrto aire"toen- "ot be instituted agaiust a non-occupancy-
hancement. raiyat uuless the landlord has tendered to the

raiyat an agreement to pay the enhanced rent, and the raiyat
has, within three months before the institution of the suit,
refused to execute the agreement.

(2) A landlord desiring to tender an agreement to a raiyat
under this section may file it in the office of such Court or
officer as the Local Grovernmant appoints in this behalf for
service on the raiyat. The Court or officer shall forthwith
cause it to be served on the raiyat in the prescribed manner,
and when it has been so served it shall for the purposes of
this section be deemed to have been tendered.

(3) If a raiyat on whom an agreement has been served
under sub-section (2) executes it, and within one month from
the date of servics files it in the office from which it issued, it
shall take effect from the coinmsncement of the agricultural
year next following.

(4) When an agreement has been executed and filed by a
raiyat under sub-section (3), the Court or officer in whose
office it is so filed shall forthwith cause a notice of its being
so executed and filed to be served on the landlord in the pre-
scribed manner.

(5) If the raiyat does not execute the agreement and file
it under sub-seetion (3), he shall be deemed for the purposes
of this section to have refused to execute it.

(6) K a raiyat refuses to execute an agreement tendered
to him under this section, and the landlord thereupon insti-
tutes a suit to eject him, the Court shall determine what rent
is fair and equitable for the holding.

(7) If the raiyat agrees to pay the rent so determined, he
shall be entitled to remain in occupation of his holding at that
rent for a term of five years from th« date of the agreement,
but on the expiration of that term shall be liable to ejectment

f)6 THE BENGAL TENANCY ACT.

CiiAF. VI under the conditions mentioned in the last foreooino: section,

Skc. 47. . . o o »

— unless he has acquired a right of occupancy.

(8) If the raiyat does not agree to pay the rent
so determined, the Court shall pass a decree for eject-
ment.

(9) In determining what rent is fair and equitable, the
Court shall have regard to the rents generally paid by raiyats
for land of a similar description and with like advantages in
the same village.

(10) A decree for ejectment passed under this section
shall take effect from the end of the agricultural year in which
it is passed.

Sub-sections (2) and (4). — For the rules framed by the Local Govern-
ment under sub-sections (2) and (4) of this section ; see rules 3 and 4, Chap. V,
Government Rules, Appendix I,

Sub-section (8) and (9).— It is to be observed that in determining fair and
equitable rents for non-occupancy-raiyats, the point to which the Court is to
have regard is the rent generally paid by raiyats for land of a similar description
and with similar advantages in the same village ; while in determining fair and
equitable rents in the case of occupaucy-raiyats, the rent for the time being pay-
able is presumed to be fair, and is liable to enhancement or reduction on certain
specified grounds. In settling fair rents under Chap. X, the Revenue-officer shall
presume for occupancy and non-occupancy-raiyats alike that the existing rent is
fair till the contrary is proved. (Sec. 104 (3).)

Former law as to the assessment of non-occupancy-raiyats' rents.—
The rulings under the former law as to the assessment of non-occupancy-raiyats '
rents are not uniform. In some it is said that a non-occupancy-raiyat is liable to
pay the highest rack-rent, and that his landlord can make what terms he pleases
with him, or turn him out of occupation. {Kubir Sirdar v. GolaJc Chandra Chakra-
vartti, 3 W. R., Act X, 126 ; Manirudin Mirdha v. Kennie, 4 W. R., Act X, 45 ;
Gopal Lai Thakur v. Badaruddin, 7 W. R., 28 ; Janu Mandar v. Brijo Singh,
22 W. R., 548). In others, it was held that a non-occupancy-raiyat was bound to pay
only a fair and equitable i-ent. {Stalkart v. Bharat Lai, W. R., Sp. No., Act X,
115 ; Jian Lai Jha v. Kali Nath Jha, 5 W. R., Act X, 41 ; Pitambar Karmokar v.
Ram Tanu Rai, 10 W. R., 123 ; Bakranath Mxndal v. Bitiodram Sen, 1 B. L. R.,
F. B., 25 ; 10 W. R., F. B., 33 ; Ram Mohan Ghosh v. Madhu Sudan Chuudhri,
11 W. R, 304.)

47. Where a raiyat has been in occupation of land and

Explanation of "ad- ^ Icasc is exccutcd with a vicw to a conti-

mitted to occupation." nuancc of his occupation, he is not to be

deemed to be admitted to occupation by that lease for the

UNDER.RAIYATS.

purposes of this chapter, notwithstanding that the lease may Chap. vii.
purport to admit him to occupation. — '

This prevents the raiyat being ejected on the expiry of this lease, as he can
be after the expiry of his initial lease.

Changes made by the Actin the position of non-occupanoy-raiyats,—
The changes made by the Act in the position of the non-occupancy-raiyat may
be here pointed out : (1) Under the old law, the non-occupancy-raiyat could get
a pottah only at the rates agreed upon with his landlord. Now, this provision
applies only at the time of his admission to the land. When he has been once
admitted to the land, if allowed to stay on after the expiry of the term of his
initial lease, he can only be made to pay a fair and equitable rent, as defined in
sec. 46, sub-sec. 9. (2) Formerly, he could be ejected on the expiry of his
lease, and if he had no lease, he could be ejected at any time after service on him
of a notice to quit. Now, he can only be ejected on the expiry of his lease, if it
be a written and registered one, and even then only by suit. If allowed to stay
on for six months after its expiry without a suit for ejectment being brought
against him, he can no longer be ejected on that ground. He can only be ejected
for non-payment of his rent, or on the other grounds specified in sec. 44, els. (a),
(b), and (d). (3) Formerly, his rent was liable to enhancement, as often as his
landlord pleased, after service of notice of enhancement. Now, he is liable
to enhancement in two ways : (a) by registered agreement, and (b) by suit in
Court, when he can only be made to pay what the Court determines to be a fair and
equitable rent ; but enhancement by suit carries with it, if the raiyat accepts
it, a lease for five years, at the rate fixed by the Court, after which he can be
ejected, unless he has meanwhile acquired rights of occupancy. (4) Formerly,
he could make no improvements on his land ; and, if he did make them, he was
not entitled to any compensation for them on ejectment from the land. Now, he
can construct a well and a suitable dwelling-house for himself and his family, and
can make almost any improvement on his land that he pleases (sec. 79) ; and
he is entitled to compensation for such improvements on being ejected from his
holding (sec. 82).

Further incidents of a non-oocupanoy-raiyat's status.— It is to be noticed
that there is no provision in the Act enabling a non-occupancy-raiyat to claim an
abatement of the rent previously paid by him, as there is in the case of occupancy-
raiyats ( see sec. 38). A non-occupancy-raiyat, therefore, is not entitled to
have his rent reduced, except on the ground of diminution of the area of his
holding (sec. 52, cl. 6). But in this respect no change has been made in the
former law. A non-occupancy-raiyat may sub-let his holding (sec. 85), and his
rights are heritable (sec. 20 (3) ), and transferable by custom (sees. 178 (3), (d),
and 183).

CHAPTER VII.

UnD ER-UAIYATS.

48. The landlord of an under-raiyat holding at a
Limit of rent re- moncy-rcut shall not be entitled to recover

coverable from under- , ,. ,, , i-iii. ,«

raiyats. Tcut exceedmg the rent which he himself

R. & F., B. T. A, 7

THE BENGAL TENANCY ACT.

Chap. VII, pays by morc than the following percentage of the same,
— namely) : —

(a) when the rent payable by the under-raiyat is pa3'^ablo
under a registered lease or agreement — fifty per
cent. ; and

(b) in any other case — twenty-five per cent.

This applies to contracts made before the passing of the Act as well as to con-
tracts made after it.

Distinction between " lawfully recoverable " and " lawfully payable."—
It is to be observed that this section makes any amount in excess of the limits
laid down in els. (a) and (6) of this section not recoverable nnder this Act. It does
not provide that such excess amount shall not be payahle by the under-raiyat.
Hence, the excess amount may still come under the definition of " rent," laid
down in sec. 3, cl. (5) ; for it may possibly be lawfully payable, though not lawfully
I'ecoverable, Thus, the holder of an estate in respect of which a notice of valu-
ation has been issued under sec. 17, Act IX of 1880 (B.C.) (the Cess Act), is
precluded from recovering rent in respect of land for which the prescribed return
has not been filed, though such rent may manifestly be lawfully payable. A
Revenue-officer, when proceeding under Chap. X of this Act, will, therefore, be
justified in recording as the rent of an under-raiyat any amount paid by him,
though it may be in excess of the amount lawfully recoverable under the pro-
visions of this section ; and a raiyat-landlord receiving such an amount will not
necessarily render himself liable to the penalty provided in sec. 75 for exacting a
sum in excess of the rent lawfully payable.

Restriction on eject- 49. An undcr-raiyat shall not bo

ment of under-raijats. jj.^^j^ ^^ ^^ ^j^^^^^ ^^ y^^ landlord, CXCCpt—

(a) on the expiration of the term of a written lease ;

{h) when holding otherwise than under a written lease, at
the end of the agricultural year next following the
year in which a notice to quit is served upon him b}-
his landlord.

An under-raiyat cannot be ejected except in execution of a decree.— -
There is a further restriction imposed by the Act on the ejectment of under-
raiyats, as well as upon tenants of all cla.sses, viz., that imposed by the provisions
of sec. 89, which provide that no tenant shall be ejected from his tenure or holding
except in execution of a decree. The word " tenant " in this section is, no doubt,
meant to include an under-raiyat ; for an under-raiyat is a tenant. (See also sec.
178 (1) (c). At the same time, his interest in the land is not a "tenure," nor yet
a " holding ; " for in sec. 3, cl. (9), " holding " is defined as " a parcel or parcels of
land held by a raiyat. " There is, therefore, room for contention as to whether an
under-raiyat may not be ejected by his landloi'd without resorting to the Courts.
This cannot, however, have been the intention of the framei's of this Act, and
there can be no doubt that an under-raiyat, ejected otherwise than in accordance

UNDER-RAIYATS. 99

with the provisions of this Act, could recover possession of his land by means of a Chap. VIII.
possessory suit under sec. 9 of the Specific Belief Act (I of 1877). See Janardan SkoJS.
Acharji V. Haradhan Acharji, 9 W. K, 513 ; B. L. R., F. B., 1020.) It is clear
from sec. 66 (1) that an under-i-aiyat may be ejected for failure to pay an arrear of
rent, but, of course, only in execution of a decree of Court, and it would seem that
unless, in accordance with some local custom he has acquired rights of occupancy,
he may, subject to the restrictions mentioned above, be ejected at his raiyat-land-
lord's pleasure.

Notice to quit. — No notice to quit is requii'ed to be given to an under-raiyat
holding under a written lease, to compel him to quit on the expiry of his lease,
but if holding otherwise than under a written lease (cl. b), he is entitled to, at
least, a year's notice. He, therefore, gets a longer notice to quit than an occupancy-
raiyat does (sec. 45). The notice to quit should be served in accordance with
rule 3, Chap. I, of the Government rules under the Tenancy Act. (See Appen-
dix I.)

Acquisition by under-raiyats of occupancy-rights. — This chapter is
silent on one very important point, namely, the question of the acquisition by
under-raiyats of occupancy-rights as against their i-aiyat-land lords. Under Acts
X of 1859 and VIII of 1869 (B. C), rights of occupancy could not be acquired in
lands sublet by an occupancy -raiyat for a term or j-ear by year. This would seem
to imply that an under-raiyat could acqixire rights of occupancy in lands sublet to
him otherwise than for a term or year by year, that is, on a permanent lease, and
there are some rulings to this eflfect {Jamiatunnissa v. Nur Mahomed, W. R., Sp.
No., Act X, 77 ; Ketal Gain v. Nadir Mistri, 6 W. R., 168 ; Nil Kamal Sen v. Danish
Slieikh, 13 W. R., 469) ; but in several cases the High Court has laid down the
broader rule, that a sub-lessee from a raiyat, having a right of occupancy, and no
more than a right of occupancy {i. e., an under-raiyat), could not acquire a right of
occupancy for himself in any land held or cultivated by him. (See Gihnore v. Sar-
bessari Dasi, W. R., Sp. No., 1864, Act X, 72 ; Abdtd Jabbarv. Kali CharanDatta,
7 W. R., 81 ; Kali Kishor Chatarji v. Ram Clmrn Shaha, 9 W. R., 344 ; Haran Chan-
dra Pal v. Mukta Sundari, 10 W. R., 113 ; 1 B. L. R., A. C, 81 ; Ramdhan Khan
v. Haradhan Paramanik, 12 W. R., 404 ; Ishan Chandra Ghosh v. Harish Chandra
Banarji, 18 W. R., 19 ; Annopurna Dasi v. Radha Mohan Pattro, 19 W. R., 95.)
Now, as the Act is silent on this point, the question is left to be regulated by
custom. An under-raiyat cannot acquire rights of occupancy in any land held by
him, except where there is a custom or local usage under which he can acquire
such a right. That this is now the law on the subject is clear from illustration 2
to sec. 183, which runs thus : " The custom or usage' that an under-raiyat should,
under certain circumstances, acquire a right of occupancy is not inconsistent with,
and is not expressly, or by necessary imjDlication, modified or abolished by, the
provisions of this Act. That custom or usage, accordingly, wherever it exists, will
not be affected by this Act."

Further incidents of an under-raiyat's statu3.~The question of the
transferability of an under-raiyat's rights is left unsettled by this Chapter. Under
the old law, such rights were not transferable without the consent of the raiyat-
landlord. {Bonomali Bajadar v. Koilash Chandra Mozumdar, I. L. R., 4 Calc, 135.)
But there can be no doubt that now, under the provisions of sec. 183, such rights
may be transferable under custom or local usage, but not otherwise. The Chapter,
is, further, silent as to whether an viuder-raiyat can sublet. Section 85 does not

100 THE BENGAL TENANCY ACT.

Chap. VIII. seem to provide for the case of an uuder-raiyat sub-letting, yet the Act distinctly
Skc^9. contemplates an under-raiyat's subletting his land, as in sec. 4 (.3), an under-raiyat
is defined as a tenant holding whether immediately or mediately under a raiyat.
There would seem to be nothing in the Act to make an ander-raiyat's interest
lieritable (sec. 20 (3) ), unless there be a custom or usage to this effect. In a deci-
sion under the old law {Hiramoni v. Gang a Narain Rai, 10 W. R., 384), it has been
said that when a tenant, who holds land for a term, under-Iets that land, he parts
with his own interest therein to the extent of the interest created by the under-
lease, and cannot, therefore, determine the interest of his under-tenant by suiTen-
dering his own term to the landlord. Whether this decision will hold good now,
seems doubtful. Under the present Act, an under-raiyat's interest will only be
secured against the raiyat-landlord's surrender of the holding, if secured by a
registered instniment. (Sec. 86 (6}.)

CHAPTER VIII.

General Provisions as to Rent.

The following general principles relating to the relation of landlord and
tenant, based principally on the rulings of the High Court, have not been em-
bodied in this Act, on the ground that it is not intended to be a complete digest
of the Rent Law of Bengal. But they have so much become a part of the Rent
Law of Bengal, that it would probably be felt to be a serious omission if no
reference were made to them. We can find no better place for inserting them
than the commencement of this chapter, which deals with " General Provisions as
to rent."

Relation of landlord and tenant must exigt before provisions of
Rent Law can be applied.— Before putting in force the provisions of the Rent
Law between parties, a Court must first be satisfied that the relation of land-
lord and tenant exists between them. {.Tishan Hosseiii v. Bakar, 3 W. R., Act X,
3 ; Ravnessar Adhikari v. Watson S Co., 7 W. R., 2 ; Doyal Chand Saliai v. Nahin
Cluindra Adhikari, 8 B. L. R., 180 ; Chandra Nath Chaudhri v. Ahsanullah
Mandal, 10 W. R., 438 ; Mohan Mahtu v. Shamsvl Hoda, 21 W. R., 5.) In one
case it was held that the mere fact of a person being registered under the pro-
visions of Bengal Act VII of 1876 as proprietor of the land in respect of which
he sues to recover rent is not sufficient to entitle him to sue for it. He must
show that the relation of landlord and tenant exists, or that he has a good title
to the estate of which he is the registered owner, {Ram Krishna Das v. Harain,
I. L. R., 9 Calc, 517 ; 12 C, L. R., 141.) But this is no longer law ; for, by
sec. 60 of this Act, it has been enacted that the receipt of a person registered
under Act VII (B. C.) of 1876, as the proprietor, manager, or mortgagee of an
estate is a sufficient discharge for rent, and the person liable for the rent is not
entitled to plead in defence to a claim by the person so registered that the rent
is due to any third person. Such a relation will not exist between a raiyat and
a zamindar until the former has obtained possession. {Bharat Chandra Sen v.
Osimuddin, 6 W. R., Act X, 56 ; Harish Chandra Kundii v. Mohini Mohan
Mitra, 9 W. R., 582; Bullen \ . Lalit Jha, 3 B. L. R., App., 119.) Eviction by
title paramount to that of the lessor is a good answer in a suit for arrears of
rent. {Gopanand Jha v. Gobinda Prasad, 12 W. R., 109.) The relation of

GENERAL PROVISIONS AS TO llENt. ^Q^

landlord and tenant does not exist between a landlord and a trespasser. {Mohant Chap. VIII.
Jalha V. Kailash Chandra De, 10 W. E., 407.) Skc. 49.

How the relation of landlord may arise. — The relation of landlord and
tenant may arise between the parties by means of a contract, express or implied,
between them, or by operation of law. Thus, in the case of Nityananda Ghosh v.
Krishiia Kishor (W. E., Sp. No., 1864, Act X, 82), in which a raiyat admittedly held
and cultivated a zamindar's land, though without express permission to cultivate
on the part of the zamindar, or express agreement to pay rent on the part of
the raiyat, it was held that, by the universal custom of the country, the raiyat
was the zamindar's tenant, and bound, while so holding and cultivating, to pay
him a fair rent. This was on the ground that there was an implied contract
between them. Parties in possession make themselves tenants by use and
occupation and may be sued for rent, even though not registered by the zamin-
dar. (Lalanmani v. Sonamani Debt, 22 W. E., 334 ; see also Lakhikant Das v.
Smniruddin Lashkar, 21 W. E., 208 ; 13 B. L. E., 243 ; and Swarnamai/i v.
Dmonath Gir Sanyasi, I. L. E., 9 Calc, 908.) This rule will apply in the case
of an tttbandi raiyat. (Mirzan Biswas v. Hills, 3 W. E., Act X, 159.) Payment
of rent is always held to be good evidence of an implied contract of tenancy.
The resumption by Government of invalid lakhiraj land creates the relation of
landlord and tenant between the zamindar and the holder of such land. {Haro
Prasad Chaudhri v. Shama Prasad Bai, 6 "W. E., Act X, 107.) Similarly, the
decree of a competent Court, finding that the defendant has no right to hold land
as lakhiraj, creates this relation between him and the proprietor of the land.
{Saudamini Dehi v. Sarup Chaiidra Rai, 8 B. L. E., App., 82 ; 17 W. E., 363.)

Effect of non-registration of proprietor's name, and of non-submis-
sion of cess returns.— In some cases, however, in which the relation of landlord
and tenant admittedly exists, the tenant is not bound to pay the landlord rent.
Thus, if the tenant plead that the rent-claimant, being a proprietor, and bound,
therefore, to have his name registered in the Collector's Eegisters under sec. 38, Act
VII of 1876 (B. C), has, yet, not had his name registered, and that he is, therefore,
not entitled to the rent, the Court must, if the plea is proved, dismiss the suit.
Similarly, under the Cess Act, IX of 1880, B. C, all holdei's of estates or tenures,
in respect of which a notice of valuation or re - valuation has been issued under
sec. 17 of that Act, are precluded (sec. 19) from suing or recovering rent for any
and or tenure in respect of which the prescribed returns have not been lodged.
{Jagmolian Tewariv. Finch, I. L. E., 9 Calc, 62.) These, therefore, are instances in
which rent is lawfully payable, though not lawfully recoverable through the
Courts (see note to sec. 48). The Collector may send a list to the Civil Court of
such holders so making default, and the Court is bound to take judicial notice
of the same (sec. 19) ; but whenever the return is lodged, the disability ceases.
Further, every holder of an estate or tenure in respect of which a return has
been made under the Cess Act is precluded (a) from recovering any rent what-
ever for any land, building, holding, or tenure forming part of the estate or tenure
to which such return relates, but which has not been mentioned in such return,
unless it be proved that the holding or tenure, for the rent of which the rent
is claimed, was created subsequently to the lodging of such return ; and (6)
from suing or recovering rent at a higher rate than is mentioned in such return
for any land, tenure, or holding included in such return, unless it be proved that
the rent of such land has been lawfully enhanced subsequently to the lodging
of such return.

102

THE BENGAL TENANCY ACT.

Chap. VIII. Forms of returns under the Cess Act.— The returns wliich must be filed

Skc. 49. uiKler tlie Cess Act are the following :

Form of Return prescribed by sec. 14.

Amount of Govennuent revenue or rent payable
by the estate or tenure ... ... ... Ks. A. P.

Part I.

District

Name by which the estate or tenure is known, and tlie number which it
bears on the Collectoi^'s General Register, or on any other register kejit by the
Collector.

Details of lands in the actual occupation or cultivation of the person sub-
mitting the I'etui'n : —

Pargana.

Name of village and tliana in
which the lands are situate.

Area of
land.

Deduct area uf land
situate within any
municipalit}'.

Annual value
of remaiuin<;
laud.

Note. — In the body of this statement shoidd be entered only nij-jote land ami
such u)icidtivated lands in tlie use and occupation of tlie maker of the return as are
capable of assessment oil their annual value.

Part II.
District

Naifle and number of estate or tenure, as in Part I.

Details of lands held by cultivating raiyats paying direct to the persons sub-
mitting the return : —

E
es

Name of v i 1-
lage and thauA
in whicii the
lands are situate.

Name of raiyat, name
of village, thsna and
district in which he
resides.

Area occupied,
if known.

Annual rent.

Deduct rent of
land included
in any munici-
palitj'.

Balance

of net rent
assessable.

Part III.
District

Name and number of estate or tenure, as in Part I.
Details of the tenure-holders paying to the person submitting the return

^ e S JJ

2 5*^ 2 5
-=0. r* 2

« So**
o) CO 2

-u t< 1^ S V

o '^— « 3

5 « I. o o

« " =

c '^ ~

m 5 P

O •? S3

'«S 2

® c-

C-e8 «
55 "■■"

a £ a>
<D.e 2

««9 2

sS^-^

_ ^

« .

*jr3

5 2

~ <u

S 3

* .— n*

-3 u "

S.g'a

O.S

UETUUNS UNDEH CliSS ACT.

103

Part IV.
District

Name and number of estate or tenure, as in Part 1.

Details of lands included in the estate or tenure of the pei'son submitting
the return, which ai-e held by others than himself, but for which no rent is paid : —

Chap. YII.
Skc. 49.

Parpana
in which
situate.

Name of village
and thaiis in
which situated.

Name of
holder and
owner, if
known.

Name of village,
tliana, an<l dis-
trict in which the
holder resides.

Area, if
known.

Deduct area of
land included
in any muni-
cipality.

Annual
value 0 f
remaining
land.

I, X. Y. Z., do declare that the statements contained in the above return are
true to the best of my knowledge, information, and belief.

Signed

N.B. — This return must he signed hy the holder or his authorized agent ^ whose
address must also be given.

It is of importance to note that hhaoli lands, that is, lands held at a pi'oduce-
rent, must be included in these returns, as well as lands held at a money-rent.
{•Jag Mohan Taioari v. Finch, I. L. R., 9 Calc, 62.) It is further of much impor-
tance to landlords to note that before they recover road-cess, which is rent (sec. 3
(5) ), they must prove the service of the notices of the preparation of the valuation-
loUs, and that no presumption as to their due service can be made in their
favour. Thus, in Ahsanidlah Khan v. TrUoclum Bagchi (I. L. R., 13 Calc, 197), it
was held that the notice provided by sec. 52 of the Road Cess Act did not
came within the presumption of sec. 114, cl. (c) of the Evidence Act, and
must be pi-oved. In this case it was said that " when under an Act certain things
are required to be done before any liability attaches to any person in respect of
any right or obligation, it is for tthe person who alleges that that liability has
been incurred to prove that the things prescribed in the Act have been actually
done. No presumption can be made in favour of the things prescribed by the
Act having been done. " In another case {Rash Behari Mitkharji v. Pitambari
Chai(dhurani, I. L. R., 16 Calc, 237), the plaintiffs sued to recover arrears of road
and public works cesses on account of certain rent-free land, claiming double the
amount under sec 58 of the Cess Act. It was found that no notice of the valuation
had been published as required by sec. 52 of the Act, and it was held by the
lower Court that the plaintiffs were, therefore, not entitled to recover double the
amount under sec. 58. It was then contended that they were at any rate en-
titled to recover the amount of the cesses with interest under sec. 62. It was held,
however, that the latter section did not give the holder of the estate or tenure a
right to recover the cesses payable under sec. 56 before publication of notice, and
that the plaintiffs were, therefore, not entitled to a decree, and that their suit must
be dismissed.

Cess Act returns supply a binding record of rents. — It is to be observ-
ed that these returns contain the areas and rents of every tenure-holder's tenure
and raiyat's holding, and that they, therefore, supply a record of rents, which is
binding as against the landlord ; further, that the landlord is absolutely precluded
from suing for rent not mentioned in such returns, or at a higher rate than the

1Q4 THE BENGAL TENANCY ACT.

Ch*p. VIII. I'ate mentioned in them unless it be proved that the rent has been lawfully
Sko. 49. enhanced subsequently to the filing of the return. All this would appear to have
been overlooked in the discussions on the subject of enhancing rent out of Court,
during which it was asserted that, there being no written engagements showing
the amounts of the present rents, it would be unreasonable to insist that contracts
for the enhancement of existing rents should be written and registered. So far
■AS the landlord is concerned, there is, in the cess-returns, a written record of rents ;
and if any rent is claimed from occupancy-raiyats over and above the amounts
shown in that record, the landlord must show that the rent entered therein has
been enhanced since the returns were lodged either (a) by order of a Court, or (6)
by. registered agreement. It is doubtful whether the actual payment of an
enhanced rent for three years would, having regard to sec. 29, proviso 1 of this
Act, suffice to show that the rent mentioned in the cess-returns had been lawfully
enhanced. The obligation to have a contract for the enhancement of occupancy-
i-aiyats' rents written and registered does not prevent a landlord from recovering
an enhanced rent actually paid for three years, though there be no registered
agreement ; but whether actual payment for three years would be proof that rent
has been lawfully enhanced, which is what is required under sec. 20 of the Cess
Act, is a diffei'ent question. It would, therefore, appear that proof of payment
of the rent shown in the cess-returns would be a sufficient answer to a claim for
a higher rent than is mentioned therein, till the landlord has shown that the lent
given in the returns has not only been enhanced, but that the enhancement was
in accordance with law. These stringent provisions of the Cess Act, read with
sec. 29 of this Act, make it very necessary for landlords to exercise great care in
the preparation of the returns they lodge under the Cess Act. If these returns
show higher rents than are actually payable or paid, the landlord is liable for an
unduly high amount of cess ; if they show less than is actually paid or payable,
the landlord is precluded from suing for, or recovering, more than is shown in the
returns, unless he jjrove that the rent shown in the returns has been enhanced
since they were filed, and that it has been enhanced in accordance with law, which,
in the case of occupancy-raiyats, must ordinarily be by decree of Court, or by
written and registered agreement. Neither the Civil Courts, Revenue-officers,
raiyats, or zamindars appear to have hitherto paid much attention to these pro-
visions of the Cess Act affecting suits for recovery of rent or for enhancement of
rent.

Leases cannot be granted for terms exceeding grantor's interest. —
Ko landlord can grant a valid lease for a term exceeding his own interest. {Kailas
Chandra Biswas v. Biressari Dasi, 10 W. E., 408 ; Damri Shaikh v. Bisseshar Lai,
13 W. E., 291 ; Earish Chandra Rai v. Sri Kali Mukharji, 22 W. R., 274. See co7itra,
Hiramani v. Ganganarain Rai, 10 W. R., 384.) A lease granted for a term so in
excess is valid to the extent of such interest, and void only as to the excess ; but if
the lessor subsequently acquires such excess, the lease is, as against him, valid
for the excess also. {Amir Ali v. Hira Singh, 20 W. R., 291 ; sec. 115, Act I
of 1872.)

A landlord is bound to give peaceable possession. — A landlord is bound
upon a new letting to give the tenant peaceful possession of the property {Mani
Datta Singh v. Campbell, 11 W. R., 278 ; 12 W. R, 149 ; Radhanath Chaudhri v. Jai
Sundra Moitra, 2 C. L. R., 302), and a suit for rent will not lie where the lessee
has never obtained possession of the land leased to him {Harish Chandra Kundu.
V. Mohini Mohan Mitra, 9 W, R, 582 ; Bullen v. Lalit Jha, 3 B. L. R, App., 119).

GEiJERAL PROVISIONS AS TO RENT. ;[Q5

It is not necessary for the lessee to apply to liis lessor to be put in possession. Chap. VIIF.
(Mani Datta Singh v. Campbell, in review, 12 W. E., 149.) A landlord is further ^'^<'' ^^*
bound to maintain his tenant in the peaceable and quiet possession and enjoy-
ment of the tenure, undertenure, holding, or land. But this duty only extends
to interruption or disturbance by the landlord himself, or any one claiming under,
or paramount to, him, and does not extend to interruption or disturbance by third
parties {Gobmd Chand Jatti v. Manmohan Jha, 14 W. R., 43 ; Haimohati Daai
V. Sri Krishna Nandi, 14 W. R., 58 ; Gohind Chandra Datta v. Krishna Kanto
Datta, 14 W. R., 273 ; Krishna Sundra Sandy alv. Chandra Nath Rat, 15 W. R., 230;
Braja Nath Pal v. Hira Lai Pal, 1 B. L. R., A. C, 87 ; 10 W. R., 120 ; Bullen
V. Lalit Jha, 3 B. L. R, App., 119 ; Donzelle v. Gridhari Singh, 23 W. R., 121) ;
and in a suit for rent in which the lessee pleaded dispossession, but was not able
to show that his lessor had no title, and that the person who ousted him had a
title, it was held that his defence had failed {Rang Lai Singh v. Rudra
Prasad, 17 W. R., 386). Further, in a suit by a landlord to recover arrears of rent
from tenants, who had been forcibly compelled by the superior holders of a tenure
over the plaintiff to execute a kabulyat to themselves, and to pay rent accordingly,
it was held that such wrongful act of the intervenor-defendants (the superior
holdei's) was not, in law, sufficient to constitute an ouster of the plaintiff, but gave
the tenant-defendants a cause of action against them for damages. {Chandra
Xath Bharttacharji v. Jagat Chandra Bliarttacharji, 22 W. R., 337.)

Tenant cannot deny landlord's title — No tenant of immoveable pro-
perty, or pei'son claiming through such tenant, shall, during the continuance of
the tenancy, be permitted to deny that the landlord of such tenant had, at the
beginning of the tenancy, a title to such immoveable property ; and no person
who came upon immoveable property by the license of the person in possession
thereof shall be permitted to deny that such person had a title to such possession
at the time when such license was given. (Sec. 116, Act I of 1872.) But although
a tenant may not, during the continuance of the tenancy, deny that his landlord
had a title at the beginning of such tenancy, he may show that such title has
expired {Burn S Co. v. Bisho Mayi Dasi, 14 W. R., 85 ; Mohan Mahtii v. Sham-
sid Hoda, 21 W. R., 5), or has been defeated by a title paramount {Gopanand Jha
V. Gobi7id Prasad, 12 W. R., 109). Further, the words " at the beginning
of the tenancy" in sec. 116, Act I of 1872, only apply to cases in which tenants
are put into possession of the tenancy by the person to whom they have attorned,
and not to cases in which the tenants have previously been in possession, so that
when A, a raiyat, being in possession of a certain holding, executed a kabuliyat
regarding this holding in favour of B (who claimed the land, in which the holding was
included, under a derivative title from the last owner), and paid rent to B there-
under, it was held that A was not estopped by sec. 116 of the Evidence Act from
disputing B's title {Lai Mahomed v. Kalonas, I. L. R., 11 Calc, 519) ; and one who
pays rent to another, believing him to be the landlord's representative, is not
estopped from afterwards showing the want of title in that other {Beni Madhicb
Ghosh V. Thakurdas Mandal, B. L. R., F. B., 588 ; 6 W. R., Act X, 71, Gauri Das
v. Jagannath Rat, 7 W. R., 25). Further, when the ostensible landlord is not the
real lessor and beneficially entitled to the rent, but is only a benamidar for a
third party, the tenant is competent to deny his lessor's title as stated in the
lease, and by parol evidence to prove a different title to that recited in the lease.
{Donzelle v. Kedarnath Chakrabartti, 7 B. L. R., 720 ; 16 W. R., 186 ; 20 W, R., 362 ; .
Indrabatti Koer v. Mahbub AH, 24 W. R., 44.)

10«

The bejJgal tenajJcy acI'.

CiiAP. vni. Possession of a tenant not adverse to landlord. — The possession of a

Skc. 49. tenant can never be advei'se to his landlord ; and as long as a tenant admits the
tenancy, the mere non-payment of rent for twelve years or more will not put an
end to the relation of landlord and tenant. {Sristidhar Maziimdar x.Kalikant, 1 W. R.,
171 ; Watson S Co. v. Sharat Smidan Debi, 7 W. R., 395 ; Trailokhya Tarini Dasi
V. Mohima C/utndra Matal; 7 W. R., 400 ; Giriih Chandra llai v. Bhagwan Chan-
dra Rat, 13 W. R., 191 ; Lakhu Khan v. Wise, 18 W. R., 443 ; DicU Chand v. Sham
Behari Singh, 24 W. B,.., lis ; Harad/mn Raiv. Holodhar Chandra Chaudhri, 25
W. R., 56 ; Raj Kishor Sarma Chakrabartti v. Oirija Kant Lahiri, 25 W. R., 66 ;
Rango Lai Mandal v. Abdid Ghaffiir, I. L. R., 4 Calc, 314 ; Parcsh Narain Rai v.
Kashi Chandra Talukdar, I. L. R., 4 Calc, 661). When A holds under B's tenant,
his possession is not adverse to B. {Bungsraj Bhukta v. Megh Lai Puri, 20 W. R.,
398.) But when a tenant openly sets up an adverse title and holds adversely,
limitation "runs {Haronath Rai v. Jogendra Chandra Rai, 6 W. R., 218 ; Najimudin
Hossein v. Lloyd, 15 W. R., 232) from the time when the landlord had notice of
the adverse title so set up (Prahlad Sen v. Ran Bahadur Singh, 12 W. R. (P. C),
6 ; Gaura Kmnari v. Bengal Coal Co., 13 W. R., 129 ; 12 B. L. R., 282 ; Gaura
Kumari v. Saru Kumari, 19 W. R., 252 ; Pitamhar v. Nilmani Singh Deo, I. L. R.,
3 Calc, 793), and a trespasser, merely by alleging tenancy in his written state-
ment, does not preclude himself from setting up the defence of the law of limita-
tion. {Dena Mani Debi v. Durga Prasad Mazumdar, 21 W. R., 70 ; Bijai Cliandra
Banarji v. Kali Prasanno Muklmrji, I. L. R., 4 Calc, 327 ; but see Watson £ Co.
v. Sharat Sundari Debi, 7 W. R., 395.)

Forfeiture of rights by denial of landlord's title.— A tenant who directly
repudiates the relation of landlord and tenant and sets uj:* an adverse title in anothei'
or himself, forfeits all his rights, and the landlord is entitled to treat the relation
as determined. {Nadir Beg v. Muddaram, 2 W R., Act X., 2 ; Bissonath Rai v.
Bhairab Singh, 7 W. R., 145 ; Ramen v. Kandapuni, 1 Mad. H. C, 445 ; Ram
Nafar Bhurttacharji v. Dol Govinda Thakur, I C. L. R., 421 ; Debi Misra v.
Mangar Miah, 2 C. L. R., 208 ; Sattyabhama Dasi v. Krishna Chandra Chattarji,
I. L. R., 6 Calc, 55 ; Mozharuddin v, Gobinda Chandra Nandi, I. L. R., 6 Calc, 436 ;
Sharasher Ali v. Daya Bibi, 8 C. L. R., 150 ; Ishan Chandra Chattopadhya v. Shama
Charan Datta, I. L. R., 10 Calc, 41.) But the fact of a tenant having stated in a
former suit that he had a good title as against a person alleging himself to be the
assignee of the original landlord, does not constitute a foifeiture of the tenure,
or warrant a suit by the landlord for khas possession. {Durga Kripa Rai v. Sri
Jami Lathak, 18 W. R., 465.) As a cause of action must be based on something
that accrued antecedent to the suit, a denial by tenants of their landlord's title
in their written statement filed in a suit will not entitle the landlords to a
decree in that suit on the ground of forfeiture. {Prannath Shalia v. Madhu Khxdu,
T. L. R., 13 Calc, 96 ; but see contra, Gopalrao Ganesh v. Kishor Kalidas, I. L. R.,
9 Bom., 527 ; Mayanvanjari v. Ximini, 2 Mad. H. C, 109.) In a suit in which
the plaintiff admitted that the defendant had a karsa jama, but the defendant set
np a larger interest in himself, viz., a permanent malgiczari jama, it was held
that this amounted mei-ely to a denial of the landlord's right to raise the rent,
and was not necessarily a renunciation or disclaimer of his title of landlord. {Kali
Krishna Tagore v. Ghulam Ali, I. L. R., 13 Calc, 3 ; Doma Rai v. Melon, 20 "W. R.,
416 ; but see Baba v. Visvanath Joshi, I. L. R., 8 Bom., 228.) When a defend-
ant setting up a permanent hoivladari tenure, admitted that he held at the rent
alleged by the plaintiff, it was decided that this was not such a disclaimer a.s

PREStliAIPTION AS TO FIXITY OF REKT. |q7

woitld result iu law in a foreitiive of his ten\ire. {Kali Krishna Tagore \. Chap. VIII.
Ghulam Ali, I. L. E., 13 Calc, 248.) It would ai^pear, however, that for- S»'-c^O.
feiture by disclaimer can no longer take place under this Act ; for sees. 10, 18,
25, 44, and 49 set forth on what grounds tenure-holders, raiyats at fixed rents,
occupancy and non-occupanc}-raiyats and inider-raiyats can be ejected. They
further pi'ovide that these classes of tenants cannot be ejected except on the
grounds sijecified therein. (Compare also sec. 89 and sec. 178 (1) (c) ). Hence, it
would seem that no tenant can be ejected under this Act for disclaiming his
landlord's title. It may be different, however, if the disclaimer has been made
and the forfeiture effected before this Act came into opei'ation.

Bides and presumptions as to amount of rent.

50. ( 1 ) Where a tenure-holder or raij^-at and his prede-
cessors in interest have held at a rent or

Rules and presump- ,p,i«ii , ^ i i

tions as to fixity of rate ot reiit which has not been changed
"^^secs.s 4 Act X. 18.59; from the time of the Permanent Settlement.
b'^^" ^oJ. ^^^ ^^^^' the rent or rate of rent shall not be liable
to be increased except on the ground of an
alteration in the area of the tenure or holding.

(2) If it is proved in any suit or other proceeding under
this Act that either a tenure-holder or raiyat and his predeces-
sors in interest have held at a rent or rate of rent which has
not been changed during tlie twenty years immediately before
the institution of the suit or proceeding, it shall be presumed,
until the contrary is shown, that they have held at that
rent or rate of rent from the time of the Permanent Settle-
ment :

Provided that if it is required by or under any enact-
ment that in any local area tenancies, or any classes of tenan-
cies, at fixed rents or rates of rent shall be registered as such
on or before a date specified by or under the enactment, the
foregoing presumption shall not after that date apply to any
tenancy or, as the case may be, to any tenancy of that class
in that local area unless the tenancy has been so regis-
tered.

(3) The operation of this s.ection, so far as it is relates
to land held by a raiyat, shall not be affected by the fact of
the land having been separated from other land which formed
with it a sino'le holdinsr, or amalscamated with other land into
one holdino".

108

TliE BENGAL TENANCY ACT.

Chap. viii. ( i) Notliino; in this section shall apply to a tenure held

Skc. 50. . 1. 1 •/

— ^ " for a term of years or determinable at the will of the landlord.

Sub-section (1).— The existence of a Permanent Settlement is not a condition
precedent to the application of the provisions of this sub-section. It is immaterial
whether there has been a Permanent Settlement or not. It is sufficient if the rent
or rate of rent has not been changed since the year 1793, when the Permanent
Settlement was made, and if this is the case, the rent cannot be increased. {Sada
Nando Mahanti v. Xauratcm Mahanti, 16 W. R., 289.)

Sub-section (2).— To -wliat lands the presumption does not apply.—
This sub-section must be read with sec. 115, which provides that when the
particulars mentioned in sec. 102, cl. {h), have been recorded under Chap. X (Record
of Rights and Settlement of Rents), the presumption under this sub-section
shall not thereafter apply to that tenancy. This presumj^tion does not apply to
temporarily-settled estates, as in such estates the z-ates of rent ai'e necessarily not
fixed in perpetuity. (See sec. 191.) It is said in the Government of India Gazette
of Mai-ch 14tli, 1885, p. 58, that this presumption does not apply to produce-rents,
for " where the rent is paid in kind, although the proportion of the gross produce
paid remains the same, yet by a self-acting machinery, this very fact discounts
the rise in prices, and rents are thus, of necessity, enhanced or reduced, as prices
rise or fall." (See note to sec. 18, p. 56.)

The presumption arises notwithstanding unlawful eviction.— Eviction
will not necessarily put an end to a tenure-holder's or raiyat's tenancy. If the
eviction be found to be unlawful and the tenant be restored to his position, he will
be restored to his original holding, if the holding would not have ceased to exist
but for the eviction. {Latifunnissa Dibi v. Pulin Bihari Sen, W. R., Sp. No.,
F. B., 91. (See also Mahomed Ghazi Cluxudhri v. Nur Mahomed, 24 W. R., 324, and
Radlia Gobind Koer v. Jtakhal Das Mukharji, I. L. R., 12 Calc, 82.) But the
presumjjtion arises in favour of a tenant, whose rent is sought to be enhanced by
a purchaser at a revenue-sale. (Purnananda Asrum v. Riikmiiii Guptani, I. L. R.,
4 Calc, 793 ; Sadak Sirkar v. Mahamaya Debt, 5 W. R., Act X, 16 ; Hari/uir
Mukharji v. Fadma Lochan De, 7 W. R., 176.)

Pleadings sufficient to raise this presumption.— In order that a Court
should i-aise this presumption, it is not necessary that the tenure-holder or raiyat
should plead in so many words that he has held his tenure or holding since the time
of the Permanent Settlement. It is sufficient if he pleads and proves payment of
rent at a uniform rate for twenty years, and makes no allegation inconsistent with
his tenure or holding having been so held ; for the Court is then bound to make the
presumption in his favour. {Bhairabnath Sandyal v. Mali Mandal, W. R. Sp. No.,
Act X, 100 ; Man Mohan Ghosh v. Hasrat Sirdar, 2 W. R., Act X, 39 ; Rainratna
Sirkar, v. Chandra Mukhi Debi, 2 W. R., Act X, 74 ; Jaga Mohan Das v. Purna
Chandra Rat, 3 W. R., Act X, 133 ; Jleyn Chandra Chatarji v. Purna Chandra Rai,
3 W. R., Act X, 162 ; Raj Kumar Rai v. Jssa Bibi, 3 W. R., Act X, 170 ; Nyamat
Ullah V. Gobinda Chandra Datta, 4 W. R., 25 ; Dhan Singh Rai v. Chandra Kant
Miikharji, 4 "W. R., Act X, 43 ; Guru Das Mandal v. Darbari, 5 "W. R., Act X,
86 ; Sham Lai Ghosh v. Madan Gopal Ghosh, 6 W. R., Act X, 37 ; Grish Chandra
Basu v. Kali Krishna Haldar, 6 W. R., Act. X, 58 ; Rakhal Das Teioari v. Kimtram
Haldar, 7 W. R. 242 ; Pulin. Bihari Sen v. Nemui Chand, 7 W. R., 472 ;
Manikarnika Chaudhuraniv. Anandamayi Chaudhurani, 8 W. R., 6; Sudrishti Lai

PRESUMPTION AS TO FIXITY OF RENT. 100

Chmidhri v. Natlm Lai Clmudhri, 8 W. E., 487 ; Barak Singh v. Tulsi Ram Sahui, Chap. VIII.
11 W. E., 84 ; Mitrajit Singh v. Tundan Singh, 3 B, L. E., App., 88 ; 12 W. E., 14 ; Skc^O.
Haral Singh v. Tulsi Ram Salmi, 13 W. E., 216 ; Tirtlmnand Thakur v. Herdu Jha,
I. L. E., 9 Calc, 252.)

When presumption does not arise.— If the pleadings contain any allegation
inconsistent with the tenure or holding having been held from the time of the
Permanent Settlement, or if it be shown that they are held imder a lease of date
subsequent to the Permanent Settlement, and it is not alleged that the tenure or
holding was held previous to the date of this lease, the Court cannot make the
presumption. {Lachmi Prasad v. Ram Ghulam Singh, 2 W. E., Act. X, 30 ; Watson
<& Co. V. Chota Jura Mandal, Marsh., 68 ; Ram Lai Ghosh v. Pekam Lai Das,
Marsh., 403: Ram Krishna Sirkar v. Dilar JZ/, W. E., Sp. No., Act X, 36;
Hari Krishna Rai v. Babu, 1 W. E., 5 ; Ram Chandra Datta v. Romesh Chandra
Datta, 2 W. E., Act. X, 47 ; Ikrarn v. Bahuran, 2 W. E., Act X, 69 ; Ghura
Singh V. Otar Singh, 4 W. E., Act X, 15 ; Magno Mayi Dehi v. Hara Chandra
Raut, 6 W. E., Act X, 27 ; Kunda 3fisra v. Ganesh Singh ; 6 B. L. E., App., 120 ;
15 W. E., 193.) But the production of a pottali of date subsequent to the
Permanent Settlement, not inconsistent with the inference that it is a continuance
of a former state of things, will not interfere with or defeat the presumption of
unifoiTii payment from the Permanent Settlement. {Krishna Mohan Ghosh v. Ishan
Chandra Mitra, 4 W. E., Act. X, 36 ; Lachmi Narain Saha v. Kuchil Kant Rai,
6 W. E., Act X, 46 ; Karunamxiyi Dasi v. Shib Chandra Be, 6 W. E., Act X, 50 ;
Grish Chandra Basu v. Kali Krishna Haldar, 6 W. E., Act. X, 58 ; Ram Clmndra
Datta V. Jogesh Chandra Datta, 19 "W. E., 353 ; Pian Molian M^ckharji v, Kailash
Chandra Bairagi, 23 W. E., 58.) If the tenant cannot show that the pottah is
confirmatory of a previous holding, he is not entitled to the benefit of the pre-
sumption. (Jaimiddin v. Puma Clmndra Rai, 8 W. E., 129.) When a tenant sets
up an adverse proprietary riglit to his landlord, he is not entitled to the benefit
of this presumption. (Bissonath Rai v. Bhairab Singh, 7 W. E., 145) ; but the
fact of a raiyat having alleged that he held a mokarari tenure, will not disen-
title him to the benefit of this presumption. {Clmmarni Bibi v. Ainulla Sirdar,
9 W. E., 451.) The presumption will not arise on the face of a decree
declaring the raiyat's holding to be liable to enhancement. {Raklml Das Basu v.
Ghulam Sarwar, 2 W. E., Act X, 69 ; Udai Narain Sen v. Tarini Cliaran Rai,
11 W. E., 496 ; Naffar Clmndra Pal v. Poulson, 19 W. E., 175.)

Proof of payment necessary to raise presumption — The tenant must
give strict proof of a uniform payment of rent for twenty years immediately
preceding the commencement of the suit. This is a matter which should not be
decided in his favour on mere inference. {Rajnarain Chaudhri v. Atkins, I W. E.,
45 ; Mahnnda Bibi v. Haridhan Khalifa, 5 W. E., Act X, 12 ; Ram Kislior
Mandal v. Chand Mandal, 5 W. E., Act X, 84 ; Prem Sahu v. Niamat Ali,
6 W. E., Act X, 90 ; Sham Lai Ghosh v. Baistab Charan Mazumdar, 7 W. E., 407.
But see Radhanath Sirkar v. Binod Pal, 3 W. E., Act X, 151.) It is not
necessary that the tenant should prove payment of rent at a uniform rate for
every year of the twenty, immediately before the institution of the suit, provided
that the proof of payment extends over the twenty years. {Kamal Lochan Rai v.
Zamiruddin Sirdar, 7 W. E., 417 ; Katyani Debi v. Sundari Debi, 2 W. E., Act X,
60 ; Haranath Rai v. Chitramani Dasi, 3 W. E., Act X, 122 ; Gobinda Karmakar
V. Kumudnath Bharttacharji, 3 W. E., Act X, 148 ; Tarini Kant Lahiri v. Kali
Mohan Sarma, 3 W. E Act X, 123 ; Foschola v. Hara Chandra Basu, 8 W, E., 284 ;

2 J Q THE BENGAli TENANCY ACT.

Chap. VIII. Ra^h Behari Ghosh v. Ram Kumar Ghosh, 22 W. R., 487.) Proof of uniform
Skc. 50. pjvyment up to the date of the suit is not necessary in a case in whicli the landlord
refuses to take rent for a few years before the suit. {Gyaram Datta v. Guru Charan
Chatarji, 2 "W. R., Act X, 59.) It is not necessary that the tenant should show-
that he has paid the exact amount of rent in each year. It is not uniformity in
the amount actually paid that is required to raise the presumption, but only uni-
formity in the rate agreed upon. {Gopal Chandra Basu v. Mathur Molmii Banarji,
3 W. R., Act X, 132 ; Moran & Co. v. Ananda Chandra Mazumdar, 6 W. R.,
Act X, 35 ; Radha Gohinda Rai v. Kyam/itullah Tahikdar, 21 W. R., 401.) The
payment of a small illegal cess will not deprive a tenant of the benefit of the pre-
sumption. (Samiruddin Lashkar v. Haranath Rai, 2 W. R., Act X, 93 •,Du'ark'a')mth
Singh Rai v. Naba Kumar Basu, 20 W. R., 270.) It is quite possible that a raiyat
may not have paid his rent regularly, in which case there would be a variation iu
the amount of rent as shown by the receipts. If this kind of variation were to be
the test, no raiyat would be safe, and the object of the law would be frustrated.
(Shama Charan Kundu v. Dicarkanath Kabiraj, 19 W. R., 100.) On the other hand,
the amount of rent jiaid is not conclusive evidence of the amount of rent at which
land is held, and may be rebutted by showing that the i-ent is greater or leas,
{Ana/)idainayi Dasi v. Sarnamayi, 6 W. R., Act X, 83.) To entitle a raiyat
to protection from enhancement, it is necessary for him to prove, not that a uni-
form rate of rent has been collected, but that the rate of rent has not been varied
at any time within twenty years pi'ior to the institution of the suit. {Sha7na
Charan Kuivdxi v. Drnarkanath Kabiraj, 19 W. R., 100 ; Ahmad Ali v. Ghidam
Ghaffur, 11 W. R., 432 ; Moran & Co. v. AnaTida Chandra Mazumdar, 6 W. R.,
Act X, 35.) An unexplained and immaterial variation of one anna, or of one
rupee in sixty, will not affect the question of uniform payment of rent, (Mansur
All V. Banu Singh, 7 W. R., 282 ; Ananda Lai Cimudhri v. Hills, 4 W. R., Act X,
33.) Nor will any trifling difference in ya»ia affect it. {Rahi Bakshy. Rup Clmnd
Teli, 7 W. R., 284 ; Ramratan Sirkar v. Chandramukhi Debi, 2 W. R., Act X, 74 ;
Haranath Rai v. Amir Biswas, 1 W, R., 230 ; Gopal Clwmdra Basu v. Mathura
Mohan Banarji, 3 W. R., Act X, 132.) Neither will an abatement of rent on
account of diluvion {Reazunnissa v. Takiin Jha, 10 W. R., 246), nor on account of
lands rendered imculturable by the overflow of a river. {Radha Gohind Rai v.
Kyamatullah Talukdar, 21 W. R., 401.) The change of sicca rupees into Com-
pany's rupees (the sicca rupee exceeding the Company's rupee by 1 anna 5 cowries
and 1 ki*ant) is no proof of any i-eal change in tlie rate of rent. {Kali Charan Datta
V. Sashi Dasi, 1 W. R., 248 ; Tara Sundari Barinonya v. Sibeshwar Chatarji,
6 W. R., Act X, 51 ; Katyani Debi v, Sundari Dehi, 2 W, R., Act X, 60 ; Watson
& Co. V. Nanda Lai Sirkar, 21 W. R., 420.) The difference between Rs. 11-13 and
Rs. 13-4 was, however, held sufficient to destroy the presumption of a uniform
payment of rent. {Bisseshwar Cliakrabarti v. Uma Charan Rai, 7 W. R., 44.) A
decree declaring a tenancj- liable to enhancement rebuts the presumption, even
though the enhanced rent has never been collected under it. {Rakhal Das Basu v.
Ghulam Sancar, 2 W. R., Act X, 69 ; Naffar Chandra Pal v. Poulson, 19 W. R., 175 ;
Durga Chxiran Chatarji v. Doyamayi Da^i, 20 W. R., 243.) It may be observed
that there is a slight change from the old law in the wording of this presumption.
Under the old law, holding at a fixed rent gave rise to the presumption. Now,
holdinw at a fixed rent, or fixjid rate of rent, gives rise to the presumption.

Proviso to sub-seotion (2) —The Select Committee on the Tenancy Bill
explained in their report, presented on the 14th March, 1884, that the Local

PRESUMPTION AS TO AMOUNT OP RENT. ] 11

Governmeut intended to introduce into the Bengal Council a Bill establishing a Chap. VIII.
i-egistration system of the nature referred to. The Bill was subsequently fi'amed Skc^I.
and introduced into Council, but ultimately abandoned on the ground that the
zamindars did not want it. (See Proceedings of Bengal Coinicil of the 27th
November 1886.)

Sub-section (3). Effect of division or consolidation of holdings.—
This sub-section is the i-esult of numerous rulings of the High Court to this effect,
which it seems unnecessary to reproduce here. (See Sukhimani Haldar v. Clanga
Oohinda Mandal, W. R., Sp. No., Act X, 126 ; Ram Kimnar Mukharji v. Raghab
Mandal, 2 W. R., Act X, 2 ; Kenaram Mallik v. Ram Kiimar Mukharji, 2 W. R.,
Act X, 17 ; Hills v. Hara Lai Sen, 3 W. R., Act X, 135 ; Khoda Newaz v.
Naba Krishna Raj, 5 W. R., Act X, 53 ; Raj Kiahor M\ikharji v. Hv,rihar Mu-
klmrji, 10 W. R., 117 ; Kashinath Lashkar v. Barrm Sundari Dehi, 10 W. R., 429 ;
Sudhamuhhi Dasi v. Ram Gati Karmakar, 20 W. R., 419.) "We would, however,
draw attention to the following. Though the mere division of a raiyat's holding
among his heirs does not destroy the continuity of his holding, yet the default of
one shareliolder will vitiate the tenure of all, and give the landlord a right of
enhancement {Hills v. Besharath Mir, 1 W. R., 10), and if the rent of one shai'e is
enhanced, the rent of the whole tenancy is liable to enhancement. {Sarat Sundari
Dehi v. Ananda Mohan Sarma, I. L. R., 5 Calc, 273 ; 4 C. L. R., 448.) If it be
found that one of the holdings, constituting a tenure has been created, since the
Decennial Settlement the tenant cannot ask for the benefit of the presumption in
respect of the rest only. {MaulaBaksh v. Jadunath Sadukhan, 21 W. R., 267.) But
the alienation of a portion of a permanent tenure by one of several co-tenure-
holders will not work a forfeiture of the whole tenure. {Dassorathi Hari Chandra
Mahapattra v. Ram Krishna Jana, I. L. R., 9 Calc, 526.) A temporary arrange-
ment among joint owners, by which one of their number is allowed to hold a
certain portion of the joint property on payment of a certain sum of money, does
not convert the occupier into a raiyat holding at a fixed rent, or entitle him to
the benefit of the presumption under sec. 4, Act X of 1859. {Raghuhan Tevjarix.
Bishnu Dattn Dhobi, 2 W. R., Act X, 92.) Additional rent for additional land,
and an abatement of rent in consequence of diluvion do not prove alteration of
the I'ate of rent or affect a raiyat's right to claim the benefit of the presumption
arising from a twenty years' uniform payment of rent. {Samiruddin Lashkar v.
Haranath Rai, 2 W. R., Act X, 93 ; Reazunnissa v. Tukan Jha, 10 W. R., 246.)

51. If a question arises as to the amount of a tenant's
Presumption as to rent OF the conditious under which he

amount of reut and , , , . . i i i i n i

conditions of holding. holus in any agricultural year, he shall be
presumed, until the contrary is shown, to hold at the same
rent and under the same conditions as in the last preceding
agricultural year.

This is in accordance with several rulings of the High Court under the old
law. (See Inayatullah v. IlahiBaksh, W. R., Sp. No., Act X, 42 ; Juma%it Ali Shah
V. Chattardhari Sahi, 16 W. R., 185 ; Tara Chandra Banarji v. Amir Mandal,
22 W. R., 394 ; Altab Bibi v. Jugal Mandal, 25 W. R, 234.)

112 THE BENGAL TENANCY ACT.

Chap. VIII, ^ t . /. » • /.

skc. 52. Alteration of rent on alteration of area.

52. (1) Every tenant shall —

(a) be liable to pay additional rent for all land proved, by
Alteration of rent in measurement, to be in excess of the area

respect of alteration iu/. u'l. l ^ u ' ^ • ^

area. 10^' which rent has been previously paid

8eaTi).^Act''vin/Rc.,' ^Y ^^"^5 unlcss it is proved that the excess
•^^69. is due to the addition to the tenure or

holding of land which, having previously belonged to the
tenure or holding, was lost by diluvion or otherwise without
any reduction of the rent being made ; and

{b) be entitled to a reduction of rent in respect of any
deficiency proved by measurement to exist in the area of his
tenure or holding as compared with the area for which rent
has been previously paid by him, unless it is proved that
the deficiency is due to the loss of land which was added to
the area of the tenure or holding by alluvion or otherwise,
and that an addition has not been made to the rent in respect
of the addition to the area.

(2) In determining the area for which rent has been
previously paid, the Court shall, if so required by any party
to the suit, have regard to —

{a) the origin and conditions of the tenancy, for instance,
whether the rent was a consolidated rent for the entire tenure
or holding ;

{h) whether the tenant has been allowed to hold additional
land in consideration of an addition to his total rent or other-
wise with the knowledge and consent of the landlord ;

{d) the length of the measure used or in local use at the
time of the origin of the tenancy as compared with that used
or in local use at the time of the institution of the suit.

(3) In determining the amount to be added to the rent,
the Court shall have regard to the rates payable by tenants
of the same class for lands of a similar description and
with similar advantasres in the vicinity, and, in the case of
a tenure-holder, to the profits to which he is entitled in

ALTERATION OF RENT. H^

respect of the rent of his tenure, and shall not in any case chap. viii.
fix any rent which under the circumstances of the case -^
is unfair or inequitable.

(4) The amount abated from the rent shall bear the
same proportion to the rent previously payable as the dimi-
nution of the total yearl}?" value of the tenure or holding bears
to the previous total yearly value thereof, or, in default of
satisfactory proof of the yearly value of the land lost, shall
bear to the rent previously payable the same proportion as the
diminution of area bears to the previous area of the tenure
or holding.

Alterations in law made by sub-section (1).— The provisions of sub-sec-
tion (1) make considerable changes in the law. Formerly, an occupancy-raiyat
could always claim abatement on the ground of the area of his land having been
diminished by diluvion or otherwise. (Sec. 19, Act VIII, 1869, B. C. ; sec. 18,
Act X, 1859.) The case of diluvion was not left to fall within the case of the
quantity of land being proved by measurement to be less than the quantity of
land for which rent was previously paid. But the case of alluvion was not simi-
larly provided for in the enhancement section, and it was, therefore, contended
that it was not intended to fall within the case of land being proved by measure-
ment to be more, but to be governed by cl. (1), sec. 4, Keg. XI of 1825. Hence,
while a tenant could always claim abatement of rent on account of diluvion, a
landlord could only assess accretions to a tenant's jote when he could show that
he was entitled to do so by established usage or special agreement. {Jagat Chandra
Datta V. Panioty, 6 W. E., Act X, 48 ; Oopal Lai Thahir v. Kumar Ali, 6 W. R.,
Act X, 85 ; Jagat Chandra Datta v. Panioty^ 8 W. R., 427, in review ; 9 W. R., 379 ;
Ramnidhi Manjhi v. Parhati Dasi, I. L. R., 5 Calc, 823 ; Brajendra Kumar Bhumik
v. Upendra Narain Singh, I. L. R., 8 Calc, 706 ; Ghulam Ali Chaudhri v. Kal
Krishna Thakur, 8 C. L. R., 517 ; I. L. R., 7 Calc, 479 ; Hara Sundad Dad v. Gopi
Siindad Dad, 10 C. L. R., 559.) This is now changed, and the law is now made the
same for both landlord and tenant, and in the case both of alluvion and diluvion.
Land proved by measurement to be in excess of the area for which rent has been
previously paid, evidently now includes land gained by alluvion, as well as land
gained in any other way ; while a deficiency proved by measurement to exist in
the area for which rent has been previously paid, evidently includes land lost by
diluvion as well as otherwise. A further change made by this sub-section is,
that it is no longer necessaiy, as under the old law, to issue a notice to the tenant
before suing him for additional rent on the ground of an increase in the area of
the land held by him. Notices of enhancement are not required by this Act in
any case, and additional rent for excess of area in the subject of the tenancy is
not enhanced rent.

Sub-section (1), clause (a). Increase in area.— Under the old law it had
been held, that when the area of a tenant's holding was increased by alluvion, the
increment accreted to the tenancy, and the tenant had a right to continue in
occupation of it, though he was liable to pay additional rent for it. ( Gobind
Mam. Debi v. Dinobandhu Shaha, 15 W. R., 87 ; Gopi Mohan Majumdar v. ffilh,
R. & F., B. T. A. 8

114

THE BENGAL TENANCY ACT.

Chap, VIII. 5 C. L. R., 33 ; Atimullah v. SahibuUah, 15 W. R., 149 ; Bhagliohat Pramd Singh
Skc. 52. V. Durga Bijai Singh, 8 B. L. R., 73 ; 16 W. R., 95.) Bat in one case {Zahirudin
Pailar v. Campbell, 4 W. R., 57), it was said that cl. 1, sec, 4, Reg. XI of 1825,
referred only to under-tenants intermediate between the zamindar and the
i-aiyat, and to ihudkaaht and other raiyats who possess some permanent interest
in their land, and not to tenants from year to year, while in another
case it was broadly laid down that there is "no right of accretion by
which a raiyat is entitled to claim under the law of the country." (Finlay, Muir
t& Co. V. (Jopi Ki-isto O'ossami, 24 W. R., 404.) Similarly, when, on a tenant's land
being measiu'ed, he is found to be in possession of a greater quantity of land
than that for which he has been paying rent, and the excess lies within the
boundaries of the land originally leased to him, it has been held that he is not a
trespasser as regards the excess land, and that the landlord cannot eject him from
it, but can only make him pay additional rent for it. {Bipro Das De v. Sahir-
mani Dasi, W. R,, Sp. No., Act X, 38 ; Saudamini Basi v. Guru Prasad Datta,
3 W, R., 14 ; Gopinath Muhharji v. Bam Had Mandal, 9 W. R., 476 ; Ahmad
Hossein v. Bandi, 15 W. R., 91 ; Pran Krishna Bagchiv. Monmohini Dasi, 17 W, R.,
34.) But when the increase in area is due to a tenant having encroached on land
belonging to his landlord, which is not part of the land originally leased to him,
the case is diflferent. According to Sir Barnes Peacock, in such a case the tenant, as
regards the excess land, is a trespasser, and the landlord's only course is to eject
him. (llashum Bibi v. Bissonath Sirkar, 6 W. R., Act X, 57 ; DeCourcy v. Megh-
nath Jha, 15 W. R., 157.) In subsequent cases, however, it was held that the land-
lord was entitled to treat him either as a trespasser or as a tenant, as he thought
fit. {David v. Ramdhan Chatarji, 6 W, R., Act X, 97 ; Rajmolian Mitra v. Guru
Cham Aich, 6 W, R., Act X, 106 ; Sham Jha v. Durga Rai, 7 W, R., 122 ;
Ghidam Ali v, Gopcd Lai Thahir, 9 W. R., 65.) This is, of course, the present law
(sec. 157). But in one case it was laid down that, if the tenant's tenancy was
permanent, or he had a right of occupancy, he could not be ejected from any
lands he had added to his tenancy by encroachment ; but when the rent was re-
adjusted, these lands might be brought into calculation. {Guru Das Rai v. Issar
Chandra Basu, 22 W. R., 246.) In the same case it was said : " We think the true
presumption as to encroachments made by a tenant, during his tenancy, upon the
adjoining lands of his landlord is, that the lands so encroached upon are added to
the tenure, and form part thereof for the benefit of the tenant so long as the
original holding continues, and afterwards for the benefit of his landlord, unless it
clearly appeared, by some act done at the time, that the tenant made the encroach-
ment for his own benefit." In a later case, it was further laid down that when a
tenant, during his tenancy, encroaches upon the land of a third person, and
holds it with his own tenure until the expiration of the tenancy, he is considered
to have made the encroachment, not for his own benefit, but for that of his land-
lord ; and if he has acquired a title against the third person by adverse possession,
he has acquired it for his landlord, and not for himself. (Naddiar Chaml Shaha
v, Meajan, I. L. R,, 10 Calc, 820.)

Sub-sec. (1), clause (b). Abatement of rent on account of decrease of
area. — Under the old law, all classes of tenants were entitled to abatement of rent
on the ground of a diminution in the area of the land forming the subject of their
tenancy. Thus, it was held that a patnidar or other lease-holder can sue for abate-
ment {Hara Krishna Banarji v. Jai Krishna Mukharji, 1 W. R., 299 ; Prasanna-
mayi Dad v. Sundar KumaH Debt, 2 W. R., Act X, 30) ; and so can a kauladar

ALTERATION OF RENT. JI5

(Kamala Kant Das v. Pogose, 2 W. R., Act X, 65). A tenant, with or without a Chap. VIII.
riglit of occupancy, is entitled to abatement of rent for land washed away, unless Sicc^*)?.
precluded by the terms of his kabuliyat from claiming that abatement. (Jnayat-
ullah V. Ilahi Baksh, W. R., Sp. No., ActX, 42 ; Raxjhunath Mandaly. Jagathandlm
Basil, 8 C. L. R., 393.) The right to claim abatement passes to a purchaser on a sale
of the tenure. {Kali Prasanna Rai v. Dhananjai Ghosh, I. L. R., 11 Calc, 625.)
A tenant is entitled to a deduction for lands washed away {Inayatullah v. Ilahi
Bak-sh, W. R., Sp. No., Act X, 42 ; Savi v. Ahhoy Nath Basil, 2 W, R., Act X, 28 ;
Kali Prasanna Rai v. Dhananjai Ghosh, T. L. R., 11 Calc, 625) ; for lands taken up
for a road, a railway, or any public purpose (Dina Doyal Lai v. Thahnt Kunwar,
6 W. R., Act X, 24 ; Ram Narain Chakraharti v. Pulin Bihari Singh, 2 C L. R.,
5 ; Prasannamayi Dasi v. Sundar Kumari Debi, 2 W. R., Act X, 30 ; Watson & Co.
V. Nistanni Gupta, I. L. R., 10 Calc, 544 ; Uma Sankar Sirkar v. Tarini Chandra
Singh, I. L. R., 9 Calc, 571) ; or for land resumed by Government as chakeran
{Hara Krishna Banarji v. Jai Krishna Mukharji, 1 W. R., 299). He can also claim
an abatement of rent if dispossessed of any of his land by a title paramount
to that of his lessor {Gopananda Jha v. Gohinda Prasad, 12 W. R., 109; Braja
Nath Pal V. Hira Lai Pal, 10 W. R., 120 ; 1 B. L. R., A. C, 87) ; but not
if the party dispossessing him has no title {Rango Lai Singh v. Ritdro
Prasad, 17 W. R., 386). A patnidar can sue for abatement of rent on the
ground of fraud caused by the concealment from him of the existence of an inter-
mediate tenure created by the zamindar. (Shukar Ali v. Amala Ahalya, 8 W. R.,
504.) A tenant has been held entitled to abatement of rent in consequence of land
being taken up for a railway, in spite of a clause in his kabuliyat to the effect
that in no case could he claim a reduction of rent ( Watson <& Co. v. Nistarini Gupta,
I. L. R., 10 Calc, 544), and for land taken up for public purposes, notwithstanding
a provision in his kabuliyat that he would make no objection on the score of
diluvion or any other cause to pay the rent fixed. ( Uina Sankar Sirkar v. Tarini
Chandra Singh, I. L. R., 9 Calc, 571.) But in certain cases, tenants have been held
not to be entitled to an abatement of rent notwithstanding a diminution in the
area of the lands held by them. Thus, it has been said that the plea of the quan-
tity of land being less than that mentioned in the pottah cannot avail a raiyat, if
he knew the land for which he agreed to pay rent {Tripp v. Kali Das Mukharji,
W. R., Sp. No., Act X, 122) ; and in a case in which a portion of certain land
held under a patni, was taken up by Government under the Land Acquisition
Act and the zamindar having declared that he would allow no abatement of rent,
the patnidar was allowed to appropriate the whole of the compensation, it was
held, on the patni being sold under Reg. VIII of 1819 with notice of the amount '

of the original rent, that the purchaser was not entitled to any abatement of
rent, as he must be presumed to have had notice of the proceedings under the
Land Acquisition Act. (Piari Mohan Mukharji v, Aftah Chand, 10 C. L. R., 526.)
Then, though a pottah provided for an abatement of the defendant's rent, if, on
measurement, the land was found to be less than 145 bighas, yet it was held that if
defendant came to be in possession of less quantity by his own default, and not that
of his lessor, the mere fact of the defendant being in possession of less than 145 bighas
would not entitle him to an abatement. {Sitanath Basn v. Sliam Chand Mitra, 17
W. R., 418.) In one case it was said that it was doubtful whether the proprietor
of a taluk created before the Permanent Settlement could claim abatement of
rent on account of diluvion. {Ram Cham Baisakh v. Lucas, 16 W. R., 279.) The
right to abatement of rent can be barred by limitation {Prasanna Moyi Dasi v.
Doya Moyi Dasi, 22 W. R., 275), and the right of action, when diluvion takes

116

THE BENGAL TENANCY ACT.

Chap. VIII. place, accrues from the time when the plaintiff is compelled to pay the rent
Skc 52. named in his pottah without the allowance of the abatement claimed by him.
"~" {Barry v, Abdul Ali, W. R, Sp. No., Act X, 64.) Many of these rulings will not
be good law under the present Act. Under the provisions of cl, (h), a tenant
is now entitled, in all circumstances, except in the case referred to in the latter
part of the clause, to a reduction of rent on the ground of a proved deficiency
in the area of the land originally leased to him ; and by sec. 178 (3) (/), nothing
in any contract made after the passing of this Act {i.e., the 14th March, 1885)
can take away the right of a raiyat to apply for a reduction of rent under
sec. 52. So far as a raiyat is concerned, then, he can only lose his rights under
this section by the operation of the law of limitation.

Abatement of rent can be claimed in a suit for arrears.— The plea of
abatement can be adjudicated on in a suit for ai'rears of rent {Afsaruddin v.
Sarashihala Debt, Marsh., 558 ; Din Dyal Lai v, Thakru Kumcar, 6 W. E., Act X,
24; Gaur Kishor Chandra v. Bonmnali Chaudhri, 22 W. R., 117); and as a claim
for rent is a recurring cause of action, a tenant is entitled to set up against it for
any particular year any right which he has to a deduction or abatement, notwith-
standing that he has paid full rent for several previous years {Mahtab Chand v.
Chittro Eumari, 16 W. R, 201. But see note to sec. 38, p. 88.)

Sub-section (2), clause (a). — In sub-sec. (2) are detailed the considera-
tions by which Courts should be guided in deciding whether an increase of area is
really a ground for increase in rent or not. In the case mentioned in cl. (a),
where the rent is a consolidated rent for the entire tenure or holding, or where
the tenant has been let into occupation of land within certain specified bound-
aries, there is no gi'ound for holding the tenant liable to pay additional rent,
even if, on measurement, it is foimd that the area of the land has been understated.
The Rent Law Commission, in their Report (Vol. I, p. 142), give the following
illustration of a case of this nature : — " A was let into possession of a holding
in 1860 under a written lease, which describes the holding as comprising 37 bighas
of land, and gives the boundaries. Tlie land is situated in a cultivated village,
and the boundaries are ascertainable and definite. In 1880, the land within these
boundaries is measured and found to be 45 bighas. A is not liable to pay enhanced
rent in respect of the eight additional bighas found to be within the boundaries
stated in his lease." There are numerous rulings of the High Court under the old
law to this effect. Thus, in Abdul Mannah v. Barada Kant Banarji {15 W. R., 394),
it was said that in order to ascertain what land is actually leased, it is necessaiy to
look to the boundaries mentioned in the lease, and not to the estimated area. (See
also Modihnddin Jowardar v. Sandes, 12 W. R., 439 ; Shib Chandra Mahniah v.
Brajanath Aditya^ 14 W. R, 301 ; Ishan Chandra Ghosh v. Pratap Chandra Rai,
20 W. R., 224.) In a case recently decided by the Bombay High Court — Virjivandas
Madhav Das v. Mahwned Ali Khan Ibrahim (I. L. R., 5 Bom., 208) — it has been
said that on a suit for ejectment a mere mis-statement of the area of the land
sought to be recovered ought not to be regarded as anything more than a " false
demonstration." If the space is precisely defined by other description, the statement
of its measurement in square yards may be treated as sm'plusage and of no
consequence.

Sub-section (2), clause (b). — In many cases tenants agree to pay an addition
to their total rent in consideration of the landlords agreeing not to re-measure
their lands, it being tacitly understood that the tenant is holding more land than

ALTERATION OF RENT. It7

the nomiual area for which he pays rent. It would clearly be unfair in such Chap. VIII.
a case, if a measurement be subsequently made, to allow enhancement on the ^^^' *
ground of excess area in addition to the increase in total rental already agreed
upon.

Sub-section (2), clause (c). Rulings under the old law.— The defendant
having for more than sixty years occupied lands in excess of the number of bighas
specified in the pottah, and the lands in question always having been deemed to
form what was covered by the pottah, it was held that they had been occupied and
enjoyed as the land included in the pottah since before the Decennial Settlement,
and that the rent could not, therefore, be enhanced. (Janaki Ballabh Chahrabartti
v. Nabin Chandra Rai^ 2 W. E., Act X, 33.) When a permanent zimma taluk
has been held at one rate of rent for more than twenty years, the terms of
sec. 15, Act X of 1859, as well as the provisions of sec. 51, Eeg. VIII of 1793,
preclude the zamindar from assessing accretions to the parent taluk. {Jagat
Chandra Datta v. Panioty, 8 W. E., 427.) In another case, the plaintiffs (patnidars)
sued the defendants (darpatnidars) for arrears of rent. The defendants alleged that
a part of the land had been taken up by the Government twenty years previously
for the purposes of a railway, and they claimed an abatement on that ground. It
was held, that the Limitation Act does not in terms prevent a defendant from set-
ting up such defence ; but that the great delay in this case, combined with other
circumstances, disentitled the defendants to any relief in a Court of Equity. {Ram
jVaram Chahrabartti v. Pulin Bihari Lai Singh, 2 C. L. E., 5.) In a suit for abate-
ment of rent, founded on an agreement that at a certain time the land should be
measured, and if found less than the quantity named in the agreement, there should
be an abatement of rent, it was found that the plaintiff had never required abate-
ment, but had continued to pay the rent six years. It was, therefore, held that the
suit was barred by limitation, the cause of action having arisen when the zamindar
continued to take rent according to the quantity of land named in the agreement.
{Prasanna Mo.yi Dasi v. Doya Mayi Dasi, 22 W. E., 275.) A decree for enhanced
rent having been obtained, the zamindar agi'eed that the tenant should be
allowed to hold a lease at a less rent for a certain number of years on certain con-
ditions. After the expiration of the period fixed by the lease, he sued to recover
rent at the i-ate declared payable by the enhancement-decree. It was, however,
decided that the effect of the agreement was to suspend the decree, and in the
absence of a provision in the lease for revival of the decree on the expiration of the
term limited, the plaintiff mvist have recourse to the procedure laid down by the
enhancement provisions of Act VIII (B. C.) of 1869, if he seek to recover a higher
rent than that paid under the lease. {Nahin Chandra Sirkar v. Gaur Chandra "

Saha, 8 C. L. E, 161.)

Sub-section (2), clause (d). — It is obviously no ground for an alteration in
rent that the nominal area of the land has increased or decreased owing to its being
measured on a system different from that of the jsrevious measurement. Such
increase or decrease may be due to slight variations in the length of the pole, or the
method of throwing it, or to the change from the rude native system of measure-
ment to scientific measurements with chain and compass. If, when a raiyat was
let into a plot of land with defined boundaries, the area was said to be a bigha,
and the rent fixed at four rupees, it is obvious that to call that same field a bigha
and five kottahs, because measured on a different system, and, therefore, to raise
the rent to five rupees, is unfair. " What," says Sir Steuart Bayley, ",the Courts
have to consider is, whether the entire area was really previously considered or

H8 THE BENGAL TENANCY ACT.

Chap. VIIF. not." ^Proceedings, dated 27th February, 1885, Extra Supplement to Government
S^t^jS. oy Iiidia Gazette, March 14th, 1885, p. 58.) (See also Bahun Mandal v. Shib
Kumari Bumutni, 21 W. K, 404.)

Sub-section (3).— The terms of this sub-section lay down a definite rule for
the assessment of excess areas of which tenants are found in possession. There
has hitherto been much conflict in the rulings of the High Court on this point.
(See Ghidam AH Thakur v. Gopal Lai Thahur, 9 W. E., 65 ; Gopal Lai Thakur
V. Kumar Ali, 6 W. R., Act X, 85 ; Panioty v. Jagat Chandra Datta, 9 W. R,
379 ; GohindUunani Debt v. Dimibandlm Halm, 15 W. R., 87 ; Hharashwaii Dusi
V. Parhati Das, 6 C. L. E., 362 ; Glmlam Ali v. Kali Krishna Thakur, I. L. E., 7
Calc, 479 ; 8 C. L. E., 517 ; Laidley v. Bishnu Cluiran Pal, I. L, E., 11 Calc, 553 ;
Churamani De v, Howrdk Mills Company, I, L. E., 11 Calc, 697.)

Sub-section (4).— Tlie rule prescribed in sub-sec. (4) is in accordance with
the rule laid down by the High Court in Brajanath Pal v. Hira Lai Pal
(1 B. L. E., A. C, 87 ; 10 W. E., 120).

Payment of llent.
53. Subject to agreement or established usage, a money-
rcDt payable by a tenant shall be paid in

Instalments of rent. ^ I'.i , n ^^• -i .i

tour equal instalments lallmg due on the
last day of each quarter of the agricultural year.

There was no pro^dsion to this eflfect either in Act X of 1859 or Act VIII
of 1869 (B. C.) Under sec. 2 of these Acts, the instalments in which a raiyat's
rent was to be i^aid had to be specified in his pottah. If not so specified, they
were regulated by established usage (sec. 20, Act X, 1859 ; sec. 21, Act VIII,
R C, 1869), which meant the established usage in the pargana, and not the estab-
lished usage between the parties. {Chaitanno Chandra Rai v. Kedarnath Rai,
14 "W. E., 99.) The pi'ovisions of the present section are also subject to agreement
or " established usage," that is, not the i^i-actice previously prevailing between the
Ijarties, but the established usage of the pargana in which the property is situated
{Hira Lai Das v. Mathura Mohun Rai, I. L. E., 15 Calc, 714). So, where it can be
proved that there is an agreement for, or usage of, paying rent by monthly
instalments, this usage will prevail : where there is an agreement for payment
in monthly instalments, the raiyat is bound by its terms, notwithstanding that
the landlord has not strictly enforced them previously. (Piari Mohan Miikharji
V. Braja Mohan Basu, 22 W. E., 428.) The landlord cannot, however, sue for
aiTears oftener than once in three months (sec. 147), nor is interest recoverable
for any time that may iiiter\'ene between the date of the instalment and the
expii-ation of the quarter in which it falls due (sec 67) ; so that where the pay-
ment of rent by monthly instalments is established by local usage, there is practi-
cally no penalty for withholding the rent up to the end of each quarter. "Estab-
lished usage," therefore, can have no effect, except where the usage is, that the
lent should be i>ayable less often than once in three months. It is to be remem-
bered that in sec. 3 (5) it is provided, that " in sees. 53 to 68, both inclusive,
rent includes also money recovex'able under any enactment for the time being
in force as if it was rent." Hence, sums payable under the Cess Act (IX of 1880,
B. C.) are payable in four quarterly instalments, unless there be an agreement or
established usa;;e to the contrary.

PAYMENT OF RENT. 119

54. (1) Every tenant shall pay each instalment of rent ^' g*,,^' J]"'
Time and place for before sunset of the day on which it falls

payment of rent. rlno

(2) The payment shall, except in cases where a tenant is
allowed under this Act to deposit his rent, be made at the
landlord's village-office, or at such other convenient place as
may be appointed in that behalf by the landlord :

Provided that the Local Government may from time to
time make rules, either generally or for any specified local area,
authorizing a tenant to pay his rent by postal money-order.

(3) Any instalment or part of an instalment of rent not
duly paid at or before the time when it falls due shall be
deemed an arrear.

Sub-section (1).— There was no rule on this point under the old law ; but in
Kashi Kant Bharttacharji v. Rohini Kant Bharttacharji (I. L. E., 6 Calc, 325),
it was held by a Full Bench that " rent becomes due at the last moment of the
time which is allowed to the tenant for payment." The present rule is analogous
to the rule as to the ^myment of Government revenue.

Sub-section (2).— It is to be remembered that as a debtor has to seek out
his creditor and pay what is due, so a tenant must not wait till the rent is demand-
ed of him, but must go to his landlord, and pay it on the day that it falls due ;
and when a debtor pleads tender of payment as a ground for not being saddled
with interest, it is for him to prove such tender. (Sharat Suiidari Debt v.
The Collector of Mi/mensiiigk, 5 W. E., Act X, 69.) Payment to one of several
joint proprietors is payment to all. {Udit Narain Singh v. Hudson, 2 W. E.,
Act X, 15 ; Muktakeshi Dasi v. Kailash Chandra Mitra, 7 W. E., 493.) Payment
by a tenant under the landlord's directions to another, or for a specified purpose,
of a sum equivalent to the amount claimed as rent is tantamount to a payment to
the landloi'd himself, and is a sufficient answer to the landlord's suit for rent. {Jai
Koer v. Furlang, W. E., Sp. No., Act X, 112.) Payment of rent to a third party
does not prove that the relation of landlord and tenant does not exist between
defendant and plaintiff, when such payment has been made to that party, not as
landlord, but under a deed of assignment from plaintiff's father. {Krishna Dhan «

Pandit v. Mahomed Naki, 10 W. E., 495.) When a tenant is left in that condition
in which he is compelled to pay his landlord's debt to save his own security from
forfeiture, the circumstances constitute a sufficient authoi-ity to make the payment,
e. g., the payment of Government-revenue to save the estate from sale. {Hills v.
Uma Mai/i Bannani, 15 W. E., 545.) An auction-purchaser with notice of a
payment in advance made by the tenant to the former proprietors of rent due for
a period subsequent to the date of purchase is bound by such payment. (Ram
Lai SaJia v. Jagendro Narain Rai, 18 W, E., 328.) Payment by a joint
tenant of rent due by himself and others without demand, suit, or other effectual
proceeding for the recovery of the rent is voluntary and officious, and cannot be
recovered by a suit for contribution. (Lakhi Kant Das v. ,Shib Chandra CJmkra-
hartti, 12 W. R, 462.) . -

120 ^HE BENGAL TENANCY ACT.

Chap. VIII. Sub-section (2), proviso. — Tlie imvilege of remitting land-revenue by

SkC|65. postal money orders was extended to all the districts of Bengal from the Ist April,
1887. The system, according to the Board of Kevenue, has worked well, and, from
the 1st April, 1888, was extended so as to include remittances of zamindari d&k
cess, as well as land-revenue and road and public works cess. It has also been
ruled that other public demands may be paid at the option of the payer
by postal money orders, provided the particulars given are sufficient for the
department concenied. A proposal to extend the system to the payment of
rent under the Tenancy Act is under the consideration of Government. The
system has recently been sanctioned as an experimental measure in the dis-
tricts of the Burdwan Division, and it is understood that it will shortly be put
in force.

Sub-section (3).— A produce-rent, which is not jjaid when due, is an arrear
as well as a money-rent in similar circumstances, and a suit for the money-
value of the produce at the time when it ought to have been paid will lie as
a suit for arrears of rent. {Krishna Bandhu BhccrttacJiarji v. Rotish Sheikh,
2.5 W. R., 307.) An "aiTear" under sec. 67 shall bear simple interest at the
rate of 12 per cent, per annum from the expiration of the quarter in which it
fails due.

55. (1) When a tenant makes a payment on account of
Appropriation of pay. ^'^nt, he may declare the year or the year
^6"*^' and instalment to which he wishes the pay-

ment to be credited, and the payment shall be credited accord-
ingly.

( 2 ) If he does not make any such declaration, the pay-
ment may be credited to the account of such year and instal-
ment as the landlord thinks fit.

This rule is in accordance with the provisions of sees. 59 and 60 of the Indian
Contract Act (IX of 1872), under which, however, the appropriation may be made
by implication. {Sangat Lai v. Baijnath Rai, I. L. R., 13 Calc, 164.) When neither
debtor nor creditor makes any appropriation, under sec. 61 of the Contract Act, the
payment is to be credited to the earliest debt, whether it is or is not barred by
limitation. The payment of the rent of any ])articular year affords good primd
facie grounds for supposing that the rent of the previous year has been paid
(Sarat Sicndari Debi V. Brodie, 1 W. R., 274) ; but it is not conclusive evidence that
the rents for past yeais have been paid. In another case, it has been said that the
l^ayment in each year must be presumed to be for the current year till the con-
trary is shown ; and the surplus payments must prinut facie be presumed to be
for past, and not for subsequent, years. (Taramoni Dasi v. Kali Cliaran Sanna,
W. R., Sp. No., 1864, Act X, 14. See also Ahmuty v. Brodie, W. R., Sp. No.,
Act X, 15 ; Sarnamayi \. Singhrxip Bibi, W. R., Sp. No., Act X, 134 ; Sliambhu
Chandra Shaha v. Barada Sundari Debi, 5 W. R., 45.) In a suit by a landlord
against his tenant for arrears due for a portion of the year 1283, the defendant
pleaded payment and called as his witness the plaintiff's agent, who admitted the
receipt of certain payments from the defendant's under-tenants during the time

RECEIPTS AND ACCOUNTS. 121

for which the arrears were demanded, but swore that they were payments due Chap. VIII.
on account of previous years. It was held, that the defendant having ]3leaded Sec^6.
payment was bound to prove that the admitted paymeuts'were in respect of that
portion of the year 1283 for which the arrears were claimed. {Saifan v. Ritdra
Sahai, I. L. R, 7 Calc, 582.)

Receipts and Accounts.

56. (1) Every tenant who makes a payment on aceoimt
of rent to liis landlord shall be entitled to

Tenant making pay-
ment to his landlord obtain forthwith from the landlord a written

entitled to a receipt. - , n ,^ , 'iii* • i

receipt for the amount paid by him, signed
by the landlord.

(2) The landlord shall prepare and retain a counterfoil of
the receipt.

(3) The receipt and counterfoil shall specify such of the
several particulars shown in the form of receipt given in
Schedule II to this Act as can be specified by the landlord at
the time of payment :

Provided that the Local Government may, from time to
time, prescribe or sanction a modified form either generally or
for any particular local area or class of cases.

(4) If a receipt does not contain substantially the parti-
culars required by this section, it shall be presumed, until the
contrary is shown, to be an acquittance in full of all demands
for rent up to the date on which the receipt was given.

Sub-section (1).— An agent duly authorized in writing under sec. 187 (3),
as well as the landlord himself, may sign this receipt. If there be more than one
landlord, the receipt must be signed by all of them, or by their common agent
(sec. 188), or common manager, if there be one appointed under sec. 95. Every
tenant — which term includes a tenure-holder as well as a raiyat — is entitled to a
separate receipt for each instalment paid by him. The same form of receipt may,
of course, be used for several ijayments, if the tenant brings back his half of the
i-eceipt. Under cl. (c), art. 15 of Sched. II of Act I of 1879, receipts granted for
any payment of rent by a cultivator on account of land assessed to Govei'nment
revenue are exempt from stamp-duty. Eeceipts granted by laJchirajdars to their
tenants, if for more than Rs. 20, should, therefore, be stamped.

Sub-section (3). — Among the particulars specified in Sched. II to be men-
tioned in the receipt are, it is to be observed, the tenant's name, the instalment,
and the year to which each payment is credited. Under sub-sec. (4), the omis-
sion of these imrticulars makes it incumbent on the Court to presume the receipt
to be an acquittance in full.

By Notification dated 30th January, 1888, published at p. 83 of the Calcutta
Ga-ette of February 1st, 1888, Government has, under the proviso to sub-sec. (3),

J 22 THE BENGAL TENANCY ACT.

CuAP. VIII. sanctioned a special form of receipt for cex-tain areas now under settlement in
6ttc^7. tjjg Rajsliahye District.

Receipts how to be proved in evidence.— Receipts should be attested or
proved by some oral evidence. But a tenant cannot be expected to summon all
the gomastas of his zamindar for the past twenty or thirty yeai« to attest his
dakhilas. He can, however, pi-ove all dakhilas which have been given to him
pei-soiially as well as any other witness. (Rajeshwari Dehi v. Shilniath Chatarji,
4 W, R., Act X, 42.) A raiyat who puts in dakhilas to prove his case, is bound
to prove them. Their admission as genuine is not to be presumed merely because
they are not formally disputed by the landlord. {Krittibash Malianti v. Ramdhan
KJuirah, 7 W. R., 526 ; Ram Jadu Gaiiguli v. Lahhi Narain Mandal, 8 W. R., 488 ;
Ganga Narain Das v. Sarada Mohan Rai, 12 W. R., 30 ; Dumaine v. Uttam Singh,
13 W. R., 462.) The evidence of a tenant deposing to the genuinene.ss of dakhilas
produced by him, if not rebutted, is legally sufficient to prove them. {Madhub
Chandra Chaudhri v. Framat/ut Nath Rai, 20 W. R., 264.)

57. (1) Where a landlord admits that all rent payable
Tenant entitled to hy a tenant to the end of the agricultural
LILttAtSltlrot year has been paid, the tenant shall be en-
of year. titled to receive from the landlord, free of

charge, within three months after the end of the year, a receipt
in full discharge of all rent falling due to the end of the year,
signed by the landlord.

(2) Where the landlord does not so admit, the tenant
shall be entitled, on paying a fee of four annas, to receive
within three months after the end of the year a statement of
account specifying the several particulars shown in the form of
account given in Schedule II to this Act, or in such other
form as may from time to time be prescribed by the Local
Government either generally or for any particular local area or
class of cases.

(3) The landlord shall prepare and retain a copy of the
statement containing similar particulars.

Sub-section (2).— It would seem as if the landlord in the statement of
account must sjjecify the particulars mentioned in Sched. II. There is no
saving clause, as in sec. 56 (3). However, he is not liable to any penalty, unless
he neglects to specify these particulars without reasonable cause. (See sec. 58 (2) .)

Fees payable to Government under this section how to be credited —
l^andlord's fees under sec. 57 (2) of the Bengal Tenancy Act, which are payable
to Government as landlord, are miscellaneous revenue leceipts, and should, there-
fore, be realized in cash and included by Collectors in Table V of their Return
No. X under the head {(j—\) : " Fees under Act VIII of 1885." (Board of Reve-
nue's C. O. No. 2 of September, 1886.)

RECEIPTS AND ACCOUNTS. 123

58. (1) If a landlord without reasonable cause refuses chap. viii.

^ ^ , -. . Skcs. 58, 59.

or neglects to deliver to a tenant a receipt —

Penalties and fine for , • • .i • i m i i

withholding receipts Containing the particulars prescribed by

count '\nd^ failing ^to sectioii 56 for any rent paid by the tenant,

^^Sec^^io°Act'^x^"i8o9 *^^ tenant may, within three months from

Sec. II, Act VIII, B.C., the date of payment, institute a suit to

1869. ^. "^ '

recover from him such penalty, not exceed-
ing double the amount or value of that rent, as the Court
thinks fit.

(2) If a landlord without reasonable cause refuses or
neglects to deliver to a tenant demanding the same either
the receipt in full discharge or, if the tenant is not entitled
to such a receipt, the statement of account for any year pre-
scribed in section 57, the tenant may, within the next ensuing
agricultural year, institute a suit to recover from him such
penalty as the Court thinks fit, not exceeding double the
aggregate amount or value of all rent paid by the tenant to
the landlord during the year for which the receipt or account
should have been delivered.

(3) If a landlord without reasonable cause fails to pre-
pare and retain a counterfoil or copy of a receipt or statement
as required by either of the said sections, he shall be punished
with fine which may extend to fifty rupees.

Fines under sub-section (3) must be imposed by the Magistrate.—
It i.s not clear by whom the fine meutioned iu sub-sec. (3) should be imposed ;
but the Legal Remembrancer has expressed an opinion that from the word
" punished," occurring iu the sub-section, it would appear that the fine should be
imposed by the Magistrate. (Legal Eemembrancer's No. 811, of September 4th,
1888, to the Board of Revenue.)

59. (1) The Local Government shall cause to be pre-

Locai Government to V^^^^ ^^^"^ kept for salc to landlords at all

prepare forms of re- gub-divisioual officcs forms of receipts with

ceipt and account. _ '■

counterfoils and of statements of account
suitable for use under the foregoing sections.

(2) The forms may be sold in books with the leaves
consecutively numbered or otherwise as the Local Government
thinks fit.

It is not necessary that the forms of receipt pi-epared and kept for sale at sub-
divisions under the provisions of this section should be used, nor yet that the

124

THE BENGAL TENANCY ACT.

Chap. VIII. landlords should use printed forms of receipt. (See Government letter No. 1452
Skc. 60. T. E., dated 7th September, 1885, published in the Calcutta Gazette^ 16th September,
~~" 1885.) But as receipts must be iu counterfoil, and as the omission of any of the
particulai-s specified in Sched. II, which the landlord can give, will raise the
presumption that a receipt which does not contain those particulars is an acquit-
tance in full for rent due up to date, and as the failure to prejmre a counterpart
or copy will render him liable to a jienalty of Es. 50 under sec. 58, cl. (3), it will
probably be the safest course for landlords to use printed receipt-books iu the
form supplied by Government for sale. Whether they use forms printed at
private presses, or those sold by Government, is immaterial. Forms of receipt
are now sold by Government at the rate of 6 aus. per 100. Not less than 25 are sold
at a time. A discoviut of half an anna in the rupee on purchases amounting to
Rs. 6 and upwards is allowed to licensed stamp-vendors, who are obliged to sell
the forms at the above rate. Bound books of receipt-forms are, under no circum-
stances, to be broken up. (Government Circular No. T. E. E., dated 24th October,
1885.)

60. Where rent is due to the proprietor, manager or
Effect of receipt by mortgagee of an estate, the receipt of the

registered proprietor, . , , xiT jr>-i.

manager or mortgagee, person registered Under the Land-Kegistra-
* VII (B.C.) of 1876. tion Act, 1876,* as proprietor, manager or
mortgagee of that estate, or of liis agent alithorized in that
behalf, shall be a sufficient discharge for the rent ; and the
person liable for the rent shall not be entitled to plead in
defence to a claim by the person so registered that the rent is
due to any third person.

But nothing in this section shall affect any remedy which
any such third person may have against the registered pro-
prietor, manager or mortgagee.

The provisions of this section must be read along with those of sec. 78,
Act VII of 1876 (B. C), which say that " no person shall be bound to pay rent to
any person claiming such rent as proprietor or manager of an estate or revenue-
free property in respect of which he is required by this Act to cause his name
to be registered, or as mortgagee, unless the name of such claimant shall have been
registered under this Act ; and no jjerson, being liable to pay rent to two or more
such proprietors, managers, or mortgagees holding in common tenancy, shall be
bound to pay to any one such proprietor, manager, or mortgagee more than the
amount which bears the same proportion to the whole of such rent as the extent
of the interest in respect of which such projirietoi', manager, or mortgagee is
registered bears to the entire estate or revenue-free jiroperty."

The provisions of the first portion of this section are similar to those of sec.
79, Act VII of 1876 (B.C.), except that this section allows the receipt of the
authorized agent (sec. 187) of a proprietor, manager, or mortgagee to be a suffi-
cient indemnity to persons paying rent to him, as well as the receipt of the pro-
prietor, manager, or mortgagee himself. The latter portion of the first clause of
this section, however, goes beyond the provisions of sec. 79, Act VII of 1876

DEPOSIT OF RENT.

125

(B. C), and absolutely prohibits the defendant, in a suit for arrears of rent brought Chap. VIII.
by the proprietor, manager, or mortgagee of an estate registered under the Act, Skc^I.
from pleading that the rent is due, not to the plaintiff, but to a third person.
Under the old law, the High Court held that registration of land under Bengal
Act VII of 1876 is not only not conclusive proof, but no evidence at all, upon the
question of title of a proprietor so registered, and that such registration does not
relieve a plaintiff from the onus of proving his title to land claimed by him.
(Ita7n Bhtishan Mahto v. Jehli Mahto, I. L. E., 8 Calc, 853. See also Saraswati
Dasi v. Dhanpat Singh, I. L. R., 9 Calc, 431.) Again, in Ram Krishna Das v.
Harain (I. L. R, 9 Calc, 517 ; 12 C. L. R., 141), it was held by the High Court,
that the mere fact of a person being registered under the provisions of Act VII
of 1876 (B. C.) as proprietor of the land in respect of which he seeks to recover
rent is not sufficient to entitle him to sue for it. In this ease, the plaintiff, who
was registered as owner of the land in respect of which he claimed rent, sued the
occupier for such rent, but was only able to prove the fact that he was the regis-
tered owner, and w^as unable to show that the relation of landlord and tenant
existed, or that he had a good title to the estate of which he was registered as
owner. It was, accordingly, held that the suit had been rightly dismissed.

But all these rulings would seem to be set aside by the provisions of the
present section. Now, if a proprietor is not registered under Act VII (B.C.) of
1876, and the defendant raises this plea, the suit must, under the provisions
of sec 78, Act VII (B. C). of 1876, be dismissed. But if he is registered, the
defendant cannot plead that he is the tenant of a third person ; and the plaintiff
is, accordingly, entitled to a decree.

Deposit of Rent.

Operation of sees. 61 to 64 postponed till 1st February, 1886,—
By a Supplemental Act (XX of 1885), the operation of the provisions of sees. 61
to 64 was postponed till the 1st February, 1886, The Act runs as follows : —

1. "Notwithstanding anything contained in the said notification :

(a) the provisions of sees. 61 to 64, both inclusive, and of Chapter XII of
the said Act, except such of those provisions as confer powers to make rules, shall
come into force on such date, not later than the first day of February, 1886, as the
Local Government, after the passing of this Act, may, by notification in the local
official Gazette, appoint in this behalf, or, if no date is so appointed, on the first
day of February, 1886, and not before ;

(6) until those provisions come into force, the enactments specified in
Sched. I annexed to the said Act shall, in so far as they relate to deposits of i

rent and distraint, continue in force, and all references to those provisions in
other portions of the said Act shall, so far as may be, be read as if they were
made to the corresponding provisions of the said enactments."

Application to depo- 61. (1) In any of the following cases,

sit rent in Court. namelv '

{a) when a tenant tenders money on
an
ece
for it ;

Sec. 4, Act VI (B.C.), account of rent, and the landlord refuses

1864. Sec. 46, Act VIII . . ^

(B. C), 1869. to receive it or reiuses to grant a receipt ;

12Q THE BENGAL TENANCY ACT.

CrrAp. VIII. (b) when a tenant bound to pay money on account of

-^ " rent has reason to believe, owing to a tender having been

refused or a receipt withheld on a previous occasion, that

the person to whom his rent is payable will not be willing to

receive it and to grant him a receipt for it ;

(c) when the rent is payable to co- sharers jointly, and the
tenant is unable to obtain the joint receipt of the co-sharers
for the money, and no person has been empowered to receive
the rent on their behalf ; or

(d) when the tenant entertains a bond fide doubt as to
who is entitled to receive the rent,

the tenant may present to the Court having jurisdiction
to entertain a suit for the rent of his tenure or holding, an
application in writing for permission to deposit in the Court
the full amount of the money then due.

(2) The application shall contain a statement of the
grounds on which it is made ; shall state —

in cases {a) and {b), the name of the person to whose
credit the deposit is to be entered,

in case (c), the names of the sharers to whom the rent
is due, or of so many of them as the tenant may be able to
specify, and

in case {d), the names of the person to whom the rent
was last paid and of the person or persons now claiming it ;

shall be signed and verified, in the manner prescribed in
section 52 of the Code of Civil Procedure, by

XIV of 1882 .

the tenant, or, where he is not personally
cognizant of the facts of the case, by some person so cognizant ;
and shall be accompanied by a fee of such amount as the Local
Government, from time to time, by rule, directs.

This section makes a considerable change in the former law. Under sec, 4,
Act VI of 1862 (B. C), and sec. 46, Act VIII of 1869 (B, C), a tenant could
deposit rent in Court only when he had tendered the rent to his landlord and it
had been refused, and a receipt in full had not been granted. (See Krishna Protibar
V. Alladini Dasi, 15 W. E., 4.) But now he can also deposit it : (1) when he has
reason to believe, owing to the rent having been refused, or a receipt withheld
on a previous occasion, that the landlord will not receive and grant a receipt
for it (cl. b) ; (2) when he cannot obtain the joint receipt of co-sharer landlords,
and they have no common agent or manager (cl, c) ; and (3) when he entertains a
bona fide doubt as to who is entitled to receive the rent (cl. d). Clause (d) has, no

DEPOSIT OF RENT. ]^27

doubt, been added to this section in consideration of the fact that, under Chap. VIII.
sec. 474 of the Civil Procedure Code, tenants cannot compel their landlords to Skc. G1.
interplead with any persona other than persons making claim through such
landlords. Further changes in the law are, that the Court receiving the deposit
may now pay it away or retain it, pending the decision of a Civil Court —
sec. 64, cl. (1), and may refund it to the depositor, if it is not paid away within
three years' time.

Tender of rent when valid.— A raiyat's tender of payment to be valid
must be made by the recognized tenant, and at the proper place, and to a person
authorized to receive the same. {Duli Chand v. Meher Chand Sahu, 8 W. R., 138 ;
Ishan Cluiixdfa liai v. Ahsamdlah, 16 "W. R., 79.) Tenants who have been in the
habit of depositing the rent due to a landlord in his sole name are not justified,
without I'eceiving notice or order to that effect, in making the deposit in the name
of that landloi-d and another. {Rainey v. Noho Kumar Miikharji, 24 W. R., 128.)
In making the tender, a mistake in the name of the taluk is an immaterial error,
especially when there is no doubt that the talukdar is aware of the tender being
made. {Uma Clutrn Sett v. Hari Prasad Misra, 10 W. R., 101.) The mere
deposit of rent in the Collector's Office by the purchaser of an under-tenure in his
own name and that of the registered tenant is not sufficient notice to the
zamindar of such purchase, nor is the mere acceptance by the zamindar of rent
so paid an acknowledgment on his part of the purchaser as his under-tenant ;
but it is otherwise when there is acceptance with notice, notwithstanding
that the transfer has not been registered. {Mntan Jai Sirkar v. Gopal Chandra
Sirkar, 2 B. L. R., A. C, 131 ; 10 W. R., 466.)

Limitation in case of deposit. — When a tenant has made a deposit of
rent imder this section, a suit for the recovery of rent due prior to that deposited
must be brought within six months of the date of the service of the notice of
the deposit, instead of within three years, as in other cases. — (Sched. Ill,
Part I, art. 3.)

Depositmust be of rent due.— The deposit which is contemplated by this
section is a deposit after the rents have become due. A tenant who deposited
rent before it became due would not be entitled to claim the benefit of the special
limitation. {Taramani Kunwari v. Jiban Mandar, 6W. R., Act X, 99.) Where a
zamindar had sold a patni for arrears of rent due in 1224, Mughee, the patnidar
sued for the reversal of the sale, and deposited the rent for 1225. The sale was
reversed, and the zamindar then sued for the rent of 1224, and was met with the
objection that the suit should have been brought within six months from the •

date of the deposit of the rent of 1225. But the High Court held that this
section did not apply, and that the zamindar was entitled to recover, as he had
brought his suit within the three years allowed by law. (Mohamed S/mkundlah
v. Rumija Bibi, 7 W. R., 487.)

Deposit must include both interest and cesses— Tlie words, " the full
amount of the money then due," show that the deposit must include both the
amount of rent due as well as the interest (if any) due thereupon, and any cess
due at the time of the deposit, which is recoverable as rent. But the words
" the full amount of the money then due," as they occur in sec. 61, do not
mean anything more than the words " what the tenant shall consider the full
amount of rent due from him at the date of the tender to the zamindar,"
and have no relation whatsoever to the amount of rent justly due or justly

128 THE BENGAL TENANCY ACT.

Chap. VIII. payable, but only to such rent as the tenant at the time of the deposit considers
Skc\J2. ^.q \jq ti^e rent due and payable. {Sirdhar Rai v. Rameskar Singh, I. L. R., 16
Calc, 166.)

SuTj-section (2) — The fee prescribed by Government under sub-sec. (2) is four
annas for every such deposit of Es. 25 or less, with an additional four annas for
every Es. 25 or part of Es. 25 in excess : provided that in no case shall the fee
exceed the sum of Es. 5. (See Chap. VII; Eule 5, Government Eules under the
Tenancy Act, Appendix I.) These fees are to be levied by Court-fee stamps.

The Board of Eevenue has issued the following circulars on the subject of the
fees on deposits of rents and on the application for permission to deposit the rent :

" The following instructions, to which the attention of all officers is invited,
are issued under the authority of Government on the advice of the Legal Eemem-
bi*ancer : —

The provision of cl. 2, sec. 61 of the Bengal Tenancy Act, as to the fee
payable on the deposit of rent, supersedes and cancels all previous provisions
on the same subject. The Court-fee prescribed in Sched. II of the Court-fees
Act, VII of 1870, as modified by the Government of India Notification No. 1070,
dated 12th February, 1874, for deposits of rent not exceeding Es. 15, is, therefore,
no longer obligatory. The fee prescribed in the rules framed by the Local Gov-
ernment (Chap. VII, Eule 5) takes its place. A separate stamp on the applica-
tion as well as a separate fee for the deposit is not required. The application
under cl. 2, sec. 61, is accompanied with the fee when it is made on paper stamped
to the required value under that section." (Board of Eevenue's C. O. No. 5 of
December, 1886, and Government of Bengal's Judl. Cir. 7 J of 18th January,
1887.)

" In continuation of the Board's Circular Order No. 5 of December, 1886,
the following notification of the Government of India, in the Department of
Finance and Commerce, remittting the fees payable on applications for deposit of
rent under the Court-fees Act, 1870, is circulated for the information and guidance
of District Officers concerned in the working of the Bengal Tenancy Act, VIII of
1885 :—

No. 4481, dated Simla, the 16th August, 1888.

Notification — By the Government of India, Department of Finance and
Commerce.

In exercise of the powers conferred by sec. 35 of the Court-fees Act, VII
of 1870, and in modification of the Notification No. 1070, dated the 12th
February, 1874, issued in the Finance Department, the Governor-General in Counci
has remitted the fee paj-able under that Act on any application for the deposit of
rent in respect of which a fee is paid under sec. 61 (2) of the Bengal Tenancy
Act, VIII of 1885." (Board of Eevenue's C. O. No. 12 of September, 1888.) See
also High Court's C. 0. No. 1, of 14th January, 1889.

62. (1) If it appears to the Court to which an appli-
Receipt granted by catioii is made uncler the last foregoing
S^t^bra'vaHd'^aJquit- section that the applicant is entitled under
^^^^^- that section to deposit the rent, it shall

receive the rent and give a receipt for it under the seal of the
Court.

DEPOSIT OF RENT. 129

(2) A receipt given under this section shall operate as an Chap. ^ii.
acquittance for the amount of the rent payable by the tenant —
and deposited as aforesaid, in the same manner and to the
same extent as if that amount of rent had been received —

in cases (a) and (b) of the last foregoing section, by the
person specified in the application as the person to whose
credit the deposit was to be entered ;

in case (c) of that section, by the co-sharers to whom the
rent is due ; and

in case (d) of that section, by the person entitled to the
rent.

It has been said in Sirdhar Raiv. Bameshar Singh (I. L. E., 15 Calc, 166), that
it would appear on a consideration of sees. 61 and 62 of this Act, that " if a verified
petition is made to the Court, and if it contains the grounds under which an appli-
cation under sec. 61 is authorized to be made, and if it also contains the particulars,
which ought to be mentioned, the Court is bound to receive the rent and give a
receipt to the tenant. The Court is not authorized at this stage of the proceed-
ing, or at any subsequent stage, to enter into a judicial enquiry as to whether
sufficient grounds in law exist entitling the tenant to ma ke the deposit ...
. . . . There is no machinery whatsoever provided for the Court to enter into
a judicial enquiry in connection with the matter of this deposit, nor is there any
provision entitling the zamindar to come in and be heard, upon the subject. So
far as the tenant is concerned, after the deposit is made and receipt granted, tlie
Court is functus oflcio, and is not authorized to return the money to the tenant
upon an application made by the zamindar."

63. (1) The Court receiving the deposit shall forthwith
Notification of re- causc to be affixed in a conspicuous place
ceipt of deposit. ^t the Court-house a notification of the

receipt thereof, containing a statement of all material parti-
culars. ;^

(2) If the amount of the deposit is not paid away under
the next following section, within the period of fifteen days
next following the date on which the notification is so affixed,
the Court shall forthwith —

in cases {a) and {h) of section 61, cause a notice of the
receipt of the deposit to be served, free of charge, on the
person specified in the application as the person to whose
credit the deposit was to be entered ;

in case (c) of that section, cause a notice of the receipt of
the deposit to be posted at the landlord's village-office or in

R. k F., B. T. A. ,9

X30 TH^ BENGAL TENANCY ACT.

Skc. 64.

C'lAp. yiii. some conspicuous place in the village in which the holding
is situate ; and

in case [d) of that section, cause a like notice to be served,
free of charge, on every person who it has reason to believe
claims or is entitled to the deposit.

Service of notice. — The Local Government has directed that in cases (a)
(b), and (d) of sec. 61, the notice of the receipt of the deposit shall be served by
forwarding the notice by post in a letter registered under Part III of the Indian
Post Office Act, 1866, or when the Court may deem it necessary, in the manner
prescribed for the service of a summons on a defendant under the Code of Civil
Procedure. (See Chap. V, Rule 5, of Government Rules under the Tenancy Act.)

64. (1) The Court may pay the amount of the deposit

Payment or refund ^^ ^uy pcrsou appearing to it to be enti-

of deposit. tied to the same, or may, if it thinks fit,

retain the amount pending the decision of a Civil Court as to

the person so entitled.

(2 ) The payment may, if the Local Grovernment so direct,
be made by postal money-order.

(3) If no payment is made under this section before the
expiration of three years from the date on which a deposit is
made, the amount deposited may, in the absence of any order
of a Civil Court to the contrary, be repaid to the depositor
upon his application and on his returning the receipt given by
the Court with which the rent was deposited.

(4) No suit or other proceeding shall be instituted against
the Secretary of State for India in Council, or against any
officer of the Government, in respect of anything done by a
Court receiving a deposit under the foregoing sections ; but
nothing in this section shall prevent any person entitled to re-
ceive the amount of any such deposit from recovering the
same from a person to whom it has been paid under this
section.

Sub-section (2). — No rule has yet been made regarding the payment of a
deposit of rent by postal money-order. It has been considered advisable before
promulgating such a rule that the experiment of payment of Government revenue
by this means should be tried.

Court-fees leviable on applications for the payment and return of depo-
sits of rent.— The Government of India by its Notification No. 849 of the 16th
February, 1883, circulated with High Court Circular No. 5 of the 18th July, 1883,

ARREARS OF RENT, 13|

remitted all fees on applications for the payment of deposits of rent in cases in Chap. VIII.
which the deposit does not exceed Es. 25, and the application is made within Skc^5.
three months of the date on which the deposit became payable to the applicant.
But when the deposit exceeds Es. 25, but is less than Es. 50, or when the deposit
exceeds Es. 25, but the application has not been made within three months of the
date on which the deposit became payable, the application for payment or for the
return of the deposit will, if presented to a Civil Court other than a Civil Court
of original jurisdiction, be subject to a Court-fee of 1 anna under para. 4, cl, (a),
art. 1, Sched. II, Act VII of 1870 ; for an application for the payment of a deposit of
rent is a case. (Manohar Mukhopadhya v. Ishwar Kiindii, High Court miscellaneous
case. No. 277 of 1887.) But when the deposit amounts to or exceeds Es. 50, and
in all cases in which the application is made to a principal Civil Court of original
jurisdiction, the application for the payment or return of the deposit will be sub-
ject to a Court-fee duty of 8 annas, under para. 2, cl. (6), art. 1, Sched. II,
Act VII of 1870. Several deposits can be withdrawn by one application (H.C.
Circ. Orders, Ch. Ill, Eule 36, p. 46.

Arrears of Rent.
65. Where a tenant is a permanent tenure-holder, a
^. ^.,., ^ , , raiyat holding at fixed rates or an occii-

Liability to sale for "^ "

arrears in case of per- pancv-raiyat, he shall not be liable to eiect-

manent tenure, nolding i- •/ j ' i i •

at fixed rates, or occu- ment for arrears of rent, but his tenure or
pancy- o ing. holdino; shall be liable to sale in execution

of a decree for the rent thereof, and the rent shall be a first
charge thereon.

Grounds on which tenants can be ejected. — A permanent tenure -holder,
a raiyat holding at fixed rates, and an occupancy -raiyat may be evicted for a
breach of a condition of his lease (consistent with this Act), on breach of which
he is under the terms of a contract between him and his landlord liable to be
ejected — [Sees. ] 0, 18 {b) and 25 (h) ]. But a permanent tenure-holder, if his lease
has been made before the 1st November, 1885, may be ejected for a breach of a
condition which is even inconsistent with this Act. An occupancy-raiyat may
also, under sec. 25, cl. (a), be ejected for using his land in a manner which renders
it unfit for the purposes of the tenancy. But neither a permanent tenure-holder,
a raiyat holding at fixed rates, nor an occupancy-raiyat can be ejected for mere
arrears of rent. ^

Under old law. — This is a considerable change on the old law. Under the
former law, a permanent tenure-holder could be ejected for arrears of rent, if
there was a condition to this effect in his lease. {Jai Durga Dehi v. Bolai Chand
Kundu, 2 Hay, 525 ; Balaram Das v. Jogendra Nath Ifallik, 19 W. E., 349 ; Mumtaz
Bihi V. Grish Chandra Chaudhri, 22 "W. E., 376.) But the Courts very often de-
clined to enforce this condition. {Jan Alt Chaudhn v. Nityanand Basu, 10 "W. E.,
F. B., 12 ; Kamla Sahai v. Ram Ratan Neogi, 11 W. E., 201 ; Dioli Cliand v. Meher
Chand Sahu, 12 B. L. E., 439 ; Mothur Mohun Chaudhri v. Rar)i Lai Basu, 4 C. L.
E., 469 ; Mahomed Amir v. Priag Singh, I. L. E., 7 Calc, 566 ; Buli Chand v. Raj
Kishor, 1. L. E., 9 Calc, 88.) If, however, there was no clause in the lease
entitling the landlord to eject for arrears, and if by the title-deeds or the custom
of the country the tenure was transferable by sale the landlord could not eject

132 THE BENGAL TENANCY ACT.

Chap. VIII. ^or arrears, but could only sell the tenure under sec. 59, Act VIII of 1869, or
Skc. 65. ' sec. 105, Act X of 1859, and sec. 4, Act VIII of 1865, B. C. As to raiyats, under
sec. 21, Act X, 1859, and sec. 22, Act VIII of 1869 (B. C), any raiyat was liable
to be ejected for arreai's of rent remaining due at the end of the agricultural
year. Notwithstanding the provisions of these sections, the High Court, in the
case of Kristendro Rai v. Aena Bewa (I. L. E., 8 Calc, 675 ; 10 C. L. R., 399),
held that the provisions of sec. 59, Act VIII of 1869 (B. C), also applied to any
tenant having a transferable interest in his land, and, therefore, a landlord could
not eject any such tenant for arrears of rent. But in Fakir Chand v. Fouzdar
Misra (I. L. R., 10 Calc. 547), Mitter, J., expressed a doubt as to the correctness
of this view.

Under present law. — But now no tenant of the three protected classes
above-mentioned can be ejected on the ground of arrears of rent, even if there be
a clause in his lease empowering the landlord to eject him on this ground, for,
under sec. 178 (1) (c), a tenant cannot before or after the passing of this Act
make a contract with his landlord entitling the latter to eject him otherwise than
under the provisions of this Act.

Tenures and holdings now hypothecated for the rent It was formei-ly

a matter of dispute whether a tenure or holding was hypothecated for the rent
or not. There are several early rulings in which it was held that a bona fide
purchaser at a sale for arrears of rent has a preferential title over a purchaser
at a prior sale in execution of a decree of the Civil Court. {Oopal Mamdal v. Su-
hhitdra Boistahi, 5 W. R., 205 ; Khuhari Rai v. Raghuhar Rai, 2 W. R., 131 ; Safa-
runnissa v. Sa7'i Dhopi, 8 W. R., 384 ; Sadhan Chandra Basu v. Giiru Cham Basil,
15 W. R., 99.) There are, however", decisions to the contrary. {Pranbandhu Sirkar
V. Sarhosundari Debi, 3 B. L. R., A. C. (note), 52 ; 10 W. R., 434 ; Ram Baksh
Chatlangia v. Hridoymani Debi, 10 W. R., 446 ; Tirthanand Thakur v, Paresmon
Jha, 13 W. R., 449 ; Samariddin Khalifa v. Harish Chandra Karmokar, 3 B. L. E.,
A. C, 49 ; 13 W. R., 451, note ; Daulat Ghazi Chavdhri v. Manwar, 15 W. R., 341 ;
Wahid All v. Sadik Ali, 17 W. R., 417.) In these cases it was held that the pro-
duce of the land was hypothecated for the rent, but not the land itself. All
these cases were reviewed by a Full Bench in S/iam Chand Kundu v. Brajanath
Pal (21 W. R., 94 ; 12 B. L. E., 484), in which it was laid down that a zamindar
who had obtained a decree for arrears of rent of a transferable tenure was enti-
tled to sell the tenure, and a person who had obtained a transfer of such tenure,
which he had not registered, and could not show a sufficient reason for not regis-
tering was bound by the sale, and could not set up a title, which he had acquired
by a previous sale. This was followed in Rash Behari Bandopadhya v. Piarimohan
Mnkharji (I. L. R., 4 Calc, 346), in which it was ruled that a decree for rent
obtained by a landlord against his registered tenant rendered the tenure com-
prised in the decree liable for sale, although such tenure had passed into other
hands than those of the judgment-debtor. But this would not enable the landlord,
it was said, to do more than sell the tenure ; he could not hold the purchaser
liable for arrears of rent, which had accrued before he became purchaser. Again,
in Chandra Narain Singh v. Krishna Chand Golicha (I. L. R., 9 Calc, 855), in which
a decree for arrears of rent of an under-tenure was obtained against a tenant
■who became an insolvent, and the whole tenure became vested in the Official
Assignee, on an application being made under sees. 59 and 60 of the Rent Law,
(Beng. Act VIII of 1869), for an order that the tenure should be sold for its own
arreai-s, which was objected to by the Official Assignee, who contended that the

ARREARS OF RENT. 133

decree-holder's only right was to prove in the insolvency for the amount of his Chap, VIII.
debt, it was held that whether the arrears became due before or after the insol- Sec. 65.
vency of the judgment-debtor, the decree-holder was entitled to sell the tenure
in execution of his decree.

The present section follows these later rulings, as is apparent from the words
" and the rent shall be a first charge thereon," so that now, whenever a tenure
or occupancy-holding is sold, whether in execution of a decree for its own arrears,
or (when it is a transferable tenure or holding) at a private sale, it is sold subject
to the lien of the landlord on it for rent due at the time of the sale.

Execution of a decree for arrears of rent.— The words " and the rent
shall be a first charge thereon," do not mean that the holder of a decree for arrears
of rent must first proceed against the tenure or holding in respect of which the
arrears have accrued. Under the former law, execution had first to be taken out
against the person or moveable property of the judgment-debtor, but could not be
taken out simultaneously against both. Saleable under-tenures, however, could
be proceeded against in the first instance for their own arrears. But no order for
the sale of any such tenure could be made when a waiTant of execution had pre-
viously been issued against the person or moveable property of the judgment-
debtor, so long as such warrant remained in force. After proceeding against the
person or moveable property, the decree-holder could then proceed against the
tenure or holding on which the arrears had accrued, and tlien against the other
immoveable property of the judgment-debtor, but till the tenure on which the
arrears had accrued was sold, other landed property could not be brought to sale.
{Joki Lai V. Narsiiig JVarain Singh, 4 W. R, Act X, 5 ; Deanatullah v. Nazar AU
Khan, 1 B. L. R, A. C, 216, 10 W. R, 341 ; Dular Chand Sahu v. Lai ChahilSahu,
L. R., 6 1. A., 47 ; 3 C. L. E., 561 ; Harish Chandra Raiv. The Collector of Jessore,
I. L. R, 3 Calc, 712 ; Lalit Mohan Rai v. Binodai Debi, I. L. R, 14 Calc, 14 ; but
see contra, Krishna Ram Rai v. Janaki Nath Rai, I. L. R., 7 Calc, 748). Such,
however, is not now the law. A tenure or holding is hypothecated for the rent.
The rent is a first charge thereon, and till the rent due is paid, no sale or transfer of
the tenure or holding will affect the landlord's right to sell the tenure or holding
and realise the rent due to him by the sale ; but a holder of a decree for arrears
of rent is in no way restricted in the execution of his decree, and can now execute
it in any way that is lawful under the Civil Procedure Code, that is, against the
person or other property, whether moveable or immoveable, of his judgment-
debtor. It has also been held that the " charge " referred to in sec. 65 of this Act
is not such a charge as that defined in sec. 100 of the Transfer of Property Act.
{Fatxk Chandra Be Sirkar v. Foley, I. L. R., 15 Calc, 492.) Rent is " moveable '

property, and in execution of a decree for arrears of rent the judgment-debtor's
right to recover rent due from an under-tenant can be sold." {Mahesh Chandra
Chatarji v. Guru Prasad Rai, 13 W. R., 401.) When the judgment-debtor is an
agriculturist, his implements of husbandry and such cattle and seed grain, as
may, in the opinion of the Court, be necessary to enable him to earn his livelihood
as such, are under sec. 266 (h) C. P. C, exempt from attachment and sale in
execution of decrees ; but the materials of his houses and any other buildings
occupied by him as an agriculturist, though exempt from attachment or sale in
execution of ordinary decrees, cl. (c), are yet liable to be attached and sold in
execution of decrees for arrears of rent. (See Proviso II to sec. 266, C. P. C,
Maniklal Venilal v. Laklva, I. L. P., 4 Bom., 429 ; and Radha Krishna Hakumji v.
Balvant Ramji, I. L. P., 7 Bom., 530.) As a general rule, the tenure or holding

134 THE BENGAL TENANCY ACT.

Chap. VIII. itself, and not merely the interest of the judgment-debtor, passes at a sale held
Skc. 66. jjj execution of a decree for arrears of rent, but on this point reference is invited
~~" to the note on this subject, appended to sec. 159, in which all the rulings on the
subject are collected.

66. (1) When an arrear of rent remains due from a
^. ^ ^ . tenant not beino; a permanent tenure-holder,

Ejectment for arrears . .

In other cases. a raivat holding; at fixed rates or an occu-

Sec.78, Act X, 1859; • ^ ^ ^t. ji r .r. -n T

sec. 52, Act VIII, 1869, pancy-raiyat, at the end oi the bengali
year where that year prevails, or at the
end of the month of Jeyt where the Fasli or Amli year pre-
vails, the landlord may, whether he has obtained a decree for
the recovery of the arrear or not, and whether he is entitled
by the terms of any contract to eject the tenant for arrears or
not, institute a suit to eject the tenant.

(2) In a suit for ejectment for an arrear of rent a decree
passed in favour of the plaintiff shall specify the amount of
the arrear and of the interest (if any) due thereon, and the
decree shall not be executed if that amount and the costs of
the suit are paid into Court within fifteen days from the date
of the decree, or, when the Court is closed on the fifteenth
day, on the day upon which the Court re-opens.

(3) The Court may for special reasons extend the period
of fifteen days mentioned in this section.

The provisions of this section make it clear that a non-occupancy and an
under-raiyat can be ejected for an arrear of rent, and for an arrear of a produce-rent
as well as of a money-rent. {Krishm Gopal Mawar v. Barnes, I. L. E., 2 Calc, 374.)

Sub-section (2). — The fifteen days' grace mentioned in sub-sec. (2) runs
from the date of the final decree. (Radha Molutn Mandal v. Bakshi Begam, Marsh.,
471 ; Nt(,r Ali Chaudkn v. Koni Meah, I. L. R, 13 Calc, 13.) The Appellate
Court may extend the period of grace, as well as the Court of first instance.
{Naba Krishna Mukharji v. Rameshar Qwpta, 18 W. E., 412 ; Ahdur Rahman
V. Digamhari Dasi, 18 W. E., 477.) But when the decree is not modified in
review, the fifteen days' grace will run from the date of the original decree.
{Poreshnath Mandal v. Krishna Lai Datta, 23 W. E., 50.) The amount of the
decree can be paid into Court on the day on which it re-opens. {Hossain Ali
V. Donzelle, I. L. E., 5 Calc, 906.) Payment into Court with a protest as to the
sum improperly charged as interest is a sufficient payment. {Shrishtidhar Be v.
Burga Narain Nag, 17 W. E., 462.) Where a decree directs the payment into
Court within a limited time, it is sufficient compliance with such decree, if the
judgment-debtor brings the money into Court within that time and diligently
takes the necessary steps required by the departmental rules for its actual pay-
ment into the Treasury. {Gajadhar Panre v. Naik Panre^ I. L. E., 8 Calc, 528.) The

ARREARS OF RENT. 135

fifteen days' grace allowed to a lessee prior to ejectment cannot be negatived by Chap. VIIL
any condition in the lease. (Jan All Chaudhri v. Nittyanand Baste, 10 W. R., F. B., SEa67.
12 ; Madhah Chandra Adit v. Ram Kalu, 16 W. R., 151 ; Didi Cliand v. Rajkishor,
I. L. R., 9 Calc, 88.)

Sub-section (3). — The Court alluded to in this sub-section is the Court passing
the decree, not the Court executing it. The latter Court is bound to execute the
decree in the shape in which it comes before it, and has no authority to perma-
nently stay execution of any portion thereof, e. ff., when a decree is for money
and for ejectment in the case of non-payment within fifteen days, the Court
executing it is not competent to extend the jsei'lod of payment in order to save
the judgment-debtor from the alternative consequence. {Sankur Singh v. Harimo-
han Tliakur, 22 W. R., 460.) The Court has discretion to stay execution on other
grounds than those on which it is bound to do so under sec. 52, Act VIII of 1869,
B. C. {Rao Bani Ram v. Ram Nath iSaha, 10 B. L. R., App., 2 ; 18 W. R., 412.)

Receiptor rent subsequent to a decree for ejectment operates as a
waiver of the right to eject— The receipt of rent subsequent to a decree for
ejectment from a tenant against whom the decree was passed renders execution of
the decree impossible. {Naha Krishna Mukharji v. Harish Chandra Banarji, 7 W. R.,
142 ; Umesh Chandra Chatarji v. Kamaruddin LashJcar, 7 W. R., 20 ; Savi v.
Mohesh Chandra Basu, W. R., Sp. No., Act X, 29.) Receipt of rent is not per se a
waiver of every previous forfeiture. It is only evidence of a waiver. (Chandranath
Misra v. Sirdar Khan, 18 W. R., 218.) Subsequent receipt of rent amounts to a
waiver of the right of re-entry stipulated for in the contract. {Kali Krishna
Tagore v. Fazal Ali, I. L. R., 9 Calc, 843.) A landlord, who sues for arrears of
rent for the whole of one year and a portion of the next, and also for ejectment, is
not entitled to a decree for the latter. The right to ejectment under sec. 22 of
the Rent Act (Beng. Act VIII of 1869) accrues at the end of the year, and for-
feiture or detei'mination of the tenancy thereupon takes place, but if the land-
lord sues for subsequent arrears, he treats the defendant as his tenant, and the
right acquired under that section must be taken to have been waived. {Jageshar
Chavdhurani v. Mahomed Ibrahim, I. L. R., 14 Calc, 33.)

Interest on arrears. 67. An arrear of rent shall bear

BeSli.^Actvm, B?c.i simple interest at the rate of twelve per
^^^^- centum per annum from the expiration of

that quarter of the agricultural year in which the instalment
falls due to the institution of the suit.

Interest must be decreed.— It is no longer discretionary with a Court to
decree interest on an arrear of rent or not, as it thinks fit. The language of the
section is imperative. A Court must now decree interest at twelve per centum
per annum on any and every arrear that may be found due ; but it is to be noted
that interest is only recoverable from the expiration of the quarter in which the
instalment falls due, so that if the rent is payable by monthly instalments, no in-
terest can be recovered for arrears of the first or second monthly instalment of
each quarter. The provisions of this section cannot be evaded ; for, under cl. {h),
sub-sec 3, sec. 178, nothing in any contract made between a landlord and a tenant,
after the passing of this Act, shall aftect the provisions of this section relating to

l^Q THE BENGAL TENANCY ACT.

Chap. VIII. interest payable on arrears of rent. Hence, stipulations for interest at a greater
Sec^8. qj. jggg j.g^^g tlian twclvc per centum, for interest being payable monthly or for
compound interest, contained in any contract made before the passing of this Act
are valid ; but any such stipulations, contained in a contract made after the pass-
ing of the Act, are invalid. At present, therefore, unless there be a subsisting
contract to the contrary made before March 14th, 1885, interest, whether there
be a contract on the subject or not, and if there be a contract, whatever its terms
may be, is payable quarterly and at the simple rate of neither more nor less
than 12 per centum per annum. It has been held that the mere non-enforce-
ment by a landlord, even for a series of years, of his right to interest upon
arrears of rent does not amount to a waiver of such right. (Jahuri Loll v.
Ballab Lull, I. L. E., 5 Calc, 102 ; 4 C. L. R, 349. See also Ratikant Basu
v. Gangadhar Biswas, W. R., F. B., 13.) In order to establish variation in
a written contract, it must be distinctly pleaded and proved when and how
the variation took place ; the mere fact of a kabuliyat not having been en-
forced in the most stringent manner does not take away from the lessor the
right to enforce it. {Piari Mohan Mukharji v. Brojo Mohan Bas^i, 21 W.
R., 36.) While a suit for enhancement of rent is pending, the defendant is
not liable for interest, inasmuch as his rent is undetermined. {_Roj Mohan Neogi
v. Anando Chandra Chaiidhri, 10 W. R., 166.) In a suit in which a decree is
given for arrears of rent at an enhanced rate, interest is to be allowed not only
from the date of the decree, but from the time when the rent became due. {Ah-
sanidlah v. Aftahudiny 3 C. L. R., 382.)

68. (1) If, in any suit brought for the recovery of arrears

Power to award of rent, it appears to the Court that the

heid*°witS)ur\ersoS- defendant has, vfithout reasonable or prob-

S?1mp;o%Sy'^8ue^d ^blc causc, neglcctcd or refused to pay the

^"o'^^^o . o . . TTT amount of rent due by him, the Court

Sees. 2 & 3, Act VI, ...

B.c.,]862;sec3.44&45, may award to the plaintiff, in addition to
the amount decreed for rent and costs, such
damages, not exceeding twenty-five per centum on the amount
of rent decreed, as it thinks fit :

Provided that interest shall not be decreed when damages
are awarded under this section.

(2) If, in any suit brought for the recovery of arrears of
rent, it appears to the Court that the plaintiff has instituted the
suit without reasonable or probable cause, the Court may
award to the defendant, by way of damages, such sum, not
exceeding twenty-five per centum on the whole amount
claimed by the plaintiff, as it thinks fit.

Sub-section (1).— The award of damages is discretionary and not imperative.
Before awarding damages, the Court in the exercise of its discretion must look
to the condition of the parties and the particular hardship inflicted on the land-

PRODUCE-RENTS. J 37

lord by the omission of the under-tenant to pay his rents, (Rambaddan Singh v. chap. VIII.
Snkunwar, W. R, Sp. No., Act X, 22 ; Gopal Lai Thakur v. Mahomed Kadir^ W. Sec. 69.
R., Sp. No., Act X, 73 ; Zamirvdunnissa Klutnum v. Phillipe, 1 W. R., 290.) The
refusal of a Court to award damages is not a ground for special appeal. {Mahtah
Chand v. Debeiidro Nath Thakur, W. R., Sp. No., Act X, 68.) Damages are in
substitution of, and not in addition to, interest. {Noho Kant De v. Boroda Kant
Rai, 1 W. R., 100.) Tenants are liable in damages for neglect to pay road and
public works cesses. (Saroda Prasad GangvXi v. Prasanno Kit^inar iSandial, I. L. R.,
8 Calc, 290.)

Produce-7'ents.

Order for appraising 69. (1) Where rent is taken by ap-

or dividing produce. praisement or division of the produce, —

(a) if either the landlord or the tenant neglects to attend,
either personally or by agent, at the proper time for making
the appraisement or division, or

(b) if there is a dispute about the quantity, value or
division of the produce,

the Collector may, on the application of either party, and
on his depositing such sum on account of expenses as the Col-
lector may require, make an order appointing such officer as
he thinks fit to appraise or divide the produce.

(2) The Collector may, without such an application, make
the like order in any case where, in the opinion of the District
or Sub-divisional Magistrate, the making of the order would
be likely to prevent a breach of the peace.

(3) Where a Collector makes an order under this section,
he may, by order, prohibit the removal of the produce until
the appraisement or division has been effected.

Systems of appraising or dividing produce current in Behar. — The

practice of paying rent in kind is chiefly prevalent in South Behar. There

are two systems of produce-rents in force in Behar — (1) the Agore Batai sys- «

tem, under which the crop is actually divided, and the landlord's share made

over to him ; and (2) the Bhaoli or Danahandi system, under which the raiyat

agrees to pay the landlord the market value of a certain proportion of the produce ;

the crop is valued at each harvest, and the rent is paid in money accoi'ding to this

valuation. The mode of dividing the produce, i.e., of paying the produce-rent

under these systems, has been described by the Commissioner of Patna in a letter

No. 1130 of 21st August, 1858, addressed to Secretary to Board of Revenue, as

follows : Under the Agore Batai system — " the landlord employs men," it is said,

" to watch his share of the crop when it approaches maturity, and when it is

ready, cuts and carries it himself. In a more common variety of the same tenure

the crop is cut and threshed by the raiyat under the superintendence of the zamin-

dar's servants, and the produce divided on the threshing-floor ; but it is also mat-

138

THE BENGAL TENANCY ACT.

Chap. VIII. ter of arrangement between the parties in this case, whether the landlord shall
Skc. 69. have the straw or only the grain, and whether it shall be delivered at the thresh-
ing-floor of the raiyat's village, or at some other place more convenient to tlie
zamindar." Under the BhaoU or Dandbandi system, it is said, " when the crop is ripe,
HixQ patwari^ the gomustha, the amin, 9. jareehkush or measurer, a salis or arbitrator,
a navisinda or writer," and the jet raiyats (head raiyats) " of the village, with the
raiyat himself, proceed to the field in which the crop is growing. The sails first
makes an estimate of the produce, the amin then makes another. If the two esti-
mates agree, the matter is considered settled. If they differ, the raiyat cuts a
cottah where the crop is thinnest ; the zamindar's people cut another where it is
heaviest. The produce is threshed out, mixed together, and weighed, and the pro-
duce of the whole field is estimated from this sample. A memorandum of the re-
sult, called a Danahandi, is made out by the patwari and his writer, and signed by
those present. The raiyat is then at liberty to cut and store his grain. The pat-
wari next prepares a paper called a ' Behree,' showing the amount of grain in the
possession of the raiyat, and the respective shares of the malik and the raiyat, and
sends for the malil^s share, which the raiyat either pays in grain or money, as may
have been agreed upon. If the agreement is to pay in money, the gomastha writes
to the amlah of the surrounding villages for the nirik or market rate, which is re-
turned on the back of his letter, and an average is then struck. It will tlius be seen
the accounts of the estimate of the crop and its weighment form the chief evidence
in these Bhaoli cases, and that du jamawasil &ccownt is of comparatively little use."
This latter system {i.e., the Bhaoli or Danabandi system) is stated to have led
to abuses, the raiyat being often prohibited from cutting the crop until he agreed
to the landlord's appraisement of the produce, and if he continued recusant, the
crop was in many ca.ses allowed to rot in the ground. The provisions of this
section are intended to put an end to such abuses.

Sub -divisional officers have powers of a Collector. — Government Notifi-
cation, dated the 21st April, J886 (published in Part I of the Calcutta Gazette of
28th April, 1886, p. 466), gives to all Sub-divisional Officers powers of a Collector
under sees. 69, 70, and 71 of this Act.

Application may be a joint one.— The Board of Eevenue in a letter (No.
350A of the 6th May, 1886, to the address of the Commissioner of Patua) have said
that " there is no objection to the Collector receiving a joint application for the
appraisement or division of the produce from either landlords or tenants." If there
be more than one landlord, such an application must, vmder the provisions of sec.
188, be made by all of them collectively or by their common agent.

Procedure when nature of tenancy is disputed. — A question has been
raised as to what course should be adopted by the Collector, when the non -appli-
cant party objects that the rent is not payable in kind. On this point the Board
of Revenue have said in a letter to the address of the Commissioner of Patna
(No. 663A of the 31st August 1886), that " the Board think that the wording of
the law contemplates the existence of an undisputed Bhaoli tenancy. But it is not
correct to say that, when the non-applicant party objects that the holding is not
Bhaoli^ the Collector has no option but at once to reject the application without
entering at all into the question in dispute. The Board are, therefore, of opin-
ion that in cases in which it is shown that the parties have treated the hold-
ing as Bhaoli, the Collector should not reject an application under sec. 69
merely because one party alleges that the holding is nugdi. The most satia-

PRODUCE-RENTS. 139

factory evidence on the point would be a receipt in the form prescribed by Chap. VIII.
the Tenancy Act, but in default of this, other evidence might be accepted. Skc^9.
It is not necessary, the Board think, that the Collector should refer the
question for the decision of the Civil Court. The Collector will not decide
" whether the holding is Bhaoli or not. He will merely decide whether he will
or will not proceed to make the particular appraisement or division." In a
subsequent letter (No. 662H., of the 30th June, 1888, to the address of the
Secretary to the Government of Bengal), the Board of Eevenue has said that the
principal difficulties experienced in working the procedure provided in the
Bengal Tenancy Act for valuing crops to be divided between landlord and
tenant under the Bhaoli system "seem to fall under one or other of the two
following heads : — First, when there is a bond fide dispute as to whether the land
is held Bhaoli or not ; and secondly, when a claim is made by a third party,
whether landlord or tenant. In the former of these cases, it appears to the
Board (as they have already held) that a mere unsupported denial by one of the
parties that the land is held Bhaoli does not bar the Collector's jurisdiction, but
that when there is a bona fide dispute whether rent is or is not taken by appraise-
ment or division of the produce, the Collector has no power to make an order
under sec. 69 of the Tenancy Act. . . . The second case, that of claims by third
parties, does not seem to be provided for by the Act."

Meaning of " Officer."—" The use of the word " officer " in sec. 69, the
Board say, " indicates an intention on the part of the legislature that the person
selected should not be a mere private individual, but should have some official
or quasi-official status independently of his employment on this duty. Simi-
larly, the wording of sec. 1 24, directs the Court to depute an officer to distribute
the produce. It would be putting a somewhat strained construction upon
both these sections if it were held that any person deputed by the Collector to
make a division or by the Court to elFect a distraint became by the fact of
such deputation an " officer." The person deputed need not be a pei'son holding
a permanent salaried appointment under Government, but it appears to be in-
tended that he shovild be a person in some kind of official subordination to the
Collector. A Sub-Deputy Collector or a Cauungoe would probably be appointed
only in important cases. In other cases a Buxee or a ministerial officer or an
apprentice of the CoUectorate, or an intelligent peon might be deputed, and the
Board see no objection to the employment of Putwari Amins on this duty.
Cases might occur in which the putwari might properly be appointed." (Board
of Eevenue's No. 663H., dated 31st August, 1886, to Commissioner of Patna.)

Proceedings to be of a summary nature.— "The proceedings should not ,

be allowed to be spun out," the Board remark, " or conducted with the formalities
of a civil suit. There should be no adjournment, and the award should be of a
summary kind. The officer deputed should be directed to keep a diary, showing
his daily proceedings, and the Collector should satisfy himself that there has
been no unreasonable delay. It was never contemplated that a case of this
kind should take weeks to decide."

Costs.—" When a salaried officer is employed," the Board say, "any sum which
may be charged to meet his salary, should be credited to Government, and only
travelling allowance and expenses should be paid him. The costs levied in a
case should be appropriated to that case. No general fund should be formed."
(Board of Eevenue's No. 663H., dated 3ist August, 1886, to Commissioner
of Patna.)

140

THE BENGAL TENANCY ACT.

Chap, VIII. ^^ stamp duty leviable.— Under Art. 4, Sched. II, act I of 1879, an

Sbc. 70. appraisement of crops for the purpose of ascertaining the amount to be given to a
landlord as rent is exempt from stamp duty.

70. (1) When a Collector appoints an officer under
Procedure where *^^ ^^^* foregoing section, the Collector
officer appointed. ^riay, in his discretion, direct the officer to

associate with himself any other persons as assessors, and
may give him instructions regarding the number, qualifi-
cations, and mode of selection of those assessors (if any), and
the procedure to be followed in making the appraisement or
division ; and the officer shall conform to the instructions so
given.

(2) The officer shall, before making an appraisement or
division, give notice to the landlord and tenant of the time
and place at which the appraisement or division will be
made ; but if either the landlord or the tenant fails to
attend either personally or by agent, he may proceed ex parte.

(3) When the officer has made the appraisement or
division, he shall submit a report of his proceedings to
the Collector.

(4) The Collector shall consider the report, and, after
giving the parties an opportunity of being heard, and making
such enquiry (if any), as he may think necessary, shall pass
such order thereon as he thinks just.

(5) The Collector may, if he thinks fit, refer any
question in dispute between the parties for the decision of
a Civil Court, but, subject as aforesaid, his order shall be
final, and shall, on application to a Civil Court by the landlord
or the tenant, be enforceable as a decree.

(6) Where the officer makes an appraisement, the
appraisement papers shall be filed in the Collector's office.

Sub-section (5).— A question has been raised as to what course should be
adopted by the Civil Court on receiving a reference from the Collector under
sub-sec. (5), On this point, the Legal Remembrancer in a letter to the Board
(No. 611, dated the 12th August, 1886) has said : "It would appear that the
Court receiving a reference would pursue its ordinary course, and only take
action when moved by the parties, as in regular suits ; the latter part of the
clause requiring an application by the parties to give the Collector's order the
force of a decree, lends countenance to this view."

PRODUCE-RENTS.

141

71. (1) Where rent is taken by appraisement of the Chap. viii.
Rights and liabilities produce, the tenant shall be entitled to the — '
as to possession of crop, exclusive possession of the produce.

(2) Where rent is taken by division of the produce, the
tenant shall be entitled to the exclusive possession of the
whole produce until it is divided, but shall not be entitled to
remove any portion of the produce from the threshing-floor
at such a time or in such a manner as to prevent the due
division thereof at the proper time.

(3) In either case the tenant shall be entitled to cut
and harvest the produce in due course of husbandry without
any interference on the part of the landlord.

(4) If the tenant removes any portion of the produce
at such a time or in such a manner as to prevent the due
appraisement or division thereof at the proper time, the pro-
duce shall be deemed to have been as full as the fullest crop
of the same description appraised in the neighbourhood on
similar land for that harvest.

The tenant is now entitled to exclusive possession of crop.—
The old law made no special provision regarding the possession of the crop, where
rent was payable in kind, and the consequence was that it was sometimes held
that neither the landlord nor the raiyat alone could cut or remove the crop with-
out the consent of both. By others, however, it was held the raiyat could cut the
crop, tender to the landlord what he deemed to be his due share and remove the
rest. If the landlord refused to take delivery of the share tendered, the raiyat
might allow it to remain in the threshing-floor. In practice, however, the raiyat
was not allowed to cut the crop without the landlord's consent. This section gives
the raiyat the right to the exclusive possession of the crop under both the Agore
Batai and the Bhaoli systems of produce-rents. He is also entitled to cut and
harvest the produce, while the interests of the landlord are duly protected by
the provisions of sub-sec. (4).

Penalty for interference with the produce.— Under sec. 186 (1), (c) if any
person otherwise than in accordance with this Act or some other enactment for
the time being in force, except with the authority or consent of the tenant, prevents
or attempts to prevent the reaping, gathering, storing, removing, or otherwise
dealing with any produce of a holding, he shall be deemed to have committed
criminal trespass within the meaning of the Indian Penal Code.

Rulings under the old law. — The Eent Act recognizes payment in kind, and
where there is an agreement to pay rent in crops, and the produce is not paid, a
suit for the money value of the produce at the time when it ought to have been
paid, will lie as a suit for arrears of rent. {Krishnahandhu Bhattacharji v. Rotish
Sheikh, 25 W. R., 307.) In a suit to recover Bhaoli rent, or the value of crops,
which the defendant ought to have made over to the plaintiff, it was held that the

142 THE BENGAL TENANCY ACT.

CnAP. VIII. damage to the plaintiff was the value of the crops, at the time they were due, and
Sno.72. not subsequently. {Lachinan Prasad v. Hul^ts Mahtun, 2 B. L. R., App., 27 ; 11 W.
R, 151.) In a suit for rent when the quantity of land for which rent is claimed
is in dispute and the landlord produces as evidence a khasra or appraisement of
the land, it is not necessary for him to show that the estimate was drawn-up in
the presence of the defendant, and was acknowledged by him : it will be sufficient
if the defendant (a Danahandi tenant), had notice when the hhmra was about to
be made. {Hari Narain Singh v. Beljit Jha, 24 W. E., 125.) A landlord who
refuses to accept rent in kind when it is offered to him on the ground that he is
suing for a money rent cannot, on the dismissal of his suit, come into Court again
and sue his tenant for the value of what he refused when it was proferred.
{Naraxn Gir v. Gaur Saran Das, 23 W. R., 368.)

Liability for rent on change of landlord or after transfer of
tenure or holding^

72. (1) A tenant shall not, when his landlord's interest

is transferred, be liable to the transferee for

JnTfSiofiandSrd's rent which became due after the transfer

interest for rent paid ^j g ^^^ ^q ^]jq landlord whosc interest

to former landlora, r

without notice of the -^as SO transferred, unless the transferee

transfer. . • /« i

has before the payment given notice oi the
transfer to the tenant.

(2) Where there is more than one tenant paying rent to
the landlord whose interest is transferred, a general notice
from the transferee to the tenants published in the prescribed
manner, shall be a sufficient notice for the purposes of this
section.

It must be remembered that under sec, 3 (5), the word " rent " in sees. 72 to
75, includes also money recoverable under any enactment for the time being in
force as rent.

Landlord's right to transfer his interest.— There appears to be no re-
striction on the landlord's right to transfer or assign his interest, and all landlords
are in the habit of creating estates intermediate between themselves and their
tenants at their pleasure. In a case in which a zamindar first granted a talufd
pottah to certain persons, and then leased the zamindari in patni to certain others
who sued the holders of the taluki pottah for rent, it was said : — " The defendants
have already contracted to pay the rents to the zamindar. If the zamindar re-
quires them under his arrangements with the plaintiffs as patuidars to attorn to
the patuidars, he should take measures to give notice and make assignments
accordingly. Then, the rents payable under the defendants' taluki pottah to the
zamindar will become rents payable under the same pottah to the assignees of
the zamindar." {Manmr Ahmad v. Azizuddin, W. R., Sp. No., Act X, 129.) But
a landlord cannot create two estates of the same degree ; so where a zamindar
granted two pottaha to two different persons for the same land, it was held that

LIABILITY FOR RENT ON CHANGE OF LANDLORD.

143

the lease subsequently granted to the plaintiff could not constitute him the Chap, VIII.
landlord of the defendant. (Kallam v. Panchu Ifandal, 11 W. R., 128.) SKaJ2. '

Tenant's liability on transfer of landlord's interest.— Under sec. 50 of
the Transfer of Property Act (IV of 1882), no person is chargeable with any rents
or profits of any immoveable property, which he has in good faith paid or deliver-
ed to any person of whom he has in good faith held such property, even though
it may afterwards appear that the person to whom such payment or delivery
was made had no right to receive such rents or profits. This section of the
Tenancy Act seems to go further, and to absolve the tenant from all liability for
any payment he may make after the date of transfer unless the transferee has
before payment given him express notice of the transaction. It would seem to be
immaterial whether the tenant in making the payment acted in good faith or not,
or was otherwise aware of the transfer. Express notice of the transfer fi'om the
transferee would seem to be necessary to bind the tenant, and render him liable
to pay rent to the transferee. There is no provision as to whether the notice is
to be a verbal or written one. Probably it may be either.

Payment of rent made in advance.— This section does not say whether a
tenant on the transfer of his landlord's interest would be entitled to credit for a
payment of rent made in advance to the transferor. In one case (Earn Lai Shaha
V. Jogendro Narain Rai, 18 W. R., 328), it was held that an auction-purchaser with
notice of a payment in advance, made by the tenant to the former proprietors, of
rent due for a period subsequent to the date of purchase is bound by such pay-
ment. So a purchaser of land is bound by a contract between his vendor and
a tenant which is secured by the rent of the land remaining in the hands of
such tenant, the contract being in the nature of an assignment of the rent
of the property sold. {Churaman Singh v. Patu Koer, 24 W. R., 68.) But, on
the other hand, "in a case where notice of the plaintiflPs claim was given
before the rent fell due," it has been said, " it was held that a previous payment
of rent afi'orded the tenant no defence. A tenant who pays rent before it is due
cannot be said to do so in fulfilment of his obligation, but rather to make an
advance to his landlord on the understanding that on the day when the rent
becomes due, such advance shall be treated as a fulfilment of the obligation to pay
rent, nor would a tenant in such a case be protected under sec. 50 of Act IV
of 1882." (Shephard and Brown's Transfer of Property Act, p. 65.)

Transfer of arrears of rent. — Under sec. 131 of Act IV of 1882, no
transfer of a " debt," which means an actionable claim, and not a claim
which has passed into a decree {Afzal v. Ram Kumar Bhadra^ I. L. R.,
12 Calc, 610), has any operation against the debtor, unless express notice of the
transfer is given him, or unless he is a party to or otherwise aware of the
transaction ; and under sec. 132, such notice must be in writing signed by
the transferor, or by his agent duly authorized in this behalf. These provi-
sions are applicable in the case, which is of common occurrence, of the trans-
fer of arrears of rent, or back rents, on the transfer of a landlord's interest.
It has, however, been ruled by the High Court in the case of Jagdeo Bahai
V. Broja Bihari Lai (I. L. R., 12 Calc, 505), that an assignment of a debt
is perfectly valid, although the notice referred to in sec. 131, Act IV of 1882, has
not been given ; though the title of the assignee is not complete until such notice
has been given. But the assignee may sue the debtor, and his title will become
complete on his doing so ; for the transfer comes into operation as soon as the

THE BENGAL TENANCY ACT.

Chap. VIII. debtor becomes aware of it, and after a suit is instituted, the debtor becomes
Skc. 72. aware of the transfer, and the transfer then takes effect. In connection with the
""" subject of transfers of arrears of rent, the provisions of sec. 135 of the Transfer
of Property Act are also important. This section lays down that where an ac-
tionable claim is sold, he, against whom it is made, is wholly dischai'ged by paying
to the buyer the price and incidental expenses of the sale, with interest on the
price from the day that the buyer paid it. Hence, if the arrears of rent due to
a landlord are sold, as they generally are, for a less sum than the full amount
due, the tenant is discharged of his liabilities by paying to the transferee
the sum actually paid by him, with the incidental expenses of the sale and
interest up to the date of payment. {Rajani Kant Nag v. Rari Mohan
Guha, I. L. R, 12 Calc, 470.) But he must pay this amount before the purchaser
of the arrears of rent proves his claim in a suit instituted by him for the arrears ;
for, under cl. {d) of sec. 135, nothing in the former part of the section applies
" where the judgment of a competent Court has been given, affirming the claim or
where the claim has been made clear by evidence, and is ready for judgment."
{Grish Chandra v. Kashishwari Debi, I. L. R., 13 Calc, 145 ; JSubamal v. Venkata-
rama, I. L. R., 10 Mad., 289.)

Service of notices of transfer. —The notice of transfer of the landlord's
interest referred to in sub-sec. (1) should be served in accordance with Rule 3,
Chap. I, of the Government Rules under the Tenancy Act. A special rule has
been framed for the service of the general notice referred to in sub-sec. (2) (see
Rule 6, Chap. V of the Government Rules, Appendix I).

Apportionment of rent. — Section 72 deals only with the case of the transfer
of the whole of a landlord's interest to a single transferee. It is silent as to
the cases of the transfer of a share only of his interest, of the transfer of the
whole of his interest to more than one transferee, and of the division of his
interest amongst different co-sharers. When the subject of the transfer or divi-
sion is a revenue-paying estate, which can be partitioned by metes and bounds,
the " Estates Partition Act, 1876 " (VIII, B.C.), provides rules for the apportion-
ment of the rent of the tenants, whose lands fall partly within one share and
partly within another. But there are no similar rules applicable, when revenue-
free land, or a tenure or under-tenure in revenue-paying land is partially trans-
ferred to more than one transferee, or has to be divided between co-sharers. In
all these cases, it is necessary to apportion the tenant's rent, and the question of
the liability of the tenant for the rent to the transferee, or transferees, and co-
sharers arises. There can be no doubt that, as the law now stands, the tenant
cannot be compelled to pay his rent proportionately to different persons without
a regular civil suit for the apportionment of his rent being brought against him.
But it has hitherto been held that on such a suit being brought, his rent will be
apportioned, and will^become payable proportionately to the transferee, ti'ansf erees,
or co-sharers, as the case may be. This is in accordance with the principle
laid down in sec. 37 of the Transfer of Property Act, which, however, makes
the proportionate shares of the rent payable on notice of a severance, without
its being necessary to have recourse to a suit. But this section has not yet
been made applicable by the Local Government to leases for agricultural pur-
poses. There is a long series of High Court rulings to the above-men-
tioned efltect. One of the earliest of these is the case of Bern Madhub Ghosh
V. Thahur Das Mandal, B. L. R., F. B., 588, in which Peacock, C. J., said :
"It appears that the tenant originally held under four brothers, of whom

LIABILITY FOR RENT ON CHANGE OF LANDLORD. I45

Gobincl Mani's husband, Sri Krishna, was one. They were a joint family, and Chap. VIIL
the tenant was paying rent to them jointly. I should have thought myself, though ^'**^- ''^•
it is unnecessary to express any decision upon the point, that when rent is
received by a joint family, the tenant is not liable to be sued by each member of
the joint family, for a separate share of rent. But if the estate is severed by
partition, and instead of being a joint estate, becomes separate estates, then the
rent would be apportioned in respect of the several allotments, and each member
would be entitled to sue for his separate share of the rent in respect of the lands
allotted to him on partition." Another early case in which the question of
apportionment of rent was dealt with is that of Gopanand Jha v. Oobind Prasad
(12 W. R., 109), in which it was said that when a lessee was evicted from part of his
land, by a title paramount to that of his lessor, an apportionment of the rent might
take place. In Anu Mandal v. Kamaludin (1 C. L. R., 248), it was said that when
a tenant has agreed with his landlords to pay a certain rent for his whole holding,
the fact that he has paid each landlord his proportionate share of the rent is not
conclusive, but merely pi'esumptive, evidence that for the original contract
there has been substituted a separate contract with each of his lessors. The
next case is that of Srinath Chandra Chaiidhri v. Mohesh Chandra Bandopadhya
(1 C L. R., 453), in which seven mauzas had been let in patni to certain tenants
by the zamindar, and then, under a decree against the zamindar, three of these
mauzas were sold to A, and the other four to B. A then brought a suit
against the patnidars to have his share of the rent apportioned, making B,
i:)urchaser of the other mauzas, a party to the suit, and it was held that
the suit was properly brought. Then, in the case of Annoda Cham Rai v. Kali
Kmnar Rai (I. L. R., 4 Calc, 89), the Court (Garth, C. J., and McDonell, J.) said :
" If ijmali property is let to a tenant at one entire rent, we think it clear, upon
principle and authority, that the rent is due in its entirety to all the co-sharei*s,
and that all are bound to sue for it ; and that no co-sharers can sue to recover the
amount of his share separately, whether the other co-sharers are made parties to
the suit or not. Of course, if the land demised ceases to be ijmali, and one
portion of the divided area becomes the property of A, whilst another becomes
the property of B, it is necessary that an apportionment of the rent should take
place ; and then, in order to obtain such an apportionment, it would be quite
proper that either A or B should bring a suit against the tenant for so much of
the rent as he considers his proper portion, making B or A, as the case may be,
defendant to the suit. But here there has been no division of the area of the
property. The area is entire, the rent has always been paid by the tenant in its
entirety, and the title of the other co-sharers remains ijmali." It was accordingly
held in this case, that the suit would not lie. Recently, in the case of Ishar Chandra
Datta V. Ramh'ishna Da^ (l. L. R., 5 Calc, 902), the law on this point was
settled by a Full Bench, by whom it was said " that a sale of a share in a
tenure, which has been let out to a tenant in its entirety, does not of itself
necessarily effect a severance of the tenure or an apportionment of the rent ;
but if the purchaser of the share desires to have such a severance or apportion-
ment, he is entitled to enforce it by taking proper steps for that purpose. If he
takes no such steps, then the tenant is justified in paying the entire rent, as
before, to all the parties jointly entitled to it. But if the purchaser desires to
effect a severance of the tenure, and an apportionment of the rent, he must
give the tenant due notice to that efiect, and, then, if an amicable arrangement
of the rent cannot be made by arrangement between all the parties concerned,
the purchaser may bring a suit against the tenant for the purpose of having the
R. k F... B. T. A. XO

146

THE BENGAL TENANCY ACT.

Chap. VIII. rent apportioned, making all the other co-sharers parties to the suit." " It is
Skc. 73. impossible upon principle," it is further said, " to distinguish cases, when a
" tenure is sold privately, from those when it is sold by public auction ; or, on the

other hand, to distinguish cases, when a tenure is severed by different portions of
its area being sold to different persons, from those when it is sold to different
persons in undivided shares. In all cases of this kind, the entirety of the joint
interest should be considered as severable at the option of the purchaser, and it
would lead to most inconvenient results, and to the depreciation of the property
thus sold in different lots, if the purchasers of such lots were compelled to
collect their rents in one entire sum conjointly with one another, or with the
owner of the unsold shares or portions." There is a further case, vtz., Durga
Prasad v. Ghosita Goria (I. L. R., 11 Calc, 284), which has been recently
decided, which relates to this subject. In this case the plaintiff held &jote under
the defendants and their co-sharers, who were jointly in possession of an estate
paying revenue to Government. In the year 1877, the estate was partitioned,
and out of the lands held by the plaintiff, a plot measuring about fifteen cottahs,
was allotted to the defendants as their share. It was not disputed that the rent
payable in respect of the land was at the rate of Rs. 4 per bigha. After the
partition the defendants enforced a payment from the plaintiff of Rs. 5 odd on
account of the land held by him, which formed the share allotted to them on the
partition. The plaintiff therefore instituted the suit, nominally under the pro-
visions of sec. 19 of Act VIII, B. C, of 1869, for abatement of rent, and for a
declai-ation that he was only bound to pay i-ent at the rate of Rs. 4 per bigha for
the amount of land held by him. It was held in this case that it was not pro-
perly a suit for abatement of rent, but a suit for apportionment of rent, and for
a declaration that after baticara, the share of the rent which the plaintiff was
liable to pay to the defendant was, as stated in the plaint.

It is important to note that in a suit for apportionment of rent all the
sharers must be made parties, and non-joinder of anyone of them is fatal.
Thus, in a suit for arrears of rent of the plaintiff's share of a taluk, it appeared
that in the year 1279, a hatioara was effected of the zamindari, in which the
defendant's taluk was situated, and that the taluk ceased to be held exclusively by
the plaintiff, and was divided between him and certain other persons, who
were not made parties to the suit. In this case it was held that all the co-
sharers should have been joined as parties, and that as this had not been done,
the suit was bad ; and, further, that the plaint could not be amended by making
the co-sharers parties at the hearing of the appeal. {Abhoy Gohuid Chavdhri v.
Hari Cham Chaudhri, I. L. R., 8 Calc, 277,)

73. When an occupancy-raiyat transfers his holding
T. ,.,.* * 4. * without the consent of the landlord, the

Liability for rent af- '

ter transfer of occa- transferor and transferee shall be jointly

pancy-holding. . . . „

and severally liable to the landlord for
arrears of rent accruing due after the transfer, unless and
until notice of the transfer is given to the landlord in the
prescribed manner.

The provisions of this section, no doubt, apply only to occupancy -raiyats
whose rights are transferable by custom. The case of permanent tenures is, of

ILLEGAL CESSES. 147

course, provided for in sees. 12 to 16, but there is no provision made, either in this Chap. VIIL

section or elsewhere, for the case of tenures which are not permanent and of other
transferable tenancies, if there be any, being transferred without notice to the
landlord. In such cases the landlord will, upon general principles, not be affected
by a transfer of which he has had no notice, and the transferor will continue
liable to him for the rent. The notice referred to in this section may, no doubt,
be either an oral or a written one, and it seems desirable that both the old and
the new tenant should join in giving it. Under sec. 88, a tenant cannot transfer
a share of his tenancy, or make any apportionment of the rent thereof, so as to
bind the landlord, without his consent in writing.

In the case of occupancy-rights which are transferable by custom, if the
landlord receives rent from the transferee and is aware of the transfer, the trans-
feror ceases to have any connection with the holding. (Abdul Aziz Khan v.
Ahmad Alt, I. L. R, 14 Calc, 795.)

Service of notice.— Eules regarding service of the notice of transfer referred
to in this section have been framed by the Local Government, and will be found
in Appendix I. (See Rules 7 and 8, Chap. V, Appendix I.)

Illegal Cesses, (^c.
74. All impositions upon tenants under the denomi-
Abwab. &c., illegal. nation oiabwdb, mahtut, or other like appel-
TT^T%^^^Jo ^ °o' ^^^' lations, in addition to the actual rent, shall

VIII, 1793 ; sec. 3, Reg. ' ^ ^ '

V. 1812 ; sec 9, Reg. be illeg-al, and all stipulations and reserva-

VII, 1822; sec. 10, Act ^ .i x /• u U 11 U

X, 1859; sec. 11, Act tious lor the payment ot such shall be

VIII, 1869, B. C. .J

void.

Abwaba.— By sees. 54 and 55, Eeg. VIII of 1793, all ahwdhs or cesses then
existing were to be consolidated into one specific sum, and the imposition of
any fresh ahiodh or mahtut, under any pretences whatever, was made punish-
able by a penalty equal to three times the amount imposed. Section 3, Reg. V
of 1812, declared that nothing therein contained should be construed as sanc-
tioning or legalizing the imposition of arbitrary or indefinite cesses whether
under the denomination of abwcib, mahtut, or any other denomination. Acts X of
1859 and VIII (B. C.) of 1869 prohibited the exaction of any sum in excess of the
rent specified in the tenant's pottah. The High Court's rulings on the subject of
the illegality of cesses have, however, not been uniform. The following cesses
have been held to be illegal : — (1) Najai, a tax imposed upon cultivators, to make
up for any deficiency arising from the death or disappearance of their neighbours
(see Wilson's Glossary, p. 363), even when paid for three years. {Dhali Paramawik
v. Anarid Chandra Tolapatro, 5 W. R., Act X, 86) ; (2) A certain quantity of gur on
every maund manufactured (Sonam Sukal v. Ilahi Baksh, 7 W. R., 453) ; (3) A
tax for grazing cattle within certain boundaries {Bhaghirath Shikdar v. Ram
Narain Mandar, 9 W. R., 300) ; (4) Bakumat (Arjun Sahu v. Anatid Singh, 10 W. R.,
257) ; (5) Parabi or festival cess {Kamala Kant Ghosh v. Kami Mahomed
Mandal, 11 W. R., 395 ; 3 B. L. R., A. C, 44) ; (6) Patvmrian or patwari's fees
{Barmah Chaudhri v. Srinath Singh, 12 W. R., 29; (7) Purvi bhika, dk sam col-
lected on the fii'st eating of rice by a child- {Nobin Chandra Bai-v, Gtiru Gohind

Sec. 74.

146 THE BENGAL TENANCY ACT.

Chap. VIII. Sarnuth, 14 W. K., 447) ; (8) Patwari's allowances, sidha, or daily allowances, and
Skc^4. pasbaii's or watchman's wages {Mengar Maiidal v. Hari Mohun Thakiw, 23 W. R.,
447) ; (9) Dastur, hajatana, sonan, hatta mal, hatta company, neg, or land-
lord's fee, pansera, or harvest fee, hodhwara, or fee for tlie wages of village-
watchmen, pohm, or fee for the wages of the priest, noclia, or fee for the
wages of village-establishments, inaiigan, and sidha, or putwari's dues {Chultan
Mahtan v. Tilakdhari Singh, I. L. R., 11 Calc, 175).* On the other hand, it has
been held that if a zamindar demands a cess over and above the original rent,
and the raiyat consents and contracts to pay it, this demand and the old rent,
form a new rent lawfully claimable under the contract. {Jiatullah Parainanik
v. Jogendro Xarain Rai, 22 W. R., 12.) Then, iw Bxidhna Ormoan Mahtun v. Jogeshar
Doyal Singh (24 W. R., 4) it was said that certain payments, which were not so
much in the nature of cesses, as of rent-in-kind, and which were fixed and
uniform, and had been paid by the raiyat from the beginning, according to local
custom, were not illegal cesses. It has also been said that there is nothing
illegal in a parabi, or festival cess, when it is part of the consideration for
which an agreement is entered into. (Jagodish Chandra Biswas v. Tarikullah
Sirkar, 24 W. R., 90.) Further, a tahsildar is bound to account to the land-
lord for payments called hhika, made to him by tenants in excess of the rents
due from them, if made voluntarily ; but sums exacted from the tenants
by a tahsildar cannot be recovered by the landlord. (JVobin C/iandra Rai v.
Guru Gobind Mazumdar, 25 W. R., 8.) In the Serajganj Jute Co. v. Torahdi Akund,
(25 W. R., 252), it was said that where a i-aiyat has for many years been paying
a tallah beshi of 2 as. in each iiipee, in addition to the asal jama of the holding,
and the two payments have been incorporated in time, and have actually foraied
the subject of a single receipt, which the zamindar challenged the raiyat, but
which the raiyat failed, to produce, and where a raiyat, for the purpose of pre-
venting disputes with his landlord, and for securing his own interests, has agreed
to make a definite payment to his landlord in addition to his rent, such additional
payment cannot be treated as an illegal cess ; for the law favours such arrange-
ments and provides for their being enforced. Again, it has been ruled that
there is nothing illegal or contrary to public policy in the levying by riparian
owners of kuntagari, or a charge imposed upon boatmen for driving stanchions
or pegs into the river-bank for the purpose of attaching their boats thereto
{Dhanpat Sin^h v. Dinobandhu Salia, 9 C. L. R., 279) ; and in Mahomed Faiz Clmudhri
V. Jamu Ghazi (T. L. R., 8 Calc, 730), it was said that a condition in a lease, that
a tenant will pay to the landlord collection-charges, can be enforced, if the condi-
tion is definite and certain in its nature and forms part of the consideration for
the lease.

In a recent Full Bench decision {Chultan Mahtun v. Tilukdari Singh, I. L. R.,
11 Calc, 175), the High Court decided that abwdbs cannot be recovered, even
though they existed before the time of the Permanent Settlement, and though,
by the custom of the estate, the raiyats, and their ancestors before them, have,
for a great number of years, paid such abwdbs. In this case, Garth, C. J., said :
" I consider that the Regulation of 1793, as well as the Rent Law of 1859,
intended to put an end to the abzvdb system, and to render them illegal. It has
been argued that to abolish this system is contrary to the wishes of both

* For furtlier particular regarding abtcdbs usnally collected, see Bengal Administration
Report, 1872-78, pp. 24, 25, selections from papers relating to the Bengal Tenancy Act, 1885,
pp. 108, 109 ; «ud Field's Uegnlations, pp. 60, 61,

ILLEGAL CESSES,- 149

landlords and laiyats, and I believe that to be true. Landlords often find Chap. VIIL
it a convenient means of enhancing their rents in an irregular way, and the ' '

raiyats, as a rule, wouhi far rather submit to jsay ahiodhs than have their asal
rent increased. But the system appears to me to be clearly illegal, and I consider
that the Civil Courts should do their best to put an end to it." Mitter, J., in
the same case observed : " Under the provisions of the Eegulations and Acts
cited above, it seems to me that a contract for the payment of ahwdhs is vmlawful,
and is not enforceable by law. It has been contended before us that a claim for
the recovery of the ahwdbs existing before the Permanent Settlement is enforce-
able, notwithstanding these provisions, because sec. 54 of Eeg. VIII of 1793
contained only a direction for the consolidation of the ahwdbs with the asal jama;
but no penalty was attached to an omission on the part of the landholders to act
according to that direction. But it seems to me that this contention is not correct,
because sec. 61 of the said Regulation, in my ojiinion, provided the penalty in
question — that penalty being the non-sniting of the claim for the recovery of the
abi'jdbs." But in a still later case, a Division Bench (Tottenham and Ghose, JJ.)
remarked, that " what is and what is not an abwdb must depend upon the cir-
cumstances of each particular case in which the question arises." It further
held that where, by a kabuliyat, dated 1869, a defendant, as holder of a mokarari
tenure, agreed to pay a certain fixed sum as rent, and also certain sums designated
tehwari and salami, they were not illegal cesses within the Full Bench ruling of
Chultan Malitan v. TilvJcdari Singh, not being uncertain and arbitrary in their
chai'acter, but specific sums which the tenants agreed to pay to the landlords, and
the payment of which, no less than the payment of the rent itself, formed part
of the consideration upon which the tenancy was created, and were, in fact,
part of the rent agreed to be paid, although not so described ; they were, there-
fore, recoverable under Regulation V of 1812. (Padmonand Smgh v. Baija Nath
Singh, I. L. R, 15 Calc, 828.)

Dak-cess. — Dak-cess is not an illegal cess ; neither is it rent, according to
any enactment now in force. But under the provisions of sec. 12, Act VIII of
1862, B. C, landlords can collect it from their tenants, if the latter have agreed
to i^ay it to them. It has also been held by the High Court that patnidars are
liable for zamindari dS,k-charges, if, under the old law — that is, before the passing
of Act VIII of 1862, B. C. — they were liable for these charges, or had been in
the habit of paying them. (Bissonath Sirkar v. Sharno Moyi, 4 "W. R., 6.) In
this case it was said that " Act VIII of 1862 was not intended to impose any new
tax, but to consolidate and regulate an old liability. Primarily, the zamindars
are, in all cases, liable to Government ; but it was not designed to alter any right
of reimbursing themselves from under-holders, which they might possess. In
the case of raiyats, all liabilities are required by law to be consolidated and
included in the pottah, and a liability beyond the stipulated rent could not be
urged ; but this does not seem to be so in regard to intermediate-holders." In
other cases, it was held that it depended on the terms of their leases whether
patnidars were liable to pay dtk-cess or not. (See Saroda Sundari Debi v. Unux.
Cham Sirkar, 3 W. R., S. C. Ref., 17 ; Saroda Sundari Dehi v. Tarini Cham Saha,
3 W. R., S. C. Ref., 19 ; Rakhal Das Mukharji v. Shamomoyi, 6 W. R., 100 ;
Rohini Kant Rai v. Tripura Sundari Dasi, 8 W. R., 45.) Landlords cannot
collect d&k-cess as rent by a suit under the Tenancy Act. They can only sue
for it as money due on a contract. (Mahtab Chand v. Radha Binod Chaxidhri,
8 W. R., 517 ; Erskine v, Trilochan Chatarji, 9 W. R., 518.)

150

THE BENGAL TENANCY ACT.

Skc.

Chap. viii. 75. Every tenant from whom, except under any

special enactment for the time being in
by^wiord^'frrrten" ^^Yce, any sum of money or any portion of
ant of sum in excess of i\^q producc of his land is exacted by his

the rent payable. *■ ^ •'

Sec. 10, Act X, 1859 ; landlord in excess of the rent lawfully
1869!^'^*'*^^"^'^'^*' payable, may, within six months from the
date of the exaction, institute a suit to
recover from the landlord, in addition to the amount or value
of what is so exacted, such sum by way of penalty as the
Court thinks fit, not exceeding two hundred rupees ; or when
double the amount or value of what is so exacted exceeds two
hundred rupees, not exceeding double that amount or value.

Special enactments making demands other than rent recoverable as
such.— The Cess Act (IX of 1880, B. C), the Bengal Embankment Act (II of
1882, B. C), the Bengal Survey Act (V of 1875, B. C), the Irrigation Act (III of
1876, B. C), and the Bengal Drainage Act (VI of 1880, B. C), make certain
sums recoverable as "rent." Under sec. 10, Act X of 1859, and sec. 11, Act VIII,
B. C, of 1869, the tenant was entitled to recover damages not exceeding double
the amount exacted.

Meaning of " exacted." — As to the meaning of the word *' exacted," it would
seem that it does not necessarily imply the use of force, or a show of force, or
threats. In Itam Prasad Bhagat v. RamtaJml Siiigh (Marsh., 655), where the
zamindar, after granting a thika lease, collected the rents direct from the raiyats,
and the amount so received exceeded the rent due from the thikadar, the excess
amount so collected was held to be an exaction. But when a zamindar collected
an excessive amount under a proceeding prescribed by law, it was held that this
was not an illegal exaction of rent (C/uindramani Chaudfmrani v. Beboidra Nath
Rai, Marsh., 420) ; and money so collected cannot be recovered back in a fresh
suit or action whilst the decree or judgment under which it was recovered remains
in force. {Durga Prasad Rai v. Tara Prasad Rai, 10 Moo. I. A., 203 ; 3 W. E.,
P. C, 11 ; Jogesh Chandra Datta v. Kali CharanDatta, I. L. R., 3 Calc, 30.) Where,
on the allegation that the defendant had sub-let land to him for the purpose of
raising crops, under a contract to share the produce between them, the plaintiff>
a harghadur, sought to recover the value of his share of the crop, which the defend-
ant had misappropriated, it was held, that the claim was not for a sum exacted
in excess of the rent. {GJmrihidlah Paramanik v. Fakir Malionied Kholu, 10 W. R.,
203.) A landlord cannot recover from his tahsildar sums exacted by the latter
from the tenants. {Nohin Cha^idra Rai v. Guru Gobind Mazumdar, 25 W. E,., 8.
But see 14 W. R,, 447.)

Distinction between " lawfully payable " and " lawfully recovera-
ble."— It is only when the sum exacted is in excess of the rent "lawfully
payable" that the landlord rendei-s himself liable to the provisions of this section
He would, therefore, appear not necessarily to render himself liable to any
penalty for collecting from his tenant an amount not " lawfully recoverable,"
provided the amount was lawfully payable. Thus though a proprietor, who has

IMPROVEMENTS. 151

not filed a return required under the Cess Act (IX of 1880), is not entitled to Chap. IX.

recover rent, yet the rent may be lawfully payable to him ; and, similarly, when ' '

a raiyat collects from his under-raiyat an amount of rent in excess of the limits

laid down in els. (a) and (6) of sec. 48, he would seem not, necessarily, to render

himself amenable to the provisions of this section, as an amount in excess of the

limits is not said to be not lawfully payable, but merely to be not lawfully

recovei'able.

CHAPTER IX.

Miscellaneous Provisions as to Landlords and Tenants.

Improvements.
76. (1) For the purposes of this Act, the term " im-
Definition of " im- provement," used with reference to a rai-
provement." yat's holding, shall mean any work which

adds to the value of the holding, which is suitable to the hold-
ing and consistent with the purpose for which it was let, and
which, if not executed on the holding, is either executed
directly for its benefit, or is, after execution, made directly
beneficial to it.

(2) Until the contrary is shown, the following shall be
presumed to be improvements within the meaning of this
section : —

{a) the construction of wells, tanks, water- channels and
other works for the storage, supply or distribution of water for
the purposes of agriculture, or for the use of men and cattle
employed in agriculture ;

{b) the preparation of land for irrigation ;

(c) the drainage, reclamation from rivers or other waters,
or protection from floods, or from erosion or other damage by
water, of land used for agricultural purposes, or waste-land
which is culturable ;

{d) the reclamation, clearance, enclosure or permanent
improvement of land for agricultural purposes ;

{e) the renewal or re-construction of any of the foregoing
works, or alterations therein or additions thereto ; and

(/) the erection of a suitable dwelling-house for the
raiyat and his family, together with all necessary out-offices.

(3) But no work executed by the raiyat of a holding
shall be deemed to be an improvement for the purposes of this

152

THE BENGAL TENANCY ACT.

Chap. IX. Act if it Substantially diminishes the value of his landlord's

Skcs. 77—70. ,

— property.

The provisions of this section are founded on those of sec. 4, Act XIX of
1883 (The Laud Improvement Loans Act).

77. (1) Where a raiyat holds at fixed rates or has an

. occupancy-right in his holding, neither the

provements in case of raiyat uor his landlord shall, as such, be

holding at fixed rates • i i i i n i •

and occupancy-hold- entitled to prevent the other iroui making
^^^' an improvement in respect of the holding,

except on the ground that he is willing to make it himself.

(2) If both the raiyat and his landlord wish to make the
same improvement, the raiyat shall have the prior right to
make it, unless it affects another holding or other holdings
under the same landlord.

Collector to decide 73, jf a question arises between the

question as to right to ^ ^ ^

make improvement, &c. raiyat and his landlord —

(a) as to the right to make an improvement, or

(b) as to whether a particular work is an improvement,
the Collector may, on the application of either party, decide
the question, and his decision shall be final.

79. (1) A non-occupancy-raiyat shall be entitled to

Right to make im- coustruct, maintain and repair a well for

provements in case of ^j^^ irrio'ation of his holding, with all works

non - occupancy - nold- cs oj

ing- incidental thereto, and to erect a suitable

dwelling-house for himself and his family, with all necessary
out-oflices ; but shall not, except as aforesaid and as next here-
inafter provided, be entitled to make any other improvement in
respect of his holding without his landlord's permission.

(2) A non-occupancy-raiyat who would, but for the want
of his landlord's permission, be entitled to make an improve-
ment in respect of his holding, may, if he desires that the
improvement be made, deliver, or cause to be delivered, to his
landlord a request in writing calling upon him to make the
improvement within a reasonable time ; and, if the landlord
is unable or neglects to comply with that request, may make
the improvement himself.

IMPROVEMENTS. J 53

80. (1) A landlord may, by application to such chap. ix.
Registration of land- Revenue-officei' as the Local Government "'^t — '

lord's improvements. ^^^ appoint, register any improvement

wliich lie has lawfully made or which has been lawfully made
at his expense or which he has assisted a tenant in making.

(2) The application shall be in such form, shall contain
such information, and shall be verified in such manner, by
local inquiry or otherwise, as the Local Government from time
to time by rule directs.

(3) The officer receiving the application may reject it if
it has not been made within twelve months —

(a) ill the case of improvements made before the com-
mencement of this Act — from the commencement of this Act ;

(b) in the case of improvements made after the com-
mencement of this Act — from the date of the completion of the
work.

An enhancement of rent on the ground of a landlord's improvement cannot
be granted by a Court, unless the improvement is registered under this section.
(See sec. 33.) It is to be observed that all that this section authorizes is the
registration of the fact that an improvement has been lawfully made by the appli-
cant or at his expense. It does not render necessary or authorize any inquiry as
to the cost of the improvement, or the probable benefit that may be expected
from it. The registration removes a disability to sue for enhancement on the
ground of the improvement, under which the landlord would lie, under the terms
of sec. 33, if the improvement had not been registered ; but the registration will
not in itself be evidence of the value or cost of the improvement, or of the amount
of enhancement, which may be properly awarded on account of it. If the landlord
desires to have evidence of such matters recorded, he must proceed under the next
section (81). The words " lawfully made," render it necessary that the work to be
registered must be an improvement within the meaning of sec. 76. A dwelling-
house, which is not suitable to the holding, may not be an improvement under the
terms of that section, and in that case cannot apparently be registered. Rules under ^

this section have been framed by the Local Government, and will be found in
Appendix I. (See Chap. Ill of the Government Eules — Eules 1 to 6.)

81. (1) If any landlord or tenant of a holding desires
,,.,., ^ that evidence relating^ to any improvement

Application to record ^ j t.

evidence as to improve- made in rcspect thereof be recorded, he
may apply to a Revenue-officer, who shall
thereupon, at a time and place of which notice shall be given
to the parties, record the evidence, unless he considers that
there are no reasonable grounds for making the application, or

J 54 THE BENGAL TENANCY ACT.

Chap. IX jt is made to appear that the subject-matter thereof is under

SBC. 82. . /-(. -1 />i

— inquiry m a Civil Court.

(2) When any matter has been recorded under this sec-
tion, the record thereof shall be admissible in evidence in
every subsequent proceedings between the landlord and tenant
or any persons claiming under them.

It is to be noticed that, while the preceding section removes a disability
under which the landlord would otherwise lie, this section enables him or his
tenants, if he or they may so desire, to have contemporaneous evidence of im-
provements recorded, and the evidence so recorded will be admissible in subse-
quent proceedings between the landlord and tenant. The Local Government has
provided that the Eevenue-officer recording evidence under this section shall have
the powers of a Civil Court in the trial of suits, and shall be guided by the pro-
visions of sees. 182 and 184 of the Civil Procedure Code. (See Chap. Ill of the
Government Kules, Eule 7, Appendix I.)

82. (1) Every raiyat who is ejected from his holding
compensationforrai- ^l^^ll be entitled to Compensation for im-
yat's improvements. provcments which havc bccu made in re-
spect thereof in accordance with this Act by him, or by his
predecessor in interest, and for which compensation has not
already been paid.

(2) Whenever a Court makes a decree or order for the
ejectment of a raiyat, it shall determine the amount of compen-
sation (if any) due under this section to the raiyat for improve-
ments, and shall make the decree or order of ejectment condi-
tional on the payment of that amount to the raiyat.

(3) No compensation under this section for an improve-
ment shall be claimable where the raiyat has made the im-
provement in pursuance of a contract or under a lease binding
him, in consideration of some substantial advantage to be
obtained by him, to make the improvement without compen-
sation, and he has obtained that advantage.

(4) Improvements made by a raiyat between the 2nd day
of March, 1883, and the commencement of this Act shall
be deemed to have been made in accordance with this
Act.

(5) The Local Government may, from time to time, by
notification in the official Gazette, make rules requiring the
Court to associate with itself, for the purpose of estimating

IMPROVEMENTS. 155

the compensation to be awarded under this section for an im- Chaf. ix.

^ Skc. 83.

provement, such number of assessors as the Local Government —
thinks fit, and determining the qualifications of those asses-
sors and the mode of selecting them.

Sub-secticn (1).— A laiyat, on adducing proof that he made the improve-
ment, will be entitled to compensation under sub-sec. (1) of this section, and it
will lie on the landlord to establish, by evidence, that the case comes under any of
the exceptions mentioned in this section, namely, that compensation has already
been paid, that the improvement was made in pursuance of a contract, or under
a lease binding the raiyat, in consideration of some substantial advantage, to
make the improvement without compensation, and that he has obtained the
advantage.

Sub-section (4).— The 2nd March, 1883, is the date on which the motion was
made in Council for leave to introduce the Bengal Tenancy Bill.

No rules regarding assessors made. —No rules have yet been made by
the Local Government requiring the Covirt to associate with itself assessors, and
determining their qualifications and the mode of selecting them. It has been
said in the Report of the Committee appointed to ditift the Rules iinder this Act :
" It is hoped that cases of ejectment will be rare. It is probable, too, that the
amoinit of compensation awardable in such cases will not, ox'dinarily, be very large.
It seems a matter of some ditftculty to specify in a rule the qualifications of
persons whose assistance would be useful to the Court ; and we aie unwilling to
add to the costs of the trial by prescribing a procedure which would involve an
expenditvire incommensurate with the amount of the compensation. If it should
be proved hereafter that the Courts experience a practical difficulty in the deci-
sion of these cases, and express a wish for the appointment of assessors, the
question of making a rule may be further considered." (Calcutta Gazette,
November 4th, 1885.)

83. (1) In estimating the compensa-
Principie on which tioii to bc awarded under the last foregoino-

compensation is to be • p . , i ^ •,^ i^

estimated. scctiou lor an improvement, regard shall be

had —

(a) to the amount by which the value, or the produce, of
the holding, or the value of that produce, is increased by the
improvement ;

(^) to the condition of the improvement, and the probable
duration of its effects ;

(d) to any reduction or remission of rent or any other
advantage given by the landlord to the raiyat in consideration
of the improvement ; and

J56 THE BENGAL TENANCY ACT.

Chap. IX. (e) ill the case of a reclamation or of the conversion of

Skc 83

— unirriofated into irrio-ated land, to the lenoth of time during:
which the raiyat has had the benefit of the imj^rovement at
an unenhanced rent.

(2) When the amount of the compensation has been as-
sessed, the Court may, if the landlord and raiyat agree, direct
that, instead of being paid wholly in money, it shall be made
wholly or partly in some other way.

Effect of sees. 76 to 83.— The eflfect of sees. 76 to 83, which are taken gene-
rally from the North-West Provinces Rent Act (XII of 1881), and are new in
Bengal, is, that where a landlord makes an improvement and registers it, he will
generally be entitled to reap the benefit of it in the shape of an enhancement of
rent. But he may not in every case reap the full benefit of an improvement
effected by him ; for, nnder sec. 33, sub-sec. (l)(b), cl. (iv), a Court has discretion
to refuse an enhancement on the ground that the rent is already so high as not to
permit of further enhancement. When a raiyat makes an improvement, he will,
if ejected, be entitled, subject to certain exceptions, to receive compensation for
it. An occupancy-raiyat will further, while he continues to hold his land, reap
the benefit of his improvement, inasmuch as his rent cannot, under Chap. V, be
enhanced on account of an imj^rovement made by him. A non-occupancy-raiyat,
under similar circumstances, may possibly not be able, in all cases, to retain the
full benefit of his improvement, but the check placed on the landlord by the
provisions of Chap. VI will, as a rule, protect him in the enjoyment of that
benefit.

Advances for the purjjose of making agricultural improvements can be ob-
tained by raiyats and landlords under the Land Improvement Loans Act (XIX
of 1883). The facts that tenants are now entitled to the benefit of improvements
made at their expense, and that loans for the purpose of making improvements
can be obtained on easy terms, should give a great stimulus to agiicultural
improvements ; but the experience of other provinces, where compensation for
improvement has been allowed by law for some years, does not afford ground for
the hope that these sections will, in the immediate futiire, have much practical
effect.

The Legislature has laid down no hard-and-fast rule by which the amount of
compensation to be given for improvements is to be awarded. In this, as in many
other matters, it has prescribed certain considerations by which the Courts are
to be guided, and to which they are to have regard, without defining the precise
Aalue to be attached to each or any of those considerations. No rule seems to be
possible in such matters, and every case will, probably, have to be decided on its
own merits. The amount of compensation will, probably, depend, in each case,
on what it would cost the landlord, supposing the improvement had not been
executed, to put the holding in the condition in which he receives it from the
raiyat.

It is to be noted that, under cl. (d), sub-sec. (1), sec. 178, nothing in
any contract between a landlord and a tenant, made before or after the passing of
this Act, shall take away or limit the right of a tenant, as proAnded by this Act,
to make improvements and claim compensation for them.

ACQUISITION OF HOLDING BY LANDLORD. I57

CirAP. IX.

Skcs. 84, 85.

Acquisition of land for building and other purposes. C'"^^- ^^•

84. A Civil Court may, on the application of the land-
Acquisition of land lord of a holding,
for building and other ^nd on beinsj Satisfied that he is desir-

purposes. • i i 1 t ^ p

ous of acquu'ing the holding or part thereoi
for some reasonable and sufficient purpose having relation
to the o^ood of the holdinoj or of the estate in which it is com-
prised, including the use of the ground as building-ground,
or for any religious, educational or charitable purpose,

and on being satisfied on the certificate of the Collector
that the purpose is reasonable and sufiicient,

authorise the acquisition thereof by the landlord upon
such conditions as the Court may think fit, and require the
tenant to sell his interest in the whole or such part of the
holding to the landlord upon such terms as may be ap-
proved by the Court, including full compensation to the
tenant.

"The necessity of this provision was," the Select Committee remarked,
" strongly m'ged upon them, especially with a view to provide building-sites,
either for new tenants, or in cases of diluvion." The Collector's certificate as to
the sufficiency of the reason is intended to guard against the abuse of the section.

It is only the landlord of a holding or of a raiyat, who can apply under
this section for the acquisition of land. The landlord of a tenure, therefore,
cannot make any such application.

Appeal.— An appeal to the District Judge lies against an order passed under
this section (Sched. Ill, Part II, Art. 4).

Sub-letting.
85. (1) If a raiyat sub-lets otherwise than by a regis-
Restriotions on sub- t^red instrument, the sub-lease shall not
^*'**^^°^- be valid against his landlord unless made

with the landlord's consent.

(2) A sub-lease by a raiyat shall not be admitted to
registration if it purports to create a term exceeding nine
years,

(3) Where a raiyat has, without the consent of his
landlord, granted a sub -lease by an instrument registered
before the commencement of this Act, the sub-lease shall not

158 THE BENGAL TENANCY ACT.

Chap. IX. be Valid for more than nine years from the commencement of
— this Act.

Registration rule under sub-section (2).— Registration Rule 3 lays down
that when a sub-lease executed by a i-aiyat, pui'porting to create a term exceeding
nine years, is presented for registration, it shall be I'eturned at once with a note
to the following effect recorded on its back, viz. : " Not admissible under sub-
sec. 2, sec. 85 of the Bengal Tenancy Act (VIII of 1885)." The note shall be
signed, sealed and dated by the registering officer.

Rulings under the old law as to sub-letting.— Under the old law, a i-aiyat
having a right of occupancy might sub-let it, and he did not thereby incur any
forfeiture of his rights. {Kali Iiiskor Chatarji v. Ram Churn Saha, 9 W. R., 344 ;
Earan Cliandra Pal v. Mukta Sundari, 10 W. R., 113 ; 1 B. L. R., A. C, 81 ; Jamir
Ghaziv. Gonai 3/andal, 12W. R., 110; 13 B. L. R., 278 note ; Khosal Mahomed v. Jain-
udin, 12 W. R., 451.) But he could not and cannot now, by sub-letting, alter the
character of his holding and convert it into an under-tenure. {Karu Lai Thakur
V. Lachmipat Dugar, 7 W. R., 15 ; Harihar Muhharjiv. Jadunath Ghosh, 7 W. R., 114.)
If a man took a lease of land, and at once sublet it, he was held under the old law
to be a tenure-holder {Ram Mangal Ghosh v. Lakhi Narain Saha, 1 W. R., 71) ; but
if he had acquired a right of occupancy by cultivating or holding, he did not
divest himself of this right by sub-letting the land {Durga Prasanno Ghosh v. Kali
Das Datta, 9 C. L. R., 449). A man would not now be held to be a tenure-
holder merely because he sub-lets. If he was let into the land for the purpose of
cultivating it himself, he would be a raiyat, whether he at once sub-let it or not.
The lease which the occupancy-raiyat granted was only binding as between
him and his lessee. It was not binding against his superior landlord (i. e., tenure-
holder or proprietor), and did not affect any legal right, which the latter might
possess ; though if the superior landlord dispossessed the uuder-raiyat without
the assistance of the law, he was guilty of trespass. {Damri Sheikh v. Bissessar Lai
13 W. R., 291.) But if the occupancy-raiyat sub-let with his landlord's consent,
the case was different. In Nehalunnissa v. Dhanu Lai Chaiidhun (13 W. R., 281),
it was said that when a lessor gives his lessee power to sub-let, and the
latter sub-lets, the sub-lessee obtains rights against both, of which he
cannot be deprived without his own consent. The lessee's surrender of his lease
cannot operate to the prejudice of the sub-lessee. Where a lessee sub-lets land, the
sub-lessees can have no more right to use the land in conti'avention of the terms of
the original lease than their lessor had. {Monindro Chandra Sirhar v. Maninvdin
Biswas, 20 W. R, 230 ; 11 B. L. R, App., 40.) It was also held that a lessee cannot
make an under-lease for a longer time than his own lease, nor is he the agent
of the landlord so as to bind him by granting leases for any time he may think
fit. {Harish Chandra Rai v. Sri Kali Mukharji, 22 W. R., 274.) The provisions of
sec. 85, however, to a certain extent, set aside this ruling. In the same ease it
was said that, where an under-lease specifies no term of tenancy, it cannot be
construed to have effect beyond the interest of the grantor. In Sarat Sundari
Debi V. Binny (25 W. R, 347) it was laid down that no farmer can, during
the term of his lease, create for himself a sub-tenure, which is to endure
after the lease expired, to the prejudice of the owner, whose locum tenetis he is.
Both these rulings would still seem to be good law.

All raiyats may sub-let.— It is to be observed that, under the provisions of
the present section, the right of sub-letting is not restricted to occupancy-raiyata.

SURRENDER AND ABANDONMENT. I59

All raiyats, but no under-raiyats, have now the right of sub-letting their Chap. IX.
lands. Skc. 86.

Acquisition by under-raiyat of occupanoy-rights and transferability
of such rights —As to the acquisition by under-raiyats of occupancy -rights as
against raiyat-landlords, and as to the transferability of their rights without their
raiyat-landlord's consent, see the note to sec. 49, p. 99.

Further provisions of present law.— Under proviso (.3) to sec. 121, a
landlord cannot distrain the crop of any part of a holding which the tenant has
sub-let with the landlord's written consent ; and under sub-sec. (5), sec. 136,
a landlord shall not be deemed to have consented to his tenant's sub-letting the
holding, or any part thereof, merely by reason of his having received an amount
deposited by an inferior tenant to release his property from distraint Further,
in sec. 138 it is provided, that when land is sub-let, and any conflict arises between
the rights of a superior and of an inferior landlord, who distrain the same pro-
perty (that is, in cases in which the sub-letting has taken place without the superior
landlord's consent, in which cases only he can distrain), the right of the superior
landlord will prevail. Under the provisions of cl. (e), sub-sec. (3), sec. 178, nothing
contained in any contract made after the passing of this Act can take away the
right of an occupancy -raiyat to sub-let, subject to, and in accordance with, the pro-
visions of this Act.

Surrender and Abandonment,
86. (1) A raiyat not bound by a lease or other agree-
ment for a fixed period may, at the end

Surrenaer. ^ *'

of any agricultural year, surrender his
holding.

(2) But, notwithstanding the surrender, the raiyat shall
be liable to indemnify the landlord against any loss of the
rent of the holding for the agricultural year next following
the date of the surrender, unless he gives to his lordlord, at
least three months before he surrenders, notice of his intention
to surrender.

(3) When a raiyat has surrendered his holding, the
Court shall in the following cases for the purposes of sub-
section (2) presume, until the contrary is shown, that such
notice was so given, namely : —

(a) if the raiyat takes a new holding in the same village
from the same landlord during the agricultural year next
following the surrender ;

{h) if the raiyat ceases, at least three months before the
end of the agricultural year at the end of which the surrender
is made, to reside in the village in which the surrendered
holding is situate.

IQQ THE BENGAL TENANCY ACT.

cn*p. IX. (4) The raiyat may, if he thinks fit, cause the notice to

•— ' be served through the Civil Court within the jurisdiction of
which the holding or any portion of it is situate.

(5) When a raiyat has surrendered his holding, the land-
lord may enter on the holding and either let it to another
tenant or take it into cultivation himself.

(6) When a holding is subject to an incumbrance secured
by a registered instrument, the surrender of the holding shall
not be valid unless it is made with the consent of the landlord
and the incumbrancer.

(7) Save as provided in the last foregoing sub-section,
nothing in this section shall affect any arrangement by which
a raiyat and his landlord may arrange for a surrender of the
whole or a part of the holding.

Relinquishment under the former law.— Under the former law, any raiyat
who desired to relinquish the land held or cultivated by him could do so provided
he gave due notice in writing of his intention in or before the month of Jeyt,
in districts where the Fasli year prevails, or in or before the mouth of Poush, in
districts where the Bengali year prevails. The raiyat could serve this notice
himself ; but if the landlord or his agent refused to receive the notice and to sign
a receipt for the same, the raiyat could apply, on plain paper, to the Collector, who
had then to sei-ve the raiyat's notice of relinquishment on the landlord. If
personal service could not be effected, it had to be attached to his usual place
of residence or his office for collecting rent or at some conspicuous place at the
village. A mere verbal notice was not sufficient. (Bonomali Ghosh v, Dilu
Sirdar, 24 W. R., 118.) But in the case of an uthandi raiyat upon whom
a notice to pay enhanced rent or to quit the land had been served, a verbal
intimation to the landlord's agent of the raiyat's intention to quit the land,
was held to be a sufficient compliance with sec. 19, Act X of 1859. {Kenny v.
Ishar Chandra Poddar, W. E., Sp. No., Act X, 9.) But it was necessary
that notice to the landlord should be followed by relinquishment. Mere proof
of notice of relinquishment, without proof of actual relinquishment, did not
protect the raiyat from liability for rent {Nohin Chandra Rai v. Lakhi Pria
Debt, 1 W. R., 20) ; and mere lelinqiiishment of the land did not excuse him
from payment of rent, if he was otherwise liable, unless he made terms with
his landlord {Mahomed Azmal v. Chandi Lai Pandi, 7 W. R., 250.) But if,
in this case, the landlord let the land to other raiyats, the original tenant
could not be held liable for the rent. {Mahomed Ghazi v. Shankar Lai, 11 "W. R.,
53.) In one case, however, it was said that when a tenant was found to have
taken steps required by law in furtherance of his intended relinquishment, it is
for the landlord to prove his continued possession notwithstanding. But where
it is found that the tenant has not gone through the necessary steps, it will be
for him to prove that the landlord took possession of the land and enjoyed the
profits by holding it khas, or by letting it to others. {Erskine v. Ram Kumar Rai,
8 "W. R., 221.) Abandoning the land, and neither cultivating nor paying rent
for it, was held to be tantamount to x-elinquishment, and the raiyat could not.

SURRENDER OF HOLDINGS. 161

in such circumstances, demand to be reinstated in possession on the ground Chap. IX.
that he had never formally relinquished the land. {Manirvdin v. Mahomed AH, Skc^6.
6 W. R., 67 ; Nadiar Chaiid Poddar v. Madhtt Sudan De Poddar, 7 W. R., 153 ;
Haro Das v. Gobhid Bhattacharji, 3 B. L. E., App., 123 ; 12 W. E., 304 ; Mati
Sunar v. Gandar Swnar, 20 W. E., 129 ; Ram Chang v. Oora Chand Clmng,
24W.E., 344; Boidinath Manjhiw. Aupurna Debt, IOC. L. R., 15; Ghulam Ali Mandal
V. Golap Sundari Dasi, I. L. E., 8 Calc, 612 ; 10 C. L. E., 499.) Abandonment
is now distinguished from relinquishment or surrender, and is dealt with in the
following section.

Part of holding cannot be surrendered. — The former law did not allow
the raiyat to relinquish a part of his holding, and it was, therefore held that, as
long as he retained possession of any part of his jote, he was liable for the rent of
the whole. (Saroda Sundari Dehi v. Mahomed Mandal, 5 W. E., Act X, 78.)
But in one case it was said that when a raiyat, holding a considerable quantity
of land, wishes to relinquish a portion, he must specify what portion he relin-
quishes in order to relieve himself of the liability to pay rent. (JEahila Sirkar
V. Durga Kant Majumdar, 11 W. R., 456.) This would seem to imply that a raiyat
could relinquish a portion of his holding. But in a more recent case {Anarullah
Sheikh v. Kailash Chandra Basu, I. L. R., 8 Calc, 118), the contrary was
very clearly laid down. In this case, three plots of land were let to A under
a kabulyat. A relinquished two plots, but admitted to being in possession of one,
alleging that the kabulyat had been obtained by fraud and misrepresentation. But
it was held that as the lease was an entire contract, one portion only could
not be repudiated on the ground of fi-aud ; if the tenancy was to be repu-
diated on the ground of fi"aud, it must be avoided in toto. In this case it was
also said, that, when a party to a contract of tenancy desires to have it recti-
fied or altered, the suit should be brought under sec. 31 of the Specific Relief Act.
From the terms of sub-sec. (7) of this section, it is evident that, under the
present law also, the raiyat cannot surrender a part of his holding without the
consent of his landlord.

Notice of surrender, and how it may be served.— The raiyat may serve
the notice of his intention to surrender under sub-sec. 2 personally in writing,
but where he serves it through the Civil Court, under the provisions of sub-sec,
(4), it will be served as a summons on a defendant under the Code of Civil Pro-
cedure, and be subject to the same process-fee. (See Chap. V, Rule 9, of the
Rules framed by Government under the Bengal Tenancy Act, Appendix I.)

Applications for service of notices of relinquishment exempt from
Court-fees.— Under cl. (12), sec. 19, Act VII of 1870, applications for service of
notices of relinquishment are exempt from Coui't-fees.

In case of joint tenants who may surrender.— Where a joint lease was
given to many persons with an entirety and equality of interests among the
tenants, the resignation of some of the joint lessees does not necessarily operate to
void the lease. {Mohima Chandra Sen v. Pitamhar Shaha, 9 W. R., 147.) Where
a member of a joint family is registered as a jotedar in a zamindar's serishta, not
as for himself only, but as manager for the family, his relinquishment of the jote
is not suflacient in law to authorize the zamindar to make arrangements with any
others he pleases. {Baikant Nath Das v. Bissonath Manjhi, 9 W. R., 268.)

Protection against collusive surrender.— Sub-section (6) is intended to
protect sub-lessees against collusive surrender, — the term " incumbrance " imder
R. & F., B. T. A. 11

IQ2 THE BENGAL TENANCY ACT.

Chap. IX. sec. IGl meaning, wlien used in reference to a tenancy, "any lien, sub-tenancy,
Skc. 86. easement, or interest created by the tenant on his tenure or holding or in limita-
tion of his own interest therein, and not being a protected interest as defined
in sec. 160." Under the former law it was held, that when a tenant, who
held land for a term, sublet that land, he parted with his own interest
therein to the extent of the interest created by the sub-lease, and conse-
quently he could not determine the interest of his under-tenant by suiTen-
dering his own term to the landlord. {Hiramani v. Ganganarain Rai, 10 W. R.,
384.) From the terms of sub-sec. (6), however, it would appear that a raiyat
by surrendering his holding to the landlord, can always determine his sub-lessees'
interests in the land, unless they have protected themselves by registering their
sub-leases. This is an important point, for it is a growing pi-actice in Behar for
indigo planters to sub-lease land from raiyats, paying them a bonvis and an annual
rent. If sub-tenants do not protect themselves by registering their sub-leases,
they may find themselves, through the surrender of their holding by their raiyat-
landlords, deprived of both their land and their money.

This section applies only to raiyats —It is further to be noticed that
the provisions of this section apply only to raiyats, i.e., to occupancy or non-occu-
pancy-raiyats. It is also only a " holding " which can be surrendered, and the
term " holding " is applicable only to the interest of a " raiyat." Hence, it would
appear that the provisions of this section do not apply to under-raiyats, nor yet
to tenure-holders. As to the latter, no change is made in this respect on the
former law, for, in Hira Lai Pal v. Nilmani Pal (20 W. E., 383), it was held that
it was not open to a patnidar, of his own choice, to throw up his patni, and by
so doing escape from his liability to pay rent. The contract, though not indisso-
luble, it was said, could only be dissolved by an act of the Court, and after proper
enquiry. Again in Jadunath Ghosh v. Schoene, Kilhum <& Co. (I. L. E., 9 Calc,
671 ; 12 C. L. E., 343), it was laid down, that a tenure under a dar-Ttiauraxi
mokarari lease of land, which was not let for agricultural pmposes, could not be
put an end to by mere relinquishment on the part of the lessee, even after notice
to the landlord. In this case it was further held by Field, J., that the principle
laid down in Hira Lai Pal v. Nilmani Pal, that a patnidar could not, of his own
option, relinquish his tenure, was applicable to all intermediate tenures, other
than farming leases, between the zamindar and cultivator of the soil.

It is to be noted that, under the provisions of cl. (c), sub-sec. '(3), sec. 178,
no raiyat can, after the passing of this Act, contract himself out of the provisions
of this section.

Raiyats bound by a lease or other agreement.— The provisions of this
section, or at least of sub-sees. (1) to (4) of it, apply exclusively to raiyats
not bound by a lease or other agreement for a fixed period. It is silent as to
raiyats boiind by a lease or other agreement for a fixed period. Hence, the fol-
lowing rulings relating to raiyats so bound will be found useful. A raiyat, who
has taken a lease in writing for a fixed period cannot throw it up during its
currency. {Kashi Singh v. Onraet, 5 W. E., Act X, 81.) A raiyat is under no obli-
gation to give any notice under sec. 19, Act X of 1859, or under sec. 20, Act VIII
of 1869, B. C, merely to entitle him to give up the land at the termination of
a short lease under which he holds. A landlord claiming rent from such raiyat
for a period after the expiry of his lease is bound to prove that the latter held
on subsequently to the term of his lease. {Tilak Patak v. Mahahir Pandi^
15 W. E., 454 J 7 B. L. E., App., 11.) A perpetual contract by a lessee for his heirs,

ABANDONMENT OF HOLDINGS. Igg

reciting that they sliall never relinquish the jote, cannot operate against sec. 19, Cftap. IX.

Act X of 1859, which says that any raiyat may relinquish his jote, if he does Skc^7.

so in a legal manner. {Oopal Pal Chaudhri v. Tarini Prasad Ghosh, 9 W. R., 89.)

A tenancy which is to continue year by year is a continuing tenancy, so long as

the parties are satisfied, and though terminable at the option of either party at the

end of any year is not -ipso facto terminated at the end of every year. (Maloddi

Noshyo V. Ballahi Kant Dhar, 13 W. R., 190.)

87. (1) If a raiyat voluntarily abandons his residence
without notice to his landlord and with-

Abandonment.

out arranging for payment of his rent as it
falls due, and ceases to cultivate his holding either by himself
or by some other person, the landlord may, at any time after
the expiration of the agricultural year in which the raiyat so
abandons and ceases to cultivate, enter on the holding and let
it to another tenant or take it into cultivation himself.

(2) Before a landlord enters under this section, he shall
file a notice in the prescribed form in the Collector's office
stating that he has treated the holding as abandoned and is
about to enter on it accordingly ; and the Collector shall cause
a notice to be published in such manner as the Local Govern-
ment, by rule, directs.

(3) When a landlord enters under this section, the raiyat
shall be entitled to institute a suit for recovery of possession
of the land at any time not later than the expiration of two
years, or, in the case of a non-occupancy-raiyat, six months,
from the date of the publication of the notice ; and thereupon
the Court may, on being satisfied that the raiyat did not
voluntarily abandon his holding, order recovery of possession
on such terms, if any, with respect to compensation to persons
injured and payment of arrears of rent as to the Court may
seem just.

(4) Where the whole or part of a holding has been sub-let
by a registered instrument, the landlord shall, before entering
under this section on the holdinsf, offer the whole holdinoj to the
sub-lessee for the remainder of the term of the sub-lease at
the rent paid by the raiyat who has ceased to cultivate the
holding, and on condition of the sub-lessee paying up all
arrears due from that raiyat. If the sub-lessee refuses or
neglects within a reasonable time to accept the offer, the land-

Jg4 THB BENGAL TENANCY ACT.

Chap. IX. lord mav avoid the sub-lease and may enter on the holding

G|»£^ fi7

— ' and let it to another tenant or cultivate it himself as provided
in sub-sections (1) and (2).

The provisions of this section are intended, it has been said, " to meet the
difficulties which occnr when a raiyat apparently abandons his holding, but in
such circumstances as to give no assurance whether it has been permanently aban-
doned or not. On the one hand, there is the danger to the landlord of an action
for dispossession, if he lets the land hastily to a new tenant," and the provisions
of sub-sec. 1 are intended to guard against this danger. " On the other hand,
there is the danger of temporary absence being taken advantage of by the land«
lord to effect the dispossession of a raiyat. " {Govei'nment of India Gazette, March
14th, 1885, Supplement, p. 60.) Tliis is guarded against by the provisions of
sub-sec. 2, and a special remedy, in case of dispossession actually taking place, is
provided by sub-sec. (3).

In their Land Revenue Administration Report for 1887-88, the Board of
Revenue point out that the provisions of this section are rarely had recourse to,
for as '' the law imposes no sanction or penalty, the zamindar probably sees no
reason why he should not enter upon abandoned land without filing a notice, and,
ordinarily, therefore, no notice is given." (Para. 161, p. 29.)

Rulings tinder the former law. — There are numerous rulings under the
former law that distinct abandonment of a holding and cessation to pay rent for
it are equivalent to surrender, and justify a landlord in letting a raiyat's land to
a new tenant, and the raiyat has no right to ask to be reinstated in his land. (See
Chandra Mani Nyahhushan v. Samhhu Chandra Chakraharti, W. R., Sp. No., 270 ;
Manirvdin v, Mahomed Ali, 6 W. R., 67 ; Harihar Mukharji v. Judonath Ghosh,
7 W. R., 114 ; Nadmr Chand Poddar v. Modhu Svdan De Poddar, 7 W. R., 153 ;
Haro Das v. Gohind Bhattacharji, 12 W. R., 304 ; 3 B. L. R., App., 123 ; Mali
Sunar v. Gundar Sunar, 20 W. R., 129 ; Bam Chang v. Gora Chand Chang, 24 W.R.,
344 ; Boidinath Manjhi v. Aupuma Debi, 10 C. L. R., 15 ; GhvZam Ali Mandal v.
Golap Sundari Dasi, I. L. R., 8 Calc, 612 ; 10 C. L. R., 499.) But the non-cultiva-
tion of a small portion of an ancestral jote by the admitted holders, owing
to their minority, does not amount to relinquishment. (Badha Madhab Pal v. Kali
Cham Pal, 18 W. R., 41.)

Effect of non-payment of rent.— It is to be observed that though non-
payment of rent does not necessarily cause a forfeiture of a i-aiyat's rights unless he
has abandoned his land {Masyatullah v. Nurzahan, I. L.R., 9 Calc, 808 ; 12 C. L. R.,
389), yet it is a matter to which great weight is always attached, when the
question as to whether a raiyat has really intended to abandon his holding or not,
has to be decided, and, in the case of Hemnath Datta v. Ashgar Sirdar (I. L. R.,
4 Calc, 894,) non-payment of the rent of land, which was submerged for a number of
years, was regarded as evidence of an intention to abandon it, and to have caused
the forfeiture of all occupancy-rights in it. When an occupancy-raiyat, after
transfer of his right to a stranger, takes a sub-lease from him, and so remains
in possession, this will not amount to abandonment so as to entitle the landlord
to re-enter. {Srithtidhar Biswas v. Madan Sirdar, I. L. R., 9 Calc, 648.)

Form of notice. — The form of notice prescribed under sub-sec. (2), and the
rules made by the Local Government for its service will be found in Appendix I.
(Se« Sched. I, and Rule 10, Chap. V of the Government Rules under the Tenancy

SUB-DIVISION OP TENANCY. Xg5

Act.) The Board of Revenue, in a letter to the Commissioner of Patua (No. 310, Chap. IX.
dated 6th August, 1886), have pointed out that the law does not require that the Skc^88.
notice referred to in this sub-section should be accompanied by a petition, and
there is, therefore, no necessity for the landlord's presenting a petition. The notice
need not be stamped. But if the landlord should file a petition, it should be
stamped under art. 1 (6), Sohed. II of the Court-fees' Act, (t. e., with an 8 as. Court-
fee label.)

Protection against collusive abandonmnet, — Sub-section (4) is intended
to protect under-i-aiyats against collusion between the landlord and their raiyat-
lessor. It is herein provided that a landlord shall not be entitled to avoid a sub-
lease until " the sub-lessee has had the opportunity of taking over, for the
unexpired period of his sub-lease, the full rights and liabilities of his lessor in
regard to the rent of his entire holding." Bat it is only registered sub-leases that
are so protected. Further, it seems doubtful whether the provisions of this clause
will effectually protect sub-lessees against the collusion in question. For, when
the lessor-raiyat absconds, the landlord can call upon the sub-lessee to pay all
arrears of rent which he alleges are due from the raiyat, and the sub-lessee must
either pay whatever sum the landlord demands, or let him avoid his sub-lease.
There would seem to be no check upon the landlord, if his demand be confined to
three years' rent ; for ex hypothesi, the only person other than the landlord who
knows what is really due (viz., the raiyat-lessor) has either absconded, or is in
collusion with the landlord. In the case of a sub-lease executed with the landlord's
consent, the lessee obtains rights against both his lessor and his lessor's landloi'd, of
which he cannot be deprived without his own consent. The lessee's surrender of
his lease cannot operate to the prejudice of the sub-lessee. {Nihallunnissa v.
Dhanu Ital Chaudhri, 13 W. R., 281.) But when the sub-lease has been executed
without the landlord's consent, it does not bind him ; but if he dispossesses the
sub- lessee without the sanction of the law, he is guilty of trespass. {Damri Sheikh
V. Bisheshar Lalf 13 W. R, 291 ; Jamir Ghazi v. Gonial Mandal, 12 W. R., 110.)

Sub-division of tenancy.
_. . . . ^ 88. A division of a tenure or hold-

Division of tenancy , ,. ., .

not binding on landlord mg, or distribution 01 the rent payable

without his consent. . , f ^ ■%^ ,i ^ • t

Sec. 27, Act X, 1859 ; lu respect thereoi, shall not be binding on
sec 26, Act VIII. B.C., ^^^ landlord unless it is made with his

1869.

consent in writing.

This makes no change in the former law, under which no division or distribu-
tion of rent was valid and binding without the consent, in writing, of the zamin-
dar or superior tenant. ( Watson <& Co. v. Ram Sundar Pandi, 3 W. R., Act X,
165 ; Upetidro Molwm Tagore v. Thanda Dasi, 3 B. L. R., A. C, 349 ; 12 W. R., 263 ;
Dasorathi Hari Chandra Mahapattro v. Ra^n Krishna Jana, I. L. R., 9 Calc, 526.)
There are, however, some cases, which appear to substitute consent by conduct for
the written consent expressly required by sec. 26, Act VIII of 1869. (See ffari Mohan
Mukharji v. Gora Chand Mittra, 2 W. R., Act X, 25 ; Bharat Rai v. Ganga Narain
Mahapattra, 14 W. R., 211 ; Nobo Krishna Mukharji v. Sriram Rai, 15 W. R., 255.)
But in Gatir Mohan Rai v. Anand Mandal (22 W. R., 295), it was said that the fact
of some of the joint occupiers of a joint-tenure paying portions of the rent due
from all, corresponding with the shares for which the joint occupiers are liable,

IQQ THE BENGAL TENANCY ACT.

Chap, IX. cannot prevent the zamindars from suing them all, or making them all anawei'-
Skc. 8l>. aijie for the joint-debt. And in Lalan Mani v. Sona Mani Debt (22 W. R., 334),
"~"~ it was held that if certain tenures alleged to be separate tenures, had been

indissolubly connected at the time of the original holder of them, and the
zamindars in receiving rent from the holders of them had dealt with them only
as the representatives of the original owner and as payers of component parts of
the aggregate rent, then this would go to show that there was really but one tenure,
and its division and the distribution of its rental would not be binding against
the zamindars. Even when occupancy-rights are transferable by custom, the
division of a tenure or holding, or distribution of the rent payable in respect
thereof, will not be lawful ; and if the tenant sub-divides and transfers to differ-
ent persons, the landlord is entitled to treat the transferees as trespassers and
to re-enter. {Tirthanand Thakur v. Moti Lai Misra, I. L. E., 3 Calc, 774.)

Ejectment.
No ejectment except 89. No tenant shall be ejected from

in execution of decree. i i t

Sec. 21, Act X, 1859; his tenure 01' noldinff except in execution

Bee. 22, Act VIII, B. C, r- i

1869, 01 a decree.

As the interest of an " under- raiyat " is not a " holding " (see sec. 3, cl. 9),
there is room for dispute as to whether this section applies to an under-raiyat
or not. It was, however, probably intended so to apjjly. Under the former law,
it was only a raiyat having a right of occupancy, or one holding under a pottah,
the term of which had not expired, who could not be ejected otherwise than in
execution of a decree. The liability of a tenure-holder to ejectment was to be
determined by the conditions of his lease. {Balaram Das v. Jogendro Nath Mallik,
19 W. E,., 349.) A non-occupancy raiyat, or a tenant for a term, holding on after
the expiry of the term, could always be ejected by the landlord after the service
on him of a reasonable notice to quit.

The grounds on which a tenant can be ejected are detailed in sees. 10, 18, 25,
44, 49, and 66 of this Act, and under cl. (c), sub-sec. (1), sec. 178, nothing contained
in any contract, made either before or after the passing of this Act, shall entitle
any landlord to eject a tenant otherwise than in accordance with the provisions of
this Act. A landlord cannot eject a tenant from a portion only of his holding.
(^Atal Chandra v. Kedarnath Mukharji, 2nd November, 1887.)

Remedies for illegal ejectment — If a tenant is ejected otherwise than in
execution of a decree, he can recover possession by bringing a suit under sec. 9,
Act I of 1877 (the Specific Eelief Act), within six months from the date of eject-
ment. {Jonardan Aclmrji v. Haradhan Acluirji, 9 W. E., 513 ; B. L. E., F. B.,
1020.) But such a suit cannot be brought against Government. If, however,
the tenant allows six months to elapse without bringing a suit under the Specific
Relief Act, it would appear that an occupancy -raiyat will be able to sue for pos-
session within two years' time under art. 3, Sched. Ill of this Act. An occu-
pancy-raiyat unduly dispossessed by the landlord has also, under sec. 87 of this
Act, the same time and a non-occupancy -raiyat has, in similar circumstances, six
months from the date of publication of the landlord's notice, prescribed by cl. 2 of
the section, within which to sue for recovery of possession. But there is no
provision in this Act for a tenure-holder, a raiyat holding at fixed rates, or a non-
occupancy-raiyat suing to recover possession of a tenure or holding, from which

MEASUREMENTS. 167

he has been dispossessed otherwise than in execution of a decree. Tenants of Chap. IX.
these classes, therefore, if they have failed to avail themselves of the remedy Sbc^O.
afforded them by the Specific Eelief Act, must, in such circumstances, sue
under the provisions of the Limitation Act, (XV of 1877), and prove their title
before they can recover possession. The period of limitation applicable to them
will be twelve years under art. 142, Sched. II.

Landlords cannot forcibly eject trespassers.— It should always be
remembered by all landlords that they cannot eject even persons who are in
the position of trespassers without having recourse to law. {Jonardan Acharji
v. Haradhan Acharji, 9 W. E., 513 ; Nando Kishor Lai v. Sheo Dyal Upadhya,
11 W. E., 168 ; Damri Sheikh v. Bisheshar Lai, 13 W. E., 291 ; Arjun Bonik
v. Ram Nath Karmakar, 21 W. E., 123.) They should sue them for direct
possession, and if such persons have occupied the land for any period, they
should, in strict law, sue them not for rent, but for use and occupation of the land,
or for mesne profits. There are, however, several rulings of the High Court to
the effect that landlords may sue for rent persons who make themselves their
tenants by use and occupation of their land. {Lakhi Kant Das v. Samiriidin
Lashkar, 21 "W. E., 208 ; 13 B. L. E, 243 ; Lalan Mani v. Sonamani Dehi, 22 W. E.,
334 ; Swarnomayi v. Dinonath Gir Sanyasi, I. L. E., 9 Calc, 908.) Now, under the
provisions of sec. 157 of this Act, when a plaintiff institutes a suit for the eject-
ment of a trespasser, he may ask the Court to fix a fair and equitable rent for
the land in his possession as an alternative relief to ejectment.

Measurements.
90. (1) Subject to the provisions of this section and
Landlord's right to ^^Y contract, a landlord may, by himself,
measure land. qj. ]jy j^j^y person authorized by him in

i86r'8^ec.^25 Actvnf this behalf, enter on and measure all land
B. c, 1869. comprised in his estate or tenure, other

than land exempt from the payment of revenue.

(2) A landlord shall not, without the consent of the
tenant, or the written permission of the Collector, be enti-
tled to measure land more than once in ten years, except
in the following cases (namely) : —

(a) Where the area of the tenure or holding is liable, by
reason of alluvion or diluvion, to vary from year to year,
and the rent payable depends on the area ;

{b) where the area under cultivation is liable to vary
from year to year and the rent payable depends on the area
under cultivation ;

(c) where the landlord is a purchaser otherwise than by
voluntary transfer and not more than two years have elapsed
since the date of his entry under the purchase.

168 THE BENGAL TENANCY ACT.

Chap. IX. (3) The ten years shall be computed from the date of

— the last measurement, whether made before or after the com-
mencement of this Act.

Lakhiraj land can be measured.— Formerly, a landlord had no right to
measure lakhiraj land {Rang Lai Sahu v. Sridfutr Das, 1 1 W. E,., 293 ; 3 B. L. R.,
App., 27 ; Ghulxm Khejar v. ErsHiie, 11 W. R., 445 ; Khagendra Nath Mallik v.
Kanti Ram Pal, 14 W. R., 363), and a rent-free-holder might, in virtue of a grant
of ten bighas, be holding double as much or more. Now, a landlord can measure
all the lands of his estate, whether rent-free or not, provided it be revenue pay-
ing,; but he is not entitled to msasure revenue-free land comprised within the
external boundaries of his estate, for such revenue-free lands form a separate
estate. (See Prasannomayi Dehi v. Chandranath Chaydhri, 10 W. R., 361 ;
2 B. L. R., S. N., 5.)

One of two or more joint-landlords cannot measure.— A part-proprie-
tor of an estate was competent, under sec. 38 of Bengal Act VIII of 1869, to
apply for measurement of its lands after making the remaining proprietors
parties to the ])roceedings. (Abdul Jlossein v. Lai Chand Mohtan Das, I. L. R.,
10 Calc, 36 ; 13 C. L. R., 323.) But he cannot do so now, for, under the provisions
of sec. 188, anything which the landlord is, by this Act, required or authorized to
do must, when two or more persons are joint-landlords, be done either by all
these persons acting together, or by an agent authorized to act on behalf of both
or all of them. It can also be done on their behalf by a common manager
appointed under sec. 95.

Holdings under the utbandi or bhaoli systems can be measured
annually.— Clause (6), sub-section (2) allows a landlord to measure utbaiidi (sec.
180) or other holdings, in which the area under cultivation varies from year to
year, as often as he may wish, and also permits the annual measurements, which
are necessary where the bhaoli system prevails.

91. (1) Where a landlord desires to measure any land
Power for Court to ^hich he is entitled to measure under the

order tenant to attead

and point out bounda- last foregoing scction, the Civil Court may,
Sec. 9, Act vr, B, 0., on the application of the landlord, make an

1862 ; sec. 37, Act VIII, i • • xu i. i. i. i.i. i j

B. c, 1869. order requu*mg the tenant to attend and

point out the boundaries of the land.

(2) If the tenant refuses or neglects to comply with the
order, a map or other record of the boundaries and measure-
ments of the land, prepared under the direction of the land-
lord at the time when the tenant was directed to attend, shall
be presumed to be correct until the contrary is shown.

Under the former law, if a tenant, after the issue of an order enjoining his
attendance, neglected to attend and point out his land, it was not competent to
him to contest the correctness of the measurement made, or any of the proceed-
ings held in his absence. However, in a recent case, Alimuddin v. Kali Krishna

MEASUREMENTS. 1 g 9

Tagore (I. L. R., 10 Calc, 895), a superior owner of char land and his tenants, Chap. IX.
who held in hoioladari tenure, had agreed, with reference to alluvion and diluvion, Skc^2.
that the char should be measured from time to time on notice, and that, unless
the tenants should give a separate daul Jcahulyat for the land found to be accreted,
the superior landlord should take possession of it. In pursuance of this agree-
ment, a measurement was made by the superior landlord, but incorrectly. The
tenants, however, raised no objection at the time ; but subsequently, when a suit
was brought against them by the superior owner for possession of the accreted
land, they set up the defence that the measurement had been made in their
absence, and was incorrect. But it was held that they could not defeat the suit
merely on the ground of the incorrectness of the measurement, there being no
fraud, but that they were entitled to ask the Court to decide what the amount of
the property was which the plaintiff was entitled to recover.

The terms of the present section are in accordance with the principle of the
above decision, for it substitutes a disputable or rebuttable presumption, for the
conclusive or absolute one, raised by the former law, which the High Court in the
above decision virtually set aside.

For the Court to which the landlord's application should be made, see sec.
144 (2).

For circumstances to be considered in determining the amount of alteration
in rent allowable in consequence of alteration in area shown by measurement, see
sec. 52.

92. (1) Every measurement of land made by order of
standard of measure- » Civil Court, or of a Revenue-officer, in
ment. any suit or proceeding between a landlord

and tenant, shall be made by the acre, unless the Court or
Revenue-officer directs that it be made by any other specified
standard.

(2) If the rights of the parties are regulated by any local
measure other than the acre, the acre shall be converted into
the local measure for the purposes of the suit or proceeding.

(3) The Local Government may, after local enquiry,
make rules declaring for any local area the standard or
standards of measurement locally in use in that area, and every
declaration so made shall be presumed to be correct until the
contrary is shown.

standard of measurement.— The measurements under Act VIII (B.C.) of
1869 had to be made according to the standard pole of measurement of the
pargana (sec. 41), and in case of dispute it was held, that the Collector being the
depositary of the standard pole of each pargana, it was exclusively within his
province to determine which was the standard of each pole {Taraknath Mukharji
V. Meydi Biswas, 5 W. R., Act X, 17) ; but this ruling was set aside by subsequent
decisions of the High Court, and the Civil Courts had to decide the question of
standard in each case. Under the present law, the Local Government may, after

170

THE BENGAL TENANCY ACT.

Chap. IX. J<^cal enquiry, make rules declaring the standard or standards of measurements
Skc. 92. locally in use in any local area, but no rules under sub-sec. (3) have yet been made.
' The preparation of such rules requires careful consideration and local enquiry.

Local standards of measurement.— In some districts like Chittagong, the
term ' bigha ' is almost unknown. Measurements are made by the local standard
of kanies and droons, and the droon in one part of the district is four times the size
of the droon in another. In the greater part of Manbhoom, no standard of land-
measurement is recognised, land being there let according to " reklis " or " kunies,^'
or according to " kats.^^ The " rekh " is properly the sixteenth part of the village
area, but in practice is often more. The " kat " is an area according to quantity of
seed sown, and ought to be about three bighas. In Bengal, the standard bigha
contains 14,400 square feet. In Behar, the bigha varies in diflferent districts, in
different parganas of the same district, in different villages of the same pargana,
and, sometimes, even in different estates in the same village, and may be anything
from a third of an acre to an acre and a half, or more. The bigha is a measure, in
every case, of twenty laggies in length by twenty laggies in breadth, but the laggi
may contain any number of haths, or nominal cubits, from four up to nine, or more.
Not only is the varying number of Imtlis to the laggi an element of uncertainty,
but the length of the hath itself is not a fixed entity. Nominally, the liath is a
cubit of eighteen inches, but in pi-actice, its length is determined by the length of
a particular individual's forearm ; so that it is not uncommon in Behar to find a
landlord and tenant disputing at the very outset of a measurement over the selec-
tion of the individual whose arm is to be taken as the standard Juxth. It would be
well for those whose duty it is to settle fair rents, or to decide how far an alter-
ation in rent is equitably claimable, because of alteration in nominal area,
to bear these facts in mind. It is often argued that if a tenant had agreed
to pay so much per bigha of land at some former time, and it is afterwards
found by measurement that he is actually holding a bigha and a quarter, it is
obviously just that his rent should be proportionately increased. It would, no
doubt, be so, if a bigha were a mathematically defined area, but this it ordinarily
is not. If A let to B a definite plot of land ten years since, and, according to the
rude system of measurement above described, called it a bigha, and C, now taking
A's place, re-measures the same plot, and, according to an equally vague, or it may
be more accurate system, calls the same plot a bigha and a quarter, it is obvious
that the mere change in nomenclature would not be an equitable ground for in-
creasing the rent ; nor, in the contrary case, for reducing it. The great variety in
the lengths of local standards of measurement is, it is believed, due, like the exis-
tence of numerous abwdbs, to the aversion on the part of people of the country to
changing established rates. If an enhancement is unavoidable, raiyats will pay
the increased amount demanded, by way of abwdbs or kharchas, much more willingly
than by way of an increased i-ate of rent. On the other hand, if a zamindar is,
from failure of crops, deterioration of lands, absconding of tenants, or other cause,
obliged to give an abatement of rent, instead of reducing the rate per bigha he
prefers, by increasing the length of the laggi, to give more land in the nominal
bigha, thus leaving the rates unchanged. The laggi, or pargana pole, which is some-
times found to be deposited in the Collector's office, cannot then be accepted as
conclusive, or, indeed, any pi'oof of the length of the standard of measurement
now cuiTent in a particular village, neither can the Revenue Survey or Thakbust
maps be so accepted. At best these would afford some indication of what was
supposed to be the standard prevailing when the Revenue Survey was made.

MANAGERS. 171

It will be in the power of a Court or Revenue-officer under the latter part of CirAp. IX.
sub-sec. (1) to direct that the measurement be made by any such standard as may "f^— '
be specified in the order for measurement.

Managers.
Power to call upon 93^ When any dispute exists between

co-owners to show cause n

why they should not co-owners 01 an estate or tenure as to the

appoiut acommon ,.i r i*

manager. management thereoi, and in consequence

V ofTsi?. ^""^ ^^' ^'°" there has ensued, or is likely to ensue,

(a) inconvenience to the public, or

{h) injury to private rights,

the District Judge may, on the application in case {a) of
the Collector, and in case {b) of any one having an interest in
the estate or tenure, direct a notice to be served on all the co-
owners, calling on them to show cause why they should not
appoint a common manager :

Provided that a co-owner of an estate or tenure shall not

be entitled to apply under this section un-
VII (B. C.) of 1876.* , , . , n • • ^ ^1 •

less he is actually in possession of the in-
terest he claims, and, if he is a co-owner of an estate, unless
his name and the extent of his interest are registered under
the Land Registration Act, 1876.*

Previous enactments as to managers.— This section applies to cases in
which there is such a dispute between co-owners as is likely to lead to inconveni-
ence to the public or injury to private rights, in which case a common manager
may be appointed by the District Judge. The provisions of this and of the two
following sections make no change in the law with regard to the appointment of
managers of estates. The law on this point, in regard to estates, has been substan-
tially as in these sections from times anterior to the Permanent Settlement. In
the 22nd paragraph of the Code of Regulations, relative to the Decennial Settle-
ment (Colebrooke's Supplement, p. 318), provision is made for managers in joint- '
estates. The provision was re-enacted in sees. 26 and 27, Reg. Y of 1812, and ex-
tended in Reg. V of 1827. Act XVI of 1874 repealed the procedure provided by
Reg. V of 1827, but not sees. 26 and 27 of Reg. V of 1812. Reg. V of 1812, there-
fore, remained inoperative. The present Act repeals the sections of Reg. V of
1812 remaining in force, and in sees. 93 to 100 re-enacts them, and provides a
procedure for giving effect to them. The extension of these provisions to tenures
is, however, a modification of the law, and the proviso is, of course, new.

An order rejecting an application under section 93 is not appealable. —
It has been recently held that an application under sec. 93 of the Bengal Tenancy
Act, 1885, is not a suit between landlord and tenant within the meaning of sec.
143, and no appeal lies from an order rejecting such an application. {Hossain
Baksh V. Mutukdhari Lai, I. L. R., 14 Calc, 312.)

172 THE BENGAL TENANCY ACT.

oiiAP. IX. 94. If the co-owners fail to show cause as aforesaid

Skcs. 94—97. 1 /. • n

— „ . , .T. witlnn one month aiter service of a notice

Power to order them

to appoint a manager under the last foregoiug section, the Dis-

if cause is not shown. • t i i -i t •

trict Judge may make an order directmg
them to appoint a common manager, and a copy of the order
shall be served on any co-owner who did not appear before it
was made.

95. If the co-owners do not, within such period, not

hemor less than one month after the makin<jf

Power to appoint ° . "^

manager if order is not of an Order Under the last foregoing sec-
tion, as the District Judge may fix in this
behalf, or, where the order has been served as directed by that
section, within a like period after such service, appoint a
common manager and report the appointment for the informa-
tion of the District Judge, the District Judge may, unless it
is shown to his satisfaction that there is a prospect of a satis-
factory arrangement being made within a reasonable time, —

{a) direct that the estate or tenure be managed by the
Court of Wards in any case in which the Court of Wards
consents to undertake the management thereof, or

(b) in any case appoint a manager.

96. The Local Government may nominate a person for
Power to nominate ^ny local area to manage all estates and

Srund'er 'etas'; (t) t^uurcs withiu that local area for which it
of last section. j^^^y be ncccssary to appoint a manager

under clause (b) of the last foregoing section ; and, when any
person has been so nominated, no other person shall be
appointed manager under that clause by the District Judge,
unless in the case of any estate the Judge thinks fit to appoint
one of the co-owners themselves as manager.

97. In any case in which the Court of Wards under-

_ , takes under section 95 the management

The Court of Wards i r xi

Act, 1879, applicable to 01 an cstatc or tcuurc, so much 01 the

S^wSds!^'^ ^ °^^ provisions of the Court of Wards Act,*

*ixcB.c.)ofi8r9. j^g^g^ ^g relates to the management of

immoveable property, shall apply to the management.

MANAGERS. J 73

98. (1) A manager appointed under section 95 may, if Chap. dc.
Provisions applicable the District Judgc thinks fit, be remimera- ^"^^•_!i-^"^«-

to manager. ^^^ ^y j^ fixed Salary or percentage of the

money collected by him as manager, or partly in one way and
partly in the other, as the District Judge from time to tim.e
directs.

(2) He shall give such security for the proper discharge
of his duties as the District Judge directs.

(3) He shall, subject to the control of the District Judge,
have, for the purposes of management, the same powers as the
co-owners jointly might but for his appointment have exer-
cised, and the co-owners shall not exercise any such power.

(4) He shall deal with and distribute the profits in ac-
cordance with the orders of the District Judge.

(5) He shall keep regular accounts, and allow the co-
owners or any of them to inspect and take copies of those
accounts.

(6) He shall pass his accounts at such period and in such
form as the District Judge may direct,

(7) He may make any application which the proprietors
could make under section 103.

(8) He shall be removable by the order of the District
tludge, and not otherwise.

99. When an estate or tenure has been placed under

the manao^ement of the Court of Wards, or

Power to restore '=' ^ '

management to co- a manager has been appointed for the same
under section 95, the District Judge may
at any time direct that the management of it be restored to
the co-owners, if he is satisfied that the management will be
conducted by them without inconvenience to the public or
injury to private rights.

100. The High Court may, from time to time, make
p r t m k 1 I'wl^s defining the powers and duties of

managers under the foregoing sections.

The Rules framed by the High Court under this section are printed in Ap-
pendix. IIL

174

THE BENGAL TENANCY ACT.

Chap. X.

s«o^oo. CHAPTER X.

Recoud-of-Rights and Settlement of Rents.

Aims and objects of a Survey and Record-of-riglits.— The provisions of
this chapter authorise the Local Government, with the previous sanction of the
Governor-General in Council in any case, and without such sanction in certain
specified cases, to make an order directing that a survey and record-of-rights be
made in any local area.

The Government of India, in their despatch to Her Majesty's Secretary of
State for India, No. 6 of the 21st of March, 1882, para. 100, describe the aims and
objects and the advantages of a survey and record-of-rights to be — first, that it
will, by putting an end to the uncertainty which promotes rent-disputes, effici-
ently pi-otect the raiyats, while enabling the landlords to realise their just dues
with greater facility ; and secondly, that it will afford improved knowledge of the
facts of rural economy. " "Where," they remarked, "local officers possess a full
and accurate knowledge of local facts, and where they are, therefore, able to
pui-sue a vigorous method of administration, these advantages are very commonly
due to their being supplied with information reaching to the detail of every field,
and to the existence of numerous and disciplined bodies of subordinate native
officials, who are able to collect the various particulars within their cognisance as
materials to suggest fairly safe generalisations. Whether we have regard to the
prevention of famine, or to the waste of life or waste of money which may direct-
ly result from official ignorance or uncertainty as to the approach or dimensions
of famine ; whether we look to the need for active administration, which shall
search out and expose deep-seated evils, or to the lack of some solid assurance
that facts aff'ecting agricultural interests shall be so notorious and indisputable
that none shall be able to pervert them to the injury of the weak, we perceive, in
the circumstances of many portions of Bengal, and particularly of Behar, strong
reasons for placing the Bengal officials on a level, in point of administrative
advantages, with their brother-officers in other provinces. We seek no fiscal
advantage, but the prevention or diminution of human suffering."

The Secretary of State, in para. 19 of his despatch No. 54, dated 17th August,
1882, observed, in reply, that, while fully admitting the advantages which would
attend the establishment of village records and accounts, the formation of a
record-of-rights, and the introduction of a field-survey, he could not avoid the
apprehension that the difficulties of carrying out these measures in those parts of
Bengal in which village accounts and accountants, if they ever existed, had long
ago entirely disappeared, might prove greater than was anticipated ; but he sanc-
tioned an experimental commencement of the work in the Patna Division of the
province of Behar.

Procedure for survey and record-of-rights as originally proposed. —
This chapter, the provisions of which are new in Bengal, deals with the proce-
dure for the preparation of a record-of-rights and settlement of rents. " As the
Bill originally stood, these processes were separate, and were provided for in
separate chapters. The Revenue-officer undertaking a record-of-rights had no
power to settle rents, or to decide disputes. He had only to record what he
found to be the existing facts of each holding, and the entries in such a record
were to be presumed to be correct, till the contraiy was proved. This process,
however, was to be supplemented by another called the settlement of rents."

SURVEY AND RECORD-OF-RIGHTS. I75

Procedure prescribed by Act.— It is not necessary to describe the succes- Chap, X.
sive steps by which this proposed procedure was altered. It is sufficient to ex- Sue. 100.
plain the procedure as it stands at present, which is as follows : — " What has been
done has been to give the Eevenue-officer, in the first instance, power to settle all
disputes that may come before him. Where no dispute arises, and it does not
appear that the tenant is holding land in excess of or less than, that for which he
is paying rent, and neither the landlord nor the tenant applies for the settlement
of a fair rent, the Revenue-officer will record what he finds, — he will not alter
rents, and his entries will only have a presumptive value in cases afterwards
brought before the Courts. Where a dispute arises, or it appears that the tenant is
holding land in excess of, or less than, that for which he is paying rent, or either
of the parties applies for the settlement of a fair rent, the Revenue-officer will
decide the dispute or settle a fair rent, as the case may be, on the same grounds,
by the same rules, and with the same procedure as a Civil Court. His decision will
be liable to appeal to a Special Judge, who may or may not be the Judge of the
district, and will be subject to a further special appeal to the High Court. In
appeal, the High Court may settle a new rent ; but, in so doing, is to be guided
by the other rents shown in the rent-roll. In other words, there can be no
second appeal to the High Court merely on the ground that the rent has been
pitched too high or too low ; but if a second appeal is preferred, as it may be, on
the ground that the Special Judge, owing to some error on a point of law, has, for
example, found the holding to comprise more land or less land than it actually
does comprise, or has given the raiyat a wrong status, and the appellant succeeds,
the High Court can, without altering the rates, reduce or increase the rent, as the
case may be. The decision of the Revenue-officer in disputed cases, and when he
settles a fair rent will, subject to these appeals, have the eflFect of a judgment of
the Civil Court, and will be res judicata, thus barring a fresh suit for enhance-
ment for fifteen years." (Selections from papers relating to Bengal Tenancy Act,
1885, p. 424.)

This chapter applies to settlements.— The ^ovisions of this chapter will
apply to settlements of rents for the purpose of settling land revenue, as well as
to settlements of rents in private estates, and now that Act VIII (B. C.) of 1879
is repealed, will ordinarily be the only procedure at the disposal of Government
for that purpose. The repeal of Act VIII (B. C.) of 1879, however, leaves Gov-
ernment the same powers, in addition to those given by this chapter, as regards
settlement of land revenue, as distinguished from the settlement of raiyats' rents,
as it held before that Act was passed, so that Government may now proceed if it
thinks fit, under the old Settlement Regulations, for the purpose of determining
the amount of Government revenue, which it may think proper to demand, with- '

out having recourse to this chapter, but raiyats' rents ca,nnot be enhanced or re-
duced under those Regulations. If Government wishes to settle raiyats' rents,
and not merely to ascertain existing rents, the only procedure open to it is that
contained in this chapter, and if it elect to proceed under the provisions of this
chapter, fair rents must be settled for all tenants where a settlement of land re-
venue is being made in respect of the local area.

Importance of the rules under this chapter.— The rules under this
chapter, which, with the Board of Revenue's instructions thereon, will be found in
Appendix I, " are," remarked the Committee appointed to consider the rules under
the Act, " of great importance, as they will not only apply to the survey and record-
of-rights about to be taken in hand in Mozufferpore, but they will also, in the major-

176 THE BENGAL TENANCY ACT.

Chap. X. ity of cases, form a code of instructions for the guidance of officers engaged in mak-
Skc^OO. ing settlements of land revenue in any of the districts to which the Act extends.
The instructions contained in the Board's Rules will be supplementary to the rules
under the Act, it being manifestly impossible to frame the latter in such detail
as to form a complete manual for the guidance of officers in every particular."
The rules declare that all orders of Revenue-officers, passed in the discharge of
any duty under the Act, shall be subject to the supervision and control of the
Board of Revenue ; and that the orders of each Revenue-officer shall be subject
to the supervision and control of the Revenue-officer to whom the Board may
declare him to be subordinate. It will be seen, on reference to the rules for
guidance of Revenue-officers acting under this chapter, that a record-of-rights and
settlement of rents embraces a record of the character and extent of the interests
of proprietors and proprietary mortgagees, — of the character and extent of the
interests of tenure-holders and under-tenure-holders, — of the area of the holding
and of the rent payable by every raiyat and under-raiyat, — and of the status of
every raiyat and under-raiyat ; also the determination of proprietors' private
lands and the settlement of fair rents on the application of either landlord or
tenant, or without such application on the motion of the Revenue-officer himself,
when it appears that the tenant is holding land in excess of, or less than, that for
which he is paying rent.

Settlement law of Bengal — The settlement law of Bengal applicable to the
districts in which the Tenancy Act is in force, is now contained in Regulations
VII of 1822, IX of 1825, and IX of 1833, supplemented by this chapter, the rules
framed under it, and the instructions of the Board of Revenue relating to settle,
ments ; while the following are the Acts and Regulations applicable to settlements
in districts in which the Tenancy Act is not in force.

rRegulation VIII of 1793.
XII of 1805
(applicable to Cuttack
only).
Regulation V of 1812.
„ XVIII of 1812
(not applicable to
Cuttack).
Regulation VII of 1822.
„ IX of 1825.

XI of 1825.
IX of 1833.
Uct VIII (B.C.) of 1879.

(2) Darjeeling, Julpigoree (tract f
south of Teesta) Man- I

bhoom, Hazaribagh, J Act VIII (B.C.) of 1879.

Lohardugga, and Sing- I

bhoom. \^

(3) Julpigoree (tra«t north of r^^j. -jj-yj ^£ jggg
Teesta, i.e., Bhutan] yjjj /g ^ n ^f i879.
Dodrs). I

(4) Son thai Pergunnahs ... Regulation III of 1872.
Chittagong Hill Tracts ... Act XXII of 1860. (Board of Revenue S«ttle«

ment Manual, Rule 7, p. 3.)

(1) Balasore, Cuttack, and Pooree.

SURVEY AND RECORD OF-RIGHTS. 177

101. (1) The Local Government may, in any case with ^^l^J\^-
_ , , the previous sanction of the Governor- —

Power to order sui'vey '^ ^

and preparation of re- General in Council, and may, if it thinks

cord-of-rights. ,. . , , . . ^ ,

tit. Without such sanction in any or the
cases next hereinafter mentioned, make an order directing that
a survey be made, and a record-of-rights be prepared, in respect
of the lands in a local area by a Revenue- officer.

(2) The cases in which an order may be made under
this section without the previous sanction of the Governor-
General in Council, are the following (namely) : —

(a) where the landlord or a large proportion of the land-
lords or of the tenants applies for such an order and deposits,
or gives security for, such amount, for the payment of expenses,
as the Local Government directs ;

(b) where the preparation of such a record is calculated
to settle or avert a serious dispute existing or likely to arise
between the tenants and their landlords generally ;

(c) where the local area is comprised in an estate or
tenure which belongs to or is managed by the Government
or the Court of Wards ; and

(d) where a settlement of revenue is being made in re-
spect of the local area.

(3) A notification in the official Gazette of an order under
this section shall be conclusive evidence that the order has
been duly made.

Sub-section (2), clause (a).— Applications under sec. 101 (2) (a), should be
presented to the Collector, who should deal with them in the first instance.
(Board of Eevenue's No. 278A of the 4th May 1887 to the Commissioner of
Burdwan.)

It has been asked, what is " a large proportion of the landlords or tenants ? It
has been held by Government, on the authority of the Advocate-General, that half
the landlords is a large proportion of them within the meaning of cl. (a) of
this section. (See Government of Bengal's No. 2461-931 L. E., dated December
6th, 1886, to Secretary, Board of Revenue.)

Costs of survey and record-of-rights —When a survey of the estate of
a ward or of a private proprietor is ordered under sec. 101 (2), els. (a) or (c), the
applicant should deposit in the Local Treasury or give security for the payment of
the expenses that may, from time to time, be required. The amount necessary for
expenditure on the operations is then advanced by Government, and afterwards
recovered from the parties, as the Local Government may direct by an order under
sec. 114. If the amount deposited by the ward or other applicant exceeds the
K. & F., B. T, A. 12

178 THE BENGAL TENANCY ACT.

Chap. X. cost of the opei-ationa, the excess is refunded. When the application is under
^^' ' sec. 103, the applicant has generally to pay all the expenses.

Form of Security-bond.— The following forms of security-bond to be exe-
cuted by proprietors of private estates and by managers of wards' estates, under
sec. 101 (2) (a) have been prescribed by the Board of Revenue. These security-
bonds need not be registered. (Board of Revenue's No. 279A of 31st August,
1888, to the Commissioner of Bhaghulpore.)

Form of security-bond to be executed by the proprietor of a private estate under
sec. 101 (2) (a) of the Bengal Tenancy Act (VIII of 1885).

Know all men by these presents that I
commonly called at present residing at

in the town of son of the late

am held and firmly bound unto the Secretary of State for India in Council in the
sum of Rs. to be paid to the said Secretary of State his succes-

sors in office or assigns or his or their certain attorney or attorneys for which
payment well and truly to be made I bind myself my heirs executors admin-
istrators representatives and assigns firmly by these presents sealed with my
seal dated this day of and I do hereby for myself my

heirs executors administrators representatives and assigns covenant with the
Secretary of State his successors in office and assigns that if any suit shall
be brought touching or concerning the subject-matter of this obligation or the
condition hereunder written in any Court subject to a High Court the same
shall and may at the instance of the said Secretary of State be removed into tried
and determined by the High Court of Judicature at Fort William in Bengal
in its extraordinary Original Civil Jurisdiction.

Whereas orders have been passed by the Lieutenant-Governor of Bengal
acting for and on behalf of the said Secretaiy of State under section 101 (2) (a)
of the Bengal Tenancy Act (VIII of 1885) that a survey shall be made and a
record-of-rights prepared in respect of all lands which are held jointly by the
of and the minor proprietors

of the estate and of all lands which are the exclusive property

of the said minor proprietors of the said estate in the district of

J and whereas it is necessary to provide for the repayment to
the said Secretary of State of the expenses incidental to the carrying out of the
said survey and record-of-rights which in the first instance will be paid or ad-
vanced by the said Secretary of State. And whereas it has been agreed that the
of and the manager of the said

estate should each deposit the sum of Rs.

with the Commissioner of the Division and enter into a bond in the sum
of Rs. as and by way of security for the repayment of

all the expenses to be incurred by the said Secretary of State his successors in
office or assigns in and about such survey and record-of-rights as aforesaid. And
whereas the said has paid to and deposited with the Commissioner

of the Division the sum of Rs.

as such part security as aforesaid. Now the condition of the above-written bond
is such that if the said his heirs executors adminis-

trators representatives or assigns do and shall pay to the said Secretary of State
his successors in office and assigns the proportionate share payable in respect of
the lands of the of of all the

expenses incurred and to be incurred by the said Secretary of State his successors

StJUVEY AND RECORD-OF-RIGHTS. 179

ill office and assigns in and about the carrying out of the abovementioned survey Chap. X.

aind record-of -rights and do and shall at all times hereafter save harmless and keep Skc. 102»

indemnified the said Secretary of State his successors in office and assigns of from

and against all losses damages and expenses whatsoever in respect of the carrying

out of the abovementioned survey and record-of-rights then the above-written

bond shall be void and of no effect otherwise the same shall be and remain in full

force and virtue^

The form of security -bond to be executed by the manager of a ward's estate
is, mutatis mutaiidis, the same as the above, the words " successors in office and
assigns " being substituted for " heirs, executors, administrator, representatives, and
assigns."

Board of Revenue's instructions.— The Board of Eevenue have directed
that in estimating the cost of the operations, the pay of the Revenue-officer
should be charged in accoi'dance with the time for which he is actually engaged
on the work, even if the expenditure exceeds the scale laid down in Rule 46,
Chap. VI of the Government Rules under the Tenancy Act.

Accountant-General's instructions.— The Accountant-General of Bengal
has said : " The simplest course will be for the money advanced by Government for
a survey and record-of-rights under the Bengal Tenancy Act in regard to the
Sunkerpore Estate in the Dinagepore District to be kept under advances recover-
able outside of the Civil Estimates and unconnected with the service-payments
for Land Revenue." (See A. G.'s No. Mr of the 18th April, 1887, to the Chief

Secretary to the Government of Bengal.)

102. Where an order is made under the last foregoing

Particulars to be section, the particulars to be recorded shall

recorded. ^^ specified in the order, and may include,

either without or in addition to other particulars, some or all

of the following, namely : —

(a) the name of each tenant ;

(b) the class to which he belongs, that is to say,
whether he is a tenure-holder, raiyat holding at fixed rates,
occupancy-raiyat, non-occupancy-raiyat or under-raiyat, and,
if he is a tenure-holder, whether he is a permanent tenure-
holder or not, and whether his rent is liable to enhancement
during the continuance of his tenure ;

(d) the name of his landlord ;

(e) the rent payable ;

(/) the mode in which that rent has been fixed, whether
by contract, by order of a Court, or otherwise ;

180 THE BENGAL TENANCY ACT.

chap.^ X. (g) if the rent is a gradually increasing rent, the time at

— ■ which, and the steps by which, it increases ;

(h) the special conditions and incidents, if any, of the
tenancy.

Where a measurement was made before the {mssing of this Act under sec. 9,
Act VIII (B. C.) of 1879, an officer subsequently appointed under this chapter
to prepare a record-of -rights is, according to the Board of Eevenue, at liberty to
make use of such survey and need not commence the survey de novo (Board of
Revenue's letter 559A, dated December 2nd, 1886, to the Commissioner of Dacca) ;
but any person who denies the accuracy of the measurement will be at liberty to
dispute it under sec. 105 when the draft-record is published, and the Settlement-
officer will then be bound to hear and decide the dispute. An officer appointed
to make a survey and record-of -rights under this chapter is not, therefore, accord-
ing to the above ruling of the Board, bound to make a fresh measurement, if he
finds a measurement done to his hand, and is satisfied of its accuracy.

103. On the application of a proprietor or tennre-
, „ holder, and on his depositing or eivinor

Power for Revenue- ^ ' r o o o

officer to record parti- sccurity for the required amount for ex-

culars on application of -r» is?

proprietor or tenure- pcnscs, a Kevenue-omcer may, subject to
and in accordance with rules made in this
behalf by the Local Government, ascertain and record the
particulars specified in the last foregoing section with respect
to the estate or tenure or any part thereof.

This is meant specially to provide for the case of a combination of the tenants
against a new proprietor or tenure-holder, who is unable to obtain the papers
of his predecessor. The provisions of this section may, however, be had recourse
to by a proprietor or tenure-holder under any circumstances, subject to, and in
accordance with, the rules prescribed by the Local Government, for the purpose
of having a record of tenants' rights and settlement of rents made by a Revenue-
officer. The Local Government, it will be observed from the rules printed in Ap-
pendix I, Chap. VI, Rule 39, has prescribed that, if the application is made by a
proprietor, it shall not be admitted unless his name has been registered under the
Land Registration Act, and that Revenue-officers, in making surveys and records-
of-right under this section, shall follow the procedure prescribed for the guidance
of officers making the more extensive surveys and records-of-right oi'dered by the
Local Government with or without the sanction of the Governor-General under
sec. 101, and detailed in Chap. VI of the rules made by the Local Government
under this Act.

An application for a reoord-of-rights must be made by all the pro-
prietors.— The Board of Revenue have ruled that, under sec. 188 of tliis Act, an
application under sec. 103 is not admissible unless it is made by all the proprietors
or by an agent authorized to act on behalf of all. (Board of Revenue's No. 715A
of the 29th November, 1886, to the Commissioner of Burdwan.)

RECORD AND SETTLEMENT OP RENTS. 131

By whom cost should be paid.— The entire cost of a record-of-rights, Chap. X.
when the application is made under this section, must be defrayed by the appli- Sbc. 104.
cant, unless a special order under sec. 114 is passed for apportioning it. (Board of
Eevenue's No. 767A of the 18th December, 1886, to the Commissioner of the
Burdwan Division.)

104. (1) When, in any proceeding under this chapter,
Procedure as to re- ^^ ^^^^ ^^^ appear that the tenant is hold-
cordingorsettiiugrents. i^or land in excess of or less than that for
which he is paying rent, and neither the landlord nor the
tenant applies for a settlement of rent, the officer shall record
the rent payable by the tenant, and the land in respect of
which the rent is payable.

(2) When it appears that a tenant is holding land in ex-
cess of, or less than, that for which he is paying rent, or either
the landlord or the tenant applies for a settlement of rent, or
in any case under section 101, sub-section (2), clause (d), the
officer shall settle a fair and equitable rent in respect of the
land held by the tenant.

(3) In settling rents under this section, the officer shall
presume, until the contrary is proved, that the existing rent is
fair and equitable^ and shall have regard to the rales laid down
in this Act for the guidance of the Civil Court in increasing or
reducing rents, as the case may be.

On application of landlord or tenant, Revenue-officer bound to set-
tle rent for all the land. — It is to be noted that, under sub-sec. (2), when it
appears that the tenant is holding land in excess of, or less than, that for which
he is paying rent, or the landlord or tenant applies for a settlement of rent,
the Revenue-officer is to settle the rent for all the land held by the tenant, and not
merely for the excess land which it appears he is holding. Such an application
must, under the provisions of sec. 188, in the case of joint-landlords, be made
by all of them collectively, or by their common agent.

Revenue-officer bound to settle fair rents, in case of change in area
of land. — When it appears that a tenant in holding land in excess of, or less than
that for which he is paying rent, the Revenue-officer is bound to settle a fair rent,
whether the parties apply for such settlement or not. The Act does not, however,
define what is meant by " an area in excess of, or less than, that for which the
tenant is paying rent. " Revenue-officers, in determining what is an " excess
area, " should have regard to sec. 52, sub-sec. (2), which aflFords certain principles
by which they will have to be guided in determining the area for which rent has
been previously paid. See the note to sec. 52 (2), where this subject is discussed

Board of Revenue's instructions as to assessment of excess areas in
Wards' estates.— The Board of Revenue in its executive capacity has recently

132 ^^^ BENGAL TENANCY ACT.

Chap, X. instructed the niauager of a wards' estate, under survey and settlement in accord-
Shc. 104. ance with the provisions of this Act, to refrain from seeking enhancement ou
the ground of excess area, unless the excess area resulting from measurement
exceeds the area recorded in the zamindar's papers by twenty per cent. Settle-
ment-oflScers proceeding judicially to settle fair rents under Chap. X, are not in
any way bound by the executive orders of the Board ; but they are bound under
the law, when an enhancement or abatement of rent is applied for on the ground
of increase or decrease of area, to put the party claiming the alteration in rent
to strict proof of the increase or decrease in area.

Value of Jamabandi papers as evidence.— Settlement -officers in conduct-
ing enquiries, as to alleged alterations in area, should be careful how they admit
jamahandi papers as evidence of the amount of rent previously paid and of the
area for which it was payable. Such jamabandi papers, if they are less than thirty
years old, must be proved by the evidence of the person who prepared them, if he
be forthcoming, or by the evidence of some one who knows his handwriting.
Evidence should also be given of their correctness, and of their having been
acted upon. If they are more than thirty years old, it must be proved that
they come from proper custody. {Ihcarka'aath Chakrabartti v. Tara Sundari
Barmani, 8 W. E., 517. See note on jamahandies at the commencement of
Chap. XIII.)

Revenue-officer bound to settle fair rents when settlement of land
revenue is being made.— Under sec. 101, sub-sec. (2), cl. {d) the Revenue-
officer is bound to settle fair rents for all tenants, where a settlement of land
revenue is being made in respect of any local area, whether the tenants have
applied for such settlement or not, and whether it appears they are holding land
in excess of, or less than, that for which they are paying rent, or it does not so
appear ; so that it follows that where a settlement of land-revenue is being made
in respect of any local area, the rents of all occupancy-i-aiyats must be fixed in
that local area for fifteen years, and those of all non-occupancy-raiyats for five
years.

In proceedings under this chapter all existing rents presumed to be
fair.— Under sub-sec. (3) a Eevenue-officer is bound to presume that the rents
paid by non-occupancy and occupancy-raiyats alike are fair and equitable, till the
contrary is proved. There is no corresponding provision binding or authorizing
the Civil Courts, in suits for the enhancement of non-occupancy-raiyats' rents, to
presume that the existing rent of a non-occupancy -raiyat is fair and equitable.
The Civil Court, in such suits, is to have regard " to the rents generally paid by
raiyats for lands of a similar description and with like advantages in the same
village." (Sec, 46 (9).) It, therefore, appears that, while a non-occupancy-raiyat can
only have a fair rent settled by the Civil Courts when he has refused to pay an
enhanced rent (sec. 46, sub-sees. 6 and 8), he can have a fair rent settled, in pro-
ceedings under this chapter, on making an application on that behalf, though there
be no demand for enhancement. The sections of the Act which lay down rules
for the guidance of a Civil Court when increasing or reducing rent, are sees. 29 to
36, 38, and 52. The Act gives no precise rules for the assessment of fair rents for
non-occupancy-raiyats, but the provisions of sec. 46 (9) should be observed in
determining the fair and equitable rent for such raiyats, that is to say, regard
should be had to the rents generally paid by raiyats for lands of a similar descrip-
tion and with like advantages in the same village.

PUBLK ATION OF RECORD-OF-RIGHTS. 183

105. (1) Wlien the Revenue-officer has completed a re- ^ chap x.

^ Skcs. 105, 106.

Publication of record, cord made under this chapter, he shall —
cause a draft thereof to be locally published in the prescribed
manner and for the prescribed period, and shall receive and
consider any objection which may be made to any entry there-
in during the period of publication.

(2) After the expiration of this period the Revenue-
officer shall finally frame the record, and shall cause it to be
locally published in the prescribed manner, and the publication
shall be conclusive evidence that the record has been duly
made under this chapter.

Rules framed by the Local Government for the publication of the draft and
of the final record under this section will be found in Appendix I. (See Chap. VI,
Eules 33 and 34.)

106. If at any time before the final publication of the
„ ^ . „ record under the last foreo;oina- section a

Procedure in case of ^ _ o o

dispute as to entries iu dispute ariscs as to the corrcctucss of any

irBcord

entry (not being an entry of a rent settled
under this chapter), or as to the propriety of any omission
which the Revenue-officer proposes to make or has made
therein or therefrom, the Revenue-officer shall hear and decide
the dispute.

These sections (105 and 106) eliminate the danger of any one being prejudiced
by entries made behind his back.

Procedure in deciding disputes.— The procedure to be followed in deciding
disputes under this section is given in Rule 32, Chap. VI of the Rules, and is as
follows : —

" In proceedings under sec. 106, when a dispute arises before the final publi- i

cation of the record regarding the correctness of an entry (not being an entry of
rents settled under Chap. X), or as to the propriety of any omission, notice of the
objection shall be served on all persons whose interests may, in the opinion of the
Revenue-officer, be affected thereby, and they shall be called upon to attend at
such time and place as the Revenue-officer may fix for the disposal of the objection.
If any person attends and contests the objection, the proceeding shall be dealt
with as a suit between the parties under the Tenancy Act, in which the objector
shall be plaintiff and the other parties defendants. If no person attends to contest
the objection, the record may be amended accordingly, or the person who made the
objection may, if the Revenue-officer thinks fit, be called upon to produce evidence'
in support of his objection, which may, in that case, be heard and decided as a suit
ex parte under the Tenancy Act."

Ig4 THE BENGAL TENANCY ACT.

CffAP, X. 107. In all proceedings for the settlement of rents under

Skcs. 107, 10?. 1.1 -, . 11

— Procedure to be this chapter, and in all proceedings under

^^er!*^ ^^ Eevenue- ^^^ ^^^^ forcgoing section, the Revenue-
XIV of 1882* officer shall, subject to rules made by the

Local Government under this Act, adopt the procedure laid
down in the Code of Civil Procedure* for the trial of suits, and
his decision in every such proceeding shall have the force of a
decree.

" Subject to rules made by the Local Government under this Act." —
The procedure laid down in the Code of Civil Procedure has been modified by
the Local Government by the rules contained in Chap. VI of the Rules under
this Act (Appendix I), which, among other modifications, authorize the Eevenue-
oflScer to allow any number of tenants occupying lands in the same village or
estate to make a joint application for settlement of rents, or to be joined as
defendants on a similar application by the landlord. Another similar modification
is that mentioned in the note to sec. 106.

108. (1) The Local Government shall appoint one or

more persons to be a Special Judge or Special

Biotrot E^eTenut' Ju^^gcs for the purposc of hearing appeals

^^■^V^' * 1QQO* from the decisions of Revenue-officers under

XIV of 1882.

this chapter.

(2) An appeal shall lie to the Special Judge from the
decision of a Revenue-officer under this chapter, and the pro-
visions of the Code of Civil Procedure* relating to appeals shall,
as nearly as may be, apply to all such appeals.

('6) Subject to the provisions of Chapter XLII of the
Code of Civil Procedure,* an appeal shall lie to the High Court
from the decision of a Special Judge in any case under section
106 as if he were a Court subordinate to the High Court within
the meaning of the first section of that chapter :

Provided that if, in a second appeal the High Court alters
the decision of the Special Judge in respect of any of the
particulars with reference to which the rent of any tenure or
holding has been settled, the Court may settle a new rent for the
tenure or holding, but in so doing shall be guided b}'- the rents
of the other tenures or holdings of the same class comprised in
the same record as ascertained or settled under section 104.

What decisions are, and what are not, appealable to Special Judge. —
As the decisions of Settlement-officers are, under this section, appealable to a

DISPUTES REGARDING RECORD-OF-RIGHTS. I35

Special Judge, a Special Judge, who may or may not be the District Judge, will Chap. X.
have to be appointed in every district in which settlements of rent are being made Sicc. 109.
by a Eevenue-officer in Government or other estates. It is to be remembered, that
it is only decisions in proceedings for the settlement of rents and in disputes as to
the correctness of an entry or the propriety of an omission arising before the final
publication of the record (sec. 106) which are appealable to the Special Judge.
Such decisions have the force of decrees ; but entries recorded by the Revenue-
ofiicer acting as such, and not aa a Civil Court, such as entries in the khasrah
regarding the facts of irrigation, crops grown, rates of rent, and the like, are not
decisions. They do not form part of the "record" which is contained in the
khewat and khatians. Entries which are not contained in the khewat or khatians
are not, therefore, appealable to the Special Judge. Nor would an undisputed
entry as to the amount of the existing rent, not being an entry of a fair rent
settled by the Revenue-oflGlcer, though forming part of the " record," be a decision.
If, however, at any time before final publication of the record a dispute were to
arise regarding such latter entry, the Revenue-officer is bound to decide the dis-
pute, following, with some modifications, the procedure laid down in the Code of
Civil Procedure, and his decision will then be appealable to the Special Judge.

The Judges of Mozufferpore, 24-Parganas, Eajshaliye, Dinagepore, Pubna
and Bogra, Dacca, Furreedpore, Mymensingh, Tipperah, Bhaghulpore, Purneah,
and Maldah have all been appointed Special Judges under the provisions of this
section, (See notifications of the 2nd and 9th April, 1888, published in the Calcutta
Gazette of the 4th and 11th April, 1888).

Court-fee duty on appeals.— The Court-fee duty on appeals from the orders
of a Settlement-officer, or on second appeals from the orders of a Special Judge,
would seem to be Rs. 10 under cl. vi, art. 17, Sch. II, Act VII of 1870. It is
clear that art. 11, Sch. II of Act VII of 1870 will not apply ; as the decisions of a
Settlement-officer, in all proceedings for the settlement of rents under the Chapter
and in disputes as to entries in the record under sec. 106, have the force of decrees.
(Sec. 107.)

T^ ^. . , . . . 109. (1) Every record made under this

Undisputed entries in ^ ^ ^ J

record to be presump- chapter shall distino^uish between the dis-

tive evidence. _ ^ . ^. .

puted and the undisputed entries therein.
(2) Every undisputed entry in the record shall be pre-
sumed to be correct until the contrary is proved.

Disputed entries.— It is not quite clear what is meant in this section by
" disputed entries." Does the expression mean entries the subject-matter of
which has been the subject of dispute, or entries which are still, at the time of
completing the record, the subject of dispute ? The latter would, at first sight,
appear to be the meaning, but it cannot be so in reality ; for, under sec. 106, the
Revenue-officer is bound to hear and decide any dispute regarding any entry aris-
ing before the final publication of the record, and his decision has the force of a
decree ; so that, ex hypothesi, there would be no disputed entries left when the
record is being finally published. It appears, thei-efore, that what is meant is
entries which have been the subject of dispute during the previous proceedings.
It is provided, accordingly, in Chap. VI of the Rules, that the entries which have
and have not been the subject of dispute be enumerated in columns 18 and 19 of

186 THE BENGAL TENANCY ACT.

CiiAP. X. the khatiam. When au entry is disputed before the tinal publication of the
Shcs.no— 112. ,.ggQf(j^ i]^Q Settlement-officer is bound to hear and decide the dispute. His deci-
sion has the effect of a decree, and is appealable to the Special Judge ; but if an
entry is not disputed before the final publication of the record, it is merely pre-
sumed to be correct, and any party subsequently questioning its correctness,
must prove that it is incorrect.

110. When any rent is settled under this chapter, the
, . , ^ , settlement shall take effect from the beo^in-

Time at •which settle- . „ .

ment of rent is to take ning of the agricultural year next after the
final publication of the record.

111. When an order has been made under section 101, —
. ,. {a) a Civil Court shall not, until the final

stay of proceedings ^ / ^ ' ^

in Civil Court during publication of the rccord, entertain a suit

preparation of record. t , • n ^ t • n ■,

or application lor the alteration of the rent
or the determination of the status of any tenant in the area
to which the order applies ; and

{b) the High Court may, if it thinks fit, transfer to
the Revenue-officer any proceedings pending in a Civil
Court for the alteration of any such rent or for the determi-
nation of any of the matters specified or referred to in
section 102.

This does not oust the jurisdiction of the Civil Courts in cases other than
suits or applications for the alteration of the rent or determination of the tenant's
status ; so that suits for the recovery of arrears of rent, for example, will still
continue to be tried in the ordinary Civil Courts, notwithstanding that a record-
of -rights is being made in the local area within which the cause of action arose.

112. (1) The Local Government, with the previous sanc-
, . tion of the Governor-General in Council,

Power to authorize a ^ ^ , '

special settlement in may, on being satisfied that the exercise of

special cases. . ^ ' n • i •

the powers hereinatter mentioned is neces-
sary in the interests of public order or of the local welfare,
invest a Revenue- officer acting under this chapter with the
following powers or either of them, namely : —

{a) power to settle all rents ;

{h) power, when settling rents, to reduce rents if in the
opinion of the officer the maintenance of existing rents would,
on any ground, whether specified in this Act or not, be unfair
or inequitable.

SPECIAL SETTLEMENTS OF RENTS. 187

(2) The powers given under this section may be made "^"^^-jj
exerciseable within a specified area either generally or with —
reference to specified cases or classes of cases.

(3) When the Local Government takes any action under
this section, the settlement-record prepared by the Revenue-
officer shall not take eff'ect until it has been finally confirmed
by the Governor-General in Council.

The provisions of this section are intended to take the place of Sir R. Temple's
Agrarian Outrage Act (VI of 1876, B.C.), which was to have effect for three
years only, and has consequently expired. "It seems desirable," Sir Steuart
Bayley observed, " that, in exceptional cases, in which it may be necessary to have
recourse to this procedure, the Government should have the power of going to the
root of the dispute, and should be able to put the whole relations of landlord and
tenant on a stable footing for a reasonable period. It is an extreme power, and I
trust it will be resorted to as little as Sir Eichard Temple's Agrarian Outrage
Act was."

113. When the rent of a tenure or holding is settled
_ . , „ , . , , under this chapter, it shall not, except on

Period for which rents, t /• i m n> •

as settied.are to remain the grouud of a landlord s improvement or
of a subsequent alteration in the area of the
tenure or holding, be enhanced, in the case of a tenure or an
occupancy -holding for fifteen years, and, in the case of a non-
occupancy-holding, if the rent is settled in any case under sec-
tion 112, or on the application of the landlord under section 104,
for five years. The periods of fifteen and five years shall be
counted from the date of the final publication of the record.

It would appear from the wording of this section, read with sec. 104, that a
Eevenue-officer is bound, on the application of a tenure-holder, to settle a fair
rent for a tenure, and that the rent so settled cannot be enhanced for fifteen years.
Under sec. 9, the rent of a tenure cannot be enhanced by a Civil Court during the >

fifteen years next following the date of its enhancement by a Civil Couit or by
contract. These restrictions are meant to apply only to tenures of a more or less
raiyati character, such as the jotes of Rungpore. An indigo-planter, who may be
thikadar of a whole estate or village, or of a number of villages, is a tenure-
holder as defined in sec. 5 (1) ; but it is not intended that Revenue-officers should
settle the amount of rent equitably payable by tenure-holders of that class, or
that their rents should not be liable to enhancement by contract more often than
once in fifteen years. It cannot have been intended that ijaradars, thikadars, and
other tenure-holders of that class should not be allowed perfect freedom of con-
tract to pay any rent or enhancement of rent they please, and as often as they
please ; for sec. 7 (1) specially enacts that the enhancement of rents of these
tenures is subject to contract.

Igg THE BENGAL TENANCY ACT.

ciMP. X. 114, Where an order is made under this chapter in any

SkC!)* 114 115 1 •/

— ' ' Expenses of proceed- ^asc except Under section 101, sub-sec. (2 j,
ingsuuder this chapter, ckusc (d), the expcnscs incurred by the
Government in carrying out the provisions of this chapter in
any local area, or such part of those expenses as the Local
Government may direct, shall be defrayed by the landlords
and tenants of land in that local area, in such proportions as
the Local Government, having regard to all the circumstances
of each case, may determine ; and the proportion of those
expenses so to be defrayed by any person shall be recoverable
by the Government from him as if it were an arrear of reve-
nue due by him.

The apportionment of the cost of a sur\'ey and settlement applied for under
sec. 101 (2), els. (a) and (c) depends on various considerations, such as — which
party is benefited by the survey, and which is to blame for the condition of things
which made the survey necessary. It is to be observed that this section lays
down that the amount payable by each person shall be recoverable /ro?w him as if
it were an arrear of revenue. The raiyats' quota would, therefore, seem not to
be recoverable through the landlord on the principle of cesses under the Cess
Act, but must be recovered as a public demand under the Ceitificate Procedure.
The meaning of the words " having regard to the circumstances of each case " is
not very clear. It would be an obvious absurdity to suppose that the Local
Government is to have regard to the circumstances of each individual raiyat's case.
No doubt what is meant is, that regard should be had to the circumstance of the
case of each local area for which a separate order under sec. 101 has been made.

115. When the particulars mentioned in section 102,
Presumption as to clausc (b), havc been recorded under this
pry'Vherrre'ord'Ss" chaptcr in rcspcct of any tenancy, the pre-
been prepared. sumptiou under scctiou 50 shall not there-

after apply to that tenancy.

The presumption referred to is that under which, when a tenure-holder or
raiyat proves that his rent or rate of rent has not been changed for the twenty
years immediately before the institution of the suit, it is presumed, until the con-
trary is shown, that he has held at that rent or rate of rent from the time of the
Permanent Settlement.

Summary of processes of survey and record-of-rights.— Tlie several pro-
cesses of a cadastral survey and record-of-rights under this chapter may be briefly
described thus : —

Ist. A survey is to be made of the lands, showing the area of every field or
plot of land separately assessed to rent.

2nd. The area of every tenant's holding, as shown by survey, is to be ex-
plained to him and to his landloi'd, and the amount of the tenant's present rent is
to be ascertained and recorded.

SUMMARY OF SETTLEMENT PROCEDURE. 189

Srd. Fair rents are to be settled on the application of either landlord or Cfiap. X.
tenant, or without such application, if it appear that the tenant is holding land Skc^I .
in excess of, or less than, that for which he is paying rent, or if a settlement of
land revenue is being made in respect of the local area.

4th. The status of every tenant, viz., whether he be a tenure-holder, under-
tenure-holder, raiyat at fixed rates, a settled, occupancy, non-occupancy or under
raiyat, is to be ascertained and recorded.

5th. The character and extent of the interest of every proprietor and pro-
prietary mortgagee is to be ascertained and recorded. This part of the record
will be a copy of the Collector's Land Revenue Register corrected up to date.

6th. The " private lands " of pi'oprietors are to be defined and recorded.

The record-of -rights will be contained in —

Is^. The khewaty which contains the record of the character and extent of
the interests of proprietors and proprietary mortgagees.

2mc?. The khatians, which will contain a record of the rights and interests of
tenure-holders and under-tenure-holders, and of the particulars of the holding of
every raiyat and under-raiyat.

The record, when framed, will have to be published for one month. All
disputes arising during this month regarding any entry in it will have to be
decided by the Revenue-officer, whose decision on such disputes will have the
force of a decree. His decisions in proceedings for the settlement of fair rents on the
application of the parties, or without such application in the cases specified in
sec. 104 (2), will also have the force of a decree ; so that, as the Revenue-officer's
decision on disputes and in proceedings for settlement of fair rents has the force
of a decree, the only entries in the record which have not the force of a decree
are undisputed entries, which do not relate to proceedings for settlement of fair
rents, arid these are presumed to be correct till the contrary is proved. An ex-
ample of this latter class of entries would be an entry of the existing rent as the
rent payable, where the amount is undisputed, and a fair rent has not been settled
by the Revenue-officer either on the application of one of the parties or of his
own motion. It is to be observed that the khasrahs, village-reports, and other
papers, which it may be necessary to draw up for the purpose of preparing the
kheioat and khatians, not themselves forming part of the khewat or khatians, are
are not part of the recoid. Such papers need not be published, nor are the rights
of parties affected by any entries made in them.

Result of survey and record-of-rights in Mozufferpore.— The results
of the experimental survey and record-of-rights in Mozufferpore are thus de-
scribed by the Board of Revenue in their Annual Land Revenue Administra,tion >
Report for 1885-86 (para. 246, p. 44) :—

" The success of the work, so far as it has gone, may fairly be judged by the
absence of that friction and those difficulties which were expected in connection
with it. There has been no opposition and no obstacles of any kind. On this
subject the Board are glad to reproduce the opinion of the Commissioner,
Mr. Halliday, as follows : —

" ' The survey operations under the Bengal Tenancy Act are progressing as
smoothly as possible ; disputes as to boundaries and possession are few, and are
chiefly connected with pieces of waste-land and roads ; organised opposition there
is none ; and it is now clear that apprehensions as to the relations between landlords
and tenants being embittered by the survey are groundless. Among the zamin-
dars, the survey seems, on the whole not unpopular, inasmuch as they see that it

190 I'HE BENGAL TENANCY ACT.

Crap. XI, will provide facilities for identifying the whole of their lands and for realising
Sicc^ie. their dues on account of every portion of their estates. The ryats are quite
indifferent in the matter, and see no cause for resistance or opposition to the proceed-"
ings. The criminal cases connected with the demarcation and survey proceedings
have been extremely few, and have mostly, on investigation, turned out to be false
or exaggerated. Nothing in the shape of a riot has been proved in any instance.
Tlie survey will effect much good in the way of determining rights and facilitating
the identification of land. It is probable that the survey record will be looked
upon as a charter of rights by all classes interested in land, and no transfer will
be negociated without reference to it.' "

The survey and settlement operations were terminated in accordance with
the orders of the Secretary of State for India in July, 1886 ; but it is understood
that the question of resuming them is under consideration.

CHAPTER XT.

Record of Proprietors' Private Lands,

116. Nothing in Chapter V shall confer a right of occu-

saving as to Mdmdr P'^^^^J i»' ^"^ nothing in Chapter VI shall
land. apply to, a proprietor's private lands known

Sec. 6, Act X. 1859; . ^^ -^ i i / , ..

Bee. 6, Act VIII, B.C., m liengal as khamar, nij or nij-jot, and m
Behar as zirdt, nij, sir, or kamat, where any
such land is held under a lease for a term of years or under a
lease from year to year.

Classes of land, and proprietors' rights in them— Proprietors' estates
may be regarded as made up of two sorts of lands — khdmdr or demesne (here called
proprietors' private lands) and raiyati or communal land. Waste-land may be
either khdmdr or raiyati, but ordinarily it is raiyati ; for all land is presumed to be
raiyati until the contrary is proved. (Sec. 120 (2) and (3.) ) Khdmdr land comprises
all the land which, according to the ancient custom of the country, or according to
any local practice, has been recognized as private land, plus all the land which,
before the commencement of this Act, proprietors have given evidence of a wish to
permanently cultivate themselves. They cannot, as explained by Mr. Ilbert in
introducing the Tenancy Bill into Council, add to the existing stock of khdmdr
land after the passing of this Act, and, consequently, in the future, all the rest
of their estates will be either communal or raiyati land. But the Act rather adds to
the extent of land which is lawfully proprietors' demesne land than diminishes it ;
for, at the time of the Permanent Settlement, no land was recognized as khamar
which was not such on the 12th August, 1765 (see sees. 37 to 39, Reg. VIII of 1793),
and there is no law recognizing the creation of khdmdr land subsequently to that
date.

Proprietors may bar the accrual of the occupancy status in their klidvmr or
private land by letting it under a lease for a term of years, or under a lease from
year to year. In reference to it, they are given the fullest freedom of contract.
Under the old law, if they did not bar the accrual of these rights in such land,
these rights arose {(jlaur Hari Singh v. Behari Rant, 3 B. L. R, App., 1.38: 12

PROPRIETORS' PRIVATE LANDS. 191

W. B,., 2*78 ; Bhagwan Bhagat V. Jag Mohan Rai,20 W. R, 308; Ashrafv. Ram Chap. XL

Kishor Ghosh, 23 W. E., 288), and the law in this resjiect is apparently unchanged. Sec. 117.

In the raiyati land, however, they may not bar the growth of tenant-right, unless

in accordance with the provisions of this Act. As to raiyati land which may have

lapsed, proprietors are allowed to cultivate it if they wish ; but if they let it to

tenants, they must allow such rights to accrue to them as this Act guarantees.

The right to hold nij-jot lands passes with the sale to the auction-purchaser, and

the ex-zamindar cannot claim any right of occupancy in these lands ; his holding,

after the sale, is in the capacity of an ordinary raiyat, and must be dealt with

accordingly. (Jaidat Jha v. Bayi Ram Singh, 7 W. R., 40 ; Reed v. Krishna Singh,

15 W. R., 430.) The raiyats of proprietors' private lands would seem to be

non-occupancy-raiyats, and the provisions of Chapter VI to be applicable to

them.

Lands lield by indigo-planters in Behar.— This section, it is to be observ-
ed (see sec. 120), refers only to lands cultivated by the proprietor himself, and
not to the class of lands in Behar originally occupied by raiyats, but now culti-
vated by indigo-planters. Such lands would be khdmdr or sir proper, if recog-
nized by village-custom as proprietor's private lands, or if cultivated by the pro-
prietor himself for twelve years before the passing of this Act ; but the mere
cultivation of them by a thikadar for twelve years before the passing of this Act
would not make them khdmdr. A thikadar cannot, during the currency of his
lease, under any circumstances, acquire occupancy -rights in any land comprised
within his ijara or lease (sec. 22, cl. 3), whether the land be zirdt or not ; but if he
had acquired a right of occupancy in any such land before taking the thika, he
does not lose it by taking the lease (see explanation to sec. 22).

117. The Local Government may, from time to time,
Power for Govern- make ail oi'der directing a Revenue-officer
rnTrecmd^'of proprfe^ to make a survey and record of all the
tors' private lands. lands ill a Specified local area which are a

proprietor's private lands within the meaning of the last fore-
going section.

The object of this section is to prevent disputes in future as to what is, and
what is not, proprietor's private land.

Two alternative methods of procedure are provided for the determination of
of private lands : —

(1) that of survey and registration of such land by a Revenue-officer by order
of the Local Government under this section ;

(2) that of enquiry on the application of the landlord or tenant under the
next section.

The former procedure will apply to large areas, where the question is impor-
tant ; and the latter, to disputes about particular plots of land. The provisions
of this chapter, while making it incumbent on the Revenue-officer to record
certain land as the proprietor's private land, assist him by certain guiding rules
(sec. 120), in cases not clearly coming under the description of lands which he is
bound to record as khdmdr.

192 THE BENGAL TENANCY ACT.

Chap. XI. 118. In the case of any land alleo^ed to be a proprietor's

Skcs.I 18—120. . -^ ^ 1 I

— Power for Revenue- private land, on the application of the pro-

Sl^:;;uoJS:Tt P^i^tor or of any tenant of the land, and
proprietor or tenant. on his depositing the required amount for
expenses, a Revenue-officer may, subject to and in accordance
with rules made in this behalf by the Local Government,
ascertain and record whether the land is or is not a proprietor's
private land.

Under sec. 107, the Local Government may make an order, directing a
Revenue-officer, when proceeding under Chap. X of this Act, to make a record of
khdmdr lands ; but, supposing that no Settlement-officer should come on the ground
and make siich a record for twenty year.^, it may be difficult for the proprietor to
prove that he has cultivated the land for twelve years before the passing of this
Act. This section meets this difficulty ; for it allows a landlord to go before a
Revenue-officer at once, and ask him to record what land he holds as private land,
and thus to prevent the possibility of there being any uncertainty on this point at
any future date.

The rules framed by the Local Government under this section will be found
in Appendix I. (See Chap. IV of the Government Rules under the Tenancy Act.)

119. When a Revenue-officer proceeds under either of
Procedure for record- the two last foregoing scctions, the provi-

ii^g private land. ^.^^^^ ^^ SCCtionS 105 tO 109, both inclusivC,

shall apply.

Under this section, the provisions of sees. 105 to 109 and the rules framed
under them relating to the publication of the record, the procedure in cases of
dispute as to entries in the draft-record, the application of the Code of Civil
Procedure to the Eevenue-officei"'s proceedings, the procedure in the case of appeals
from his decisions, and the presumptive value of evidence of undisputed entries
in the record, are made applicable to the Revenue-officer's record of private lands.
It, therefore, follows that appeals from his decisions in such cases must lie to a
Special Judge.

Rules for determina- 120. (1) The Rcvenue-officer shall TC-

tion of proprietor's • > • i i

private land. cord as a proprietor s private land —

{a) land which is proved to have been cultivated as
khdmar, zirdt, sir, nij, nij-jot, or kamat by the proprietor him-
self with his own stock or by his own servants or by hired
labour for twelve continuous years immediately before the
passing of this Act, and

{b) cultivated land which is recognized by village-usage
as proprietor's khdraar, zirdt, sir, nij, nij-jot, or kamat.

DISTUAINT. 293

(2) 111 determiiiiiio; whether any other land ouoht to be chap. xir.

^ ' . . Skc. 120.

recorded as a proprietor's private land, the officer shall have — -
regard to local custom, and to the question whether the land
was before the second day of March, 1883, specifically let as
proprietor's private land, and to any other evidence that may
be produced ; but shall presume that land is not a proprietor's
private land until the contrary is shown.

( 3 ) If any question arises in a Civil Court as to whether
land is or is not a proprietor's private land, the Court shall
have regard to the rules laid down in this section for the
guidance of Revenue-officers.

It is to be noted that it is land proved to have been cultivated by the
proprietor himself, which is kMiThdr. Cultivation by a thikddar or ijdrddar,
who is a tenui'e-holder, and not a proprietor, will not, therefore, of itself, show
that the land is khdmdr, though it may be so on other grounds, — namely, if so
recognized by village-usage, or perhaps if specifically let as such, before the 2nd
March, 1883. (Sub-sec. (2).)

It is not clear what the framers of the Act meant by " cultivated land recog-
nized by village-usage as khdmdr" but it is believed that reference is made to
certain parcels of land known in parts of Behar as kamats, which, though they
may have been cultivated by tenants in the ordinary way for more than twelve
years, are still recognized as the landlord's khdmdr. These are, however, of
very limited extent.

March 2nd, 1883, is, as already remarked, the date of the introduction of
the draft Bill into the Governor-General's Council, from which date it was pro-
posed by the Bengal Rent Commission that the Tenancy Act, drafted by them,
should have effect.

CHAPTER XIL

Distraint.

Operation of this chapter postponed to 1st February, 1886.— Section 124
of this chapter provides for the making of rules by the High Court for the publi-
cation of the notification of the distraint. As, however, draft rules under this
section could not be framed till the Act itself came into force, and under sec. 190,
sub-sec. (3) the draft rules had then to be published for a month at least before
they had the force of law, it followed that, for at least the first month after this
Act came into force, there could be no lawful rules under this section for working
its provisions. In order to meet this difficulty, a Supplemental Act (XX of 1885)
was passed, providing, inter alia, that the provisioiis of this chapter, except such
of them as confer powers to make rules, shall come into force on such date, not
later than the first day of February, 1886, as the Local Government, after the
passing of this Act may, by notification in the local oflacial Gazette, appoint in
this behalf, or, if no date is so appointed, on the first day of February, 1886, and
not before ; and that, until those provisions come into force, the enactments speci-
fied in Sched. I, annexed to this Act, shall, in so far as they relate to distraint,
continue in force, and all references to those provisions in other portions of this
R. I- F., B. T. A. 13

194

THE BENGAL TENANCY ACT,

Chap. XII. Act shall, so far aa may be, be read as if they were made to the corresponding pro-
Skc. 121. visions of the said enactments,

121. Where an arrear of rent is due to the landlord of
, . ^ a raiyat or under-raiyat, and has not been

Cases in •wnicn an -^ ^ '

application for distraint due for more than a year, and no security

may be made.

Sees. 112 and 113, has been accepted therefor by the landlord,

Act X, 1859; sees. «8, ^ . , ,. .

69 and 71, Act VIII, the landlord may, m addition to any other

B. C, 1«69. , 1 . , 1 . •■1111

remedy to which he is entitled by law, pre-
sent an application to the Civil Court requesting the Court to
recover the arrear by distraining, while in the possession of the
cultivator, —

(a) any crops or other products of the earth standing or
ungathered on the holding ;

(b) any crops or other products of the earth which have
been grown on the holding and have been reaped or gathered
and are deposited on the holding, or on a threshing-floor or
place for treading out grain, or the like, whether in the fields
or within a homestead :

Provided that an application shall not be made under this
section —

(1) by a proprietor or manager as defined under the
VII (B. c.) of 1876. Land Registration Act, 1876, or a mort-
gagee of such a proprietor or manager, un-
less his name and the extent of his interest in the land in
respect of which the arrear is due have been registered under
the provisions of that Act ; or

(2) for the recovery of any sum in excess of the rent
payable for the holding in the preceding agricultural year, un-
less that sum is payable under a written contract or in conse-
quence of a proceeding under this Act or an enactment here-
by repealed ; or

(3) in respect of the produce of any part of the holding
w^hich the tenant has sublet with the written consent of the
landlord.

History of law of distraint.— The law of distraint is an offset of English
law. It was originally introduced into this country by Regs. XVII of 1793 and
XLV of 1795. Certain specified landlords were empowered " to distrain and sell
the crops and products of the earth of every description, the grain, cattle, and all

APPLICATION FOR DISTRAINT. 195

other personal property (whether found on the premises of the defaulter or of any Chap. XII.
other person) belonging to their tenants. This continued to be the law till SkcM^22.
1859, when the power of distraint was limited to the produce of the land on account
of which the rent was due." (Rent Law Commissioners' Report, p. 2.) It was at
first proposed, when this Act was under consideration, to withdraw the power of
distraint altogether from landlords. This proposal was, however, negatived, but
the powers of distraint given by the old law have been veiy considerably modified
in this Act. A landlord can no longer distrain except through the Courts, unless
authorized to do so by the Local Government (see sec. 141). Ordinarily, distraint
will be carried out by the zamindar's servants only under the supervision of the
Court, and the assistance of the Court is to be obtained " on application," which
may, under sec. 187, be made by an agent empowered in this behalf by a written
authority under the hand of the landlord as well as by the landlord himself.

Rent.— The word rent in sees. 73 to 75 includes also money recoverable under
any enactment for the time being in force as if it were rent (see sec. 3 (5)).

What and whose crops m^ay be distrained.— It has been held that the
provisions of Act X of 1859 refer only such produce of the land as becomes ripe,
and is cut, gathered, and stored. {Sheo Prasad Tewarix. Afolima Bibi, 1 All., pt. iii,
7.) Trees, shrubs, and plants, growing in a nursery ground, cannot be distrained
for rent (Selwyn's N. P., 669.) A landlord cannot distrain crops for arrears due,
not from the tenant, but from another person not in possession, and who did not
cultivate the crops. {Mohini Dasi v. Ramkumar Karmokar, W. R., Sp. No., 1864,
Act X, 77.)

Distraint by co-sharers.— Section 112, Act X of 1859, and sec. 68, Act
VIII (B. C.) of 1869, provided that no co-sharers in an estate or tenure should
exercise the power of distraint otherwise than through a manager authorized to
collect the rents of the whole estate or tenure, and the provisions of sec. 188 of
this Act similarly restrict the exercise of the power of distraint under this Act.
No single co-sharer in an estate, tenure, or holding can now exercise the power of
distraint any more than he could under the former law. The power of distraint
could, under the old law, be exercised even in cases in which the tenant had sublet
the land, the crops of the sub-tenant being subject to distraint for rent due from
the tenant. {Gitam Singh v. Baldeo Kahar, 4 All., 76.) But, under the provisions
of proviso (3) to this section, it is evident that it is only in cases in which the
tenant has sublet the land without the written consent of the landlord that the
crops of the under-raiyat are liable to be distrained by the landlord for arrears of
rent due from the raiyat, \

Form of application. 122. (1) Eveiy application under

the last foregoing section shall specify —
(a) the holding in respect of which the arrear is claimed,
and the boundaries thereof, or such other particulars as may
suffice for its identification ;

{h) the name of the tenant ;

(c) the period in respect of which the arrear is claimed ;
{d) the amount of the arrear, with the interest, if any,
claimed thereon, and, when an amount in excess of the rent

196 I'HK BENGAL TENAKOY ACT.

<^'''*«'- XII. payable by the tenant in tlie last preceding agricultural year
— is claimed, the contract, or proceeding, as the case ma}' be,
under which that amount is payable ;

(e) the nature and approximate value of the produce to
be distrained ;

(/) the place where it is to be found, or such other par-
ticulars as may suffice for its identification ; and

(g) if it is standing or ungathered, the time at which it is
likely to be cut or gathered.

(2) The application shall be signed and verified intheman-
ner prescribed by the Code of Civil Procedure
for the signing and verification of plaints.

Application how to be signed and verified.— Section 51, Act XIV of 1882
provides, that "the plaint shall be signed by the plaintiff and his pleader
(if any), and shall be verified at the foot by the plaintiff or by some other person
proved to the satisfaction of the Court to be acquainted with the facts of the
case. Provided that, if the plaintiff, by reason of absence or for other good cause,
is unable to sign the plaint, it may be signed by any person duly authorized by
him in this behalf." Section 52 provides, that " the verification must be to the
effect that the same is true to the knowledge of the person making it, except as to
matters stated on information and belief, and that as to those matters as he believes
it to be true. The verification shall be signed by the person making it."

By whom to be presented. —Under the old law, *' naibs, gomastahs, and
other agents engaged in tne collection of rent " could distrain " if expressly au-
thorized to do so by power-of -attorney in that behalf." Now, an application to
distrain can, under sec. 187, be presented to the Court by an agent of the landlord,
if empowered in this behalf by a written authority under the hand of the landlord,
unless the Court otherwise directs.

Conrt-fee stamp on application.— A distraint proceeding is a case, for
evidence may be recorded in it. (Sec. 123.) An application for disti-aint would,
therefore, seem to be one " relating to a case." If this be so, then, an application
for distraint, if presented to a Civil Court other than a principal Civil Court of
original jurisdiction, will be subject to a Court-fee duty of one anna or eight
annas, according as the value of the crop to be disti"ained is less than, or amounts
to, or exceeds Es. 50. (Act VII of 1870, Sched. II, art. 1, cl. (a), para. 4.) Every
application for distraint presented to a principal Civil Court of original jurisdic-
tion is subject to a Court-fee duty of eight annas. (Sched. II, art. 1, cl. (6), para. 2.)

123. (1) The applicant shall, at the time of filing an

Procedure on receipt application under the foregoing sections, file

of apphcatiou. ^^ Court such documentary evidence (if any)

as he may consider necessary for the purposes of the application.

(2) The Court may, if it thinks fit, examine the appli-
cant, and shall, with as little delay as possible, admit the

EXECUTION OF ORDER FOR DISTRAINT. J97

application or reject it, or permit the applicant to furnish ,chap. xii.
additional evidence in support of it. — '

(3) Where a Court cannot forthwith admit or reject an
application under sub-section (2), it may, if it thinks fit, make
an order prohibiting the removal of the produce specified in
the application pending the execution of an order for distrain-
ing the same or the rejection of the application.

(4) When an order for distraining any produce is made
under this section at a considerable time before the produce is
likely to be cut or gathered, the Court may suspend the exe-
cution of the order for such time as it thinks fit, and may, if
it thinks fit, make a further order prohibiting the removal of
the produce pending the execution of the order for distraint.

124. If an application is admitted under the last fore-
Execution of order goiug scctiou, the Court shall depute an

for distraint. officer to distrain the produce specified

therein, or such portion of that produce as it thinks fit ; and
the officer shall proceed to the place where the produce is, and
distrain the produce by taking charge of it himself or placing
some other person in charge of it in his behalf and publish-
in*'* a notification of the distraint in accordance with rules to
that effect to be made by the High Court :

Provided that produce which from its nature does not
admit of being stored shall not be distrained under this
section at any time less than twenty days before the time when
it would be tit for reaping or gathering.

125. (1) Tlie distraining officer shall, at the time of

makiuff the distraint, serve on the defaulter

Service of demand , *=• ^ n i

and account. a Written demand for the arrear due, and

pec.T2, Actviii.'B.c,' the costs incurred in making the distraint,
^^^^' Avith an account exhibiting the grounds on

which the distraint is made.

(2) Where the distraining officer has reason to believe
that a person other than the defaulter is the owner of the pro-
perty distrained, he shall serve copies of the demand and
Account on that person likewise.

2^93 THE BENGAL TENANCY ACT.

Chap, xii.^ (3) The demand and account shall, if practicable, be

': — ' " ' served personally ; but if a person on whom they are to be
served absconds or conceals himself, or cannot otherwise be
found, the officer shall affix copies of the demand and account
on a conspicuous part of the outside of the house in which
he usually resides.

126. (1) A distraint under this
Right to reap, ko., chapter shall not prevent any person from

produce. ^, . ^ .

Sec. 118, Act X, 1859; rcapmg, gathcrmg or stonng any produce,

eec. 74, Act VIII, B. C, , .' , , , n • , ^

1869. or doing any other act necessary lor its due

preservation.

(2) If the person entitled to do so fails to do so at the
proper time, the distraining officer shall cause any standing
crops or ungathered products distrained to be reaped or gather-
ed when ripe, and stored in such granaries or other places as
are commonly used for the purpose, or in some other conve-
nient place in the neighbourhood, or shall do whatever else
may be necessary for the due preservation of the same.

(3) In either case the distrained property shall remain in
the charge of the distraining officer, or of some other person
appointed by him in this behalf.

127. (1) Unless the demand, with all costs of the d'rs-
traint, be immediately satisfied, the dis-

Sale-pi'oclamatioii to . . i 1 1 •

be issued unless de- training officer shall issue a proclamation

mand is satisfied. . ^ . , , , . , ^ , i

specitymg the particulars oi the property
distrained and the demand for which it is distrained, and noti-
fying that he will, at a place and on a day specified, not being
less than three or more than seven days after the time of
making the distraint, sell the distrained property by public
auction:

Provided that when the crops or products distrained from
their nature admit of being stored but have not yet been stored,
the day of the sale shall be so fixed as to admit of their being
made ready for storing before its arrival.

(2) The proclamation shall be stuck up on a conspicuouB
place in the village in which the land is situate for which the
arrears of rent are claimed.

SALE OF DISTRAINED CROPS. 199

128. The sale shall be held at the place where the dis- sJc9j28-i32.

trained property is, or at the nearest place —
Sec.T29!Adrx;i859; of public rcsort, if the distraining officer is
Bec.^8G, Ac'b VIII,' B c.', ^^ opinion that it is likely to sell there to
better advantage.

129. (1) Crops or products which from their nature

admit of being stored shall not be sold
beToirstfudtr "'' before they are reaped or gathered and are

ready for storing.
(2) Crops or products which from their nature do not
admit of being stored may be sold before they are reaped or
gathered, and the purchaser shall be entitled to enter on the land
by himself, or by any person appointed by him in this behalf,
and do all that is necessary for the purpose of tending and
reaping or gathering them.

130. The property shall be sold by public auction, in
Manner of sale. ^^® ^^ more lots as the officcr holding the
Sec 129. Act X, 1859; g^lc mav think advisable; and if the de-

sec. 86, Act VHI, B. C, ''^ '

1869. mand, with the costs of distraint and sale, is

satisfied by the sale of a portion of the property, the distraint
shall be immediately withdrawn with respect to the remainder.

131. If, on the property being put up for sale, a fair
Postponement of sale, pricc (in the estimation of the officer hold-
sec^' 87!A;t^vin;B.''c.; i"g ^be sale) is not offered for it, and if the
^^^^- owner of the property, or a person author-
ized to act in his behalf, applies to have the sale postponed
till the next day, or (if a market is held at the place of sale)
the next market-day, the sale shall be postponed until that day,
and shall be then completed, whatever price may be offered for
the property.

132. The price of every lot shall be paid at the time of
_ ^ . ,. sale, or as soon thereafter as the officer

Payment of purchase- '

money. holding the sale directs, and in default of

Sec. 131. Act X, 18.59; ^ ' t n i

sec. 88, Act VIII, B.C., such paj^-mcnt the property shall be put up

1869. • 111

agam and sold.

200 THE BliXGAL TENANCY ACT.

iSl^HJs-ViiG ^^^' ^^^^^^ t^^^ purcliase-money has

— Certificate to be Riven bccii paid in fuU, the officer holdino- the

to purcliaser. i i n • i ^

Sec. 131, Act X, 1859; salc sliall givc the purcliaser a certificate
describing the property purcliased by him
and the price paid.

sec. 88, Act VIII, B. C,

ISG'J

134:. (1) From the proceeds of every sale of distrained
„ , . , , property under this chapter, the officer

Proceeds of sale how .

to be applied. holdinff the sale shall pay the costs of the

Sec. 132. Act X. 1859; ,. , , , i f i -, ,.

sec. 89, Act VIII, B. c, distraint and salc, Calculated on a scale of
charges prescribed by rules to be made, from
time to time, by the Local Government in this behalf.

(2) The remainder shall be applied to the discharge of the
arrear for which the distress was made, with interest thereon
up to the day of sale ; and the surplus (if any) shall be paid to
the person whose property has been sold.

The niles made, and scale of charges prescribed, by the Local Government
\mder sub-sec. (1) will be found in Appendix I (see Rule 6, Chap. VII of
Government Rules under this Act).

135. Officers holdinoj sales of pro-

Certaiu persons may , in

not purchase. pcrtv uiidcr this Act, and all persons em-

Seo. 133, Act X, 1859; , ,, it,. i /y>

sec. 90, Act VIII, B. c, ploycd by, or subordinate to, such oincers,
' ^* are prohibited from purchasing, either

directly or indirectly, any property sold by such officers.

All persons violating the provisions of this section are punishable under
sec. 18.5 of the Indian Penal Code.

136. (1) If at any time after a distraint has been made

Procedure where de- Under this chapter, and before the sale of

mand is paid before the ^j^^ distrained property, the defaulter, or the

^^%'n^^!'f^^^T?T^^^^'' owner of the distrained property where he

sec. 77, Act VIII, B.C., i \ f

1869. is not the defaulter, deposits in the Court

issuing the order of distraint, or in the hands of the distraining
officer, the amount specified in the demand served under sec-
tion 125, with all costs which may have been incurred after
the service of the demand, the Court or officer, as the case may
be, shall grant a receipt for the same and the distraint shall
forthwith be withdrawn.

PAYMENT OF DEMAND BEFORE SALE.

201

(2) When the distraiiiino^ officer receives the deposit, he chap. xir.

1 n ^ , . 1 . . 1 /-I Siccs. 137, 138.

shall rorthwith pay it into the Court. —

(3) A receipt granted under this section to an owner of
distrained property not being the defaulter shall afford a
full protection to him against any subsequent claim for the
arrears of rent on account of which the distraint was made.

(4) After the expiration of one month from the date of a
deposit being made under this section, the Court shall pay
tlierefrom to the applicant for distraint the amount due to him,
unless in the meanwhile the owner of the property distrained has
instituted a suit against the applicant contesting the legality of
the distraint and claiming compensation in respect of the same.

(5) A landlord shall not be deemed to have consented to
his tenant's subletting the holding or any part thereof merely
by reason of his having received an amount deposited under
this section by an inferior tenant.

137. (1) When an inferior tenant, on his property being

lawfully distrained under this chapter for
uniT.tVnrn' ^^r' mI the default of a superior tenant, makes any
lessor may be deducted payment Under the last foreojoinor section,

from rent. » •' ^ o o j

he shall be entitled to deduct the amount
of that payment from any rent payable by him to his immediate
landlord, and that landlord, if he is not the defaulter, shall in
like manner be entitled to deduct the amount so deducted from
any rent payable by him to his immediate landlord, and so on
until the defaulter is reached.

(2) Nothing in this section shall affect the right of an
inferior tenant making a payment under the last foregoing
section to institute a suit for the recovery from the defaulter
of any portion of the amount paid which he has not deducted
under this section.

138. When land is sublet, and any conflict arises under
^ „. ^ , this chapter between the rights of a superior

Conflict between ^ titit -i

rights of superior aud and of an inferior landlord who distrain the

inferior landlords. , . • i . r .i

same property, the right ot the superior
landlord shall prevail.

202 THE BENGAL TENANCY ACT.

Chap. XII. Under proviso 2 to sec. 121, a landlord is prohibited from distraining the

Sacs. 139, 140. produce of any part of a holding which has been sublet with his written con-
sent. It follows that there can only be such conflict as is contemplated by
this section when the land has been sublet without the written consent of the
landlord.

139. When any conflict arises between an order for
distraint issued under this chapter and an

Distraint of property _ ^ ^ '■

which is under attach- order issucd by a Civil Court for the attach-
ment or sale of the property which is the
subject of the distraint, the order for distraint shall prevail ;
but, if the property is sold under that order, the surplus pro-
ceeds of the sale shall not be paid under section 134 to the
owner of the property without the sanction of the Court by
which the order of attachment or sale was issued.

140. No appeal shall lie from any order passed by a

Suit for compensa- Civil Court Under this chapter ; but any

tvTinT '''°°°^''^ ^"" person whose property is distrained on an

TT^i^o^f;^^^ *°?p^^^:^^7*^ application made under section 121 in any

X. 1859; sees. 96 and 97, ^^ •'

Act VIII, B.C., 1869. case in which such an application is not
permitted by that section may institute a suit against the appli-
cant for the recovery of compensation.

It is to be observed that the ground on which a suit for compensation may be
brought is very limited. It is only in cases in which an application under sec. 121
has been allowed, and the distraint lias accordingly taken place, and when subse-
quently it is shown that the application should not have been allowed, that the
suit for compensation will lie. In other words, a suit for damages under this
section will only lie where the distraint has been initiated in a Court ; but under
the provisions of sec. 186, if any person distrains, or attempts to distrain,
without making such application, or resists a distraint duly made, or forcibly or
clandestinely removes any property duly distrained, or, except with the authority
or consent of the tenant, prevents or attempts to prevent the reaping, gathering,
storing, removing, or otherwise dealing with the produce of a holding, he will be
deemed to have committed criminal trespass within the meaning of the Penal Code,
and will, moreover, be liable to an ordinary civil suit for damages. Section 186
makes a great change in the law on this subject. The section was thought neces-
sary in order to put a stop to abuses of the old distraint law, which were said to
prevail especially in Behar.

Before a tenant can obtain a decree for damages on the ground of illegal
distraint, he must prove what loss he has actually sustained. ( Ujan Dewan v. Pran-
nath Mandal, 8 W. R., 220.) Such a suit cannot be brought in a Small Cause

DISTRAINT BY LANDLORD IN SPECIAL CASES. 203

Court {Haidar Ali v. Jafar Alt, I. L. R., 1 Calc, 183) ; but in a recent unreported Chap. XII.
case {Madim Sudan Das v. Annada Prasad Be), in which the plaintiff sued for SiccM41.
damages in consequence of the defendants having wrongfully distrained and sold the
produce of six bighas of land, belonging to, and cultivated by, the plaintiff, the
High Court (Petherara, C. J., and Beverley, J.) passed the following judgment : —
" This rule was obtained to set aside the judgment of the Small Cause Court
of Serampore on the ground that the Small Cause Court had no jurisdiction to try
the suit. That is the only point which coiild be taken. The question which arises
upon that is what the nature of the suit is. It is an action brought by a tenant
against his landlord, joining several other persons as pro forma defendants, but, as
a matter of fact, the judgment is against the landlord only to recover damages from
him, because the crops of his tenant have been distrained and sold in satisfaction
of the rent due by his landloi'd to the superior landlord of the same property and
which he had left unpaid. The first question which is sought to be argued is
whether such a suit will lie, and if it will, whether it is a suit on contract. I am
clearly of opinion that the suit will lie, and that it is a suit on contract. When a
person is in possession of land which he holds as a tenant to another, and for
which he is liable to pay rent if he under-lets that land to a tenant, the law will
imply a contract that he will pay his own rent and not leave the tenant's goods
to be distrained to satisfy the rent which he ought to pay ; if he does not do that
and the tenant's goods are seized and sold, he commits a breach of his contract to
pay up his own rent, and therefore the tenant is entitled to sue him upon that
contract and to recover damages. That is what has happened in this case, and
therefore it seems to me that the case comes within sec. 6 of Act XI of 1865,
which provides that all suits for damages shall be cognizable by the Small Cause
Court. It is contended that they must be damages for breach of contract, but
even upon that contention this is a suit for damages for breach of contract, and
therefore comes not only within the provisions of the Small Cause Court Act, but
within the admitted provisions of that Act. Under these circumstances, we think
that the Small Cause Court had jurisdiction to try the case, and that this rule
must be discharged." A landlord is not liable for the acts of his gomastah, who
has illegally distrained crops withovit being authorized to do so, unless he sub-
sequently ratifies them. {Ramjai Mandal v. Kali Mohan Rai, Marsh., 282 ; Shama
Sundari Dehi v. Mallyat Mandal, 11 W. R., 101.)

141. (1) When the Local Government is of opinion that
Power for Local Gov- in any local area or in any class of cases
dXl'^t *'in'"cSn it would, by rcason of the character of the
^^^^^- cultivation or the habits of the cultivators,

be impracticable for a landlord to realize his rent by an
application under this chapter to the Civil Court, it may, from
time to time, by order, authorize the landlord to distrain, by
himself or his agent, any produce for the distraint of which he
would be entitled to apply under this chapter to the Civil
Court :

Provided that every person distraining any produce under
such authorization shall proceed in the manner prescribed by

204

THE BENGAL TENANCY ACT.

Chap. XIII. sectioii 124, and shall forthwith give notice, in such form as

* — - ' the High Court may, by rule, prescribe, to the Civil Court

having jurisdiction to entertain an application for distraining

the produce, and that Court shall, with no avoidable delay,

depute an officer to take charge of the produce distrained.

( 2 ) When an officer of the Court has taken charge of any
distrained produce under this section, the proceedings shall
thereafter be conducted in all respects as if he had distrained it
under section 124.

(3) The Local Government may at any time rescind any
order made by it under this section.

Tlie Local Government has made no order under this section. The section is
intended to meet a difficulty, which it was supposed may arise in particular tracts,
where from the nomadic habits of the raiyats, or from the facility with which they
may slip across the frontier, and remove the produce to border native states, it
may be impracticable for the landlord to obtain an order of the Court in time to
prevent the removal of the crop.

Power for High Court 142. The High Court may, from time

to make rules. ^^ ^j^^^^ ^^^j,^ ^^^^es consistent with this Act

for regulating the procedure in all cases under this chapter.

The Rules made by the High Court under the provisions of this section will be
found in Appendix III.

CHAPTER XIII.

Judicial Procedure.

143. (1) The High Court may, from time to time,

Power to niodify Civil ^^^^^ ^^'^ approval of the Govcmor-General
Piocednre Code iu its in Council, make rules consistent with this

application to landlord i n i . i . /-,

and teiiiuit suits. Act declaring that any portions of the Code

of Civil Procedure* shall not apply to suits
between landlord and tenant as such or to any specified classes
of such suits, or shall apply to them subject to modifications
specified in the rules.

(2) Subject to any rules so made, and subject also to the
other provisions of this Act, the Code of Civil Procedure*
shall apply to all such suits.

The High Court has not as yet made any rules under this section. But,
under the provisions of sec. 148, very considerable portions of the Code of Civil
Procedure do not apply to suits under this Act for the recoverv of rent.

JUDICIAL PROCEDURE. 205

The following rulings relating to procedure in rent-suits will be found chap, XIII..
useful :— Skc. 143.

Burden of proof.— In cases in which a plaintiff sues for rent, and the defendant
sets up the plea that the land is lahhiraj or rent-free, the onus is in the first instance
on the landlord to prove primd facie that the land is rent-paying. If there are cir-
cumstances which show that the land is rent-paying, e. g., if the land lies within the
ambit of the plaintiffs zamindari, then the onus is on the defendant to show
that the land is rent-free. {Moti Lai Aduk v. Jadupati Das, 2 W. E., Act X, 44 ;
Satto Charan Ghosal v. Mohesh Chandra Mitra, 3 W. E., 178 ; Gangadhar Singh v.
Bimola Dasi, 5 W. E., Act X, 37 ; Ashrafunnissa v. Umang Mohan Deh Rai,

5 W. E., Act X, 48 ; Mritanjai Chakrahartti v. Barada Kanta Rai, 6 "W. E., Act
X, 18 ; Jageshari Debi v. Gadadhar Banarji, 6 W. E., Act X, 21 ; Shih Narain
Rai V. Chidam Das, 6 W. E., Act X, 45 ; Dhanmani Debi v. Satturghan Sil,

6 W. E., Act X, 100 ; Nihal Chandra Mistri v. Hari Prasad Mandal, 8 W. E., 183 ;
Hira Ram Bharttacharji v. Ashraf AH, 9 W. E., 103; Raj Kishor Mukharji v.
Harihar Mukharji, 10 W. E., 117 ; Ambika Cham Maiidal v. Ram Dhan, 11 W. E., 35 ;
Man Molmn De v. Sn Ram Rai, 14 W. E., 285 ; Sridhar Nandi v. Braja Nath Kundu,
14 W. E., 286 ; 2 B. L. E., 211 ; Harihar Mukharji v. Madhah Chandra, 8 B. L. E.,
566 ; 14 Moore I. A., 152 ; Arfannissa v. Piari Mohan Mukharji, I. L. E., 1 Calc, 378 ;
Nexoa] Bandopadhya v. Kali Prasanna Ghosh, I. L. E., 6 Calc, 543 ; Akbar Ali v.
Bhyea Lai Jha, I. L. E., 6 Calc, 666 ; Kailash Basini Dasi v. Gokulmani Dasi, I.L.E.,
8 Calc, 230 ; Becharam Mandal v. Piari Mohan Banarji, I. L. E., 9 Calc, 813 ;
Narendro Narain Rai v. Bishnu Chandra Das, I. L. E., 12 Calc, 182.) In a suit
for enhancement, where the defendant replies that the land in question does not
belong to the plaintiffs estate, the onus is on the plaintiff (who seeks to dispute
the previously existing an-angement) to prove his right to do so. (Mahomed Ali v.
Radlia Raman Mandal, 4 W. E., Act X, 18.) In a suit for enhancement of rent
in respect of land, which the defendant claimed to hold as a dependent taluk, it
was held that the onus was upon the zamindar to show that the land was included
in the zamindari at the time of the Permanent Settlement. (Ahsanullah v. Bassarat
Ali Chaudhuri, I. L. E., 10 Calc, 920.) In a suit to recover arrears of rent from
the defendants, who, as thikadars of the plaintiff's share in a certain mauzah, had
been in possession from 1262 to 1281 without having paid any rent, the plaintiff,
who claimed a bhaoli rent at the rate of 9 annas of the crop, proved that in the
mauzah in question the raiyats paid rent at that rate, and it was held that under
the particular circumstances the onus was on the defendants, who alleged that
the proper rate was 8 annas, to prove their allegation. (Lochan Chaudhri v. Anup

Singh, 8 C. L. E., 426.) In a suit to recover arrears of rent at enhanced rates, the '

onus of proving both the quantity and the rates is upon the plaintiff and not

upon the defendant. (Ghulam Ali v. Gopal Lai Tagore, 1 "W. E., 56 ; 9 W. E.,

65.) The onus of proving the proper rate is upon the plaintiff, and not upon the

defendant. {Samira Khatun v. Gopal Lai Tagore, 1 W. E., 58.) With the above

rulings should be read sec 109, Act I of 1872, which provides that when the

question is whether persons are landlord and tenant or principal and agent, and

it has been shown that they have been acting as such, the burden of proving that

they have ceased to stand to each other in those relations respectively is on the

person who affirms it. See also Range Lai Mandal v. Abdul Ghaffur, I. L. E.,

4 Calc, 314 ; Parbati Dasi v. Ramchand Bhattacharji, 3 C. L. E., 576.

Jamabandies, Chittas, Collection papers and Road Cess Returns,—
Jamabandi papers can never be treated as independent evidence of any contested

206

THE BENGAL TENANCY ACT.

Chap. XIFI. fact. (Chamarni Bihi v. Amullah Sirdar, 9 W. R., 451.) Jamabandi papers
Sicc. 143. can only be used as corroborative evidence of the same value as books of account.
{Gajju Koerv. Alt Ahmad, 14 W. R., 474 ; 6 B. L. R., App., 62.). The jainahandi
papers of a former patwari are valueless without the personal testimony of the
patwari. {Bhagwan Datta Jha v. Sheo Mangal Singh, 22 W. R., 256.) The evidence
of a patwari corroboi'ated by jamabandi papers may be conclusive. {Dhaniikdhari
Sahi V. Toomey, 20 W. R., 142.) Jamabandi papers filed by a proprietor in
hatwara proceedings to which the tenant is not necessarily a party cannot be
dsed as evidence against such tenant in a suit for arrears of rent. (Kishor Das v.
Parsan Mahtun, 20 W. R., 171.) A suit for enhanced rent cannot be based on a
jamabandi to the terms of which the tenant has not consented. {Inayatullah Miah
v. Kobo Kumar Sirkar, 20 W. R., 207.) A jamabandi drawn up under sec. 9,
Reg. VII of 1822, specifying the amounts of rent payable by the tenants, who
were aimadars, and voluntarily signed by them is evidence against them. ( Watson v.
Mohendra Nath Pal, 23 W. R., 436.) A jamabandi prepared by a Deputy
Collector, while engaged in the settlement of land under Reg. VII of 1822, is a
public document within the meaning of sec. 74 of the Evidence Act. It is not
necessary to show that at the time when such document was prepared, a raiyat
affected by its provisions was a con!3enting party to the terms specified. {Taru
Patar v. Abinash Chandra Datta, I. L. R., 4 Calc, 79.) Chittas not duly proved
are not legal evidence, though admitted by the lower Court without objection
from the opposite party. {Izzatxdlah Khan v. Ram Cham Ganguli, 12 W. R., 39.)
When chittas were produced by the plaintiff as evidence of certain lands being
rent-paying, it was held that they were sufficiently attested by the deposition of
the village gomastah that they were the chittas of the village when he was
gomastah, and that he had been present when, with their assistance, the measure-
ment of the lands of the village had been tested. (Debi Prasad Chattarji v.
Ram Kimar Ghosal, 10 W. R., 443.) Chittas and maps made in contemplation of
resumption-proceedings in the presence of both parties and signed by the parties
are legal evidence. {Sham Chand Ghosh v. Ramkrishna Behra, 19 "W. R., 309.)
Chittas produced from the Collectorate, when there is nothing to show that they
are the record of measurements made by any Government officer, are not public
documents. {Nityanand Rai v. Abdur Rahim, I. L. R., 7 Calc, 76.) Chittas made
by Government for its own use are nothing more than documents prepared for the
information of the Collector, and are not evidence for the purpose of proving
that the lands are or are not of a particular character or tenure. (Ram Chandra
Sahu V. Bansidhar Naik, I. L. R., 9 Calc, 741 ; Dwarka Nath Misra v. Tarita Mayi
Debi, I. L. R., 14 Calc, 120. See also Janmajai Mallik v. Dwarkanath Mahanti,
I. L. R., 5 Calc, 287 ; and contra, Taraknath Mukharji v. Mohendra Nath Ghosh,
13 W. R., 56 ; Mochiram Manjhi v. Bissambhar Rai, 24 W. R., 410.) Jama-wasil-
bakies or collection papers are not evidence by themselves. The mere production
of such papers is not enough. But coupled with other evidence, they often
afford a very useful guide to the truth. (Roshan Bibiv. Hari Krishna Nath, 1. L. R.,
8 Calc, 926.) Jama-wasil-bakies are not independent evidence of the amount
of rent mentioned therein, but it is perfectly right that a person who has prepar-
ed such jama-wasil-baki papers of the rent should refresh his memory from such
papers when giving evidence as to the amount of rent payable. (Akhil Chandra
Chaudhri v. Nayu, I. L. R., 10 Calc, 248 ; Mahomed Mahmud v. Safar Ali, 1. L. R.,
11 Calc, 407. See also Ally at Chinamun v. Jagat Chandra Rai, 5 W. R., 242 ;
Khiro Mani Dasi v. Bijai Gobxnd Baral, 7 W. R., 533 ; Sheo Sahai Rat v. Gudar
Rai, 8 W. R., 328 ; Ram Lai Clmkrabartti v. Tara Sundari Barmanya, 8 W. R., 280 ;

JUDICIAL PROCEDURE.

207

Newazi v. Lloyd, 8 W. R., 464 ; Bijai Gohind Baral v. Bhiku Rai, 10 W. R., 291 ; Chap. XIII.
Mohima Chandra Chakraharrti\. Purno Chandra Banarji, WW. R., 165.) Road ^"<^- ''^^•
cess papers are not admissible against a tenant either as substantive or corrobo-
rative evidence of the amount of rent payable by him. {Mahomed Mahmud v. Bafar
Alt, I. L. R., 11 Calc, 407. ^qb. &\so Daitari Mahanti \. Jagathandhu Mahanti^
23 W, R., 293.)

Interveners. — Under sec. 77, Act X of 1859, intervenors claiming to have
been in receipt of rent from the defendant up to the time of the commencement
of the suit, were entitled to be made parties, and if found to have been actually
and in good faith in receipt of the rent were entitled to a decree irrespective of
their legal title to the property. {Naioah Nazim v. Padma Lochan Mandal, 5 W. R.,
Act X, 26 ; Jishan Hossain v. Narain Das, 5 W. R., Act X, 56 ; Krishna Kumar
Shaha V. Jihan Singh, 5 W. R., Act X, 85 ; Haronath Rai v. Prannath Rai,
7 W. R., 85 ; Umesh Chandra Datta v. Bhagahan Chandra Rai, 9 W. R., 305 ;
Jagurdi v. RadJia Kishor Talukdar, 13 W. R., 259.) They could not, however, be
made co-plaintiflfs against their will. {Behari Lai Das v. Radha Nath Das, 22 W. R.,
229.) But the provisions of sec. 77, Act X of 1859, were not reproduced in Act
VIII of 1869, B. C. It was, therefore, held that it was not necessary to admit an
intervener in a rent-suit under Act VIII of 1869, B. C, if his interest could not
be injured by a decree therein (Ishar Chandra Sen v. Bipin Bihari Rai, 16 W. R.,
132 ; Chuli Lai v. Kokil Singh, 19 W. R., 248) ; and although he could be made a
party under sec. 73, Act VIII of 1859, a Court was bound to limit its enquiry to
the issues, which alone were necessary for the trial of the plaintiffs right to the re-
lief sought. {Doyal Chandra Sahai v. Nabin Chandra Adhikari, 16 W. R., 235 ; 8 B.
L. R., 180 ; Guru Prasanna Banarji v. Gagan Chandra Datta, 20 W. R., 383.) A
rent- suit must be a hoiidjlde suit for rent, and not a trial of a wholly different issue
between parties advancing conflicting claims of ownership to the estate. {Radha Ma-
lakar v. Srishti Narain Saha, 21 W. R., 88 ; Baikanta Kaibarta v. Shoshi Mohan Pal,
22 W. R-, 526 ; Kattyani Dehi v. Grish Chandra Banarji, 23 W. R., 168 ; Dina Nath
Baste V. Grish Chandra Bandopadhya, 23 W. R.,435 ; Tileshari Koer \. AsmedhKoer,
24 W. R., 101 ; Biressar Panri v. Jogendro Chandra Deb, 24 W. R., 261 ; but see
contra, Radhamani v. Ram Narain De, 22 W. R., 440 ; Guru Prasanno Banarji \. Sri
Gopal Chaudhri, 20 W. R., 99.) Under sec. 73, Act VIII of 1859, not only a person
claiming to be in receipt and enjoyment of the rent can be made a party, but also a
person who intervenes on the allegation that he has acquired the rights of the
tenants, and has paid to the plaintiff a smaller sum. {Madhu Sudan Basu v. Btdhu
Bhushan Haldar, 22 W. R., 384 ; Amatal Fatima Khanum v. Taranath Chand, ,

24 W. R., 151 ; Kartik Chandra Mukharji v. Muktaram Sirkar, 10 W. R., 21.) But in
a suit for enhanced rent, an intervener claiming to be the real tenant has no right
to be made a party. {Kalinath Rai v. Ishar Chandra Ghosal, 11 W. R., F, B., 23.)
"Where a person sued for rent sets up the title of a third party, and alleges that
he holds under, and pays rent to, him, such third party ought not to be made a
party to the suit so as to convert a simple suit for arrears of rent into one for
the determination of the title to the property, in respect of which the rent is
claimed. Such a suit raises only two issues — viz. (1) Does the relation of land-
lord and tenant exist between the plaintiff and defendant ? (2) Are the alleged
arrears of rent due and unpaid ? And these are questions in which the plaintiff
and defendant are alone concerned, and no third party claiming a title adverse to
the plaintiff, can properly be made a party to the trial of these issues. {Lodai Mol-
lah V. Kali Das Rai, I. L. R., 8 Calc, 238 ; 10 C. L. R., 581.) There is no provi.

208

THE BENGAL TENANCY ACT.

Chap. XIII. siou iu the present Act for third persons intervening and being parties to the
Skc. 143. guit^ ijut under sec. 28, Act XIV of 1882, all persons may be joined as defend-
ants against whom the right to any relief is alleged to exist, whether jointly,
severally or in the alternative, in respect of the same matter ; and under sec. 32,
the Court may order that the name of any person who ought to have been joined,
whether as plaintiflF or defendant, or whose presence before the Court may be ne-
cessary to enable the Court effectually and completely to adjudicate on and settle
all the questions involved in the suit, be added. In his notes under this section
in his edition of the Civil Procedure Code, Mr. Justice O'Kinealy has said that,
" whether an intervenor in a rent-suit should be made a party or not, is not quite
settled. The latest decision is to the effect that he should not {Lodai Mollah v.
kali Das Rai, I. L. R., 8 Calc, 238), and probably it is impossible to lay down
beforehand in what cases an intervenor should be made a party." (See 3rd edit.,
p. 68.) In the case of Lodai Mollah v. Kali Das Rai (I. L. R., 8 Calc, 238), it is
further said that sec. 28 of Act XIV of 1882 is not imperative, and that when in a
rent-suit the question of the title of a third party is raised, it is better both in the
interests of Government, and for the proper adjudication of the question of title,
that it should be tried by a competent Court in a suit directly framed and brought
for that purpose. In a suit for rent, in which the defendant alleged that a person
not on the record had a joint interest with the plaintiflF in the property in re-
spect of which the rent was due, it was held that when the plaintiff disputed this,
and objected to such course being taken, it was improper to add such person as
co-plaintiff, and that if added at all, it should be as defendant, in order that the
issue between him and the plaintiflf might be properly tried. {G^tgli Sahu v. Prem
Lai Sahu, I. L. R., 7 Calc, 148.)

Benamidars.— In a suit for arrears of rent, in which an intervenor alleged
that the plaintiflf was merely his hcTiamidar, it was held tliat it was wrong to intro-
duce him into the case, and that any issue as to the alleged henami was foreign to
the suit. (Raghunath Prasad Singh v. Byjnath Sahai, 24 W. R., 349.) Parties who
choose to buy property in another person's name, and allow that person the op-
portunity of dealing with it as his own, cannot in equity be allowed to intervene
in a suit brought by him for the rent of such property. {Smith v. Mohkum Mahton,
18 W. R., 526.) In Tarini Kant Lahiri v. Krishnamani Chavdhri (5 C. L. R., 179),
in which the plaintiflF, who derived title from A, who was the ostensible purchaser
of certain immoveable property at an auction sale in execution of a decree against
B, brought a suit to recover the rent of such property from the talukdar, the aj)-
pellant was allowed to intervene, alleging that A was the henamidar of a third
person, from whom he himself had purchased the property. The lower Court,
however, refused to try the question of henami as not being admissible in a rent-
suit. But on appeal it was held that the question of henami was properly raised
in the suit, and should be tried. The High Court, however, said in this case, that
if the lower Court thought the question of title could not be raised in a rent-
suit, it ought not to have admitted the intervenor defendant as a party to the
suit, but having admitted him, it ought to have tried the issue which he raised.
On the other hand, a decree for arrears of rent may be given against the real
lessees in possession, although no previous realisation of rent directly from them
is established, and no written agreement is shewn to have been executed by them
in their own names, another party being the ostensible holder of the lease and
not denying liability. {Jadunath Pal v. Prasanna Datta, 9 W. R., 71. See also
Bipin Bihari Chavdhri v. Ram Chandra Rai, 14 W. R., 12 ; 5 B. L. R., 234.) If a

JUDICIAL PROCEDURE.

209

zamiudar sues an agent for rent due from an estate, this is no bar to the zamin- Chap, Xlll.

dar's afterwai-ds suing the principal for rent, subsequently accrued due. But he ^^^- '^^•

cannot in the same suit sue both the principal and the agent : he must elect which

of them he will proceed against. (Prasanna Kwnar Pal v. Kailash Chandra Pal^

8 W. R., 428.) Similarly, a landlord cannot hold both the nominal and the real

lessee liable for rent, but must make his election. {Kamyab v, Umda Begam^

W. R, Sp. No., Act X, 88.)

Res judicata.— As a genei-al nile, the decision of a Revenue Court in a suit
under Act X of 1859 does not bar a suit on the same cause of action in the Civil
Court, as the Revenue Couit was not competent to decide the subsequent suit in
the Civil Court. Thus, the decision of a Revenue Court as to the genuineness of a
mokarari pottah, coming collaterally in issue before it, does not bar a subsequent
suit relating to the pottah in the Civil Court. {Janessar Das v. Gulzari Lai,
II W. R., 216.) A raiyat brought a suit against his landloitl in the Revenue Court
for the possession of certain land on the basis of a pottah which was found to be
genuine. The landlord subsequently sued to eject his heirs from the same land.
It was held by a Full Bench that the previous decision as to the pottah was not
conclusive between the parties. {Clmiidra Kumar Mandal v. Namni Khanum,
19 W. R., 322.) In a suit brought under Act VIII, B. C. of 1869, for rent at an
enhanced rate, the defendants pleaded that a portion of the land for which rent was
claimed was their feMtVcy' land. The plain tiff relied on a previous suit instituted
in the Collector's Court under Act X of 1859, in which it had been determined
that the land was not lakhiraj. It was held by a Full Bench that the decision
under Act X of 1859 was not conclusive, but that it was evidence to which the
Civil Court was bound to give weight. {Hari Sankar Mukharji v. Krishna Patro
24 W. R., 154 ; 15 B. L. R., 238.) In one case, however, it was held that when a
suit for rent due on a certain stipulation in a patni lea.se was dismissed in the
Revenue Court, another suit could not be brought in the Civil Court for damages
laid at the amount of rent which would have been realized. {Gopal Krishna,
Muklmrji v, Madkv, Sudan Pal, W. R., Sp. No., Act X, 82.) As a general rule,
the decision of an ordinary Civil Court in a suit for i-ent cognizable under
Act VIII, B. C. of 1869, is binding in a subsequent suit between the same parties,
which raises the same question in a different form. {Mohima Clmndra Mazumdar v.
Asradha Dasi, 21 W. R., 207.) But the causes of action in the two suits must
have been really the same. A suit for khxis possession, for instance, is no bar to a
later suit for rent of the same land. {Bhagwan Das v. Sheo Narain Singh, 23 W. R.,
253.) In a suit for arrears of rent the landlord produced a. jamabandi signed by the
defendant, admitting the area of the lands held and the rent payable to be as
claimed by the plaintiff, and a decree was accordingly jmssed for the amount of
arrears claimed, no further evidence being taken as to the extent of land. Sub-
sequently, the tenant filed a suit against the landlord, alleging that he actually
held a less area than that in respect of which he had been paying rent and claim-
ing the right to have the land re-measured and to pay rent in accordance with
such re-measurement. It was held in this case that the question in the latter suit
was not res judicata by the judgment in the former suit. {Raghu Nath Mandul v.
Jagatbandhu Basu, 8 C. L. R., 393.) But in another suit for arrears of rent, the
defendant, while admitting the amount claimed, contended that it was pa^-able
for a larger area than that specified by the plaint. An issue was accordingly
raised upon the question whether the amount was due upon the larger or smaller
area, and decided against the defendant. The defendant afterwards brought a
R. k F., B. r. A. 14

210 THE BENGAL TENANCY ACT,

Chap. XIII. suit for a declamtfon tliat the money admitted to be due had been paid in respect
Skc^143. of the larger area ; but it was held that the suit was barred by the decree in the
former suit. (Bassan Lai Sukal v. Cliandi Das, 4 0. L. R., 1.) In another case the
plaintiff obtained a patni lease of certain villages in 1861, and in 1865 was evicted
from a portion of the property. She took no steps to obtain an abatement of lier
rent, but inasmuch as she did not pay any rent for 1871, the defendant brought
a suit against her for the rent of that year. The plaintiff set up the defence that
she was entitled to an abatement of Rs. 155 from her rent, the 155 rupees repre-
senting the annual value of the property, which she had lost in consequence of
the eviction. In this suit it was decided that the amount of abatement she was
entitled to was Rs. 42. No appeal was made against that decision. In a suit
brought by the plaintiff for the purpose of obtaining a permanent abatement of
her rent, she claimed the precise measure of abatement, viz., Rs. 155, which she
had claimed in the suit brought against her by the defendant. It was held that
the question was res judicata, it having been raised and decided in the former suit.
{Noho Durga Dasi v, Faiz Baksh Chaudhuri, I. L. R., 1 Calc, 202 ; 24 W. R., 403.)
A rate of rent decreed to a landlord for a certain year is binding on the tenant as
regards ensuing years, until the latter obtains a decree to a different effect. (i/a«
Mohini Debt v. Binod Bihari Saha, 25 W. R., 10.) The plaintiff in a suit for rent
having failed to prove the amount of rent claimed by him, the Court, in trying the
issue, " what is the proper amount of rent payable to the plaintiff," gave the plain-
tiff a decree for the amount admitted by the defendant, that amount being less than
that claimed by the plaintiff. In a later suit the plaintiff sued the defendant for the
rent of a subsequent year, and he claimed at the same rate as he had claimed in the
previous suit. It was held that the decree in the former suit was res jvdicata as
to the proper rate payable by the defendant. {Jeo Lai Singh v. Sarfan, 11 C. L. R.,
483.) This decision overruled the case of Pannu Singh v, Nirghan Singh (I. L. R.,
7 Calc, 298 ; 8 C. L. R., 310), in which the contrary had been held. An issue
raised but not decided does not bar the decision of the same issue in a subsequent
suit. {Oopi Mohan Mazumdar v. Hills, I. L. R., 3 Calc, 789 ; Brindaban Chandra
Sirkar v. Dhananjai Lashkar, 4 C. L. R., 443 ; Ghursobhit Ahir v. Ramdnt Singh,
I. L. R., 5 Calc, 923 ; 6 C. L. R., 537.) But if an issue has been raised and decided
in the judgment, the decision on that point is conclusive between the parties, even
though not embodied in the decree {Niamat Khan v. Bhadu Baldia, I. L. R.,
6 Calc, 319 ; 7 C. L. R., 227) ; and if an issue has been raised, and the suit dis-
missed because the plaintiff failed to adduce evidence on that point, that issue can-
not be raised again in a subsequent suit for the same property. {Kartik Chandra
Pal v, Sridhar Mandal, I. L. R., 12 Calc, 563.) It is, of course, essential that the
parties in the two suits are the same, or litigate under the same title. Thus, when
A brovight a suit against B, claiming certain property as the tenant of C, who was
also made a defendant in the suit, this suit was on the merits decided in favour of
B. C then brought a suit against B, for possession of the same property, and it
was held that this suit was not barred. {Brajo Bihari Mitra v. Kedarnath Mazumdar,
I. L. R., 12 Calc, 580.) So a suit to set aside a pottah as fabricated is not barred
by the fact that the same pottah was found to be genuine in a suit for rent
against the same defendant by a thikadar of the plaintiff, such thikadar not being
the plaintiff's representative. ( Wahid Ali v. Nath Turaho, 24 W. R., 128.) But in
another suit the plaintiffs sued to establish as against the defendants their title
to certain land in the occupation of a tenant. In a previous suit, instituted by
one of the present defendants against the tenant for rent, one of the plaintiffs
(representing the right claimed by all of them) intervened on the ground that he

JUDICIAL PROCEDURE. 211

was the person entitled to the rent and failed to establish his claim. It was held Chap. XIFI.

that the plaintiffs were barred by the judgment in the former suit. {Gobind Chan- Sicc. 143.

dra Kundu v. Tarak Chandra Basu, I. L. R., 3 Calc, 146 ; 1 C. L. R., 35.) A sued B

to establish his right of possession to certain lands allowed to him under a hatwara.

In a previous suit by B, instituted after the hatwara, against a tenant for arrears

of rent due for a portion of the lands now in dispute, A intervened and was made

a defendant on the sole ground that he was entitled to the rent, but failed to

establish his claim. It was held that the suit was barred by the judgment in the

former suit. (Bimola Sundari Chaudhmnni v. Panchanan Chaiidhri, I. L. R., 3 Calc,

705.) An issue which ought to have been raised in a previous suit cannot be raised

in a subsequent one. In a suit for rent and ejectment, the defendant pleaded that

his tenure was transferable and istimrari, and consequently protected under the

Rent Law. In a former suit for arrears of former years, in which the defendant

pleaded that his tenure was istimrari, the plaintiff obtained a decree for ejectment

on non-payment of rent within 15 days. In that case the defendant saved his

tenure by payment within the time stated. It was held that, inasmuch as the

defendant might in the former suit, in which the nature of the tenure was put in

issue have urged that his tenure was both transferable and istimrari, he could not

in the present suit be allowed to alter his defence, and rely on the tenure being

transferable. {Di7iomayi Dehi v. Awmgomayi, 4 C. L. R, 599.)

Effect of ex-parte decrees for rent.— The rulings as to the effect of ex-parte
decrees for rent are conflicting. In an early case (^Kali Kant Rai v. Ashraf-
unnissa, 2 W. R., 326), it was ruled that in a suit for enhancement ex-parte
summary decrees for rent are not satisfactory proof that a variation has taken
place in the amount of the rent paid. Subsequently, it was said that a defendant
who omits to defend a suit and allows an ex-parte decree to be passed against him
cannot afterwards object to the decree as no evidence. {Chandra Kumar Datta
v. Jai Chandra Datta, 19 W. R., 213.) But in another case, it was observed that
where a suit is tried ex-parte, and no issues of fact are raised beyond the general
issue involved in the claim, the decree considered as evidence is only evidence that
the amount decreed was at the time due from the plaintiff to the defendant.
{Goya Prasad Aubasti v. Tarini Kant Lahiri, 23 W. R., 149.) Then, in a later
case decided by a Full Bench, it was held that an ex-parte decree for rent is
admissible as evidence of the rate of rent in a subsequent suit between the same
parties, even though it has become inoperative from not having been executed
within the period of limitation. {Bir Chandra Manik v. Ram Krishna Shalia,
23 W. R., 128 ; 14 B. L. R., 370.) This was followed in a case in which it was ruled ,

that a decree obtained ex-parte is in the absence of fraud or irregularity as bind-
ing for all purposes as a decree in a contested suit. Such a decree is admissible
in evidence, even though the period for executing it has expired. {Bir Chandra
Manik v. Harish Chandra Das, I. L. R., 3 Calc, 383.) Moreover, in Jagadamba
Dasiv. Tarakant Banarji (6 C. L. R., 121), their Lordships of the Privy Council
held that the effect of an appeal decided by them ex-parte could not on that
ground be disputed. Recently, however, it has been held that a decree obtained
ex-parte, is not final within the meaning of expl. 4, sec. 13 of Act X of 1877.
Such a decree is not conclusive evidence of the amount of rent payable by the
same defendant in another suit for subsequent rent of the same property. {Nil
Mani Singh v. Hira Lai Das, I. L. R., 7 Calc, 23 ; 8 C. L. R., 257.) This was
followed in a suit for arrears of rent of a half share of land in which the plaintiffs
relied upon an ex-parte decree for rent at a certain rate, which they had obtained

212 THE BENGAL TENANCY ACT.

Chap. XIII. in 1869 against the tenants of this share. It did not appear that the er-par(e
Sfv. 143. decree had been executed. It' was accordingly held that it was open to the
defendants to dispute tlie i-ate of rent claimed, and that the plaintiffs were bound
to prove that they were entitled to recover it. {Bhagirath Patni v. Ram Lochan
Deb, I. L. R., 8 Calc, 275) ; see also Jiam Sundar Tewari v. >Srinath Deioasi
(10 W. R., 215 ; 14 B. L. R., 371) ; and JiMnu Prakask Singh v. Ratan Oir Chela
(20 W. R., 3). The question a.s to the effect of ex-parte decree has recently been
referred to a Full Bench, and is, it is understood, still under its consideration.

A tenant cannot raise an interpleader suit.— Under sec. 474, C. P. C,
tenants are prohibited from suing their landlords for the purpose of compelling
them to interplead with any persons other than persons making claim through
the landlords.

Set-off. — A liquidated sum due on a Iwnd is capable according to law, even
without an agreement to that effect, of being set-off against sums due for rent.
( Watson £ Co. v. Braja Sundari Dehi, 16 W. R., 225.) In a suit brought again.st
a lessee of a portion of an estate by one of the co-sharers for money alleged to be
due as the plaintiffs share of arrears of rent for a certain period, where the
claim was admitted, it was held that the defendant was not entitled to set-off
under sec. 121, Act VIII of 1859, the plaintiffs .share of the Government revenue
of the whole estate which had been paid by the defendant for the period for
which the arrears of rent were alleged to be due. It was further held that there
was no such connection between the claim of the plaintiff and the counter-claim
of the defendant, as would entitle the defendant as a matter of equity, apart
from legislative enactment, to a set-off. {Hossaina Bihi v. Smith, 22 W. R., 15 ;
13 B. L. R., 440.) In a suit by a zamindar for arrears of rent, the defendant
alleged that his tenure had been placed under the management of the Collector,
and had so remained for a number of years, and that the Collector, from money
realized by him as manager, had, in addition to satisfying all other claims of the
plaintiff, paid the rents accruing not only during the period of his management
but up to, and inclusive of, the year, the arrears of rent for which were claimed
in the suit. The lower Court refused to consider the defendant's plea, on the
ground that it was in the nature of a set-off, and that not being a debt due from
the plaintiff to the defendant, it was not such a set-off as could be allowed by the
Court. It was, however, held that the plaintiffs plea was a plea of payment
merely and not in the nature of set-off. {K^tnja Bihari Singh v. Nil Manx Singh,
4 C. L. R., 296.) In a suit by a zamindar against the wife of the Nawab Nazim
of Bengal for the rent of a patni for the years 1284 and 1285, it appeared that
the defendant had paid the revenue for 1284 to Government, and it was contended
that the monies paid for revenue were payments made to the plaintiff so as to
entitle him under sees. 59 and 61 of the Contract Act to appropriate them in
discharge of the rent of 1283, which was barred by limitation. But it was held
that these payments were properly subject of set-off as money paid to the use of
the plaintiff, and that they could not be appropriated under the Conti-act Act to
the rent of 1283. {Rukmini Ballahh Rai v. Mulk Janiania Begam, 12 C. L. R.,
534.) See also notes to sees. 38 and 52, pp. 88 and 116.

Waiver.— In 1267 the plaintiff obtained a decree in a suit to enhance the
defendant's rent. It was held that the acceptance by the plaintiff of the old rent
from 1268 to 1271 was no waiver of his claim to the higher rent decreed to him.
(Lavde}- v. Binod Lai Ghosh, 6 W. R., Act X, 37.)

JURISDICTION IN RENT-SUITS. 21;

Two-fold claim for both arrears of rent and ejectment not maintain- chap. xn
able.— Where A, after notice to his tenants to pay rent at an enhanced rate from •^''c. li4.
the commencement of the ensuing year or to quit, brought a suit for a higher
rate of rent or ejectment in the alternative, it was lield that in such a suit the
plaintiff could not insist upon a two-fold claim for both rent and ejectment, nor
obtain a decree for rent for the first quarter and ejectment thereafter. {Mahamaya
Gupta V. mi Madhah Rai, I. L. R, 11 Calc, 533.)

144. ( 1 ) The cause of action in all suits between landlord
Jurisdiction in pro- aiid tenant as such shall, for the purposes
"^Sei"°1?5,"\ct viii,' of the Code of Civil Procedure, be deemed
^•^•' ^^^^' to have arisen within the local limits of the

jurisdiction of the Civil Court which would have jurisdiction to
entertain a suit for the possession of the tenure or holding in
connection with which the suit is brou":ht.

(2) When under this Act a Civil Court is authorized to
make an order on the application of a landlord or a tenant,
the application shall be made to the Court which would have
jurisdiction to entertain a suit for the possession of the tenure
or holding in connection with which the application is brought.

Sub-section (1) of this section makes a change in the law. In the correspond-
ing section in Act VIII, of 1869, B. C, viz., sec. 35, it was provided that the
cause of action in certain suits enumerated therein, shall be deemed to have
arisen within the jurisdiction of the Court, which would have had jurisdiction to
entertain a suit for the recovery of the land, or other immoveable property in
relation to which the cause of action arose, and shall be brought in such Court
and "in no other Court." These words "and in no other Court" have not
been inserted in the present section. The result of their omission is that under
sec. 17, C. P. C, a suit between landlord and tenant as such may now be brought
(1) in the Court, which would have jurisdiction to entertain a suit for the possession
of the tenure or holding in connection with which the suit is brought ; (2) in the
Court, within the local limits of whose jurisdiction all the defendants at the
time of the commencement of the suit actually and voluntarily reside, or carry
on business or personally work for gain ; and (3) in the Court within the local
limits of whose jurisdiction any of the defendants at the time of the commence-
ment of the suit, actually or voluntarily resides, or carries on business or per-
sonally works for gain ; provided that either the leave of the Court is given, or
that the defendants who do not reside, or carry on business or personally work
for gain, acquiesce in such institution. A suit between a landlord and tenant
as such can, under sec. 19, C. P. C, be brought in any Court within the
local limits of whose jurisdiction any portion of the lands of the tenure or
holding is situated, and a landlord can, under sec. 45, C. P. C, with the
acquiescence of the Court combine in one suit causes of action arising out of
several tenancies against the same defendant, provided that all the lands to
which they relate are situated within the jurisdiction of the Court, but he

214 THE BENGAL TENANCY ACT.

Chap. XIII. cannot do so, if the lands to which they relate are situated within the jurisdictions
S»'c^45. of several Courts.

Suits for arrears of rent of homestead or bastn land. — Under sec. 6,
Act XI of 1865, suits for arrears of rent for homestead or haMu land lay in the
Court of Small Causes ; but now under cl. (8),Sc'hed. II, Act IX of 1887 (the Pro
vincial Small Cause Courts Act), a Mofussil Small Cause Court has no
jurisdiction to entertain such suits, which are consequently cognizable by the
ordinary Civil Courts. {Uma Cham Mandal v. Bijari Beica, I. L. E., 15 Calc, 174.)

Conrt-fees.— Section 7, sub-sec 11, Act VII of 1870, lays down that in
i^uits (1) to enhance the rent of a tenant having a right of occupancy ; (2) to
recover the occupancy of land, from which a tenant has been illegally ejected by
the landlord ; and (3) for abatement of rent, the fees payable under the Act shall
be computed according to the amount of the rent of the land to which the suit
refers, payable for the year next before the date of presenting the plaint.

145. Every naib or guraaslita of a landlord empowered
in this behalf by a written authority under

Naibs or gnmasntaa •' *'

to be recognized agents, the hand of the landlord shall, for the pur-

Sec. 32, Act VIII. B. t .• i

c, 18G9 ; sec. 69, Act poses ot every such suit or application, be
°^ ^^°^" deemed to be the recognized agent of the

landlord within the meaning of the Code of Civil Procedure,
notwithstanding that the landlord may reside within the local
limits of the jurisdiction of the Court in which the suit is to be
instituted or is pending, or in which the application is made.

This written authority requires to be stamped under art. 50, Sched. I, Act
I of 1879. (Raghu Nandan Thakur v. Ram Chandra Knpali, 10 W. R, F. B., 39.)
In this article it is explained that more persons than one, when belonging to one
firm,^ shall be deemed to be one person. The Madras High Court in a reference
under the Stamp Act held that thirty-six persons jointly interested in a certain
sum of money could execute one power-of-attomey authorizing a certain person
to appear before an officer and receive payment thereof (I. L. E., 9 Mad., 358).
But the Calcutta High Court has held that when an instrument contains a several
power-of-attomey conferred by each of two or more persons, it requires a
separate stamp in respect of each power. {In the mattei' of Jai Krishna Mukharji,
per Garth, C. J., and Field and Wilson, JJ., No, 1504 of 1885, decided on 10th
December, 1885.) A recognized agent may make or do any appearance, applica-
tion, or act required or authorized by law to be made or done by a party to a
suit or appeal, except when otherwise expressly provided by law (sec. 36, Act
XIV of 1882). But a recognized agent cannot sue or appear in his own name
(Mokha Marakraj Joshi V. Bisseswar Das, 5 B. L. E., App., 11; 13 W. E., 344 j
and so a naib or gumashta must institute or defend a suit in the landlord's name,
and can only act as the landlord's agent in conducting it. {Madhu Sxidan Singh
\. Moran <& Co., 11 W. E., 43; Kunju Bihari Rai v. Puma, Chandra Chatarji,
I. L. E., 9 Calc, 450 ; 12 C. L. E., 55.) A newly appointed tahsildar stands
in the same position in respect of arrears of rent which accrued during the time
of his predecessor, as he does in respect of rent which accrued during his own

time. It is his duty to collect both (Madhu Sudan Singh v. Moran <& Co., Chap. XIIL
11 W. R, 43.) SBCM46.

A naib or gumashta cannot grant leases.— It does not fall within the ordi-
nary scope of the duties of a mofussil naib to grant pottahs for fixed rents. It i%
requisite in such cases that express authority should be proved to make the
grants valid. {Qolakmani Debi v. Assimvddin, 1 W. E., 56 ; Panchanan Basu v.
Piari Mohan Deb, 2 W. R., 225 ; Annoda- Prasad Banarji v. Chandra Sikhar Deb,
7 W. R., 394.) It does not lie within the ordinary scope of a naib or gumashta's
authority to grant leases. Special authority to grant them is necessary. {(Jma
Tara Debi v. Pina Bibi, 2 W. R., 155 ; Kali Kumar Das v. Anis, 3 W. R.,
Act X, 1 ; Abilak Eai v. Dalial Rai, I. L. R., 3 Calc, 557.)

A gumashta cannot recognize the transfer of a holding. — A gumashta
has no authority to recognize the transfer of a holding and his receipt of rent from
the transferee will not bind the landlord. {Bhajohari Bonik v. Aka Ghulam Ali,
16 W. R., 97.)

146. The particulars referred to in section 58 of the
Special register of Code of Civil Procedure shall, in the case
^'^sec. 42 Act VIII ^^ such suits, instead of being entered in
B. c, 1869. the register of civil suits prescribed by that

section, be entered in a special register to be kept by each Civil
Court, in such form as the Local Government may, from time
to time, prescribe in this behalf.

The particulars referred to in sec. 58 of the Code of Civil Procedure are —
(a) the name of the Court ; (b) the name, description, and place of residence of the
plaintiff ; (c) the name, description, and place of residence of the defendant ; (d) a
concise statement of the cause of action, and when and where it arose ; (e) the
relief demanded ; and (f) any amount set oif or relinquished.

By notification dated the 20th February, 1886, published in the Calcutta Gazette
of March 3rd, 1886, Part I, p. 142, the Local Government has directed that the
special register to be kept by each Civil Court, under the provisions of this
section shall be in the form prescribed by sec. 58, Act XIV of 1858, and numbered
as 116 in the 4th schedule annexed to that Act.

A rent-suit should not be dismissed because it should have been
brought as a civil suit and vice versa.— The provision in Act VIII of
1869, B. C, directing suits instituted under that Act to be entered in a separate
register was for statistical purposes, and not for the purpose of separating
into parts the jurisdiction exercised by one Court, so as to render a suit
brought under that Act liable to be struck off in order that a fresh suit
might be brought under Act VIII of 1859 in the same Court and on the
same cause of action, even supposing that the suit was not for rent, and that
the consideration stipulated to be paid for the defendant's occupation of the
land was charity and not rent. {Jallaluddin v. Burne, 18 W. R., 99.) A suit
lying under Act VIII of 1859, and in the plaint of which it is not said that
the suit is brought under Act VIII of 1869, B. C, should not be dismissed

9f^. Tllli BENGAL TENANCY ACT.

Chap XIII. owing to its having by some mistake of the office been registered in the book
Skc. 14<, q£ j.gjj^ euits, {Ramnarain Mitra v. Nohin Chandra Murdafarash, 18 W. R., 208.)
There should be no question in the mind of a Court as to which side of the Court
is to entertain the suit, or under what Act it is to be tried. It was one of the pur-
poses of the legislature, when it removed the cognizance of a certain class of actions
from the Collector's Court to the Munsifs Court that there should no longer be any
question in any case whether the suitor had invoked the exercise of the right
jurisdiction, and whether the Court was competent to do complete justice between
the parties. It is the plain duty of a Court when a suit is brought before it to
entertain it and to endeavour to try the matter in question between the parties
upon the whole merits. {Puriag Datta Rai v. Fehi Rat, 19 W. R., 160.) Two causes
of action, one by plaintiff as purchaser of arrears of rent, and the other for rent
due, were held to be properly joined in one suit cognizable by the Civil Court
without any such distinction as that of different sides of the Court. {Blutgwan
Sahai v. Sangessar Chaudhri, 19 W. R., 431.) A Civil Court has jurisdic-
tion to try a suit for possession whether it be brought under Act VIII, B. C.
of 1869, or as a regular civil suit. {Oobind Mahtun v. Ram Khelawan Singh^
22 W. R., 478.)

147. Subject to the provisions of section 373 of the Code
Successive rent-suits. of Civil Procedure,* where a landlord has
XIV of 1882.* instituted a suit against a raiyat for the re-

covery of any rent of his holding, the landlord shall not
institute another suit sTgainst him for the recovery of any rent
of that holding until after three months from the date of the
institution of the previous suit.

This is an important provision introduced for the purpose of preventing a
tenant being harassed by successive suits for arrears of rent. But it applies only
to " raiyats " and " holdings," and not to tenure-holders, or under-raiyats, and their
tenancies. Section 373 of Act XIV of 1885 refers to cases in which a plaintiff is
allowed, owing to some formal defect or for some other sufficient reason, to with-
draw his suit, or abandon part of his claim, with liberty to bring a fresh suit for
the same subject-matter. But one of several plaintiffs cannot be permitted to
withdraw without the consent of the others. When so allowed to withdraw, the
plaintiff will, under this section, not be required to wait three months before
bringing a fresh suit.

Suit must include whole claim.— In connection with the subject of suits
for arrears of rent, the provisions of sec. 43, Act XIV of 1882, and the illustration
to that section are very important. They are as follows: — "Every suit shall
include the whole of the claim which the plaintiff is entitled to make in respect
of the cause of action ; but a plaintiff may relinquish any portion of his claim
in order to bring the suit within the jurisdiction of any Court. If a plaintiff
omit to sue in respect of, or intentionally relinquish, any portion of his claim,
he shall not afterwards sue in respect of the portion so omitted or relinquished.
A person entitled to more than one remedy in respect of the same cause of action
may sue for all or any of his remedies ; but if he omits (except with the leave of
the Court obtained before the first hearing) to sue for any of such remedies,

CLAIM IN RENT-SUITS. 9^7

he shall not afterwards sue for the remedy so omitted Chap. XIII,

Illustration. — " A lets a house to B at a yearly rent of Rs. 1,200. The rent for Skc^47.
the whole of the years 1881 and 1882 is due and unpaid. A sues B only for the
rent due for 1882. A shall not afterwards sue B for the rent due for 1881."

Claim for arrears of rent must include all rent due at time of institu-
tion.— Under the provisions of sec. 43, C. P. C, and the illustration to it, the
High Court, in the case of Tarak Chandra Mukharji v. Panchu Mohini Dehi (I. L.
R., 6 Calc, 791 ; 8 C. L. R., 297), has decided that when arrears of rent for more
than one year are due, and a plaintiff sues only for the arrears of the earlier
year or years, and omits to sue for the arrears of the later year or years,
his suit for the arrears of the later period is barred, and he cannot subse-
quently sue for them. This decision, which was followed in the recent cases of
Sheo Sankar Sahai v. Hridoy Narain (I. L. R., 9 Calc, 143 ; 12 C. L. R., 34) ; and
Narain Kuinari v. Ragku MaJutpatro (I. L. R., 12 Calc, 50), sets aside the ruling in
the case of Satto Cliarn Gkosal v. Abhoy Nand Das (2 W. R., Act X, 31), in
which it was held that a separate suit would He for the rents of each year, and also
the rulings in the cases of Ram SuTidar Sen v. Krishna Chandra Gupta (17 W. R.,
380), and Krishna Kinkar Paramanik v. Ham Dhan Chetlangia (24 W. R., 326), in
which it was held that the recovery of an instalment of rent was not barred merely
because it was not included in a suit for arrears of rent instituted after it became
due. Under the provisions of sec. 43, ActXIV of 1882, these rulings are no longer
good law. (See also Madhu Prakash Singh v. Murli Manohar, I. L. R., 5 AIL, 406).
Now, under the High Court decision in the case of Tarak Chandra Mukliarji v.
Panchu Alokini Dehi, there is no difference between a suit omitting to claim an
earlier rent and a suit omitting to claim a later rent which is due at the date of its
institution. In both cases, the plaintiffs claim for the rent he omits to sue for is
barred. A landlord must now, when bringing a suit for arrears of rent, claim all
the rent due to him at the time of institution.

Under the old law a landlord failing in suit for enhanced rent could get
a decree /or rent at the old rate. — There has hitherto been a conflict of rulings
as to whether under the old law a landlord, failing in a suit for enhanced rent, could
get a decree for rent at the old rate or not. On the one hand, in Khedamnnissa
Jiibi v. Budhi Bibi{lS W. R., 317), it was said that the cause of action in a suit for
enhanced rent is not the same as the cause of action in a suit for rent at the rate
admitted by the defendant as the previous rent, and that therefore the law of res
judicata does not apply in bar. Again, in the Privy Council decision of Surasundari
Debiv. GhidamAli (19 W. R., 142 ; 15 B. L. R., 125 note), it was said " their Lord-
ships are of opinion that a suit to enhance is very different from a suit to recover '
arrears of rent at the X'ate originally fixed, and that it is founded entirely upon
different principles. To a suit for enhancement it would be no bar to plead that all
arrears according to the original rate had been paid." (See also Haronath Rai v,
Gobind Chandra Datta, L, R., 2 I. A., 193 ; 15 B. L. R., 120 ; and the Raja of
Pittapur v. Venkata Mahipati Surya, L. R., 12 I. A., 116 ; I. L. R., 8 Mad., 520.)
In several cases, too, the High Court held that if a plaintiff failed in a suit for
enhancement owing to the notice of enhancement not having been proved, he was
not precluded fiom obtaining a decree for the arrears of rent at the old rate
{Ghanshyam Singh v. Tara Prasad Kmdu, I. L. R., 8 (;!alc., 465 ; 10 C. L. R , 447 ;
Brajo Nath Tewari v. Grant, 22 W. R., 13 ; Bhagroan Datta Jha v. Sheo Mangal
Singh, 22 W. R., 256 ; Bhobo Sundari Chaudhm-ani v. Kashi Nath Acharji, 22 W, R.,
351). On the other hand, in the case oi Kanak Chandra Mukharji \. Guru Da»

213 THE BENGAL TENANCY ACT.

Chap. XIII. Biswas, I. L. R, 9 Calc, 919; 12 C. L. R., 599), it was held that under sees. 42 and
Skc. 148. 43 Qf the Civil Procedure Code " plaintiffs must bring their entire claim and every
""" remedy enforceable in respect of that claim into Court at once, and if they fail to

do that in any suit, they cannot aftei'wards avail themselves of any remedy on
which they have not chosen to insist in the first suit. Suits for enhanced rent, and
suits for rent are claims arising in respect of the same subject-matter, and a
plaintiflf cannot be allowed, after having unsuccessfully sued for rent at an enhanced
rent to sue for the original rent for the same and previous years." This conflict of
authorities has, howevei", been set at rest by the Full Bench decision in the case
of Sadaruddin Ahmad v. Bent Madhuh Rai{\. L. R., 15 Calc, 145), in which Kanak
Chundra Mukharji v. Qurii Bos Biswas was overruled, and it was held that the
dismissal of a suit for rent at an enhanced rate is no bar to a subsequent suit
for rent at the rate originally fixed.

Present law. — Under the present law the question cannot arise. Under
the present Act no suits for rent at an enhanced rate can be brought. An
enhancement-suit under the present Act is a suit to enhance and determine
the rate of the enhanced rent. The claim in such a suit cannot be considered as
arising out of the same subject-matter as a claim for arrears of rent ; for, as point-
ed out in the Privy Council decision in the case of Sura Simdari Debi v. Ghulam
Ali{\Q W. R., 142 ; 16 B. L. R., 125 note), "a suit to enhance is very diflFerent
from a suit to recover arrears of rent at the rate originally fixed, and is founded
entirely on different principles ;" so that now a landlord who fails in an enhance-
ment-suit under the present Act will not be debarred from suing again for arrears
at the old or admitted rate>

Procedure in rent- 148. The following rules shall apply

^"xiv of 1882, to suits for the recovery of rent : —

(a) sections 121 to 127 (both inclusive), 129, 305 and
320 to 326 (both inclusive) of the Code of Civil Procedure
shall not apply to any such suit :

(b) the plaint shall contain, in addition to the particulars
specified in section 50 of the Code of Civil Procedure, a state-
ment of the situation, designation, extent and boundaries of
the land held by the tenant ; or, where the plaintiff is unable
to give the extent or boundaries, in lieu thereof a description
sufficient for identification :

(c) the summons shall be for the final disposal of the suit,
unless the Court is of opinion that the summons should be for
the settlement of issues only :

{d) the service of the summons may, if the High Court by
rule, either generally, or specially for any local area, so directs,
be effected, either in addition to, or in substitution for, any
other mode of service, by forwarding the summons by post in

PROCEDURE IN RENT-SUITS. 21{>

a letter addressed to the defendant and registered under Part Chap. xni.

° Skc 148.

Ill of the Indian Post Office Act, 1866 ; —

when a auoimons is so forwarded in a letter, and it is prov-
ed that the letter was duly posted and registered, the Court
may presume that the summons has been duly served :

{e) a written statement shall not be filed without the
leave of the Court :

(/) the rules for recording the evidence of witnesses
prescribed by section 189 of the Code of Civil Procedure shall
apply, whether an appeal is allowed or not :

(g) the Court may, when passing the decree, order on
the oral application of the decree-holder the execution thereof,
unless it is a decree for ejectment for arrears :

{h) notwithstanding anything contained in section 232
of the Code of Civil Procedure, an application for the execu-
tion of a decree for arrears obtained by a landlord shall not be
made by an assignee of the decree unless the landlord's inter-
est in the land has become and is vested in him.

Clause (a). Interrogatories and disoovery inapplicable to rent-suits.
— Sections 121 to 127 of the Civil Procedure Code relate to the examination of parties
by interrogatories. Section 129 gives a Court power to order discovery of docu-
ments. Section 305 gives a Court power to postpone a sale to enable the defend-
ant to raise the amount of the decree by mortgage, lease, or private sale of the
property. Sections 320 to 326 refer to the transfer to the Collector for execution
of decrees relating to immoveable property.

Reading this clause with sec. 143, it is clear that the provisions of the Civil
Procedure Code relating to execution, including those of sec. 244, are applicable
to decrees obtained under this Act. The provisions of sec. 244 apply to proceed-
ings in execution of decrees under Act VIII of 1869, B. C, but not under Act
X of 1859 {Brajo Gopal Sirkar v. Basirunnissa Bibi, I. L, R., 15 Calc, 179). The
procedure to be followed upon the sale of an under-tenure is that prescribed by
the Civil Procedure Code. Section 311 does not only apply to sales made under ,

Chap. XIX of the Code, and the sale of an under-tenure may be set aside upon
any of the grounds mentioned in that section. (^Azizunmssa Khatun v. Oora Chand
Das, I. L. R, 7 Calc, 163.)

Clause (b). The plaint.— For the particulars which under sec. 50, Act XIV
of 1882, must be specified in the plaint, see note to sec. 146.

This clause does not explain what a Court is to do when a plaint does not
contain the particulars specified in this clause. But it would, no doubt, be justified
in returning the plaint for amendment or in rejecting it, if the plaint did not
contain the particulars essential for the disposal of the suit. It should be re-
membered that it is not essential to the decision of all cases that the extent and
boundaries of the land held by the tenant should be given. Thus, in a suit
for arrears of rent the question of boundaries is immaterial, and the question

220

THE BENGAL TENANCY ACT.

Chap. XIII. of extent is material only if the rent sued for is calculated at a particular
Skc. 148. yr^iQ pe,- kotta or bigha. In a suit to recover possession or for ejectment, the
question of boundaries is material. (Mahomed Ismail v. Dhatidar Kiskor Naraifi,
25 W. K., 39.)

Clause (c). The summons.— In High Court Circular No. 379 of the 4th
February, 1871, issued under the provisions of Act VIII (B. C.) of 1869, the
High Court has directed that no suit for arrears of rent is to be proceeded
with ex-parte until the expiry of 14 days from the date of the service of the
summons.

Clause (d). Service of summons by post.— The High Court has not yet
framed any rule for the service of the summons by post. The latter part of
this clause is in accordance with the ruling in the case of Lutf Ali Miah v. Piari
Mohan Rai (16 W. R., 223), in which it was laid down that a person refusing a
registered letter sent by post cannot afterwards plead ignorance of its contents.
See also Jogeiidro Chandra Ghosh v. Dicarkanath Karmokar (I. L. R., 15 Calc, 681.)

Clause (e). Stamps on written statements.— A written statement filed
by a defendant in a civil suit at the first hearing does not require a stamp. {Cherag
Ali v. Kadir Mahomed, 12 C. L. R., 367 ; Nagu v. Veknath, I. L. R., 5 Bom., 400.)

A written statement called for by the Court after the first hearing is also
exempt from stamp duty under sec. 19, cl. iii. Act VII of 1870. {Nagu v. Yeknath,
I. L. R., 5 Bom., 400.)

Clause (f). Evidence how to be recorded.— This clause is very important.
It does away with the necessity of recording at length the evidence of witnesses
in suits for the recovery of rent. It allows the Judge, as the examination of
each witness proceeds, to make merely a memorandum of the substance of what
the witness deposes, which memorandum shall be written and signed by the
Judge with his own hand, and shall form part of the record. The memorandum
should be written legibly in the vernacular of the Judge, or in English, if he
is sufficiently acquainted with that language, and should be dated, as well as
signed by the Judge. Under sec. 189, C. P. C, the same procedure should be
followed in all cases in which no appeal is allowed (see sec. 153).

Clause (g). Execution of decrees for ejectment.— Execution of decrees
for ejectment for arrears cannot be granted when the Court is passing the decree,
for, under sec 66 (2), such decrees are not to be executed at all if the amount of
the decree and costs of the suit are paid into Court within fifteen days of the
date of the decree.

Clause (h). The assignment of decrees for arrears of rent.— Tlie provi-
sions of this clause are intended to prevent the transfer of decrees for speculative
purposes. Such transfers were permitted under the old law, although the land-
lord's interest was not vested in the assignee. {Harinath Maziimdar v. Moran <& Co.,
"W. R., Sp. No., Act X, 127 ; In the matter of Janm^jai Mukharji, 14 W. R., 215 ;
Ridai Mani Barmani v. Sibbold, 15 W. R., 344 ; Bhagwan Sahai v. Sangessar
Chaudhri, 19 W. R,, 431.) In a recent case Kailash Chandra Rai v. Jadunath Rai
(I. L. R., 14 Calc, 380), it has been held that the provisions of this clause are
to a certain extent retrospective ; for it was held that the fact that an assignment
of a decree for arrears of rent was made before the Tenancy Act does not protect
from the provisions of sec. 148 (A), an assignee, who proceeds to execution after-
wards ; but execution cannot be refused where before that Act came into operation,

PAYMENT INTO COURT. 221

the assignment had been recognized by a Court of execution under sec. 232 of the Chap. XIII
Civil Procedure Code. «kc^49.

Differences between procedure In suits for the recovery of rent and
ordinary civil suits. — By the provisions of this section, the procedure which
has to be followed in an ordinary civil suit has been much abbreviated. In the
following respects, the procedure in a suit for the recovery of rent now differs
from that of an ordinary civil suit : — (1) The summons, as a rule, is for the final
disposal of the case ; (2) the defendant can file no written statement without the
leave of the Court ; (3) there can be no interrogatories of the parties, or discovery
of documents ; (4) the evidence of the witnesses need not be recorded at length ;
(5) as a rule, execution may issue on the application of the decree-holder at the
time the decree is passed, unless it is a decree for ejectment for arrears ; and (6)
a judgment-debtor cannot obtain a suspension of the sale of his immoveable
property to enable him to raise the amount of the decree by mortgage, lease, or
private sale. At one time it was proposed to introduce a short and summary pro-
cedure for the recovery of rents, analogous to that on negotiable instruments
under Chap. XXXIX of the Civil Procedure Code, but it was finally decided that
it would be unsafe to do so, and that the provisions of the present section and
of the subsequent sections of this chapter contain all the changes that the
Legislature could safely make by way of shortening the pi'oceediugs in rent-
suits.

149. (1) When a defendcant admits that money is due
, . , r. . fmm him on account of rent, but pleads

Payment into Court ... ' r

of money admitted to that it is duc not to the plaintiff but to a

be due to third parson. ,i • i -i /i . i n . r

tlnrd person, the Court shall, except for
special reasons to be recorded in writing, refuse to take cog-
nizance of the plea unless the defendant pays into Court the
amount so admitted to be due.

(2) Where such a payment is made, the Court shall
forthwith cause notice of the payment to be served on the
third person.

(3) Unless the third person within three months from
the receipt of the notice institutes a suit against the plaintiff
and therein obtains an order restraining payment out of the
mone}'', it shall be paid out to the plaintiff on his application.

(4) Nothing in this section shall affect the right of any
person to recover from the plaintiff money paid to him under
sub- section (3).

This is an important modification of the law, made for the purpose of facili-
tating the recovery of arrears of rent, and of preventing landlords being harassed by
their tenants who are apt to unduly protract suits by raising frivolous pleas as to the
rent being due to third persons. The section has, however, been very unhappily
worded, foi', in the first place, it would seem that the defendant can always evade

222 THE BENGAL TENANCY ACT.

Chap. XIU. the provisions of tlie section by pleading that no rent is due by him, or that
Sko. lap. j(. jjj^g jijgg,^ paj(j \jy ijjjjj to a third person. In the second place, it is not at all
clear what .should be done when the defendant pays into Court the amount he
admits to be due from him. No doubt it is intended that the Court shall
postpone tlie case for three months to enable the third person to institute the suit
referred to in sub-sec. (3). Probably it should postpone the suit for the arrears
of rent for even more than three months to enable the suit instituted by the thii-d
person to be disposed of. But it is very doubtful whether, after the lapse of
three months or more, the Court should then take cognizance of the defendant's
plea that the rent is due to a third person or not. From the terms of sec. 151,
however, it would seem that it should. But there would seem to be no use in
the Court's doing so. If the third person has either instituted a suit and failed
to obtain the order referred to in sub-sec. (3), or has not instituted the suit at
all, the amount paid into Court is to be at once paid over to the plaintiff. What
benefit is to be derived from this payment, if the Court is to proceed at once to
consider whether or not it is really due by the defendant to the plaintiff or by the
defendant to somebody else ? On the other hand, if the third person obtains
an order restraining payment of the money, is the Court to proceed to consider
and decide whether the defendant owes a similar sum to the plaintiff ? Its doing
so may result in the finding that the defendant is to pay the same sum twice
over. Moreover, it would appear that the third person should not be allowed to
intervene in the suit brought for arrears of rent by the plaintiff. The questions at
issue between this third person and the plaintiff should be raised separately and
independently of the rent suit. Intervenors in rent-suits are no more allowed
under this Act than they were under Act VIII (B. C.) of 1869. The rulings
on the subject of intervenors under the previous Acts will be found collected
at p. 207.

Sub-section (3.)— It has been held in Jagadamba Dehiv. Pratap Ghosh (I .L. R.,
14 Calc, 537), that a suit by a third person under sec. 149 (3) of the Bengal
Tenancy Act is not a title suit and need not be stamped as such. In the same
case it was held by Tottenham, J., that such a suit is in the nature of a suit for
an injunction under the Specific Relief Act or else a declaratory suit.

Sub-section (4). — The meaning of sub-sec. (4) is, that any third person
claiming money, which has been paid to a plaintiff under sub-sec. (3), may always
bring a regular civil suit to recover the money from the plaintiff, notwithstanding
the fact that he did not institute a suit against the plaintiff within the three
months mentioTied in sub-sec. (3). The period of limitation for such suits would
seem to be three years under art. 109, Sched. II, Act XV of 1877.

Service of Notice.— The mode of service of the notice referred to in sub-sec.
(2) is prescribed by Rule 3, Chap. I of the Rules to be found in Appendix I.

150. When a defendant admits that money is due from
i. . ^ /^ i. him to the plaintiff on account of rent, but

Payment into Court ^ ^ '

of money admitted to pleads that the amount claimed is in excess

be due to landlord. „ . , , , -i ^ •. -. i

01 the amount due, the Court shall, except
for special reasons to be recorded in writing, refuse to take

APPEALS IN RENT-SUITS. 223

coo-nlzance of the plea unless the defendant pa3^s into Court Chap. xiii.
the amount so admitted to be due. 151-153.

This is also a modification of the law introduced to facilitate the recovery of
arrears of rent, and to prevent the defendant protracting the proceedings by rais-
ing merely vexatious pleas of excessive demand of rent.

151. When a defendant is liable to pay money into
Provision as to pay- Court Under either of the two last fore-
money, goii^o sections, if the Court thinks that
there are sufficient reasons for so ordering, it may take cogni-
zance of the defendant's plea on his paying into Court such
reasonable portion of the money as the Court directs.

152. When a defendant pays money into Court under
Court to grant re- either of the said sections, the Court shall

^^^^^' give the defendant a receipt, and the re-

ceipt so given shall operate as an acquittance in the same
manner and to the same extent as if it had been given by the
plaintiff or the third person as the case may be.

Appeals in rent-suits. 153. An appeal shall not lie from any

B cf^iseg^se^^isJ Act decree or order passed, whether in the first
X o^ 1^^^- instance or on appeal, in any suit instituted

by a landlord for the recovery of rent where —

(a) the decree or order is passed by a District Judge,
Additional Judge or Subordinate Judge, and the amount
claimed in the suit does not exceed one hundred rupees, or

(b) the decree or order is passed by any other judicial
officer specially empowered by the Local Government to exer-
cise final jurisdiction under this section, and the amount
claimed in the suit does not exceed fifty rupees ;

unless in either case the decree or order has decided a
question relating to title to land or to some interest in land
as between parties having conflicting claims thereto, or a ques-
tion of a right to enhance or vary the rent of a tenant, or a
question of the amount of rent annually payable by a tenant :

Provided that the District Judge may call for the record
of any case in which a judicial officer as aforesaid has passed a
decree or order to which this section applies, if it appears that
the judicial officer has exercised a jurisdiction not vested in

224 THE KENQAL TENANCY ACT.

ciiAP. xiii. him by law, or has failed to exercise a jurisdiction so vested.

Skc. 153. '' 1-1 ./.,...,.

— or has acted in the exercise of his jurisdiction illegally or with
material irregularity ; and may pass such order as the District
Judge thinks fit.

The provisions of this section, making final the decree or order of a Subordi-
nate Judge in a suit of the value of not more than one hundred rupees, and of
a specially empowered judicial officer in a suit of the value of not more than fifty
rupees, are new.

" District Judge. "—Under sec. 102 of Act VIII of 1869, B. C, it was only the
order of a District Judge in such suits, which was to he final ; but the term " Dis-
trict Judge " was held to include an Additional Judge. {Brajo Misra v. Ahladi
Misrani, 21 W. R., 320 ; 13 B. L. R., 376 ; see contra, Nobo Krishna Kundu v,
Nazir Mahomed, 19 W. R., 202 ; 10 B. L. R., App., 30.)

No officer vested with powera under clause (b).— No officer or class of
officers has as yet been specially empowered by Government to exercise final
jurisdiction in suits for recovery of rent under the provisions of clause (6).

Rent.— Under sec. 3 (5) rent does not include cesses, except in sees. 53 to 58,
sees. 72 to 78, Chap XII, and Sched. III. The word " rent " in this section,
therefore, does not include road cess, so the provisions of this section do not ap-
ply to cases in which not rent, but road cess, is sued for.

Suit.— The word "suit" in the corresponding sections of Act VIII of 1869,
B.C., and Act X of 1859 was held to cover all proceedings prior to decree and
subsequent ones in execution. {Krishna Kumar Chakrabartti \. Anand Kumar Datta,
19 W. R, 307 ; Deb KuTtiari Dasi v. Ganga Dhar Datta, 17 W. R., 189 ; Kedar Nath
Bi»icas v. Haro Prasad Rai, 23 W. R., 207 ; Parbati Cliaran Sen v. Mandarii
I. L. R., 5 Calc, 594.)

Appeals. — The pi-ovisions of this section apply only to suits for the recovery
of rent ; so that an appeal will lie in all other classes of suits under the Tenancy
Act, as well as in suits for the recovery of rent in which any of the questions re-
ferred to in the section have been decided. But no appeal lies from an order
rejecting an application under sec. 93 of this Act for the appointment of a com-
mon manager, as such an application is not a suit. {Hossain Baksh v. Matukdhari
Lai, I. L. R, 14 Calc, 312.)

Second appeals.— The provisions of Chap. XLII of the Civil Procedure Code
are, of course, applicable to suits under this Act, and, consequently, a second ap-
peal to the High Court will, except in cases referred to in this section, only lie on
the grounds (a) of the decision being contrary to law or usage having the force
of law ; (6) of the decision having failed to determine some material issue of law
or usage having the force of law ; and (c) of a substantial error or defect in the
procedure, which may possibly have affected the decision on the merits. (Sec.
584, C. P. C.) The High Court can, under sec. 622, C. P. C, set aside the judg-
ment of a District Judge in a suit for arrears of rent, when the District Judge
has acted illegally in the exercise of his jurisdiction. {Jagabandhu Patak v. Jadu
Ghosh Alkushi, I. L. R., 15 Calc, 47.)

When amount claimed does not exceed one hundred rupees.— Unless it
appears either from the finding of the District Judge or elsewhere upon the pro-
ceedings tlxat the amount claimed in the suit does not exceed one hundred rupees.

APPEALS IN RENT-SUITS. 225

the High Court has no right to draw any inference to that effect. {Tulti Pandi r. Chap. XIII.
Bachu Lai, I. L. E., 9 Calc, 596 ; 12 C. L. R, 223.) An appeal does not lie to the Sue. 163.
High Court from a decision of a District Judge staying execution in a suit for
arrears of rent and for ejectment where the value of the amount decreed is less
than Rs. 100. Nor can an application, made to eject the tenant on his default to
pay into Court the moneys due under the decree within the time fixed by sec. 52
of Bengal Act VIII of 1869, confer such right of appeal. (Parbati Cham Sen v.
Mandari, I. L. R., 5 Calc, 594.) But see Ramjan Khan v. Ramjan Chamar,
I. L. R., 10 Calc, 89, which was, however, a suit under the Chutia Nagpur Landlord
and Tenant Act (I of 1879, B. C.) A second appeal will not lie in a suit for ar-
rears of rent and ejectment, when the sum clainied is less than Rs. 100, and when
a decree is given for the rent only, and the claim for ejectment is disallowed. {B7'a-
janath Srimaniv. Troilakhya Nath Mitra, decided by Wilson and O'Kinealy, JJ.,
June 16th, 1887. No second appeal lies to the High Court from the decision of a
District Judge in a suit for rent under Rs. 100, when no question of right to en-
hance or vary the right of a raiyat or tenant, nor any question relating to a title
to land or to some interest in laud as between parties having conflicting claims
thereto has been determined by the judgment. (Langessar Koer v. Sukha Ojha,
I. L. R., 3 Calc, 151 ; Puma Chandra Rai v. Krishna Chandra Singh, 23 W. R., 171.)
In the case of (Brajo Nath Srimani v. Troilokhya Nath Mitra, which decided under
the Tenancy Act on the 16th June, 1887, the plaintiff sued for arrears of rent
and ejectment, and obtained a decree for arrears of rent only, his prayer for eject-
ment being disallowed. The defendant appealed, but as the decree was for less
than Rs. 100, and no decree for ejectment had been given, it was held that no
appeal lay. (See also Ramjan Khan v. Ramjan Chamar, I. L, R., 10 Calc, 89.)

Questions relating to title in land, or to some Interest in land as
between parties having conflicting claims thereto.— When a case was decid-
ed solely on the want of proof of the relation of landlord and tenant between the par-
ties, it was held that no si^ecial appeal lay to the High Court. (Hari Mohan Mazum-
dar v. Dwarka Nath Sen, 18 W. R., 42 ; Kripamayi Dehi v. Draitpadi Chaudhurani,
24 W. R., 213 ; Kariin v. Mitkhoda Sundari Dasi, 23 W. R., 11, 268 ; 15 B. L. R.,
111.) Where a tenant merely repudiates, the tenancy without denying the landlord's
title, no appeal will lie. (Ishan Chandra Ohosal v. Barnomayi Dasi, 16 W. R., 233.)
Where a defendant pleaded that the plaintiff had ceased to have any interest in
the land, and the suit was dismissed, there was no finding as between the plaintiflf
and any other person claiming title to the land. {Donzelle v. Tekan Nodaf, 2 C. L.
R., 558.) In a suit in which the defendant (raiyat) sets \i\i the title of a third
person, who is not made a party, the decision cannot be considered a binding '

decision in respect of title as between parties having conflicting claims to land.
(Dilbar v. Ishar Chandra Rai, 21 W. R., 36 ; Kashi Ram Das v. Sham Mohini, 23 W.
R., 227 ; Raj Krishna Miikharji v. Srinath Datta, 23 W. R., 408 ; Durga NarainSen
V. Ram Lai Chhutar, I. L. R., 7 Calc, 330 ; Lodai Mollah v. Kali Das Rai, I. L. R.,
8 Calc, 238 ; Ram Prasad Rai v. Sharitp Paramanik, I. L. R., 8 Calc, 712.) In a
suit in which plaintiff claims rent as zamindar, and defendant, admitting his own
tenancy, claims it as mortgagee, there cannot be said to be conflicting claims to,
or some interest in, land. {Raj Krishna Mukharji v. Piari Mohan Mukharji, 24 W. R.,
114.) In a suit for ejectment valued at under Rs. 100, the defendants, who were sued
as yeai'ly tenants, replied that their tenure was a maurasi guzasta tenure, and in
proof of their allegation adduced evidence. The lower Courts considered that
plaintifi's allegation was well founded. Held, that although the value of the suit
K. & F., B. T. A. 15

226 THE BENGAL TENANCY ACT.

Chap. XIII. was under Rs. 100 the appeal was not barred, as the lower Court had determined
Skc. 154, a question of law as to whether the tenure was guzasta. {Daijinath Sahu v. Ram-
daur Bat, 7 C. L. K, 369.)

Questions of right to enhance or vary the rent of a tenant.— It ia im-
material whether the rate of rent was varied, if the Judge did not decide the question
of the right to vary the rent. ( Watson & Co. v. Moheiidra Nath Pal, 23 W. R., 436.)
In a suit in which the raiyat denied execution of a document, on the basis of which
the suit was brought, and produced evidence to show that the rates mentioned in it
were not correct, it was held that this involved no question of a right to vary
the rent. {Nitresar Singh v. Joti Teli, 23 W. R., 343 ; see also Golak Chandra
Datta v, Miah Rajah Miji, 17 W. R., 119 ; Watson S Co. v. Ramdhan Ghosh, 17 W.
R., 496.) A rent-suit, in which there is no dispute as to the amount of the jama,
and the only question is whether it is to be paid in instalments or in a lump sum,
cannot be said to involve a question of right to enhance or vary the rent. (Piari
Mohan Mukharji v. Madhah Chandra, 23 W. R., 385.)

Questions as to amount payable. — The words, "a question of the amount
of rent annually payable by the tenant," make a change in the law, and allow
an appeal in cases in which an appeal was not allowed under the old law, for,
under sec. 102, Act VIII, B. C. of 1869, no appeal lay in cases in which merely a
question as to the amount of rent payable was involved. {Raro Prasad Chakrabartti
V. Sridam Chandra Chaudhri, 20 W. R., 15 ; Harish Chandra Chakrabartti v. Hari
Beivah, 20 W. R., 16 ; Narahdessar Prasad Rai v. Jangli, 24 W. R., 49.) In certain
rent-suits, the amount claimed being under Rs. 100, the question was raised as to
whether the plaintiff was entitled to the whole 16 ans. of the rent or only to a 10 ans.
share of it. Held, that having regard to the provisions of sec. 153 of the Bengal
Tenancy Act no appeal lay to the High Court, as the question was not one relat-
ing to land or to some interest in land as between parties having conflicting claims
thereto, nor was it a question of the amount of rent annually payable by a tenant,
these words in the section meaning the total amount of rent annually payable
in respect of a holding and not the amoxmt of rent which may be payable to any
particular co-sharer in the property. {Prasanno Kiornar Banarji v, Srinath Das,
I. L. R., 15 Calc, 231.) When a question of the amount of rent annually payable by
the tenant had been decided on the 28th July, 1885, but the amount claimed in
the suit did not exceed Rs. 100, it was held that, though the appeal was filed after
the passing of the Tenancy Act, no second appeal lay. i^Haro SundariDebiv. Bhajo-
hari Das, I. L. R., 13 Calc, 86. See note to sec. 2 (4), pp. 5, 6.)

Power of District Judge to set aside orders under the proviso to
section 153. — The words " judicial officer as aforesaid," as used in the proviso to
sec. 153 of the Bengal Tenancy Act have reference to the "judicial officer" spoken
of in cl. (h) of that section, and to such officer only, and a District Judge
has no power to revise decrees or orders passed by a District Judge, Additional
Judge, or Subordinate Judge referred to in cl. (a) of the section. {^Sankarmani
Debi V. Mathura Dhupini, I. L. R., 15 Calc, 327.)

154. A decree for enhancement of rent under this Act,
^ , , ^. ^ ^ if passed in a suit instituted in the first

Date from which a e- ,

cree for enhancement ei^^ht months of an agcricultural vcar, shall
takes effect . j >

ordinarily take effect on the commence-

RELIEF AGAINST FORFEITURES. 227

ment of the agricultural year next following ; and, if passed in Chap. xiii.
a suit instituted in the last four months of the agricultural —
year, shall ordinarily take effect on the commencement of the
agricultural year next but one following ; but nothing in this
section shall prevent the Court from fixing, for special rea-
sons, a later date from which any such decree shall take
effect.

For the definition of " agricultural year," see sec. 3 (11), p. 16.

Relief against for- 155. (1) A suit for the ejectment of

'®^*"*^^3- a tenant, on the ground —

(a) that he has used the land in a manner which renders
it unfit for the purposes of the tenancy, or

(b) that he has broken a condition on breach of which he
is, under the terms of a contract between him and the landlord,
liable to ejectment,

shall not be entertained unless the landlord has served,
in the prescribed manner, a notice on the tenant specifying
the particular misuse or breach complained of, and, where
the misuse or breach is capable of remedy, requiring the
tenant to remedy the same, and, in any case, to pay reason-
able compensation for the misuse or breach, and the tenant
has failed to comply within a reasonable time with that
request.

(2) A decree passed in favour of a landlord in any such
suit shall declare the amount of compensation which would
reasonably be payable to the plaintiff for the misuse or breach,
and whether, in the opinion of the Court, the misuse or breach
is capable of remedy, and shall fix a period during which it
shall be open to the defendant to pay that amount to the
plaintiff, and, where the misuse or breach is declared to be
capable of remedy, to remedy the same.

(3) The Court may, from time to time, for special reasons,
extend a period fixed by it under sub-section (2).

(4) If the defendant, within the period or extended period
(as the case may be), fixed by the Court under this section,
pays the compensation mentioned in the decree, and, where
the misuse or breach is declared by the Court to be capable of

228 THE BENGAL TENANCY ACT.

^sac' fbP' remedy, remedies the misuse or breach to the satisfaction of
— the Court, the decree shall not be executed.

This section which is based on sec. 14 of the Conveyancing and Law of Pro-
perty Act, 1881, should be read in connection with sees. 10, 18 (6) 25, 44 (6), 49, 65,
66, and 89. Under sees. 10 and 18 (6) permanent tenure-holders and raiyats holding
at fixed rates cannot be ejected on the first of the grounds mentioned in this section.
They can only be ejected on the ground of having broken a condition in their lease,
the breach of which renders them liable to be ejected. Occupancy and non-
occupancy-raiyats may be ejected on both the grounds mentioned in this section
(sees. 25 and 44 (6) ). An under-raiyat, apparently, cannot be ejected on either of
the grounds mentioned in this section, as long as he holds under a written lease,
'or if he holds under a verbal contract for a full year after the service on him of
a notice to quit, which may be given to him at his landlord's pleasure (sec. 49).
Permanent tenure-holders, raiyats holding at fixed rates, and occupancy-i-aiyata
cannot be ejected merely for arrears of rent (sees. 65 and 66), but there would
seem to be nothing to prevent a condition being inserted in their leases, if they
have any, or to their contracting with their landlords, that they shall be liable to
ejectment for arrears of rent. But no tenant can be ejected save in execution of
a decree (sec. 89). Further, all tenants, except under-raiyats and non-occupancy-
raiyats, holding under a written and registered lease, the period of which has
expired, who have not been allowed to stay on, can save themselves from eject-
ment under the provisions of this section.

Under the old law, it has been held that a landlord who accepts rent from his
tenant after a breach on the part of the latter of a condition in his lease, which
gives the former a right of re-entry, must be held to have waived his right of
ejectment {Kali Ki'ishna Tagore v. Fazl Alt Chaiidhri, I. L. R., 9 Calc, 843) ; but
his right of re-entry may revive on further breaches of the covenant. {Dali
Chand v. Meher Chand Sahu, 8 W. R., 138 ; Chandra Nath Misra v. Sirdar Khan,
18 W. R., 218.)

Even under the old law (sees. 78, Act X of 1859 and 52, Act VIII of 1869, B.C.),
a raiyat could always save himself from ejectment by paying in the amount de-
creed against him within fifteen days' time ; for this provision of the old Acts was
held not to be confined to suits for ejectment or cancelment of lease on account of
the non-payment of rent only, but also to apply to suits for ejectment and cancel-
ment of lease on account of a breach by the raiyat of the conditions of his con-
tract. {Fitzpatrick v. Gowan, 6 W. R., Act X, 64 ; Mahomed Hossein v. Biidhan
Singh, 7 W. R., 374 ; Jan All Chattdhri v. Nityanand Basu, 10 W. R., F. B., 12 ;
B. L. R., F. B., 972 ; Kamla Sahui v. RamRatan Neogi, 11 W. R., 201 ; Goklanand
v. Lalji Sahu, 21 W. R., 11 ; Dull Chand v. Meher Chand Sahu, 12 B. L, R., 439 ;
Dull Chand v. Raj Kishor, I. L. R., 9 Calc, 88 ; 11 C. L. R., 326.) Even in cases
not governed by the Rent Law, the Courts have in analogy to it granted equitable
relief against forfeiture (Mathura Mohan Pal v. Ram Lai Basu, 4 C. L. R., 469 ;
Mahomed Amir v. Dianat Ali, 9 C. L. R., 185 ; I. L. R., 7 Calc, 566) ; and it was held
that the fifteen days' grace allowed to a lessee prior to ejectment could not be
negatived by any condition in the lease. {Madhab Cimndra Adit v. Ram Kalu,
16 W. R., 151.) Under the terms of the present section, the landlord must give
the tenant a notice of the misuse or breach of which he complains, and a reason-
able time to comply with his request to remedy the misuse or breach or pay com-
pensation for the same. It is nowhere laid down what is "a reasonable time"
within which a tenant should comply with such a request. It is left to the discre-

RIGHT OP EJECTED RAITAT TO CROPS,. 229

tion of the Courts to determine this point with reference to the particular circum- Chap. XIII.
stances of each case coming before them. The same remark applies to the time ""'
after decree, which the Court may fix for the tenant's paying compensation for
the misuse, or remedying the breach of the condition of his lease, an(J, as under
sub-sec. (3), this period may be indefinitely extended, it may be sometimes quite
impossible for a landlord ever to eject a tenant even in accordance with the termn
of a contract entered into by him.

Service of notice. — The Local Government has directed that a notice under
sec. 155 shall be filed in the Court having jurisdiction to entertain a suit for
arrears of rent of the holding, and shall be served in the manner prescribed for
the service of a summons on a defendant under the Code of Civil Procedure on
payment of the process-fee prescribed by the High Court under the Court-fees' Act.
(See Rule 11, Chap. V, Appendix I.)

Limitation. — The period of limitation for ejecting a tenure-holder or raiyat
on account of any breach of a condition in respect of which there is a condition
expressly providing that ejectment shall be the penalty of such breach is one year.
(Art. 1, Sched. Ill of this Act.) In other cases the period of limitation will be six
years. (Art. 120, Sched. II, Act XV of 1877.)

Rights of ejected rai- 156. The following Tules shall apply

rnd%trS-ed"or ^^ the case of every raiyat ejected from a
sowing. holding : —

(a) when the raiyat has, before the date of his ejectment,
sown or planted crops in any land comprised in the holding,
he shall be entitled, at the option of the landlord, either to
retain possession of that land and to use it for the purpose of
tending and gathering in the crops, or to receive from the
landlord the value of the crops as estimated by the Court
executing the decree for ejectment ;

(b) when the raiyat has, before the date of his ejectment,
prepared for sowing any land comprised in his holding, but
has not sown or planted crops in that land, he shall be entitled
to receive from the landlord the value of the labour and capi-
tal expended by him in so preparing the land, as estimated by
the Court executing the decree for ejectment, together with
reasonable interest on that value ;

(c) but a raiyat shall not be entitled to retain possession
of any land or receive any sum in respect thereof under this
section where, after the commencement of proceedings by the
landlord for his ejectment, he has cultivated or prepared the
land contrary to local usage ;

230 THE BENGAL TENANCY ACT.

Chap. XIII. (d) if the landlord elects under this section to allow a

Skc». 167, 158. . ^ ' . . p.i 1 1 .1 • . 1 11

— raiyat to retain possession oi the land, tne raiyat shall pay to
the landlord, for the use and occupation of the land during the
period for which he is allowed to retain possession of the same,
such rent as the Court executing the decree for ejectment may
deem reasonable.

Disposal of away-going crop.-— This section provides rules for the disposal
of the away-going crop. Under the former law, when a raiyat was ejected, he
lost his crop as well as his land. {Durjan Mahton v. Wazid Ilossain, I. L. R., 5 Calc,
135.) This is not the case now. But, in the case of the holding being sold in
execution, the crop passes to the purchaser at the auction-sale, except when it
has been specially excepted by the notification of sale, or a custom to the contrary
has been proved. {Afatulla Sirdar v. Dwarkaiiath Moitri, I. L, E.., 4 Calc, 814.) In
this case, the raiyat gets the value of the crop in the surplus sale-proceeds.

This section would appear not to apply to under-raiyats.

157. When a plaintiff institutes a suit for the ejectment
Power for Court to ^f a trespasser he may, if he thinks fit,

fix fair rent as alter- claim as alternative relief that the defend-

native to ejectment. -ii.ii n ^ ^ t

ant be declared liable to pay lor the land
in his possession a fair and equitable rent to be determined by
the Court, and the Court may grant such relief accordingly.

Landlords cannot eject trespassers without having recourse to law. When
they want to eject them, they must sue them for ejectment or for direct posses-
sion of their land. {Janardan Acharjiw. Haradhan Acharji, 9 W. R., 513 ; Nand
Kishor Lai v. Sheo Dayal Upadhya, 11 W. R., 168 ; Damri Shekh v. Bissessar Lai,
13 W. R., 291 ; Arjun Datta Bonik v. BamNath Karmakar, 21 W. R., 123.) In
strict law, trespassers cannot be sued for rent, but are liable for mesne profits or
for compensation for use and occupation for the period during which they have
occupied the land. {Kailash Chandra Sirkar v. Umanand Bai, 24 W. R., 412.) In
several cases, however, it has been held that the landlord may sue for rent persona
who make themselves his tenants by use and occupation of his land. (Lakhi Kant
Boi V. Samirvddi Lashkar, 13 B. L. R., 243 ; 21 W. R., 208 ; Lalan Mani v. Sona
ManiDehi, 22 W. R., 334 ; Swamomayiv. Dinonath Gir Sanyasi, I. L. R., 9 Calc, 908.)
The provisions of this section enable landlords to treat trespassers as tenants at
their pleasure. See note, p. 167.

158. (1) The Court having jurisdiction to determine

a suit for the possession of land may, on

Application to deter- , ,. . ,, . . . . ni

mine incidents of ten- the application 01 Cither the landlord or
^°i^*-»r , ,oon the tenant of the land, determine all or

XIV of 1882. '

any of the following matters (namely) : —
(a) the situation, quantity and boundaries of the land ;

DETERMINATION OP INCIDENTS OF TENANCY, o^l

(b) the name and description of the tenant thereof (if any) ; chap. xiii.

(c) the class to which he belongs, that is to say, whether "-^
he is a tenure-holder, raiyat holding at fixed rates, occupancy-
raiyat, non-occupancy-raiyat, or under-raiyat, and, if he is a
tenure-holder, whether he is a permanent tenure-holder or not

and whether his rent is liable to enhancement during the con-
tinuance of his tenure ; and

(d) the rent payable by him at the time of the application.
(2) If, in the opinion of the Court, any of these matters

cannot be satisfactorily determined without a local inquiry,
the Court may direct that a local inquiry be held under Chap-
ter XXV of the Code of Civil Procedure by such Revenue-
officer as the Local Grovernment may authorize in that behalf
by rule made under section 392 of the said Code.

(8) The order on any application under this section shall
have the effect of, and be subject to the like appeal as,
a decree.

Suits for Interchange of pottahs and kabuliyats done away with.—
This section is taken generally from the North-Western Provinces Rent Act CXII
of 1881), and is intended to serve as a substitute for the suit for interchange of
pottahs and kabuliyats of the former law. The provisions of the former law as
to the interchange of pottahs and kabuliyats and suits for obtaining them have
been done away with on the recommendation of the Rent Law Commission, who
pointed out that very little use was ever made of them, and that they were not
well calculated for the settling of essential questions connected with the tenancy
which might be in dispute between the parties, regarding, for example, the rate
of rent, or the quantity of land held by the tenant. Such matters can now be
determined under the provisions of this section. There is nothing now to prohibit
the interchange of pottahs and kabuliyats, but they can no longer be sued for.

Collateral Issues. — In a proceeding under this section, it is open to a peti-
tioner, if he acknowledges the opposite party to be a tenant, to dispute the validity
of the lease under which he alleges that he is holding, and the Court is bound to
go into and decide that question, if raised. {Bhupendra Narain Datta v. Nemai i

Charan Mandal, I. L. R., 15 Calc, 627.)

Commissions.— By Notification dated the 4th November, 1885, the Local
Government has made the following rule under this sub-section. " Under sec. 392
of Act XIV of 1882, the Lieutenant-Governor has been pleased to make the
following rules as to the persons to whom commissions shall be issued under the
Bengal Tenancy Act, Whenever, under sees. 31 (6) and 158 (2) of the Bengal
Tenancy Act, a Court directs that a local inquiry be held under Chap. XXV of the
Code of Civil Procedure, the commission shall be issued to such person, not being
below the rank of an Assistant or Deputy Collector, as the Collector of the Dis-
trict may, from time to time, select for the purpose. The Court shall issue a pre-
cept to the Collector, requiring him forthwith to nominate a fit person as above to

232 THE BENGAL TENANCY ACT.

Chap. XIV. conduct the enquiry, and the commission shall be issued to the person so nomi-
SkcM59. nated." {Calcutta Gazette, November 4th, 1885, p. 988.) For the fees payable on
the issue of such Commissions, see note to sec. 31 (6), p. 82.

Court-fee duty. — It would appear that applications under this section to
determine the incidents of a tenancy should be regarded as miscellaneous cases,
and Court-fees on them should be levied accordingly. Thus, the application to
the Court of first instance will be subject to a Court-fee duty of 8 aus. except
when the application is made to a Civil Court other than a principal Civil Court
of original jurisdiction, and the value of the subject-matter of the case is less than
Es. 50, in which case the Court-fee duty leviable will be one anna (Act VII of
1870, Sch. II, Art. 1, cl. (a), para. 4, and cl. (6), para. 2). But as under sub-sec.
(3) the order on an application under this section shall have the effect of a decree,
appeals from orders under this section will be liable to a Court-fee duty of Rs. 10
under cl. iii, Art. 17, Sch. II of the Court-fees' Act.

CHAPTER XIV.

Sale for Arrears under Decree.

Patni taluks. — It was at one time proposed to make the provisions of this
chapter applicable to patni tenures. But this proposal was ultimately negatived.
The provisions of this chapter therefore do not apply to patni tenures, which
remain substantially unaffected by this Act. They will still continue to be sale-
able under the sjjecial procedure provided for their sale by Eeg. VIII of 1819.
Act VIII (B.C.) of 1865 also is not repealed by this Act, so that tenures other
than patni taluks held immediately under the zamindar, and upon which the
right of selling or bringing to sale for an arrear of rent may have been specially
reserved by stipulation in the engagements interchanged on the creation of the
tenure, continue .saleable after decree, in the same way as patni taluks. The
owners of patni taluks and of such saleable under-tenures are, however, not
restricted to the procedure prescribed by Reg. VIII of 1819 and Act VIII
(B. C.) of 1865. They can, if they please, sue under the provisions of this Act for
the rent due to them, and they can then bring the tenure to sale under the provi-
sions of this chapter in execution of their decrees.

159. Where a tenure or holding is sold in execution of
Gentrai powers of a decree for arrears due in respect thereof,

purchaser as to avoid- , , i n i i • . j. ^i •

anoe of iucumbrauces. the purchaser sliall take subject to the in-
c, 1866'; Bee. 66, Act tcrcsts defined in this chapter as " protected
vni, B. c, 1869. interests," but with power to annul the

interests defined in this chapter as " incumbrances :"

Provided as follows : —

(a) a registered and notified incumbrance within the
meaning of this chapter shall not be so annulled except in the
case hereinafter mentioned in that behalf ;

SALE FOR ARREARS UNDER DECREE.

233

(b) the power to annul shall be exercisable only in man- chap. xiv.

■I ,1 . 1 T , Skc. 159.

ner by this chapter directed. —

What passed at a sale for arrears of rent under former law.— A moot
point under tlie old law was what passed at a sale for arrears of rent, whether
the tenure or holding itself, or whetlier only the interest of the judgment-debtor.
The result of the rulings would seem to be that when a sharer in a joint undivi-
ded estate, dependent taluk or other similar tenure, sold an under-tenure in
execution of a decree for arrears of rent due thereon, only the rights and in-
terests of the defaulter passed by the sale ; but in other cases in which a tenure
or holding was sold for arrears of rent, the tenure or holding itself passed, free
from all incumbrances. (Ramjiban Chaudhri v. Piari Lai Mandal, 4 W. R., Act X,
30 ; Mritanjai Chaudhri v. Khettra Nath Rat, 5 W. R., Act X, 71 ; Fatima Khatun
V. Collector of Tipperah, 13 W. R., 433 ; Nando Lai Rai v. Guru Cham Basu,
15 W. R., 6 ; Sadhan Chaiidra Basu v. Guru Cliarn Basu,\b W.R.,99 ; Daulat Ghazi
Chaudhri v. Manwar, 15 W. R., 341 ; Ghxdam Chandra Be v. Nadiar Ckand
Adhikari, 16 W. R., 1 ; Grish Chatxdra Mitra v. Jhaht, 17 W. R., 352 ; Krishna
Chandra Ghosh v. Raj Krishna Bandopadhya, I. L. R., 12 Calc, 24 ; Miahjan
Munshi v. Karunamayi Dehi, 8 B. L. R., 1 ; Bissessar Lai Sahu, v. Lachmessar Singh,
5 C. L. R., 477 ; L. R., 6 I. A., 233). Even though the sale-proceedings specified
that the rights and interests of certain parties were sold, yet the tenure itself was
sold and all the co-sharers were jointly liable (AUinuddin v. Sabir Khan, 8 "W. R.,
60) ; and where an under-teuure was sold in execution of a decree, which had been
passed in the terms of a compromise effected between the landlord and all the
sharers in the tenure but one, and the representative of the latter sought to
assert his right to his share against the auction-purchaser, it was held that in a
sale under Act VIII of 1869, a tenure is sold outright, and that this tenure did
not pass to the auction-purchaser with any incumbrances. (Grish Chandra Ghosh
V. Kali Tara, 25 W. R., 395 ; Bular Chand Sahu v. Lai Chahil Chand, L. R., 6 I. A.,
47 ; 3 C. L. R., 561.) "Where a widow's interest is sold for an-ears of rent, it is
not merely the widow's life interest that is transferred, but the property itself,
and the reversionary heir cannot follow the estate after her death. {Tilah Chandra
Chakravarti v. Madan Mohan Jogi, 12 W. R., 504.) In another case a judgment-
debtor was alone registered in the zamindar's sherishta as owner of a tenure, but
his two brothers, who were joint in estate with him, were found to be entitled
each to an equal share with him in the tenure. The judgment-debtor was,
however, the manager, and he alone was sued for the arrears of rent of the
tenure. A sale took place in execution of the decree for arrears of rent, and it
was held to have passed the whole tenure, and not merely the interest of the
judgment-debtor. (Jeo Lai Singh v. Ganga Prasad, I. L. R., 10 Calc, 996.) But
in Dwarkanath v. Alok Chandra Sil (I. L. R., 9 Calc, 641), it was held, on a con-
struction of a sale-certificate and a proclamation of sale purporting to be under
sees. 59 and 60 of the Rent Act (Bengal Act VIII of 1869), that what passed by
the sale was not an under-tenure, but merely the right, title, and interest of the
judgment-debtor, — the declaratory portion of a sale-proclamation not being by
itself sufficient to override the description of the property in the body of the
document.

Fraud.— In certain circumstances a sale has been held not to pass the tenure
sold. Thus, in Nohin Chandra Sen v. Nohin Chandra Chakrabartti (22 W. R., 46),
a suit by an auction-purchaser to obtain khas possession of an under-tenure

2S4

THE BENGAL TENANCY ACT.

Chap. XIV. which had been sold under Act VIII (B. C.) of 1869, was dismissed on the ground
Skc. 159. that the suit in which the zamindar had obtained the decree was a fraudulent one,
and the purchaser knew that it had been against the wrong party. In special
appeal, the provisions of Act X of 1859, sec. 106, were pleaded in justification of
the zamindar ; but it was held that he could not bring such a suit against a per-
son other than the one whom he knew to be the proprietor of the under-tenure,
and from whom for a series of years he had been receiving rent. The purchaser
of an under-tenure may sue in the Civil Court to set aside a sale of the under-
tenure in execution of a decree for arrears of rent, under Act X of 1859, on the
ground that such decree was obtained by fraud subsequent to the purchase.
{Gatiga Das Datta v. Ram Narain Ghosh, B. L. R, F. B., 625.) The holder of an
under-tenure, though his name has not been registered as the owner, may bring a
suit to set aside a sale of the under-tenure, made in execution of a decree for rent
against the fonner owner, on the ground that the money due under the decree
had been deposited before the sale. {Afzal AH v. Gur Narain, 6 W. R., Act X,
59 ; B. L. R., F. B., 519.)

A share of a tenure could be sold. — A share of an under-tenure can be sold
under sec. 64 of Bengal Act VIII of 1869, so as to render the sale binding upon
the judgment-debtor, there being no substantial difference between the sale of a
portion of an under-tenure under that section and under the Civil Procedure
Code. (Ahsanullah v. Rajendra Chandra Rai, I. L. R., 12 Calc, 464.) But if a
person chooses to purchase part of an under-tenure, he must take his position
as being jointly liable for the rent with the other imder-tenants {Gohind Chandra
Rai v. Ram Chandra Chaudhri, 22 W. R., 421) ; and the purchaser of a share of a
tenure does not acquire the property with the privileges attaching to the purchase of
an entire tenure, i. e., free of incumbrances. {Reily v. Har Chandra Ghosh, I. L. R.,

9 Calc, 722.) It follows, when the tenure itself passes at a sale, that a tenure once
sold in execution of a decree for arrears of rent, cannot be re-sold for the arrears of
former years. These arrears become the personal debt of the former proprietor of
the tenure, and must be recovered from him. (JLatifan v. Miah Jan, 6 W. R., 112 ;
Pran Gaur Mazumdar v. Hemanta Kumari Dehi, I. K R., 12 Calc, 597.)

A landlord is not bound to proceed against any other than his
registered tenant. — A zamindar may bring a suit for arrears only against the
tenant whose name is registered in his sherishta, and in execution of a decree ob-
tained in such a suit, the whole tenure may be sold, though others not recognized
by the zamindar as his tenants may be interested in the lease. {Rari Cham Basu
V. Mehanmnissa Bibi, 7 W. R., 318 ; Forbes v. Pratap Singh Dugar, 7 W. R., 409 ;
Alimudin v. Sabir Khan, 8 W. R., 60 ; Bhobo Tarini Basi v. Prasannamayi Dasi,

10 W. R., 304 ; Sadhan Chandra Basu v. Guru Cham Basu, 15 W, R., 99.) A
zamindar who has obtained a decree for arrears of rent of a transferable tenure is
entitled to sell the tenure, and a person, who has obtained a transfer of such
tenure, which he has not registered, and cannot show a sufficient cause for not
registering, is bound by the sale, and cannot set up a title, which he has acquired
by a previous sale, (Sham, Chand Kundu v, Braja NathPal, 21 "W. R., 94 ; 12 B. L. R,,
F. B., 484.) A decree for rent obtained by a landlord against his registered
tenant renders the tenure comprised in the decree liable for sale, although such
tenure may have passed into other hands than those of the judgment-debtor.
The landlord's remedy is, however, in such a case strictly confined to the sale of
such tenure under his decree. He cannot make a tenant personally liable for
rent which accrued due before such tenant became the owner of the tenure. The

SALE FOR ARREARS UNDER DECREE. 235

remedies which are provided by the rent law for enforcing the payment of the Chap. XIV.
rent by sale of the tenure or by distress are remedies in rem. The personal liabi- Sko. 159.
lity of one tenant cannot be transferred to another. {Rash Bihari Bandopadhya v.
Piari Mohan Mukharji, I. L. E., 4 Calc, 346.) The plaintiff purchased under a
private conveyance from the registered tenant of a permanent transferable inter-
est in land such as is described in sec. 26 of Bengal Act VIII of 1869, but no
notice of the transfer was given to the zamindar. The zamindar subsequently
brought a suit against the tenant for arrears of rent, and obtained a decree,
in execution of which he caused the tenure to be sold, and himself became the
purchaser. The plaintiff took proceedings under sec. 311 of the Civil Procedure
Code to set aside the sale ; but his application was rejected on the ground — an
erroneous one — that he was not a proper party to take such proceedings, and he did
not appeal against the order rejecting it. It was held that a suit brought against
the zamindar and the tenant to set aside the sale was in the absence of fraud not
maintainable. The plaintiff might have satisfied the rent decree and so prevented
the sale, or he might have appealed against the order rejecting his application to
set it aside ; but having done neither, and the zamindar having had no notice of
the transfer, the plaintiff was not entitled to treat the proceedings in the rent-suit
as a nullity, on the ground that he was not a party to the suit. {Panye Chandra
Sirkar v. JIar Chandra Chavdhri, I. L. E., 10 Calc, 496.) But if a landlord has
recognised the transferee of the tenancy as his tenant, he cannot sell the tenancy
for arrears due from the recorded tenant. {Amrita Lai Basu v. Saurabi Dasi,
2 W. E,, Act X., 86 ; Miah Jan Munshi v. Karuna Mayi Dehi, 8 B. L. E., 1 ; Mojon
Mollah v. Dula Ghazi Kulan, 12 B. L. E., 492, note ; Ram Kishor Acharji v. Krishna
Mani Dehi, 23 W. E., 106.) Under the present Act, the transfer of a perma-
nent tenure, or of the interest of a raiyat holding at fixed rates can only be made
by registered instrument. A landlord is not bound to recognize such a transfer
until steps have been taken to notify it to him. He would also be justified in
proceeding against the recorded tenant in the case of an occupancy-raiyat, unless
the latter had a transferable interest, and had given him notice of the transfer
under sec. 73 of this Act. But if he himself brings the tenure or holding to sale
in execution of a decree for arrears of rent, he, of course, cannot refuse to recog-
nize the purchaser as his tenant. No landlord's fee is payable on such a transfer
of a tenure (sec. 14) as in the case of other transfers of tenures.

What passes now at a sale for arrears under decree. — It seems clear
that at a sale of a tenure or holding for arrears of rent the tenure or holding itself
now passes (and not merely the interest of the judgment-debtor), subject of
course to the " protected interests," and with power to annul incumbrances. As
sec. 64, Act VIII of 1869, B. C, which provided that a saleable under-tenure
could not be sold in execution of a decree obtained by a co-sharer for his share
of the rent until the debtor's moveable property within the jurisdiction of the
Court had been seized and sold, has not been reproduced in this Act, it would
seem that the tenure or holding will pass, even if it is sold in execution of a
decree for arrears of rent obtained by a co-sharer. Section 65, which says that
the rent shall be a first charge on a tenure or holding makes no distinction
between the rent due to a co-sharer and the rent due to a sole landlord or the
whole body of landlords if there be more than one. Section 159, too, is silent on
this point.

A sale is valid, even if the decree under which it was held is re-
versed.—If a sale takes place in execution of a decree in force and valid at the
time of sale, the property in the thing sold passes to the purchaser. If the

236 THE BENGAL TENANCY ACT.

Chap. XIV. decree or judgment be afterwards reversed, the reversal does not aflfect the validity
Skc. 160. of j;]jg sale, or the title of the purchaser. {Chandra Kant Sarmah v. Bissessar Sar-
mahf 7 W. R, 312.) A bond fide sale under a decree is binding, notwithstanding
that the decree may be set aside upon review. {Jan Ali v. Jan Alt Chaxidhri,
10 W. R, 154 ; 1 B. L. R, 56 ; Piari Moni Dasi v. The Collector of Birbhum, 8 W. R.,
300.) No suit will lie to set aside the sale of an estate in execution of a decree
for arrears of rent at enhanced rates according to a prior decree for enhancement
subsequently reversed on special appeal, on the ground of want of notice of the
suit for arreai*s of rent. {Durga Prasad Pal v. Jogesh Prakash Gangopadhya,
4 W. R, Act X, 38.) But a sale in execution of a decree barred by limitation
is invalid {Ghulam Asgar v. Lakhimani Debi, 5 B. L. R, 68 ; 13 W. R., 273), and a
sale held under a deci'ee passed by a Court without jurisdiction and reversed on
that account is a nullity. {Jadu Nath Ku)idii v. Braja Nath Kundu, 6 B. L. R.,
App., 90 ; see also Bhulu v. Ram Narain Mukharji, W. R., Sp. No., 129.)

160. The following shall be deemed to be protected
interests within the meaninpr of this

Protected interests. '^

chapter : —

(a) any under- tenure existing from the time of the Per-
manent Settlement ;

{h) any under- tenure recognized by the settlement-pro-
ceedings of any current temporary settlement as a tenure at a
rent fixed for the period of that settlement ;

(c) any lease of land whereon dwelling-houses, manufac-
tories or other permanent buildings have been erected, or
permanent gardens, plantations, tanks, canals, places of wor-
ship or burning or burying grounds have been made ;

{d) any right of occupancy ;

(e) the right of a non-occupancy-raiyat to hold for five
years at a rent fixed under Chapter VI by a Court, or under
Chapter X by a Revenue-officer ;

(/) any right conferred on an occupancy-raiyat to hold at
a rent which was a fair and reasonable rent at the time the
right was conferred ; and

{g) any right or interest which the landlord at whose
instance the tenure or holding is sold, or his predecessor in
title, has expressly and in writing given the tenant for the time
being permission to create.

The interests referred to in els. (a), (6), and (c) are protected under a sale for
arrears of revenue. They are, therefore, a fortiori entitled to protection under a
sale for rent. The interests referred to in els. {d), (/), and {g) were protected
under sales for rent under the former law (sec. 16, Act VIII, B. C, of 1865 ; sec.

■INCUMBRANCES. 237

66, Act VIII, B. C, of 1869 ; a.nd mimadhab Karmokarv. ShibuPcd, 13 W. E.,410.) Chap. XIV.
The interest referred to in cl. (e) has been created by this Act. Site. 161.

The interests referred to in cl. (c) are protected, subject to the proviso laid
down in cl. (4), sec. 167, that if a purchaser has power, under this chapter, to
annul all incumbrances (sec. 165), he may sue to enhance the rent of the land,
which is the subject of the protected interest, unless it has been held for a term
exceeding twelve years at a fixed rent equal to the rent of good arable land. The
benefit of the fourth exception to sec. 37, Act XI of 1859 (which applies to the
interests specified in cl. (c) of this section), must be limited to improvements
effected bomtjide and to permanent buildings erected before the revenue-sales, and
should not be conceded to anything subsequently constructed, or which appears to
have been constructed merely for the purpose of defeating the rights of an auction-
purchaser. Subject to this reservation, it does not matter whether the improve-
ments have been effected by the present holder or by some previous occupier
(Azgar Alt v. Asmat AH, I. L. R, 8 Calc, 110.) But a landlord cannot by
planting a garden in any portion of his estate, become, quoad such plantation,
his own raiyat, so as to bring the land so planted within the protection of Act XI
of 1859, sec. 37, in the event of his estate being sold for arrears of revenue. (Bui
Chand Jha v. LathtiMicdi, 23 W. E., 387.)

Meaning of " incum- 161. Foi' the purpOSeS of tilis cliap-

brauce" and "regis- x „

tered and notified in-

cumbrance." (^) the tei'in " incumbrance," used

with reference to a tenancy, means any lien, sub-tenancy,
easement or other right or interest created by the tenant on
his tenure or holding or in limitation of his own interest
therein, and not being a protected interest as defined in the
last foregoing section ;

(b) the term " registered and notified incumbrance," used
with reference to a tenure or liolding sold or liable to sale in
execution of a decree for an arrear of rent due in respect
thereof, means an incumbrance created by a registered instru-
ment of which a copy has, not less than three months before
the accrual of the arrear, been served on the landlord in man-
ner hereinafter provided.

Incumbrances may be (1) registered and notified ; (2) registered and. unnoti-
fied ; and (3) unregistered and unnotified. A purchaser at a sale under sec.
165 can annul incumbrances of all these three classes. A purchaser at a sale
under sec. 164 can annul incumbrances of the second and third classes only.
The provision for the registration of these incumbrances has been made with the
view of preventing sham incumbrances being set up after the sale of the tenure
or holding.

Service of copy of incumbrance. — The copy of the incumbrance will be
served on the landlord in the manner prescribed by the Local Government, by
Rule 3, Cliap. I of the Eules given in Appendix I.

goo THE BENGAL TENANCY ACT.

Chap. XIV. 162. When a decree has been passed for an arrear of

Skc.._|62, 163, ^ppj.^^^.^^ ^^^ ^^^^ rent due for a tenure or holding, and the
of tenure or holding. decrec-holder applies under section 235 of
XIV of 1882. the Code of Civil Procedure for the attach-

ment and sale of the tenure or holding in execution of the
decree, he shall produce a statement showing the pargana,
estate and village in which the land comprised in the tenure
or holding is situate, the yearly rent payable for the same and
the total amount recoverable under the decree.

Particulars to be specified in applications for execution.— Section 235
of the Code of Civil Procedure provides that an application for execution ehall
be in writing and verified, and shall contain, in a tabular form, (a) the number
of the suit ; (6) the names of the parties ; (c) the date of the decree ; (d) whether
any appeal has been preferred ; (e) whether any and what adjustment of the
matter in dispute has been made subsequently to the decree ; (/) whether any
and what previous applications have been made for execution of the decree, and
with what result ; (g) the amount, with the interest, if any, due upon the
decree, or other relief granted thereby ; (h) the amount of costs, if any, award-
ed ;( i ) the name of the person against whom execution is sought ; and (j ) the
mode in which the assistance of the Court is required, whether by the delivery
of property specifically decreed, by arrest and imprisonment of the person named
in the application, or by the attachment of his property, or otherwise. Rule 9 of
the High Court's revised rules under sec. 287 of the Civil Procedure Code is as
follows : — " Every person applying under sec. 162 of the Bengal Tenancy Act
(VIII of 1885) for the simultaneous attachment, and sale of a tenure or a holding
of a raiyat holding at fixed rates, or applying only for the sale of such tenure or
holding already under attachment, shall in such application specify the registered
and notified incumbrances subject to which the tenure or holding is to be sold.
Such specification shall be verified in the manner prescribed by the Code of Civil
Procedure for the verification of plaints by the holder of the decree, in execution
of which the tenure or holding is to be sold, or by some other person (approved
of by the Court), if the Court be satisfied that he is acquainted with the facts
mentioned in it." (Calcutta Gazette of August 18th, 1886, Part I, p. 939.)

163. (1) Notwithstanding anything contained in the

Order of attachment ^^^^ of Civil Procedure,* when the decree-

and proclamation of Jjoldcr makcs the application mentioned in

eale to be issued simul- ^ .

taneoufiiy. the last foreoToinoj section, the Court shall,

* XIV of 1882. o o ' '

Sec. 105, Act X, 1859 ; if undcr section 245 of the said Code it ad-
1865 ;'8ec. 59,Actviii,' mits the application and orders execution of
^' ^" ^^^^' the decree as applied for, issue simultaneous-

ly the order of attachment and the proclamation required by
section 287 of the said Code.

PROCLAMATION OF SALE. 239

(2) The proclamation shall, in addition to stating and ^^^^- ^l^-
specifying the particulars mentioned in section 287 of the said —
Code, announce —

(a) in the case of a tenure or a holding of a raiyat hold-
ing at fixed rates, that the tenure or holding will first be put
up to auction subject to the registered and notified incum-
brances, and will be sold subject to those incumbrances if the
sum bid is sufficient to liquidate the amount of the decree
and costs, and that otherwise it will, if the decree-holder so
desires, be sold on a subsequent day, of which due notice will
be given, with power to annul all incumbrances ; and

(b) in the case of an occupancy-holding, that the holding
will be sold with power to annul all incumbrances.

(3) The proclamation shall, besides being made in the
manner prescribed by section 289 of the said Code, be published
by fixing up a copy thereof in a conspicuous place on the
land comprised in the tenure or holding ordered to be sold,
and shall also be published in such manner as the Local
Government may, from time to time, direct in this behalf.

(4) Notwithstanding anything contained in section 290 of
the said Code, the sale shall not, without the consent in writ-
ing of the judgment-debtor, take place until after the expira-
tion of at least thirty days, calculated from the date on which
the copy of the proclamation has been fixed up on the land
comprised in the tenure or holding ordered to be sold.

The particulars mentioned in sec. 287 of the Code of Civil Procedure are : (a) the
property to be sold ; (6) the revenue assessed upon the estate or part of the estate,
when the property to be sold is an interest in an estate, or part of an estate, paying
revenue to Government ; (c) any incumbrance to which the property is liable ; (d)
the amount for the recovery of which the sale is ordered ; and (e) every other ,

thing which the Court considers material for the purchaser to know in order to
judge of the nature and value of the property.

The following notification dated the 20th February, 1886, has been issued
by the Local Government : — " Under sec. 163 (3), Bengal Tenancy Act, the Lieu-
tenant-Governor is pleased to direct that the proclamation referred to in that section
as required by sec. 287 of the Civil Procedure Code, Act XIV of 1882, shall, in
addition to the places prescribed in sec. 163 (3) of the Bengal Tenancy Act, and in
sec. 289 of the Code of Civil Procedure be also published in the mal kachari, or
rent office of the estate, and at the local thana." {Calcutta Gazette, March 3rd,
1886, Part I, p. 142.)

Section 163, sub-seotion (4).— In an unreported case {Krishna Prasanna Mitra
V. Ram Pratah Agarwala, decided by Petheram, C. J., and Ghose, J., on May 30th,

240 THE BENGAL TENANCY ACT.

Chap. XIV 1887, a sale was set aside on the ground that 30 days had not elapsed between
Shc8. 164, 165. the date of the proclamation and the date of the sale. In this case it was said

" whether the sale was governed by sec. 163 of the Bengal Tenancy Act or

by sec. 290 of the Code of Civil Procedure, a period of 30 days must elapse
between the date of the proclamation and the date of the sale, and in our opinion,
if property is sold within that period, the defect is not a mere irregularity, such
as is contemplated by sec. 311 of the Code of Civil Procedure, viz., an in-egularity
relating to the publishing or the conducting of the sale : it is one of the con-
ditions precedent to a valid sale that this time should elapse between the pro-
clamation and the date of the sale, and if that condition is not complied with, the
sale is not mei-ely an irregular sale, but no sale at all."

164. (1) When a tenure or a holding at fixed rates has
Sale of tenure or been advertised for sale under the last fore-

holding subject to re- . • • i ii i

gistered and notified in- gOing SectlOU, it shall be put Up tO aUCtlOn,

cumbrances, and effect i-^. •. i t ^^'n n '

thereof. subjcct to registered and notmed incum-

brances ; and, if the bidding reaches a sum sufficient to liqui-
date the amount of the decree and costs, including the costs
of sale, the tenure or holding shall be sold subject to such in-
cumbrances.

(2) The purchaser at a sale under this section may, in
manner provided by section 167, and not otherwise, annul
any incumbrance upon the tenure or holding not being a regis-
tered and notified incumbrance.

Meaning of bidding. — In an unreported case (iTofto Kamar Mukharjiy. Kia-
sori Dasi, decided by Petheram, C. J., and Ghose, J., on the 30th May, 1887), it was
said, " the question is whether a ' bidding,' as the expression is used in sec. 164
of the Bengal Tenancy Act, includes a bidding, which is withdrawn before
acceptance. In our opinion bidding in that section means a bid, which has
either been accepted, or which is open to acceptance, and does not include a bid,
which has been withdrawn before acceptance, and which has thus been can-
celled by the bidder."

165. (1) If the bidding for a tenure or a holding at
Sale of tenure or fixed rates Dut UD to auction under the

holding with power to . *^ /

avoid all incumbrances, last lorcgomg SectlOll doCS llOt I'Cach a SUm

and effect thereof. ai • , , ^' ' ^ . .i j. r^i

XIV of 1882. sumcient to liquidate the amount or the

decree and costs as aforesaid, and if the decree-holder there-
upon desires that the tenure or holding be sold with power to
avoid all incumbrances, the officer holding the sale shall ad-
journ the sale and make a fresh proclamation under section 289
of the Code of Civil Procedure, announcing that the tenure or
holding will be put up to auction and sold with power to

ANNULMENT OF INCUMBRANCES. 241

avoid all incumbrances upon a future day specified therein, S"^^^Qf^^„j
not less than fifteen or more than thirty days from the date —
of the postponement ; and upon that day the tenure or hold-
ing shall be put up to auction and sold with power to avoid
all incumbrances.

(2) The purchaser at a sale under this section may, in
manner provided by section 167, and not otherwise, annul any
incumbrance on the tenure or holding.

166. (1) When an occupancy-holding has been adver-
Saie of occupancy- tiscd for Bale uudcr section 163, it shall be

S^a^iuil^umb^nces P^^ up to auctiou and sold with power to
and effect thereof. ^void all incumbrances.

(2) The purchaser at a sale under this section may, in
manner provided by the next following section, and not other-
wise, annul any incumbrance on the holding,

167. (1) A purchaser having power to annul an incum-

Procedure for annul- brancc uudcr any of the foregoing sections

unfeJ^tiTe^'^fJr^egolnl ^ud dcsiriug to aunul the same, may, with-
eections. j^^ ^^^ y^^^, from the date of the sale or the

date on which he first has notice of the incumbrance, which-
ever is later, present to the Collector an application in writing,
requesting him to serve on the incumbrancer a notice declaring
that the incumbrance is annulled.

(2) Every such application must be accompanied by such
fee for the service of the notice as the Board of Revenue may
fix in this behalf.

(3) When an application for service of a notice is made
to the Collector in manner prescribed by this section, he shall
cause the notice to be served in compliance therewith, and
the incumbrance shall be deemed to be annulled from the date
on which it is so served.

(4) When a tenure or holding is sold in execution of a
decree for arrears due in respect thereof, and there is on the
tenure or holding a protected interest of the kind specified in
section 160, clause (c), the purchaser may, if he has power
under this chapter to avoid all incumbrances, sue to enhance

R. & F., B. T. A. 16

242 THE BEKGAL TENANCY ACT.

Chap. XIV. the rent of the land which is the subject of the protected in-

— terest. On proof that the land is held at a rent which was

not at the time the lease was granted a fair rent, the Court

may enhance the rent to such amount as appears to be fair

and equitable.

This sub-section shall not apply to land which has been
held for a term exceeding twelve years at a fixed rent equal
to the rent of good arable land.

The provisions of this section are in accordance with the general rule that
the eflFect of a sale is not ipso facto to annul and avoid incumbrances, but to
render thera voidable at the option of the purchaser. " The same principle," it
has been said, " applies to sales for arrears of rent as to sales for arrears of revenue,
and both are only voidable at the option of the purchaser." {Titu Bibi v. Mohesh
Chandra Bagchi, I. L. R., 9 Calc, 683 ; 12 C. L. R., 304.) Under the present law,
a purchaser can annul an incumbrance only by giving notice to the incumbrancer
through the Collector. From the case of Titu Bibi v. Mohesh Chandra Bagchi, it
would seem that under the old law it was not necessary that the purchaser should
give any notice or do any act before bringing a suit to cancel the incumbi-ance.

For the mode of service of the notice of the incumbrance, under sub-sec. (3)
see Rule (3), Chap. I, of the Government Rules under the Act. No form of
notice has been prescribed. The notice should be prepared by the notice-giver.
The Board of Revenue have directed that fees for the service of the notice are
to be levied in accordance with Rules 1 to 4, Chapter VII, of the Government
Rules under this Act. (Board of Revenue's No. 709A of November 2nd, 1886, to
the Commissioner of the Presidency Division, and No. 338A of May 10th, 1888,
to the Commissioner of Burdwan.)

168. (1) The Local Government may, from time to
Power to direct that time, by notification in the official Gazette,
7^i!::iZu:^Z.^l direct that occupancy-holdings or any
ing sections as tenures, specified class of occupancy-lioldings in any
local area put up for sale in execution of decrees for rent due on
them shall, before being put up with power to avoid all incum-
brances, be put up sul)ject to registered and notified incum-
brances, and may by like notification rescind any such direction.,

(2) While any such direction remains in force in respect
of any local area, all occupancy-holdings, or, as the case may
be, occupancy-holdings of the specified class in that local area,
shall, for the purposes of sale under the foregoing sections of
this chapter, be treated in all respects as if they were tenures.

The Local Government has not exercised the power of directing that occu-
pancy-rights shall be sold subject to incumbrances in any local area.

DISPOSAL OF SALE PROCEEDS, 243

169. (1) In disposing; of the proceeds of a sale under chap. xiv.

^ ^ . . Skcs. 169,170.

Rules for disposal of this chapter, the following rules, instead of —

the sale-proceeds. m i i • c\r^^ ^ i /^ i

XIV of 1882.* those prescribed by section 295 of the Code

of Civil Procedure,* shall be observed, that is to say : —

(a) there shall first be paid to the decree-holder the costs
incurred by him in bringing the tenure or holding to sale ;

(b) there shall, in the next place, be paid to the decree-
holder the amount due to him under the decree in execution
of which the sale was made ;

(c) if there remains a balance after these sums have been
paid, there shall be paid to the decree-holder therefrom any rent
which may have fallen due to him in respect of the tenure or
holding between the institution of the suit and the date of the
sale ;

(d) the balance (if any) remaining after the payment of
the rent mentioned in clause (c) shall, upon the expiration of
two months from the confirmation of the sale, be paid to the
judgment-debtor upon his application.

(2) If the judgment-debtor disputes the decree-holder's
right to receive any sum on account of rent under clause (c),
the Court shall determine the dispute, and the determination
shall have the force of a decree.

A suit for a share of the proceeds of the sale of a tenure sold in execution of
a decree for arrears of rent is not cognizable by a Small Cause Court. (Ram Kumar
Sen V. Ram Kamal Sen, I. L. R., 10 Calc, 388.)

Tenure or holding to 170. (1) ScctlOUS 278 tO 283 (both

be released from attach- • ^ • \ r ,-i r^ ^ /'/^••irj i ^

mentouiyon payment inclusive) 01 the Codc 01 Civil Trocedure*
Se^^Hu'^tsTr'an ^hall Dot apply to a tenure or holding
confession of satisfac- attached in cxccution of a decree for arrears

tion by aecree-bolder.

* XIV of 1882. due thereon.

(2) When an order for the sale of a tenure or holding in
execution of such a decree has been made, the tenure or hold-
ing shall not be released from attachment unless, before it is
knocked down to the auction-purchaser, the amount of the
decree, including the costs decreed, together with the costs
incurred in order to the sale, is paid into Court, or the decree-
holder makes an application for the release of the tenure or

244 THE BENGAL TENANCY ACT.

Chap, XIV. boldiiicr oil the ffround that tlie decree has been satisfied out of

ShC. 171. " '-'

— Court.

(3) The judgment-debtor or any person having in the
tenure or holding any interest voidable on the sale may pay
money into Court under this section.

Sections 278 to 283 of the Civil Procedure Code deal with claims to attached
property and their disposal. Hence, no claims to tenures or holdings attached in
execution of decrees under the Bengal Tenancy Act can now be enquired into.
It would seem, however, that such claims, if made in the course of the execution
of a decree under Act VIII of 1869, B. C, should still be enquired into (see note
to sec. 2 (4), p. 5).

But in Jagahandhu Chattopadki/a v. Dinv, Pal (decided by Petheram, C. J.,
and Cunningham, J., on the 7th January, 1887), it has been said that the oper-
ation of sec. 170 " is confined to claims to the tenure, and not to claims which are
adverse to the tenure, and in which the nature of the question to be tried is
whether the property claimed is part of the tenure or not. The claimant in this
case claims no interest whatever in the tenure. He is not claiming to be the
tenant of the plaintiff. He only says, * the property you have attached as a
portion of the tenure is not a portion of it. That is a property which I hold
under a distinct title.' Under these circumstances, we think the case does not come
within sec. 170 of the Rent Act, and, therefore, the ordinary jurisdiction of the
Munsif, under sec. 278 of the Code of Civil Procedure, was not set aside, and
that he had a right to entertain this matter."

Right of an unregistered transferee of a tenure or holding to pay the
decretal amount into Court.— When an under-tenure has been transferred, but
the transfer is not registered in the serishta of the zamindar or superior tenant,
the transferee is, nevertheless, entitled as a person interested in the protection of
the tenure to stop its sale in execution of a decree under Act VIII (B. C.) of 1865,
by paying into Court the amount of the decree. {Anand Lai Mukharji v. Kalika
Prasad Misra, 20 W. R., 59.) Under the present Act, the transferee of a tenure
or holding at a fixed rate under an unregistered deed, has probably no right to pay
the decretal amount into Court, as he holds no valid incumbrance over it. It is
also doubtful whether the unrecognized transferee of an occupancy-holding will
have such a right, for his interest is a protected interest (160 d\ and therefore not
voidable by the sale. Any person paying the decretal amount into Court,
preserves the tenure or holding and his interest under it. Under the provisions
of sec. 171, he acquires a mortgage right on it, and is entitled to be put in possession,
until the amount of his payment with interest at 12 per cent, is repaid to him.
If the sale takes place, the unrecognized transferee is bound by it and cannot set
up against the purchaser his title acquired at any previous private sale to him.
{SJiam Chand Kundu v. Brajatiath Pal, 21 W. R., 94 ; see also note to sec. 159.)

Amount paid into 171. (1) When any person having,

Court to prevent sale to . , iij- ji.*jr i

be iu certain cases a m a tcuurc or holding advertised tor sale

Snm^'or hoUHng'! ^^^ uudcr this cliaptcr, an interest which would

Sec. 6, Act VIII. Bc. \yQ voidable upon the sale, pays into Court

of 1865; sec. 62, Act . . » r J

VIII, B.C. of 1869. the amount requisite to prevent the sale, —

PATME^rr INTO COURT TO PREVENT SALE. 245

(a) the amount so paid by him shall be deemed to be a chap. xiv.

^ ' , , ^ "^ Skc. 171.

debt bearing interest at twelve per centum per annum, and —
secured by a mortgage of the tenure or holding to him ;

(b) his mortgage shall take priority of every other charge
on the tenure or holding other than a charge for arrear of
rent ; and

(c) he shall be entitled to possession of the tenure or
holding as mortgagee of the tenant, and to retain possession
of it as such until the debt, with the interest due thereon, has
been discharged.

(2) Nothing in this section shall affect any other remedy
to which any such person would be entitled.

This section extends to tenures and holdings generally the provisions of sec.
13, Reg. VIII of 1819, with regard to the staying of patni sales and the recovery
of sums paid into Court for the purpose. The person put in possession of the
tenure or holding must pay the rent due to the superior landlord. {Kanai Lai
Set V, Nistarini Dasi, I. L. R., 10 Calc, 443.) The defaulter is not liable for the
rent, while the quasi-mortgagee is in possession. (^Bhairab Chandra Kapur v. Lalit
Mohan Singh, I. L. R., 12 Calc, 185.)

Remedies of persons whose interests are affected by sale.— An un-
registered assignee of a darpatni taluk can recover by regular suit a deposit made
by him to save his interest in the taluk. {Lalchi Narain Mitra v. Khettro Pal Singh,
13 B. L. R., 146.) An under-tenant, who has saved the superior tenure from sale
by depositing the amount of rent due, not only has the security of the tenure
which he preserves, and of which he can obtain possession on application to the
Collector, but he also has a right to recover the amount deposited by him as a loan
in an ordinary suit. {Ambika Debi\. Pranhari Bos, 4B. L. R., 77.) A darpatnidar
can also deduct the sum paid by him to save the patni from sale from the amount
of rent due by him to the patnidar. {Nohogopal Sirkar v. Srinath Bandopadya,
I. L. R., 8 Calc, 877 ; 11 C. L. R., 37). He may similarly deduct from the rent
any sum which he may have paid, not into Court, but direct to the zamindar, in
order to stay the sale of t]xe patni. {Tarini Debi v. Shama Charan Mitra, I. L. R.,
8 Calc, 954 ; but see contra, Mahomed Hossein Ali v. Bakaulla, 6 W. R., 84.)
A suit by an uni*egistered holder will lie in a Civil Court to set aside the sale of a
tenure sold in execution of a decree for rent under Act X of 1859 after the money
due upon the decree was deposited, sec. 151 of that Act notwithstanding. {Afzal
All V. Gurnarain, 6 W. R., Act X, 59 ; B. L. R., F. B., 519.) When a tenure liable
to sale is the subject of a suit, if the party in possession of such tenure neglects
to pay the rent due to the proprietor of the tenure and such tenure is consequent-
ly ordered to be sold, any other party to the suit claiming to have an interest in
such tenure may upon payment of the rent due previously to the sale (and with
or without security at the discretion of the Court) be put in immediate possession
of the tenure ; and the Court in its decree may award against the defaulter the
amount so paid with interest thereupon at such rate as the Court thinks fit or may
charge the amount so paid, with interest thereupon at such rate as the Court.

246 THE BENGAL TENANCY ACT.

Chap. XIV. orders in any adjustment of ancounts which may be directed in the decree passed
, .f"*"' in the suit (sec. 501, 0. P. C).

11 . — 174.

172. When a tenure or lioldins^ is advertised for sale
Inferior tenant pay- Under this chapter in cxecution of a decree

• ing into Court may ., ., .jr»ii' j

deduct from rent. against a Superior tenant deiaulting, and

c.,^i865^i "tec. ^6^^'Act ^^ inferior tenant, whose interest would be
VIII, B. c, 1869. voidable upon the sale, pays money into

•Court in order to prevent the sale, he may, in addition to any
other remedy provided for him by law, deduct the whole or
any portion of the amount so paid from any rent payable by
him to his immediate landlord ; and that landlord, if he is
not the defaulter, may in like manner deduct the amount so
deducted from any rent payable by him to his immediate
landlord, and so on until the defaulter is reached.

173. (1) Notwithstanding any thing contained in section
Decree-holder may 294 of the Codc of Civil Procedure,* the

dlbtormiynot'^^"'""*" ^oldcr of a dccrcc in execution of which a
* XIV of 1882. tenure or holding is sold under this chap-

ter may, without the permission of the Court, bid for or pur-
chase the tenure or holding.

(2) The judgment-debtor shall not bid for or purchase
a tenure or holding so sold.

(3) When a judgment-debtor purchases by himself or
through another person a tenure or holding so sold, the Court
may, if it thinks fit, on the application of the decree-holder
or any other person interested in the sale, by order set aside
the sale, and the costs of the application and order, and any
deficiency of price which may happen on the re-sale, and all
expenses attending it, shall be paid by the judgment-debtor.

In consequence of the provisions of sub-sec. (2), a judgment-debtor, bidding
or purchasing a tenure or holding at a sale under this chapter, will render him-
self liable to the penalty provided in sec. 185, Indian Penal Code.

174. ( 1 ) Where a tenure or holding is sold for an arrear
of rent due thereon, then, at any time

Application by jndg- , , , ' /* ^

ment-debtor to Bet within thirty days from the date of sale,

the judgment-debtor may apply to have

the sale set aside, on his depositing in Court, for payment to

APPLICATION to SET ASIDE SALE. 247

the decree-holder, the amount recoverable under the decree chap. xiv.

' Sicc. 174.

with costs, and, for payment to the purchaser, a sum equal to —
five per centum of the purchase-money.

(2) If such deposit is made within the thirty days, the
Court shall pass an order setting aside the sale, and the
provisions of section 315 of the Code of Civil Procedure shall
apply in the case of a sale so set aside :

Provided that, if a judj^ment-debtor applies under section
311 of the Code of Civil Procedure to set aside the sale of his
tenure or holding, he shall not be entitled to make an applica-
tion under this section.

(3) Section 313 of the Code of Civil Procedure shall not
apply to any sale under this chapter.

The effect of sub-sec. (1) is that if the judgment-debtor can, within thirty
days of the sale, raise the money, he can have the sale set aside, notwithstanding
tiiat there has been no irregularity in publishing or conducting it. Section 315,
Act XIV of 1882, provides for the return of the purchase-money (with or without
interest, as the Court may direct) on the setting aside of a sale. The order for
the repayment of the purchase-money with interest (if any is allowed) may be
enforced as a decree. Section 311 provides for the setting aside of a sale on the
ground of irregularity in publishing or conducting it, provided the applicant can
prove that he has sustained substantial injury by reason of the irregularity.
Under the former law sales of under-tenures under the rent law could be set aside
on this ground {Azizannissa Khatun v. Oora Chand Das, I. L. R., 7 Calc, 163 ; 8 C.
L. R., 498). Section 313 deals with applications to set aside sales on the ground of
the judgment-debtors having no saleable interest in the property sold. Sales of
tenures or holdings cannot be set aside on this ground, as " the rent is a first
charge " upon them (sec. 65), and they are liable to be sold for arrears of rent due
in respect of them, no matter in whose hands they may be at the time of their sale.

" Judgment-debtor."— The word " judgment-debtor," as used in this section,
does not include a transferee or assignee from a judgment-debtor ; but must be
construed strictly as referring to a judgment-debtor alone. {Rajendro Narain Rai
V. Phvdi Mandal, I. L R., 15 Calc, 482.)

A judgment-debtor can have a sale set aside even when only his
rights and interests are sold. — In an unreported case (Rule No. 269 of 1888,
decided by Petheram, C. J., and Tottenham, J., on the 30th April, 1888), it was
held that a judgment-debtor can apply under this section for the setting aside of
a sale, even when the sale has taken jslace in execution of a decree for arrears of
rent obtained against him by a co-sharer landlord, in which case under the old
law only the rights and interests of the judgment-debtor are sold, and not the
tenure or holding itself. (See note to sec. 159, p. 233.)

A deposit under this section must be one at once payable to the
parties.— The deposit under sec. 174 of the Tenancy Act must be of sucli a nature
as to be at once payable to the parties, and a Court has no power to set aside a
sale under that section unless the judgment-debtor has complied strictly with ita

248

THE BENGAL TENANCY ACT.

Chap. XIV. provisions. A deposit made in the shape of Government Promissory notes is not
Skcs. 175, 176. good. The deposit should be made in the currency of the country. {Rohim Baksh
""" V. Nando Lai Gossami, I. L. R., 14 Calc, 321.)

This section creates a new right which cannot have retrospective
effect. — As the provisions of an Act which creates a new right cannot, in the
absence of express legislation or direct implication, have a retrospective effect,
a judgment-debtor's right under sec. 174 of the Bengal Tenancy Act to set aside
a sale does not avail when the sale has been held in pursuance of a decree, the
execution whereof had been applied for before that Act came into operation.
(Lai Mohan Mukharji v. Jogendra Chandra Rai, I. L. R., 14 Calc, 636.) A sale
in execution of a decree passed under Bengal Act VIII of 1869, execution having
been applied for after Act VIII of 1885 had come into force, cannot be set aside
under sec. 174 of the latter Act. {Uzir Ali v. Bam Kamal Shaha, I. L. R.,
15 Calc, 383.)

175. Notwithstanding anything contained in Part IV
Registration of cer. of the Indian Registration Act, 1877,* an

tain in^struraents^creat- instrument Creating an incumbrance upon
* III of 1877. any tenure or holding which has been ex-

ecuted before the commencement of this Act, and is not required
by section 17 of the said Registration Act to be registered,
shall be accepted for registration under that Act if it is pre-
sented for that purpose to the proper officer within one year
from the commencement of this Act.

Part IV of the Registration Act deals with "the time of presentation."
The extended period for registering instruments creating incumbrances allowed
by this section of course expired on the 31st October, 1886.

176. Every officer who has, whether before or after the
Notification of in- passiug of this Act, registered an instru-

cumbrancestoiandiord. ixicut cxccutcd by a tenant of a tcuurc or
holding and creating an incumbrance on the tenure or holding,
shall, at the request of the tenant or of the person in whose
favour the incumbrance is created, and on payment by him of
such fee as the Local Government may fix in this behalf,
notify the incumbrance to the landlord by causing a copy of
the instrument to be served on him in the prescribed manner.

See the rules framed by the Registration Department under the Bengal
Tenancy Act, Appendix IV.

The process-fees for the service on the landlord of the copy of the incum-
brance will be levied in accordance with Rules 1 to 4, Chap. VII of the Government
Rules under the Tenancy Act. The copy of the incumbrance should be served on'
the landlord under Rule 3, Chap. I of these rules.

RESTRICTIONS ON EXCLUSION OF ACT. 2-19

177. Nothinsc contained in tliis clmp- ^chap. xv.

Power to create in- i n i n i Si.cs. 1<<, U».

cumbrances not extend- ter sliall 06 deemed to enable a person to —

create an incumbrance which he could not
otherwise lawfully create.

CHAPTER XV.
Contract and Custom.
„ , . ,. , 178. (1) Nothinof in any contract

Restrictions on excla- i ii i i

siou of Act by agree- between a landlord and a tenant made be-
fore or after the passing of this Act —

(a) shall bar in perpetuity the acquisition of an occu-
pancy-right in land, or

(b) shall take away an occupancy-right in existence at
the date of the contract, or

(d) shall take away or limit the right of a tenant, as pro-
vided by this Act, to make improvements and claim compen-
sation for them.

(2) Nothing in any contract made between a landlord and
a tenant since the 15th day of Jii\y, 1880, and before the
passing of this Act, shall prevent a raij'^at from acquiring in
accordance with this Act an occupancy-right in land.

(3) Nothing in any contract made between a landlord and
a tenant after the passing of this Act shall —

(a) prevent a raiyat from acquiring in accordance with
this Act an occupancy-right in land ;

(6) take away or limit the right of an occupancj'^-raiyat to
use land as provided by section 23 ;

(d) take away the right of a raiyat to transfer or bequeath
his holding in accordance with local usage ;

(e) take away the right of an occupancy-raiyat to sublet
subject to, and in accordance with, the provisions of this Act ;

(/) take away the right of a raiyat to apply for a reduc-
tion of rent under section 38 or section 52 ;

250 THE BENGAL TENANCY ACT.

ciiAP. XV. (^g^ take away the right of a landlord or a tenant to apply

— for a commutation of rent under section 40 ; or

(A) affect the provisions of section 67 relating to interest
payable on arrears of rent :

Provided as follows : —

(i) nothing in this section shall affect the terms or con-
ditions of a lease granted bond fide for the reclamation of waste
land, except that, where, on or after the expiration of the term
created by the lease, the lessee would under Chapter V be en-
titled to an occupancy-right in the land comprised in the lease,
nothing in the lease shall prevent him from acquiring that
right ;

(ii) when a landlord has reclaimed waste land by his own
servants or hired labourers, and subsequently lets the same or
a part thereof to a raiyat, nothing in this Act shall affect the
terms of any contract whereby a raiyat is prevented from acquir-
ing an occupancy-right in the land or part during a period
of thirty years from the date on which the land or part is first
let to a raiyat ;

(iii) nothing in this section shall affect the terms or condi-
tions of any contract for the temporary cultivation of orchard
land with agricultural crops.

The provisions of this section place very considerable restrictions on the
freedom of contract between landlord and tenant, but only such restrictions as,
in the opinion of the framers of this Act, are essential to the well-being of the
peasantry in Bengal.

Contracts barring the acquisition of occupancy-rights.— Reading sub-
sec. (1) (a), sub-sec (2), and sub-section (3) (a) together, it would seem as
if it were intended that a raiyat should be able, in a contract made before the
passing of this Act, to bar his acquisition of an occupancy-right in land for a
limited period, but not for ever. After the 15th July, 1880, however, he cannot
enter into any contract, the effect of which will be to suspend his acquisition of
this right even for a time.

Sub-section (1) (b) — In a case decided under the provisions of this clause
{Moheshwar Prasad Narain Singh v. Sheoharan Mahto, I. L. R., 14 Calc, 621),
in which a landlord sued to eject a tenant who had executed a solehnamah, agree-
ing to hold the land in suit for a specified period at a specified rent and provid-
ing that the landlord was to be at liberty to enter on the lands at the expiry of
the period, and the suit was instituted on the 6th October, 1885, and when it was
found that at the date of the solehnamah^ the tenant had acquired a right of
occupancy with respect to some of the lands in the suit, it was held that the

UTBANDI, CHUR AND DEARAH LANDS. 251

tenant was not entitled to the benefits conferred by sec. 178, sub-sec. (1), cl. (b), Chap. XV.

but was liable to be ejected. In this case the Court (Tottenham and Norris, J. J.) Secs. 179, 180.

said : — " We think that in this suit which commenced before the new Tenancy

Act came into force, the tenant cannot get the benefit of sec. 178. We think that

the point to be looked at was, what was the right of the tenant at the time the

suit was brought. At the time the suit was brought there was nothing to prevent

his contracting himself out of his rights."

Sub-section (1), clause (c). — The meaning of this clause would seem to be
that no tenant can contract himself out of the provisions of sec. 89, which provide
that no tenant shall be ejected from his tenui-e or holding except in execution of
a decree.

Sub-section (2).— The 15th July, 1880, mentioned in sub-sec. (2), is the date
of the Government orders directing the publication of the Rent Law Commission's
Report and Draft Bill. The date of the passing of the Act is the 14th "March, 1885.

Reclamation leases.— The eff'ect of provisoes (i)and (ii) is to leave reclama-
tion leases wholly to contract, except that they do not ordinarily bar the acquisition
of an occupancy-right which may have grown up during the lease. But in cases in
which waste land has been reclaimed by the landlord himself, no occupancy-rights
can be acquired in it for the first thirty years after the letting of it to raiyats, if
a stipulation to that efi"ect is made in the contract. Under the former law, it was
held that when, on such leases, a reduced rent is charged for the first few years,
and it is said that the rent is to be at a certain rate as the full rent, such rent is
not liable to enhancement. {Haro Prasad Rat v. Chandi Chnrn Bairagi, I. L. R.,
9 Calc, 505 ; 12 C. L. R., 251 ; Surasundari Debt v. Ghulam Alt, 15 B. L. R., 125,
note ; 19 W. R., 142.)

179. Nothing in this Act shall be deemed to prevent a
Permanent mukar- propHetor 01' a holder of a permanent tenure
rari leases, in a permanently -Settled area from grant-

ino- a permanent mukarrari lease on any terms agreed on be-
tween him and his tenant.

Proprietors have long had this right. It is now expressly extended to the
holders of permanent tenures.

utbandi, chur and ^ ^^^' (^) Notwithstanding anything
dearah lands. in this Act, a raiyat —

{a) who in any part of the country where the custom of
utbandi prevails, holds land ordinarily let under that custom
and for the time being let under that custom, or

(6) who holds land of the kind known as chur or dearah,
shall not acquire a right of occupancy —

in case {a), in land ordinarily held under the custom of
litbandi and for the time being held under that custom, or

in case (A), in the chur or dearah land.

252 THE BENGAL TENANCY ACT.

Chap. XV. Until lie liHS held the land in question for twelve continu-

Skc. 180. . ^ . , „

— '• ous years ; and, until he acquires a right of occupancy in the

land, he shall be liable to pay such rent for his holding as may

be agreed on between him and his landlord.

(2) Chapter VI shall not apply to raiyats holding land
under the custom of litbandi in respect of land held by them
under that custom.

(3) The Collector may, on the application of either the
landlord or the tenant or on a reference from the Civil Court,
declare that any land has ceased to be chur or dearah land with-
in the meaning of this section, and thereupon all the provi-
sions of this Act shall apply to the land.

Utbandi tenancies. — An utbandi tenancy, also sometimes called a nulcsan
jote, is a tenancy from year to year, and sometimes from season to season, the rent
being regulated according to the area under cultivation, by the appraisement of
the crop on the ground, and according to its character. So far it resembles the
tenancy by crop appraisement of the hhaoli system ; but there is between them
this marked difference that, while in the latter the land does not change hands
from year to year, in the former it may. (Government of Bengal letter, dated 15th
Septembr, 1884, to the Government of India.) The rent of an utbandi tenancy is
always a money rent. The utbandi system prevails in the district of Nuddea. In
the case of Mirjan Biswas v. Hills (3 "W. K, Act X, 159), it is said: — " There exists
in the district of Kishnagur a custom, under which tenants can cultivate land, which
is not directly let out to other tenants, but remains khas khdmdr on payment of
certain high rates of rent. In the case of such tenants, there exists an implied
agreement between the parties, that such rent shall be paid ; and the amount
of land so cultivated, and the rent to be paid for it are ascertained each year by
actual measurement. The lands in question are called ittbandi lands, and the
rates are calculated at what are called fctbandi rates." Again, in Dwarka Nath
Misra v. Nobo Sirdar (14 W. E,., 193), Jackson, J., observed — " Some little
confusion appears to me to have been introduced into the case by the use
of the terra fitbandi. So far as my experience and knowledge of the matter go,
an Utbandi tenure is one by which a raiyat holds a certain area of land (which I
believe is usually defined), but for which h» pays rent according to the quan-
tity of that land which year by year he cultivates. The rent will, therefore,
vaiy according to the actual cultivated area ; but I am not aware that there is
any authority for saying that a landlord is at liberty to vary at his pleasure the
rate at which a tenant holding an fctbandi tenure pays for the land which he cul-
tivates, due notice being served on him under sec. 13, Act X of 1859." (See also
Kenny v. Issar Chandra Foddar, W. E., Sp. No., Act X, 9.) Occupancy-rights could
always be acquired in Utbandi lands. (Premanand Ghosh v. Surendro Nath Rai, 20
W. R., 329), and may now be acquired in them, as well as in chur (alluvial) and
dearah lands, but the Act makes this diff'erence between the tenants of {ttbandi and
chur and dearah lands and the tenants of ordinary lands, that the raiyats of the
former class of lands roust hold the same lands for twelve years before acquiring
occupancy-rights in them, while the raiyats of ordinary lands acquire occupancy-

GHATWALI AND SERVICE TENURES. 253

rights in all the land they hold in a village, if they have held any land for twelve Chap. XV.
years in that village. This section further lays down that, until the tenant of ictbandi Sicc. 181.
and of chur or dearah lands has acquired a right of occupancy, he shall be liable to
pay such rent for his holding as may be agreed upon between him and his land-
lord, and that Chap. VI, which relates to non-occupancy-raiyats, shall not apply
to him. The result of these provisions is, that, for the first twelve years of his
holding, such a tenant is neither a "settled" nor a non-occupancy-raiyat. His
position is exactly that of a tenant-at-will under the old law, except that he can-
not now be ejected otherwise than in execution of a decree (sec. 89), or in other
words, except after a suit. An fitbandi raiyat may also, if such be the local custom,
have a right to cultivate certain lands in the village without previously obtaining
the express consent of the landlord, on the implied understanding that he will
pay the customary rate of rent.

Halhasili and other special tenancies.— It was at one time proposed to
make special provisions with regard to halhasili tenancies, which, like tenancies
under the iitband'i system, are tenancies from year to year, but in which the rent
varies, sometimes according to the area of land cultivated, and sometimes accord-
ing to the crop raised each year. But as siich tenancies were found to be in a
transition stage, and well advanced towards the status of ordinary raiyati hold-
ings, from which they were not always distinguishable, it was determined to make
no special rules with regard to them, but to let the ordinary provisions of the
Act apply to them. No special provisions have been made with regard to Quzasta
and Qorabandi tenancies. (See notes to sec. 18, pp. 56, 57.)

181. Nothing in this Act shall affect any incident of

Saving as to service- ^ ghatwali 01' other sei'vice-tenure, or, iu

*®""'^®^* particular, shall confer a right to transfer

or bequeath a service-tenure which, before the passing of this

Act, was not capable of being transferred or bequeathed.

Ghatwali tenures.— G'AafwaZi tenures may be divided into two classes, viz.,
(1) ghatwali tenures, properly so called, consisting of grants of jungly and hilly
tracts of land, made originally by the Moghal Government on condition of militia
and police sei'vice. The holders of such tenures are talukdars : (2) The ghatwali
Police tenures. These consist of small grants of land originally made by the zamin-
darson condition of police service in guarding roads and passes. The Kharakpore
tenures in Monghyr and the Birbhum ghatwali tenures are instances of the first "

class. There is this distinction between them that the Kharakjiore ghatwals are
appointed by the zamindars and the Birbhum ghatwals by Government. {Anando
Rai V. Kali Prasad Singh, I. L. R., 10 Calc, 684.) The ghatwals of Kharakpore
have been said to hold perpetual and hereditary tenures at fixed rents, payable in
money and service, and cannot be evicted by the zamindar except for misconduct.
/Manoranjan Singh v. Lilanand Singh, 3 W. R., 84.) They are perpetual holdings
subject to the condition of service. {Manoranjan Singh v. Lilanand Singh, 5 W. R.,
101.) The lands of such tenures are not liable to resumption and re-assessment
under Reg. I of 1793. {Lilanand Singh v. Government of Bengal, 4 W. R., P. C., 77 ;
6 Moo. I. A., 101.) But in the absence of express words to the contrary, ghat-
wali lands held under a lease which neither confirms nor recognizes the pre-
existing status of the ghatwals, nor confers on them any right other than that

251 THE BENGAL TENANCY ACT.

Chap, XV. of holding lauds at a fixed rate as long as ghatwali service is required
Sko. 181. from them, are resumable by the zamindar when that service is no longer
"""" required. {Lilanand Singh v. Sarwan Singh, 5 W. R., 292.) When the appointment

to the vacant ofBce of ghatwal rests with the zamindar, he may, if necessary,
appoint a suitable person ; but when Government no longer requires the service
of ghatioals, there is no longer any necessity for his doing so. {Mahbub Hosaain v.
Patasu Kumari, 10 W. R, 179 ; 1 B. L. R., A. C, 120.) Kharakpore ghatwali
tenures cannot be alienated by private sale or otherwise, nor are they liable to
sale in execution of decrees, except with the consent of the zamindar, and his
approval of the purchaser as a substitute for the outgoing ghatwal {Lilamxind
Singh v. Durgabati, W. R., Sp. No., 249) ; while with the consent of, and approval
of the purchaser by, the zamindar, a sale in execution is good. {Qhnman Singh v.
Grant, 11 W. R., 292.) The zamindar's assent to, and acceptance of, the transfer
may be presumed from the fact of the zamindar having made no objections to a
transfer for a period of over twelve years, and when such a fact has been found,
a Court ought to recognize such a transfer. (^Anando Rai v. Kali Prasad Singh
I. L. R., 10 Calc, 677.) As long as the ghatwals are able and willing to perform
the services required of them by their sanads, the zamindar cannot put an end
to their tenures {Lilanand Singh v. Manoranjan Singh, 13 B. L. R., P. C, 124),
nor enhance their rents on the ground that their services are no longer required.
{Lilanand Singh v. Manoranjan Singh, I. L. R., 3 Calc, 251.) The Birbhum
ghatwali tenures are dealt with in Reg. XXIX of 1814 and act V of 1859.
They were grants of lauds in Tappah Sarath Deoghar, which was formerly part of
the Birbhum district, but which has now been included in the Santal Pargauas.
With regard to these, it has been said, that they are estates of inheritance without
the power of alienation, and enduring so long as the ghatwals perform all the
obligations of service and payment of rent to Government incident to their tenure.
{Deputy Commissioner of Birbhum v. Rango Lai Deo, W, R., F. B., 34 ; Marsh., 117.)
The succession to a ghatwal is regulated by no rule of kulachar, or family custom,
nor by the Mitakshara law, but solely by the nature of the ghatwali tenure, which
• descends undivided to the party who succeeds to, and holds the tenure as, ghatwal.
A female is not incapable of holding a ghatxcali tenure. {Kastura Kumari v.
Manohar Deo, W. R., Sp. No., 39.) The rents of such a tenure are not liable to the
debts of the former deceased holder. {Binod Ram Sen v. Deputy Commissioner of
Santal Parganas, 6 W. R., 129 ; 7 W. R., 178.) Ghatwali tenures are not liable either
to sale or attachment in execution of decrees. The surplus proceeds of such a tenure,
collected during the lifetime of the judgment-debtor, are liable to be taken in
execution as being personal property, but not so profits accumulated after the judg-
ment-debtor's death. {Kastura Kumari v. Binod Ram Sen, 4 W. R., Misc., 5.) When
a ghatwal becomes a defaulter it is in the power of the authorities under Reg.
XXIX of 1814 to transfer his tenure, and that power is not put an end to by the
money being offered before the tenure is actually made over to another person.
{Chittro Narain Singh v. Assistant Commissioner of Santal Parganas, 14 W. R., 203.)
A ghatwal is not competent to giant a lease in perpetuity, and his successors are
not bound to recognize such an incumbrance. {Grant v. Bangshi Deo, 15 W. R., 38 ;
6 B. L. R., 652.) As to ghatwali tenures of the first class in general, it has been
said in Anando Rai v. Kali Prasad Singh (I. L. R., 10 Calc, 677,) that in dealing
with a ghatwali tenure, the Court must have regard to the nature of the tenure
itself and to the rules of law laid down in regard to such tenures and not to any
particular school of law, or the customs of any particular family, and that a ghat-
wah being created for a specific purpose has its own particular incidents, and can-

GHATWALI TENURES. 255

not be subject to any system of law affecting only a particular class or family. Chap. XV.
Government cannot sue to obtain possession of ghatwali lands admittedly included Skc^SI.
in a decennially settled estate. {Gadadhar Banarji v. Government, 6 W. R., 326.)
When a ghatwali tenure has been granted by Government, the zamindar cannot,
of his own motion, without the assent and against the will of Government, put
an end to the ghatwali, and treat the gh/Mwals as trespassers. {Kulodip Narain
Singh v. Mahadeo Singh, 6 W. R, 199 ; B. L. R, F. B., 559 ; 11 B. L. R, P. C,
71 ; 14 Moo. I. A., 247.) When it is admitted that a ghatwali tenure has existed
from a time anterior to the Decennial Settlement, and before the creation of the
zamindari, the ghatwal is protected under Act X of 1859 from any fresh assess-
ment. {Erskine v. Government, 8 W. R., 232 ; Forbes v. Mahomed Taki, 14 W. R.,
P. C, 28.) Long possession (presumably from the Decennial Settlement) and
gradual cultivation by a ghatwal on payment of a quit-rent (and not merely pos-
session without cultivation) are evidence of an implied grant which protects the
ghatwal from enhancement or assessment on the land so cultivated. {Erskine v.
Manik Singh, 6 W. R., 10). But a suit will lie to assess lands occupied by ghatwah
in excess of the area recorded in their ismnavisi. (Jago Jewan Lai v. Roghunath
Kopat, 6 W. R., 197.) When ghatwals hold land not under a sanad conveying a
hereditary indefeasible right, but on payment of a quit-rent with enjoyment of
the profits of the land in lieu of wages, such possession, however long, will not
entitle them to hold the land at a fixed jamxi, or to retain a portion of the land after
they have ceased to perform the duties for which the land was assigned to them.
{Lilanand Singh v. Nasib Singh, 6 W. R., 80.) On the demise of a ghatwal, a
Commissioner of Revenue cannot interfere and consider the eligibility of rival
claimants to the tenure (a perpetual and descendible one). {Lai Dhari Rai v. Brajo
Lai Sin^h, 10 W. R., 401.) In one case it has been said that it is impossible for a
right to reinstate a ghatwal to exist in the Government or in any person or body
whatsoever. {Anand Kumari v. Government, 11 W. R., 180.) A ghatwali estate is
not necessarily held by males to the exclusion of females. {Durga Prasad Singh v.
Durga Koeri, 20 W. R., 154.) Where a jagir is held by a person subject either
to the appointment or approval of Government, and with an additional burden of
public duty to the Government, such a jagir cannot be attached and sold in satis-
faction of t\ie jagir dar's predecessor in title, as lands coming into his possession
from the hands of the deceased jagirdar, as the appointment and approval of
Government deprive the jagir of the character of simple heritable property.
{Bakro Nath Singh v. Nilmani Singh, I. L. R., 5 Calc, 389 ; 4 C. L. R., 583 ; I. L. R,
9 Calc, 187.) A shikmi ghatwali tenure held under the superior ghatwal, is not
liable to be sold in execution, nor are its proceeds liable to attachment for satisfac-
tion of the debt due from its bolder. {Balli Dhobi v. Gonai Deo, I. L. R, 9 Calc, '
388.) A ghatwal cannot give a pottah of his tenure binding on a subsequent
ghatwal. The rights and interest of each ghatxoal in his tenure last for his life
{Jogeshar Sirkar v. Mmai Karmokar, 1 B. L. R., S. N., 7.) But any presumption
that there may be against the right of a ghatwal to grant mokarrari lease cannot
hold good against such leases when granted in good faith for the clearance of
jungle. {Davies v. Debi Mahtun, 18 W. R., 377).

Regarding ghatwali tenures of the second class, the holders of which are mere
village police, the leading case is that of Secretary of State v. Poran Singh (I. L.
R., 5 Calc, 740.) In this it has been laid down that the dismissal of a ghatwal
will carry with it forfeiture of his tenure. The Civil Courts cannot interfere to
reinstate a ghatwal, who has been dismissed by the police authorities, in the land
which he formerly held as ghatwal. The right to possess the land depends on

256 THE BENGAL TENANCY ACT.

Chap. XV. the tenure of the office. {Dehi Narain Singh v. Sri Krishna Sen, 1 W. R., 321.)
Skc. 182. Permanent leases granted by the ghatwaU of Birbhum prior to the Decennial
Settlement for the due performance of the police duties for which the lands were
originally granted to the ghatwals, and which have been held from generation to
generation cannot be set aside at the instance of the present sirdar ghatwals. The
creation of such under-tenures is not beyond the power of the ghatwals. {Makv/r-
bliano Deo v. Kastura Koeri, 5 W. R, 215.)

Service-tenures. — Tlie law relating to chaukidari chakeran lands will be
found in sec. 41, Reg. VIII of 1793, and sees. 48 and 49, Act VI of 1870 (B.C.),
and sec. 375 of Act V of 1876 (B.C.) The leading case on the subject is that of
Jai Krishna Mukharji v. The Collector of East Burd^can (1 W. R., P. C, 26 ;
10 Moo. I. A., 16), in which it " was declared that all the village- watchmen, not
only of Burdwan, but of the whole of Bengal, whose lands were included in the
operation of sec. 41, Reg. VIII of 1793, have been from that time liable to the
performance of public service as rural police officers." (McNeile's Report on the
Village-watch of Bengal, p. 94.) The subject of service-tenures is explained in the
case of Forbes v. Mir Mahomed Taki (14 W. R., P. C, 28 ; 5 B. L. R, 529 ; 13 Moo.
I. A., 438) ; and in the recent case of Harogohind Raha v. Ramratno De (I. L. R.,
4 Calc, 67), where it is laid down that a distinct refusal by a tenant to perform
services incidental to his holding renders him liable to ejectment. In the same
case, an opinion was expressed that rights of occupancy cannot accrue in lands
held under a service-tenure, but the point was not decided.

It has also been held that when the holder of a service- tenure subject to a
quit-rent to the zamindar dies leaving his rent for the last three years unpaid,
and his son succeeds him in the tenure, the zamindar cannot sue the son as his
father's successor in the tenure for his father's arrears of rent. (^Nil Mani Singh
V. Madhab Singh, 1 B. L. R., A. C, 195).

182. When a raiyat holds his homestead otherwise
than as part of his holding as a raiyat, the

Homesteads. • • i /. i • r> i i -,

incidents ot his tenancy ot the homestead
shall be regulated by local custom or usage, and, subject to
local custom or usage, by the provisions of this Act applicable
to land held by a raiyat.

When a raiyat holds his homestead as part of his holding as a raiyat, the
general provisions of this Act will apply as well to his homestead as to the laud
which he uses exclusively for purposes of cultivation, and when a raiyat holds his
homestead otherwise than as part of his holding as a raiyat, under this section the
provisions of this Act will apply, and he may acquire rights of occupancy in it,
unless there is a local custom or usage to the contrary. The question whether
a raiyat holds his homestead as part of his holding as a raiyat, or whether he holds
his agricultural land as part of his homestead, will be a question of fact which the
Courts will have to decide. The rule laid down in Chaiidessari v. Ghinah Pandey
(24 W. R., 152) may, perhaps, help them to decide this question. In this case it
was held, that when the principal subject of the entire occupation is bastu land,
the residue (if any) of the holding being entirely subordinate, the Small Cause
^. Court has jurisdiction; in other words, the provisions of the rent law will not

HOMESTEAD LAND. ^^J

apply. But when the principal subject is agricultural land, the buildings being Chap. XV.

mere accessories thereto, the Small Cause Court will not have jurisdiction, and the Skc^2.

provisions of the rent law will apply. When the rent for bastu lands was paid by

the raiyats to the landlord separately from the rent paid for cultivated lands, but

the tenure of the bastu lands was a raiyati tenure, it was held that, as a matter

of law, the distinction in the mode of paying the rent did not exclude those

lands from the operation of Act VIII of 1869, B. C. {Pogose v. Raju Dhohi, 22

W. E., 51 1). Under the provisions of the present Small Cause Court Act (IX

of 1887), however, all suits for arrears of rent of homestead land, whether held as

part of a raiyat's holding or otherwise, will lie in the Civil Court and not in the

Small Cause Court. {Uma Cham Mandal v. Bijari Bewa, I L. E., 15 Calc, 174.)

Homestead land in towns not enhanceable under the rent law.—
Under the old law, it has been laid down that hastu land used for the sites of
houses situated in a town cannot form the subject of suits for enhancement under
the provisions of the rent law. {Naimuddi Joardar v. Moncrieff, 3 B. L. E., A. C,
283 ; 12 W. E., 140.) The same has been held in Kali Mohan Chatarji v. Kali Krishna
Rai, 2 B.L. E., App.,39 ;;il 'W.E., 183 ; Madan Mahan Biswas v.Stalkart, 9 B. L. E.,
97 ; 17 W. E.. 441 ; Durgasundori Dasi v. Umdatunnissa, 18 W. E., 235 ; 9 B.
L. E., 101 ; Khairuddin Ahmad v. Ahdul Baki, 9 B. L. E., 103 note ; Church v. Ram
Tanu Shaha, 9 B. L. E., 105 note ; Kailash Chandra Sirkar v. Umanand Rai, 24 W.
E., 412 ; and Purna Chandra Rai v. Sadat Ali, 2 C L. E., 31. In the case of Nai-
muddi Joardar v. Moncrieff (3 B. L. E., A. C, 283 ; 12 W. E., 140), above referred
to, it was further laid down that bastu land, which is the site of a house occupied
by a raiyat engaged in cultivating the surrounding lands, does fall under the pro-
visions of Act X of 1859, and is liable to enhancement. (See also Abdul Hamid
V. Dongaram De, 3 B. L. E., App., 133.) The terms of this section would seem in
no way to interfere with these rulings ; for it only refers to homestead land held
by a raiyat, and a person holding land used for the sites of houses in a town will
probably not come within the definition of a raiyat (sec. 5 (12) ). But under sub-
sec. 4, sec. 167, of this Act, a purchaser, at a sale under this Act, of a tenure or
holding sold on account of arrears of rent due in respect thereof, may, if he has
power to avoid all encumbrances, sue to enhance the rent of land, which is
the subject of a " protected interest " of the nature specified in cl. (c), sec. 160.
The protected interest specified in cl. (c), sec. 160, is "any lease of land whereon
dwelling-houses, manufactories, or other permanent buildings have been erected,
or permanent gardens, plantations, tanks, canals, places of worship, or burning or
burying grounds have been made."

Rights of ocoupancy in homestead land under the old law.— Under

the old law, it is clear that a raiyat could acquire no right of occupancy in home-
stead land held otherwise than as part of his holding as a raiyat, save by custom.
{Mohar Ali Khan v. Ram Rattan Sen, 21 "W. E., 400 ; Swarno Mayi v. Blumhardtj
9 W. E., 552 ; Ramdhan Khan v. Haradhan Paramanik, 9 B. L. E., 107 note ; 12
W. E., 404.) But now under the terms of this section, a person (if he be a raiyat),
holding homestead land otherwise than as part of his holding as a raiyat, acquires
rights of occupancy in it, unless there be a custom or usage to the contrary. In most
districts there no doubt is such a custom or usage, but it will be necessary to prove
it when it is desired not to allow a raiyat a right of occupancy in his bastu land.

"Whether possession of a tenant in homestead land can he disturbed,
— A tenant may build houses on agricultural land, and still retain his right of
R. & F., B. T. A. 17

258 THE BENGAL TENANCY ACT.

Chap. XV. occupancy in it ; for, in Prasanno Kumar Chatarji v. Jagannath Baisalc (10 C. L. E.,
Skc. 183. 25), it was held, that where land has, with the consent of the landlord, ceased
to be agricultural, and the tenant has since built a homestead, or used part
of it for tanks or gardens, the nature of the tenure is not thereby changed,
nor is the tenant thereby deprived of any right of occupancy which he might
have acquired. It has further been held, that where a landlord allows his lessee
to invest capital in erecting buildings on land let for cultivation, and raises no
objection for a considerable number of years, he will not be allowed to disturb
the holding. The fact of buildings having been permitted, without objection,
to stand on lands for a considerable number of years is primd facie prooi that
the land had originally been leased for building purposes. (Brajanath Kundu v.
Stewart, 8 B. L. E., App., 51 ; 16 W. E., 216 ; Jahori Lai Sahu v. Dear, 23 W. E.,
399. On the other hand, in Prasanno Kmnari Debi v. Ratan Baipari (I. L. E.,
3 Calc, 696 ; 1 C. L. E., 577), it was laid down that there is no law in this country
which converts a holding at will from year to year, or for a term of years, into a
permanent tenure, merely because the tenant, without any arrangement with his
landlord, builds a dwelling-house upon the land demised. This ruling was follow-
ed, in the case of Tarakpada Ghosal v. Shyama Cham Napit (8 C. L. E., 50), in which
it was said, that there is no law in this country which gives anything of a pro-
tected tenure or holding to a person, who has occupied homestead land, how-
ever long may have been the period of his possession. In Arat Sahu v. Prandhan
Pykara (I. L. E., 10 Calc, 502), it was said, that the mere record of the name of a
tenant, who was found in occupation of a particular piece of homestead land in
settlement proceedings, and of the rent payable by him, does not invest him with any
permanent title to hold it. Further, in Gangadhar Shikdar v. Ayimvddin Shah
Biswas (I. L. E., 8 Calc, 960 ; 11 C. L. E., 281), it has been held, that where land
has been let for agricultural purposes, and it is found that buildings of a substan-
tial nature have been erected thereon many years before by the defendant's
ancestors, to whom the lands had been granted, the Court may, if it thinks fit, pre-
sume that the land was granted for building purposes, and that the grant was of a
permanent character.

Local custom or usage as to homestead land. — As to " local custom or
usage " with regard to bastu land, it is to be remarked that, in some parts of the
country, this species of land is, by custom, held rent free. (See Government of
Bengal Eeport of 1884 on the Bengal Tenancy Bill, Vol. II., pp. 105 and 216.) lu
some parts, too, such holdings are, by custom, transferable. (Chandra Kumar Mai
v. Kadirmani Dasi, 7 W. E., 247 ; Beni Madhah Banarji v. Jai Krishna Mukharji,
7 B. L. E., 152 ; 12 W. E, 495 ; Durga Prasad Misra v. Brindahan Sukal, 7 B. L. E.,
159 ; S/iam Sundari Debi v. Nobin Chandra Kolya, 6 C. L. E., 117.)

183. Nothing in this Act shall affect any custom, usage
„ . . or customary riorht not inconsistent with,

Saving of custom. i i . ,.

or not expressly or by necessary implica-
tion modified or abolished by, its provisions.

Ilhistratiom.
(1) A usage under which a raiyat is entitled to sell his holding without the con-
sent of his landlord is not inconsistent with, and is not expressly or by necessary im-
plication modified or abolished by, the provisions of this Act. That usage, accordingly,
wherever it may exist, will not be affected by this Act.

CUSTOM. 259

(2) The custom or usage that an under-raiyat should, under certain circumstances, Chap. XV.

acquire a right of occupancy is not inconsistent with, and is not expressly or by neces- Src. 183.
sary implication modified or abolished by, the provisions of this Act. That custom or ^"~

usage, accordingly, wherever it exists, will not be affected by this Act.

Effect of custom under former law — By this section, the whole provisions
of this Act are made subject to custom, usage and customary right. The provisions
of the former law were also liable to be overridden by custom, as laid down by
PeacockjC. J.jinthecase of ThahoraniDassiY. Bisheshar Mtihharji, B. L. R., F. B., 326,
in which he said, " that Act X of 1859 did not take away the right of any raiyat
who liad a right, by grant, contract, prescription, or other valid title, to hold at a
fixed rate of rent." " The mode of proving custom is not very well understood in
this country," it is said in the Rent Law Commission's Report, para. 12, " and, unfor-
tunately, notwithstanding a dictum of Sir Barnes Peacock to the conti'ary an idea got
to prevail, that Act X had superseded all customs, and was intended to do away with
all agricultural rights, except those especially mentioned and provided for in that
Act. We believe that there are many local customs in this as well as in every other
country, well understood by the people, recognized by the landlords, and suscepti-
l»Ie of proof in the Courts of Justice, and we think it very desirable to make it
clearly understood that the Bill is not intended to interfere with any of these,
unless they have been expressly rescinded by, or are clearly inconsistent with, its
provisions."

What ''custom" is.— It is, however, difficult to say what " custom " is, and
still more difficult to say by how many years' prevalence a custom can be held to
be well established. A definition of " a custom " has been given by the Privy
Council in the case of Har Prasad v. Sheo Dyal (26 W. R., 55), in which it was
said that " a custom is a rule, which, in a particiilar family or district, has, from
long usage, obtained the force of law. It must be ancient, certain, and reasonable
and, being in derogation of the general rules of law, must be constructed strictly."
(See also Broom's Legal Maxims, 5th Edn., p. 917.) In Lachman Rai v. Akhar Khan
(I. L. R., 1 All., 440), Turner, J., laid down that a custom to be good must be
definite ; and in another case {Lala v. Hira Singh, I. L. R., 2 All., 49) it was
said, that " a custom to be valid must be ancient, must have been continued and
acquiesced in, and must be reasonable and certain." There are rulings of the
Calcutta High Court to the same effect. Thus, in the case of Jamila Khatun
V. Pagal Ram (1 W. R., 250), it was said — " the plaintiff relies upon a custom, and
unless he can show that the custom is undoubted and invariable he is not entitled
to a decree." In the case of Beni Madliah Banarji v. Jai Krishna Mukharji (7 B. i

L. R., 152; 12 W. R., 495), Glover, J., said that "a custom must be proved
by strict evidence that what is sought to be established has existed unaltered and
uninterrupted from time immemorial." In the same judgment. Glover, J., allud-
ing to the case of Chandra Kumar Rai v. Piari Lai Banarji {Q W. R., 190), in which
it was said that a custom as to the transferableness of khudkhasht jotes need not
be absolutely invariable, observed that he doubted the correctness of the decision.
In Lachmipat Singh v. Sadatulla Noshyo (I. L. R., 9 Calc, 698 ; 12 C. L. R., 382),
it was held that an alleged custom, under which an unlimited number of persons
could fish in a hhil, and so take away the profits of private property, so that
nothing might be left to the owner, was unreasonable and invalid.

How" custom" has to be proved. — As to the evidence that wijl be saffi-
cient to establish a custom, Grey, C. J., has said : — " Although in this country

260 THE BENGAL TENANCY ACT.

Chap. XV. we cannot go back to that period which constitutes legal memory in England,
Skc. 183. ^^^ ^j^g reign of Richard I, yet still there must be some limitation, without which
a custom ought not to be held good. In regard to Calcutta, I should say, that the
Act of Parliament in 1773, which established this Supreme Court, is the period to
which we must go back to found the existence of a valid custom In re-
gard to the mof ussil, we ought to go back to 1 793. Prior to that date there was
no registry of the regulations, and the relics of them are exceedingly loose and
uncertain. I admit that usage for twenty years may raise a presumption in the
absence of direct evidence of a usage existing beyond the period of legal memory."
{Doe d. Jago Mohan Rai v. Nimu Dasi, Montriou's Cases of Hindu Law, 596.) On
this point the Calcutta High Court has said : — " In an enquiry as to whether
tenures of a certain class are transferable according to local custom, it is sufficient
if there is credible evidence of the existence and antiquity of the custom, and none
to the contrary ; there is no necessity for the witnesses to fix any particular time
from which such tenures became transferable. " {Jai Krishna Mnkharji v. Durga
Narain Nag, 11 W. E., 348.) But the evidence of a few antagonistic witnesses
will not prove a custom {Jai Krishna Mnkharji v. Raj Krishna Mukharji, 1 "W. R.,
153) ; and in the case of Indra Narain Chaudhri v. Mahomed Naziruddin (1 W. P.,
234), conflicting decisions of the Subordinate Courts (three on one side, and
one on the other) were held not to prove the prevalence of the Mahomedan
custom of pre-emption among the Hindus of Chittagong. In the case of Lachman
Rai V. Akbar Khan (I. L. P., 1 All., 440), Turner, J., said : — " The most cogent
evidence of custom is not that which is aflforded by the expression of opinion
as to the existence, but by the enumeration of instances in which the alleged
custom has been acted upon, and by the proof afforded by judicial or revenue
records, or private accounts and receipts that the custom has been enforced."

Diflference between custom and usage.— The section, however, does not
speak only of *' custom." It makes use of the word " usage," and it is understood
this expression was introduced with the object of giving Courts the power of tak-
ing cognizance of agricultural and local usages, though not so strictly proved as
customs are apparently required to be. It has, however, not yet been settled
what a usage is, or how it can be proved. In discussing the subject of " mercan-
tile usage," the Privy Council in the case of Jaga Mohan Ghosh v. Manik Chand,
(7 Moo. I. A., 282) has said : — " To support such a ground there needs not be
either the antiquity, the uniformity or the notoriety of custom, which in respect
of all these, becomes a local law. The usage may still be in course of growth ; it
may require evidence for its support in each case ; but in the result it is enough,
if it appear to be so well known and acquiesced in, that it may be reasonably pre-
sumed to have been an ingredient tacitly imported by the parties into their con-
tract." In Raj Krishna Singh v. Ramjai Sarmah (19 "W. P., 8 ; I. L. P., 1 Calc,
186), it has been said : — " It is of the essence of family usages that they should be
certain, invariable and continuous, and well established. Discontinuance must
be held to destroy them. This would be so when the discontinuance has arisen
from accidental causes ; and the effect cannot be less, when it has been intention-
ally brought about by the concurrent will of the family." In the absence of any
rulings by the Courts of this country defining what an agricultural usage is and
prescribing how it is to be proved, it may be of some use to refer to the case law
of the English Courts on the point. The law of England regarding agricultural
usages is expounded in Wigglesworth v. Dallison (1 Smith, L. C, 598, 7th Edn.),
and its attendant train of decisions (Woodfall, L. and T., 725, 12th Edn.). Such

LIMITATION. 261

usages are known as "customs of the country," and "the landlord and tenant are Chap. XVI.
presumed to have contracted with reference to the custom, and the custom is Shc. 184.
incorporated into the contract, whether oral, or in writing, or by deed, unless the
custom and the terms of the contract are expressly or impliedly inconsistent with
it. Every custom of the country must be proved by the party setting it up. It
need not have existed from time immemorial. A common usage of the neighbour-
hood is sufficient." It will be established on proof of a usage reasonable and
certain in its nature, and generally recognized and acted upon in a particular dis-
trict, as, for example, the custom proved in Wigglesivorth v. Dallison that a tenant
for a term of years, which expires on the 1st of May of any year, should be enti-
tled to the way-going crop. Another such usage is the tenant's right in some parts
of the country to the trees he has planted. Almost every district and country in
England has customs of this class.

CHAPTER XVI.
Limitation.

184. (1) The suits, appeals, and applications specified
^ . ., ,. . . in Schedule III, annexed to this Act shall

Limitation in suits, , ,

appeals and appiica- be instituted and made within the time

tions in Sched. IIL m i • ^i i. i i i ^ xi

prescribed in that schedule for them respec-
tively; and every such suit or appeal instituted, and applica-
tion made, after the period of limitation so prescribed, shall
be dismissed, although limitation has not been pleaded.

(2) Nothing in this section shall revive the right to in-
stitute any suit or appeal or make any application which would
have been barred by limitation if it had been instituted or
made immediately before the commencement of this Act.

The classes of suits, specified in Sched. Ill annexed to this Act, are : suits (1)
for ejectment of tenure-holders or raiyats for breach of a condition in respect of
which there is a contract, expressly providing that ejectment shall be the penalty
of such breach ; (2) for arrears of rent, (a) when the arrear fell due before a
deposit was made under sec. 61 on account of the rent of the same holding, (6) in
other cases ; and (3) for recovery of possession of land claimed by the plaintiff
as an occupancy-raiyat. Appeals to a District Judge, or to a Special Judge, and
to a Commissioner, from orders of a Collector under this Act, and applications
for the execution of decrees for sums not exceeding Es. 500, exclusive of interest
accniing after decree, except when execution has been prevented by the judgment-
debtor's fraud, are also specified in Sched. III.

Limitation in suits, appeals, and applications not specified in
Schedule III.— To suits, appeals, and applications not specified in Sched. Ill,
the general provisions of Act XV of 1877 are applicable. See Golap Chandra
Naulakha v. Krishna Chandra Das Bisioas (I. L. E., 5 Calc, 314) ; in which it is said
that " it is quite inaccurate to say that the new Limitation Act does not apply
to cases under the Eent Law. What the Act says is this:— "When by any
special or local law, now or hereafter in force in British India, a period of limita-

262 THE BENGAL TENANCY ACT.

Chap. XVI. tion is specially provided for any suit, appeal or application, nothing herein

Skc. 185. contained shall affect or alter the period so prescribed, — that is to say, the time

V within which the suit is to be brought remains unaffected by the Act of 1877.

But nothing forbids the application of the other provisions, and specially of the

provisions for computing the period of limitation contained in Part III of the

new Act."

Portionsoftheindiau ^^^' W Sections 7, 8 and 9 of the

Limitation Act not ap. Indian Limitation Act, 1877,* shall not

plicable to such suits, , . , ,. .

&c apply to the suits and applications mention-

*XVofl877. V- XT 1 i. r . ^ "^ . .

ed m the last loregomg section.
(2) Subject to the provisions of this chapter, the pro-
visions of the Indian Limitation Act, 1877,* shall apply to
all suits, appeals, and applications mentioned in the last fore-
going section.

Disabilities of minority and lunacy inapplicable to rent-suits.—
Section 7 provides, that when a person is a minor, insane, or an idiot, he may insti-
tute a suit on making an application within the same period after the disability has
ceased, as would otherwise have been allowed from the time prescribed by the
law. Section 8 provides, that when one of several joint creditors or claimants is
under a legal disability, and a discharge can be given without his concurrence,
titoe will run against them all ; but when no such discharge can be given, time
will not run against any of them, until one of them becomes capable of giving such
discharge without the concuiTence of the others. Section 9 provides, that when
once time has began to run, no subsequent disability or inability to sue stops it.

The Rent Commission have, in para. 161 (p. 80) of the Report, explained the
reasons which have led to the disability of minority being made inapplicable to rent
suits. " "We think that a minor," they said, " ought not to be competent, on
coming of age, to sue a raiyat for rent which had accumulated during the whole
period of his minority ; that this kind of debt, which a j^oor man usually dis-
charges year by year out of the produce of the year, ought not to be allowed to
accumulate, and that if the manager of a minor's estate neglect his duty of
realizing rents as they fall due, the minoi''s remedy ought to be an action for
damages against such manager."

But it is only to the suits and applications specified in Sched. Ill of this
Act that the provisions of sees. 7, 8, and 9 of the Limitation will not apply. To
suits, appeals, and applications under the Eent Law not specified in schedule III,
sees. 7, 8, and 9, as well as the other provisions of the Limitation Act, are
clearly applicable.

Rules of Limitation Act applicable in computing special periods of
limitation. — Sub-section (2) follows the High Court rulings in the cases of Be/iari
Lai Mukliarji y. Mangloiiath Mtikharji (4 C. L. E., 371 ; I. L. E., 5 Calc, 110);
Golap Chandra Naulaklui v. Knshna Chandra Das Biswas (I. L. E., 5 Calc,
314) ; Hossan All v. Donzelle (I. L. E., 5 Calc, 906); Khosh Lai Mahtoii v. Ganesh
Datta (I. L. E., 7 Calc, 690) ; Nizahatullah v. Wazir Ali (I. L. E., 8 Calc, 910) ; Khettro
Mohan Chakrahartti v. Dinahashi Slmha (I. L. E., 10 Calc, 265) ; and Guracharya
V. The President of the Belgaum Town Municipalities (I. L. E., 8 Bom., 529), and
makes it clear that the special periods of limitation prescribed for suits, appeals,

LIMITATION. 263

and applications, specified in Sched. Ill of this Act are unaffected by the pro- Chap. XVI.
visions of the Limitation Act of 1877. But the rules contained in the Act for Skc. 185.
computing these special periods of limitation, as "well as all its other provisions,
except sees. 7, 8 and 9, are applicable to such suits, appeals, and applications. All
rulings to the contrary effect are therefore set aside. (See Purran Chandra
Ghosh V. Mati Lai Ghosh Jahira, I. L. E., 4 Calc, 50 ; Annoda Prasad Mukharji v.
Krishna Kumar Moitro, 19 W. E., 5 ; and Poidson v. Madhu Sudan Pal, 2 W. E.,
Act X, 21.)

Limitation in cases of suspension of relation of landlord and
tenant.— An important rule of limitation in rent-suits was laid down by the
Privy Council in the case of Swarnamayi v. Shashi Mukhi Barmani (12 Moo.
L A., 244 ; 11 W. R, P. C, 5 ; 2 B. L. E., P. C, 10). In this case, "azamin-
dar brought a fatni tenure to sale under Eeg. VIII of 1819. The patnidar
was, thereupon, ousted, and the purchaser took possession of the patni tenure.
The patnidar then successfully sued to have the sale reversed on the ground of
irregularity, and recovered possession of the patni tenure, together with mesne
profits, from the purchaser for the period of his possession. The zamindar sub-
sequently sued the patnidar for rent for this period. Such rent was barred, if
the period of limitation contained in Act X of 1859 were to be applied without
qualification. The Privy Council, however, held, that it was not barred ; that
the cause of action accrued at the time at which, the sale having been set aside,
the obligation to pay this rent revived ; that the patnidar, on being restored to
possession, took back the estate subject to the obligation to pay the rent ; and
that the particular arrears must be taken to have become due in the year in
which that restoration to possession took place." (Eent Law Commission Eeport,
para. 162, p. 81.) This ruling was followed in Ishan Chandra Rai v. Ahsanullah,
8 B. L. E., 5.37 note ; 16 W. E., 79 ; in Dindayal Paramanik v. Radha Kisori Dehi,
8 B. L. E., 536 ; 17 W. E., 415 ; and in Mohesh Chandra Chakladar v. Ganga^nani
Dasi, 18 W. E., 59. The Eent Law Commission state the rule to be deduced
from this case of Swarnamayi v. Shashi Mtikhl Barmani thus : — " Where the
result of the litigation between any persons is such that they are found to stand
in the relation of landlord and tenant to each other, and to have stood in this
relation while such litigation was pending, but until their mutual rights were
finally determined by such litigation, such landlord was unable to sue such tenant
for rent, the pei'iod of limitation for suing for any such rent shall be computed
from the termination of such litigation." But in the above case of Swarna-
mayi y. Shashi Mukhi Barmani, there are two points to be noticed : (1) the patnidar
was out of possession, and the zamindar could not sue him for rent as long as he
remained so ; (2) the patnidar received mesne profits for the period for which '

rent was claimed. In subsequent cases, although the landlord had denied the con-
tinuance of the relation of landlord and tenant, and attempted to put an end
to such relation, the tenant was, nevertheless, not dispossessed. The High Court,
therefore, decided that there was nothing to prevent the landlord from recover-
ing the rent, and declined to follow the rule laid down by the Privy Council in
the above-mentioned case. Watson S Co. v. Bhanendra Chandra MuMiarji, I. L. E.,
3 Calc, 6 ; Brajendra Kumar Rai v. Rakhal Chundra Rai, ib. 791 ; Haro Prasad
Rai V. Gopal Das Datta, ib., 817 ; Haronath Rai v. Golak Nath, 19 W. E., 18 ;
Barada Kant Rai v. Chandra Kumar Rai, 23 W. E., 280 ; Haro Prasad Rai v.
Gopal Das Datta, I. L. E., 9 Calc, 255 ; 12 C. L. E., 129 ; Sherriffv. Dinonatk
Mukharji, I. L. E., 12 Calc, 258.)

264 THE BENGAL TENANCY ACT.

Chap. XVII.

SKc^m,m. CHAPTER XVII.

Supplemental.

Penalties.
186. (1) If any person, otherwise

Penalties for illegal ., . , -ji ^i • * ,

interference with pro- than in accordance With this Act or some
'^"xLV of I860.* other enactment for the time being in

force, —

(a) distrains or attempts to distrain the produce of a
tenant's holding, or

(b) resists a distraint duly made under this Act, or forci-
bly or clandestinely removes any property duly distrained
under this Act, or

(c) except with the authority or consent of the tenant,
prevents or attempts to prevent the reaping, gathering, storing,
removing or otherwise dealing with any produce of a holding,

he shall be deemed to have committed criminal trespass
within the meaning of the Indian Penal Code.*

(2) Any person who abets within the meaning of the
Indian Penal Code* the doing of any act mentioned in sub-
section ( 1 ), shall be deemed to have abetted the commission
of criminal trespass within the meaning of that Code.

See sees. 447, 107 to 114 and 117 of the Indian Penal Code.

Agents and representatives of landlords.

187. (1) Any appearance, application or act, in, before
Power for landlord or to any Court or authority, required or
to act through agent. authorized by this Act to be made or done
by a landlord, may, unless the Court or authority otherwise
directs, be made or done also by an agent empowered in this
behalf by a written authority under the hand of the landlord.

(2) Every notice required by this Act to be served on,
or given to, a landlord shall, if served on, or given to, an
agent empowered as aforesaid to accept service of or receive the
same on behalf of the landlord, be as effectual for the pur-
poses of this Act as if it had been served on, or given to, the
landlord in person.

JOINT LANDLORDS. 265

(3) Every document required by this Act to be signed or ^'^^^- fg'^J^*
certified by a landlord, except an instrument appointing or —
authorizing an agent, may be signed or certified by an agent
of the landlord authorized in writing in that behalf.

The written authority referred to in this section must be stamped as a power-
of-attorney under Art. 50, Sched. I, Act I of 1879. See note to sec. 145, p. 214

Suits against agents.— The provisions of sees. 33, Act X of 1859, and 30,
Act VIII of 1869, B. C, providing for suits against agents for money, papers or
accounts being brought within one year after the determination of the agency
have not been reproduced in this Act. Such suits can, therefore, not now be
brought under the rent law. The procedure to be followed in such suits has been
laid down in Amioda Prasad Rai v. Dwarkanath OaTigopadhya, I. L. R., 6 Calc,
754, and Digamhar Mazuindar v. Kali Nath Rai, I. L. E., 7 Calc, 654.

188. Where two or more persons are joint landlords, any-
^ . , , „ ^ , thing; which the landlord is under this Act

Joint lanalords to act ^ • i i

collectively or by com- required or authorized to do must be done
™ " ^^^^ ' either by both or all those persons acting

together, or by an agent authorized to act on behalf of both
or all of them.

Old law as to powers of co-sharers. — Under the old law, a co-sharer could
collect his share of the rent separately, provided he had arranged that his share of
the rent should be so paid. Such an arrangement might be evidenced by direct
proof, or by usage from which its existence might be presumed. {Anu Mandal v.
Kamaludin, 1 C. L. R., 248.) In the absence of such an arrangement, no such suit
could be maintained. {Oliani Mahomed v. Moran, I. L. R., 4 Calc, 96 ; 2 C. L. E.,
370 ; see also Ramjai Singh v. Nagar Ghazi, 5 W. R., Act X, 68 ; Beni Madhah
Ghosh V. Thaknr Das Mandal, 6 W. R., Act X, 71 ; Ganga Narain Das v. Saroda
Mohan Rai, 12 W. R., 30 ; 3 B. L. R., A. C, 230 ; Sri Misra v. Growdy, 15 W. R.,
243 ; Haradhan Gossami v. Ram Nawaz Misra, 17 W. R., 414 ; Bhairah Mandal v.
Gangaram Banarji, 17 W. R., 408 ; Dinobandhu Chaudhri v. Dinonath Mukharji, 19
"W. R., 168 ; Lalan v. Heinraj Singh, 20 W. R., 76 ; Baikanto Kaiharta v. Soshi
MoJian Pal, 22 "W. R., 526 ; Braja Kishor Bharttacharji v. Uma Siindari Debi, 23
W. R., 37 ; Dinobandhif, Rai v. Uma Cliaran Chaudhri, 23 W. R., 53 ; Ahmuddin '

v. Girish Chandra Shamanto, I. L. R., 4 Calc, 350 ; Lutfulhak v. Gopi Chandra
Mazumdar, I. L. R., 5 Calc, 941. But see contra, Amrit CJiavdhri v. Haidar Ali, W.
R., Sp. No., Act X, 63 ; Mahomed Singh v. Maghi Chaudhurani, 1 "W. R., 253, and
Kali Charan Singh v. Solano, 24 W. R., 267.) Any co-sharer could also sue for
his share of the rent separately, whether he had been previously in the habit
of so collecting his share of the rent or not, provided he made such of his co-
sharers as would not join as co-plaintiffs, co-defendants in the suit. {Harkishor
Das V. Jv^al Kishor Shaha, 16 W. R., 281 ; Salehunnissa Khatun v. Mohesh Chandra
Rai, 17 W. R., 452 ; Durga Cham Sarmah v. Jampa Dasi, 21 W. R., 46 ;
12 B. L. R., 289 ; Mokhada Swndari Dasi v. Karim, 23 W. R., 11 ; Jadu Das
V. Sutherland, I. L. R., 4 Calc, 556 ; 3 C. L. R., 223 ; Ganga Narain Sirkar
v, Srinath Banarji, I. L. R., 5 Calc, 915 ; Ahkoy Gohind Chavdhri v. Sari

266 THE BENGAL TENANCY ACT.

Chap. XVII, Chartt Chaudhri, I. L. E., 8 Calc, 277.) But in two cases it has been held that
Skc. 168. ^jjg proper course for a co-sharer, desiring to bring a suit for rent due, who cannot
join the other co-sharers with their consent, is to claim the whole rent which is
due, and ask the Court to make the other co-sharers plain tiflfs with him. {Tara
Chandra Banarji v. Amir Mandal, 22 W. E., 394 ; Jadu Sliet v. Kadamhini Dasi,
I. L. E., 7 Calc, 150 ; 8 C. L. R, 445.) It has, however, been held that an
undivided co-sharer cannot sue for his share of the rent. {Annoda Cham Rai v.
Kali Kumar Rat, I. L. E., 4 Calc, 89 ; Manohar Das v. Mamur Ali, I. L. E., 5 All,
40.) Under the old law, a co-sharer in an undivided property could not sue to
enhance his share of the rent. {Ghani Mahomed v. Moran, I. L. E., 4 Calc, 96 ;
2 C. L. E., 370 ; see also BuJchi Ram Sirkar v, Gauhar Mandal, 10 "W. E., 307 ;
Bhairah Mandal v. Gangaram Banarji, 17 W. E., 408 ; 12 B. L. E., 290, note ;
Haradhan Gossami v. Ram Newaz Misra, 17 W. E., 414 ; Raj Chandra Muzumdar
v. Rajaram Gop, 22 "W. E., 385 ; Bharat Chandra Rai v. Kali Das De, 5 C. L. E.,
545 ; I. L. E., 5 Calc, 574 ; Chuni Singh v. Hira Mahata, 9 C. L. E., 37 ; I. L.
E., 7 Calc, 633 ; Kashi Kishor Rai v. Alip Mandal, I. L. E,, 6 Calc, 149 ; Gopal
v. Macnatighten, I. L. E., 7 Calc, 751 ; Jogendra Chandra Ghosh v. Nabin
Chandra Chattopadhya, I. L. E., 8 Calc, 353 ; 10 C. L. E., 331 ; Kali Chandra
Singh v. Raj Kishor Bhadro, I. L. E., 11 Calc, 615 ; but see contra, Sarat Sundari
Debi V. Anand Mohan Sarmah, I. L. E., 5 Calc, 273 ; Bidhu Bhusan Basu v,
Kamaraddi Mandal, I. L. E., 9 Calc, 864 ; Rash Bihari Mukharji v. Sahhi
Sundari Dasi, I. L. E., 11 Calc, 644.) A co-sharer landlord could not eject a
tenant admitted to possession by all the sharers. {Gauri Sankar Sarmah v.
Tirthamani, 12 "W. E., 452 ; Alam Manjhi v. Ashad Ali, 16 W. E., 138 ;
Radha Prasad Wasti v. Isaf, I. L. E., 7 Calc, 414 ; 9 C. L. E., 76 ; Tidsi Pandi
V. Bachu Lai, 12 C. L. E., 223 ; Bollye Sati v. Akram Ali, I. L. E., 4 Calc,
961.) If a tenant has been admitted to possession by a co-sharer who is in separate
possession of the land leased by him, this arrangement cannot be disturbed by an
auction-purchaser at a sale under Act XI of 1859, as the act of the single co-sharer
must be looked upon as the act of the whole body of the co-parceners. {Manohar
Mukharji v. Jai Krishna Mukharji, 6 W. E., 315.) But a single co-shai'er who is
the managing member of a jomt Hindu family, can sue to eject a tenant {Anando
Mohan Sarmah v. Basir, decided on the 15th January, 1887), and when several co-
sharers have served a joint notice to quit, upon which notice they jointly institute
a suit for the recovery of land, the fact that one of the plaintiffs withdraws from
the suit will not prevent the remaining plaintiffs from obtaining a decree for
possession of their shares of the land. {Dwarkanath Rai v. Kalichandra Rai, I. L.
E., 13 Calc, 75.) Finally, if a tenant has obtained possession against the will o
the co-sharers or any of them, he may be partially ejected, if some of the share-
holders only wish to eject him, the partial ejectment in the latter case being
effected by giving the shareholders possession of their shares jointly with the
intruder. {Radha Prasad Wasti v. Isaf, I. L. R, 7 Calc, 414 ; 9 C. L. E,, 76.) A
single shareholder in a joint undivided estate could not survey and measure the
land. {Midk Chatid Mandal v. MadhusvAan Bacliaspati, 16 W. E., 126 ; Surendra
Mohan Rai v. Bhagahat Cham Gangopadhya, 18 W. E., 332 ; 10 B. L. E., 403 ;
Santiram Panjah v. Baikant Panjah, 19 W. E., 280 ; 10 B. L. E., 397 ; Piari Mohan
Mukharji v. Rai Krishna Mukharji, 20 W. R, 385.) But a part proprietor could
apply for measurment of the lands of an estate, if he made the remaining
proprietors parties to the proceedings. {Abdul Hossein v. Lai Chand Mohtan, I. L.
E., 10 Calc, 36.) A co-sharer landlord could not sue for a kabuliat {Ghani
Mahomed v. Moran, I. L. E., 4 Calc, 96 ; Saratsundan Dehi v. Watson, 2 B. L. E.,

JOINT LANDLORDS. 267

A. C, 159 ; Udaya Cham Dhar v. Kali Tara Dasi, 2 B. L. E., App., 52 ; Indra Chap. XVII.
Chandra Diigar v. Brindahan Bihara, 8 B. L, E., 251), and he could not distrain SbcM88.
otherwise than through a manager authorized to collect the rents on behalf of all
the co-sharers (sec. 68, Act VIII of 1869, B. C, and sec. 112, Act X of 1859).

Interpretation put by High Court on tM3 section .—The High Court has
held that this section makes no change in the law as regards the recovery of rent
by co-sharers. This was first held in Dinomayi Dehi v. Salimullah, No. 75 of 1886,
decided on the 14th September, 1886, in which it was said that a co-sharer was entitled
to sue in respect of his share of the rent, if he collected it separately, and that the
law in this respect was not altered by sec. 188 of the Bengal Tenancy Act. Then
in Prem Chand Lashhar v. Mukshada Dehi (I. L. E., 14 Calc, 201), it was said that
sec. 188 does not bar a suit by a co-sharer landlord for his share of the rent,
when the other co-sharers are made parties to the suit. In this case it was further
said, " Section 188 applies only to anything which the landlord is under the
Bengal Tenancy Act required or authorized to do. We can find nothing in the
Act which authorizes a landlord to bring a suit against a tenant for recovery of
arrears of rent. The terms of the section should, in our opinion, be strictly
construed ; for we cannot assume that the legislature intended to alter the
practice of our Courts, as established by numerous decisions for years past."
This decision was followed in Umesh Chandra Rai v. Nasir Mallik (civil reference
No. 20A of 1887, I. L. E., 14 Calc, 203 note.) Again the same was held in
Jagohandhu Pattak v. Jadu Ghosh Alkushi (I. L. E., 15 Calc, 47.) In this case it
was said, " The word ' landlord ' must be taken to mean the whole body of
landlords. But then the question that arises upon the section is, whether there is
anything in the Act that lays down that the whole body of landlords is required
or authorized to bring a suit for rent, in other words, is there anything in this
Act, to indicate that the whole body of landlords must join in bringing a suit for
rent ? "We think that there is nothing in the Act to that effect. According to the
law, which was in force before this Act came into operation, and according to the
rulings of this Court under that law, it was competent to him to bring a suit for
rent in respect of his own share. Is there anything in the Act to indicate that it
was the intention of the legislature to alter that law, and to lay it down that the
whole body of shareholders must, if rent be due to any one of them, bring a joint
suit for the recovery of the same ? It appears to me that there is nothing in the
Act to indicate that this was ever the intention of the legislature."

Powers of revision of High Court.— When a District Judge has exercised
his jurisdiction under sec. 188 illegally, the High Court has power under sec. 622?
C. P. C, to intei-fere. {Jagohandhu Patak v. Jadu Ghosh Alkushi, I. L. E., 15 "

Calc, 47.)

The powers of co-sharer landlords under the present Act.— Under the
present section co-sharer landlords, who are joint landlords, cannot (1) enhance
(sees. 6, 30, 43, 48, and 52) ; (2) eject (sees. 10, 18, 25, and 49) ; (3) apply for commu-
tation of a rent payable in kind (sec. 40) ; (4) apply for a division and appraise-
ment of rent in kind (sec. 69) ; (5) apply for the registration of improvements
(sec. 80) ; (6) sublet (sec. 85) ; (7) issue a notice and enter on an abandoned hold-
ing (sec. 87) ; (8) measure lands (sec. 90) ; (9) api^ly for a record-of -rights (sees.
101 (2) (a), 103 or a settlement of fair rents, (sec. 104(2) ; (10) distrain (sec 121) ;
(11) apply for the determination of the incidents of a tenancy (sec. 158); (12)
apply for a declaration that land has ceased to be char or dear ah laud (sec. 180) j

268 THE BENGAL TENANCY ACT.

Chap. XVII. or perhaps, (13) apply for the attachment and sale of a tenure or holding (sec.
Skcs. 189, 190. 162), except collectively or by a common agent. If co-sharers, who collect their

share of the rent sepai-ately are not joint landlords, then they can do all these

things, but not otherwise.

Rules under Act.

Power to make rules 189. The Local Government may,

^l\'r''°lf oE'Td f^-om time to time, by notification in tlie
service of notices. official Gazette, make rules consistent with

this Act —

(1) to regulate the procedure to be followed by Revenue-
officers in the discharge of any duty imposed upon them by
or under this Act, and may by such rules confer upon any
such officer —

(«) any power exercised by a Civil Court in the trial of
suits ;

(Jb) power to enter upon any land, and to survey, demar-
cate and make a map of the same, and any
power exercisable by any officer under the
Bengal Survey Act, 1875 : and

(c) power to cut and thresh the crops on any land and
weigh the produce, with a view to estimating the capabilities
of the soil ; and

(2) to prescribe the mode of service of notices under this
Act where no mode is prescribed by this or any other Act.

The rules made by the Local Government under the provisions of this section,
with the Board of Revenue's instructions thereon, will be found in Appendix I.

190. (1) Every authority having power to make rules
„ , ^ , under any section of this Act shall, before

Procedure for mak- _ •' ^ '

ing publication and making the rules, publish a draft of the

confirmation of rules. , . » . . _ . -

proposed rules lor the information oi per-
sons likely to be affected thereby.

(2) The publication shall be made, in the case of rules
made by the Local Government or High Court, in such man-
ner as may in its opinion be sufficient for giving information
to persons interested, and, in the case of rules made by any
other authority, in the prescribed manner :

Provided that every such draft shall be published in the
official Gazette.

PROCEDURE FOR MAKING RULES. 269

(2) There shall be published with the draft a notice Chap. xvii.

.), . / . . Skc. 191.

specifying a date, not earlier than the expiration of one month —
after the date of publication, at or after which the draft will
be taken into consideration.

(4) The authority shall receive and consider any objection
or suggestion which may be made by any person with respect
to the draft before the date so specified.

(5) The publication in the official Gazette of a rule pur- _
porting to be made under this Act shall be conclusive evidence
that it has been duly made.

(6) All rules made under this Act may, from time to
time, subject to the sanction (if any) required for making them,
be amended, added to or cancelled by the authority having
power to make the same.

The draft of the proposed rules made by the Local Government under this Act
were published in the Calcutta Gazette of November 4th, 1885. It was then notified
that they would be taken into consideration on December 7th, 1885. The rules
made under the Act were finally published in the Calcutta Gazette of December 23rd,
1885. The draft of the rules made by the High Court under this Act were published
in the Calcutta Gazette of the 3rd March, 1886. They were finally published in the
Calcutta Gazette of 28th July, 1886, Part I, pp. 886 and 887, and Government
of India Gazette, dated 7th August, 1886, Part II, pp. 470 and 471. They will be
found printed in Appendix III. The rules of the Eegistration Department for the
registration of documents under the Tenancy Act were published in the Calcutta
Gazette of the 30th June, 1886, Part I, p. 784. They are printed in Appendix IV.

Provisions as to temporarily -settled districts.

191. Where the area comprised in a tenure is situate in an
„ , , , estate which has never been permanently

Saving as to land . . , .

held in a district not settled, nothing in this Act shall prevent

permanently settled. , , , n ,^ , . i

the enhancement or the rent upon the ex-
piration of a temporary settlement of the revenue, unless the
right to hold beyond the term of the settlement at a particular
rate of rent has been expressly recognized in settlement-pro-
ceedings by a Revenue-authority empowered by the Govern-
ment to make definitively or confirm settlements.

In temporarily-settled districts, "the Government has a right to raise its
revenue on the occasion of a fresh settlement. Of this right, no act of the land-
lord can deprive it ; and, accordingly, if the landlord were to be bound by a
grant at fixed rates made by him so as to extend beyond the term of the settle-
ment, the result would be that, on the occasion of a new settlement, he might

270

THE BENGAL TENANCY ACT.

Chap. XVII. be exposed to the risk of having to pay an enhanced revenue without the possi-
Skc8. 192, 193, ijiiity of recovering it from his tenant." (Statement of Objects and Keasons,
Bengal Tenancy Bill, Gazette of India, March 3rd, 1883, Chap. Ill, para. 21, p. 132.)
But where Government acquires by purchase, escheat or otherwise an estate
which has been permanently settled, the right to hold at fixed rents may exist
as in any other estate, and the fact of such estate subsequently coming under
settlement of revenue does not take away such rights to hold at fixed rents.

192. When a landlord grants a lease, or makes any
, ,, ^ other contract, purportincr to entitle the

Power to alter rent . .

in case of new assess- tenant of land not included in an area per-
manently settled to hold that land free of
rent or at a particular rent, and while the lease or contract is
in force —

(a) land-revenue is for the first time made payable in
respect of the land, or

(6) land-revenue having been previously payable in re-
spect of it, a fresh settlement of land-revenue is made.

A Revenue-officer may, notwithstanding anything in the
contract between the parties, by order, on the application of
the landlord or of the tenant, fix a fair and equitable rent for
the land in accordance with the provision s of this Act.

The object of the last clause of this section is to prevent the Government
revenue of an estate being diminished by grants of rent free land, which reduce
the gross rental upon which the Government revenue is assessed.

Rights of pasturage^ ^c.

193. The provisions of this Act, applicable to suits for
Rights of pasturage, the rccovcry of arrears of rent, shall, as far

forest^righte.^&c.^^^ X ^^ ^^7 ^®' ^PP^y ^^ ^uits for the rccovcry
1859. of anything payable or deliverable in re-

spect of any rights of pasturage, forest-rights, rights over
fisheries and the like.

What provisions of this Act are applicable to rights of pasturage, &c.
— From the words "/or the recovery of arrears of rent" in this section it may at
first sight appear as if only the provisions of the Act relating to the recovery of
arrears of rent are applicable to pasture land, forest-land, rights of fishery, and
the like, and as if questions connected with the enhancement of rent, reduction of
rent, acquisition of status, &c., that may arise regarding such land or rights, are
left wholly unprovided for. This is not altogether the case. Under sec. 21 a
raiyat acquires occupancy-rights in all land held by him " as a raiyat " in his vil-
lage. If, therefore, he holds pasture-land, a tank, or thatching grass land as part
of his holding as a raiyat, he may acquire rights of occupancy in them, and such

RIGHTS OP PASTURAGE, &c. 271

land or tank will be subject to all the incidents of a raiyat's holding, the provi- Chap. XVII.

sions of this section notwithstanding. Thus, in Nidhi Krishna Basu v. Ram Das Skc^93.

Sen (20 W. R, 341), it was held, that a right of occupancy in the land includes the

same right in respect of a tank appurtenant to the land. In Fitzpatrich v. Wallace

(11 W. R., 231) it was held, that a right of occupancy could be gained in land used

for the purpose of grazing horses. But the case is different when the tenant has

merely a right to graze cattle, cut wood, catch fish, or cut the grass of thatching

grass land, which grows spontaneously, and which he in no way cultivates {Gur

Dial V. Ramdut, 1 Agra F. B., 15) ; in short, in such cases as he has only profits a

prendre over the land. In these cases no rights of occupancy can be acquired, and

the occupancy and enhancement provisions of the Act are inapplicable. Thus, there

is no right of occupancy in, and Act X of 1859 does not apply to, a mere fishery or

jalkar. ( Uma Kant Sirkar v. Gopal Singh, 2 W. R., Act X, 19 ; Jaggobandhu Saha

V. Promothonath Rai, I. L. R., 4 Calc, 767 ; Bollye Satti v. Akram Ali, I. L. R., 4 Calc,

961.) The provisions of Act X which confer a right of occupancy do not apply to a

tank used for the preservation and rearing of fish, and not forming part of any grant

of land, or any appurtenance of any land. (Sibo Jelya v. Oopal Chandra Chaudhri,

19 W. R., 200). A right of occupancy is not acquired in a tank, when the tank is the

principal subject of the lease, and only so much land passes with it as is necessary

for the banks. {Nidhi Krishna Basu v. Ram Das Sen, 20 W. R., 341.) "Where a

jotedar had exercised rights of fishery over two ^/aZ^'ars for more than twelve years,

not as the owner of the jote (with which thejalkars were not connected), but as a

tenant under a landlord, it was held that such possession did not confer upon him

a right of occupancy. (Sham Narain Chaudhri v. Court of Wards, 23 W. R., 432.)

Act X of 1859 does not entitle a lessor to raise the rent payable from a lessee

on account of a right leased to the latter to collect lac insects from trees growing

in the former's lands. {Oopal Chandra Singh Murah v. Sankari Paharin, 23 W. R.,

458.) There is nothing illegal in a contract under a farming lease from the owner

of a hat^ to collect a portion of the proceeds of sale from persons exposing their

goods for sale in the hat under temporary sheds or in open places, and such

collections are not in the nature of internal duties, but of rent for the use of

land. {Bangsho Dhar Biswas v. Madhu MahaMar, 21 W. R., 383.)

All the provisions of this Act for recovery of arrears of rent not
applicable to rights of pasturage, &c There are, of course, many provi-
sions of this Act which, though relating to the recovery of arrears of rent, are
inapplicable when the tenant has only a limited interest in land, as in the case
of rights of pasturage, forest- rights, and rights of fishery. Thus, though a
tenant may have a right to gather fruit from trees, or catch fish in a tank, the ,

trees and the tank themselves cannot be attached and sold in execution of a
decree for arrears of rent against the tenant. Jalkar, or the right of fishery may
exist in India as an incorporeal hereditament, and as a right to be exercised over
the land of another. {For^^g y Mahomed Hossein, 12 B. L. R., 210.) A tenant will
necessarily have no right in the immoveable property itself over which he may
have a profit a prendre ; and so, in Bishnu Lai Das v. Khyrunnissa Begam (1 W.
R., 78), it was held, that when a jalkar dries up, the land does not, as a matter
of course, become the right of the holder of the jalkar. Similarly, when a river
in which the plaintiffs had a right of fishery, ceased to be a flowing stream, and
the defendants acquired a right to the river-bed by the law of accretion, it was
held that that right would be subject to the exercise by the plaintiffs of their
prior right of fishery. {Kali Sundra Rat v. Dwarkanath Mazmndar, 18 W. R., 461.)

272

THE BENGAL TENANCY ACT.

Ciup. XVII. (See also Manohar Chaudhri v. Nar Singh Chaudhri, 11 W. R, 272 ; Radha Molvan
Skcs. !94, 195. Mandal v. Nil Madhah Mandal, 24 W. E., 200.) A jalkar does not necessarily
imply any interest in the soil itself, and, therefore, a patni of a jalkar is not an
interest in land within the meaning of the definition of the Road Cess Act, (David
V. Grish Chandra Guha, I. L. R., 9 Calc, 183.) But there is no such broad propo-
sition of law as that the settlement of a jalkar implies no right in the soil.
{Rakhal Cham Mandal v. Watson, I. L. R., 10 Calc, 50.) A jalkar is not an
easement within the meaning of Act IX of 1871, sec. 592. (Parbatinath Rai v.
Madhu Parol, 1 C. L. R., 592.)

Applicability of Stamp Act and Transfer of Property Act.— In sec. 2
(5) of Act I of 1868, immoveable property is defined as including " land, benefits
to arise out of land and things attached to the earth." But under sec. 3 of the
Transfer of Property Act immoveable property does not include " standing timber,
growing crops or grass." Many of the rights referred to in this section {e.g.,
rights of fishery), however, would seem to come within the definition of " immove-
able property." Hence, unless the provisions of sec. 117 of the Transfer of
Property Act, which exempt leases for agricultural purposes from the provisions
of Chap. V apply, the terms of sec. 107, which require leases of immoveable pro-
perty from year to year, or for any term exceeding one year, or reserving a yearly
rent to be registered, and of sec. Ill, regarding the determination of leases of
immoveable property, will be applicable to such leases. Again, in Sched. II, art.
13, els. (h) and (c) of Act I of 1879, it is only leases executed in the case of a
cultivator without the payment of a fine or premium when a definite term is
expressed, and such term does not exceed one year or the annual rent does not
exceed one hundred rupees, and the counterpart of leases granted to cultivators
that are exempt from stamp duty. Hence, leases of fisheries, &c., which do not
come within the terms of cl. (b), art. 13, Sched. II, are liable to stamp duty.

Saving for conditions binding on landlords.
194. Where a proprietor or permanent tenure-holder
Tenant not enabled holds his estate or tenure subject to the
dftiot' Vdtfon observance of any specified rule or condi-
landlord. \Aor\, nothing in this Act shall entitle any

person occupying land within the estate or tenure to do any
act which involves a violation of that rule or condition.

Were it not for this provision, a tenant might render his landlord liable to
forfeiture of his estate or tenure or to a suit for damages. The condition must, of
course, be consistent with the provisions of this Act. If a proprietor let his estate
to an ijaradar on condition that he was to prevent the accrual of occupancy -rights,
that condition would in no way affect the title of a raiyat to acquire such rights.

Savings for special enactments.
Savings for special 195- Nothing in this Act shall

enactments. affcct

(a) the powers and duties of Settlement-officers as de-
fined by any law not expressly repealed by this Act ;

SAVINGS FOR SPECIAL ENACTMENTS. 273

(b) any enactment regulating the procedure for the reali- Chap, xvii.
zation of rents in estates belonging to the Government, or —
under the management of the Court of Wards or of the Reve-
nue authorities ;

(c) any enactment relating to the avoidance of tenancies
and incumbrances by a sale for arrears of the Government
revenue ;

(d) any enactment relating to the partition of revenue-
paying estates ;

(e) any enactment relating to patni tenures, in so far as
it relates to those tenures ; or

(/) any other special or local law not repealed either
expressly or by necessary implication by this Act.

Settlement law.— For the laws relating to the powers and duties of Settle-
ment-officers, see note on p. 176.

Realization of rent in Government and Wards' Estates. — The enact-
ments relating to the realization of rents in estates belonging to Government or
under the management of the Court of Wards, or of the Kevenue-authorities, are
Acts VII (B. C.) of 1868 and VII (B. C.) of 1880. Under these Acts the Collec-
tor makes a certificate that the amount is due, and it can be executed as a decree,
unless the tenant proceeds in the Civil Court to have it set aside. If he does so,
he must proceed within a year of the service on him of a notice of its having been
made and filed in the office of the Collector, and the tenant must have first stated
in a petition to the Collector the grounds on which he claims to have the certifi-
cate set aside, or must satisfy the Civil Court that he had good reason for not
doing so.

Revenue sale laws. — The enactments relating to the avoidance of tenancies
and incumbrances by a sale for arrears of Government revenue are Acts XI of
1859 (sees. 37 and 52), VII (B. C.) of 1868 (sees. 11 and 12), and II (B. C.) of 1871.

The partition of revenue-paying estates is now made under Act VIII (B. C.)
of 1876, and the law relating to patni tenures is to be found in Regs. VIII of 1819,
and I of 1820, and Acts VI of 1853, and VIII B. C. of 1865.

Construction of Act.
, ,^ , , ^ 196. This Act shall be read subject

Act to be read sub- _ •'

ject to Acts hereafter to cverv Act passcd after its commence-

passed by Lieutenaut- i ' i t • r^ i» t> i

Governor of Bengal in ment by the Lieutenant-Govcmor ot iJengal

Council. • /^ •!

in Oouncil.

" In the absence of some such provision as this, the Bengal Legislative Council
would, owing to the wide extent of ground covered by this measure of the
Supreme Legislature, find itself practically debarred for all time to come from
dealing with almost every question affecting the relations of agricultural landlords
and tenants. " (Report of the Select Committee, dated 12th February, 1885.)
R. & F., B. T. A. 18

274

ScflRD. I.

THE BENGAL TENANCY ACT.

SCHEDULE I.

(See Section 2.)

REPEAL OF ENACIMENTS.

Regulatio^is of the Bengal Code.

Number and year.

Subject of Regulation.

Extent of repeal.

VIII (.f 1793 ...

A Rejrulation for re-enacting with modi-

Sections 51, 52, 53,

fications and amendments the rules for

54, 55, G4, and G5.

the Decennial Settlement of the Public

Revenue payable from the lands of the

zamindar.o, independent taluqdars and

other actual proprietors of land in

Bengal, Hehar, and Orissa, passed for

those Provinces respt^ctively on the L8th

September, 1789, the 25tli November,

1789, and the 10th February, 1790, and

subsequent dates.

-XII of 1805 ...

A Regulation for the settlement and col-
lection of the Public Revenue in the
zila of Cuttack, including the parganns
of Pattaspur, Kimimadichour, and Bag-
rae, at present included in the zila of
Midnapur.

Section 7.

V of 1812 „.

A Regulation for amending some of the

Sections 2, 3, 4, 26,

rules at present in force for the coUec-

and 27.

tioa of the Land-revenue.

XVIII of 1812 ...

A Regnlntioii for explaining Section 2,

The preamble and

Regulaticm V, 1 8 1 2, and rescinding Sec-

sections 2 and 3.

tions 3 and 4, Regulation XLIV, 1793,

and Sections 3 and 4, Regulation L,

1795, and enacting other rules in lieu

thereof.

XTofl«25 ...

A Regulation for declaring the rules to

In clause 1 of sec-

be observed in determining claims to

tion .4, from and

lands gained by alluvion or by derelic-

including the

tion of a river or the setk.

words " nor if an-
nexed to a sub-
ordinate tenure "
to the end of the
claiue.

ENACTMENTS REPEALED.

Ads of the Bengal Council.

275

SCIIKD. I,

Number and year.

Subject of Act.

Kxtent of repeal.

VI of 1862 ...

An Act to nmeiid Act X of 1859 (to
iimend the law relatinj; to the recovery
of rent in the Presidency of Fort
Williura in Bengal).

The whole Act.

IV of 1867 ...

An Act to explain and amend Act VI of
1862, passed by tlie Lieutenant-Gover-
nor of Bengal in Council, and to give
validity to certain judgments.

The whole Act.

VIII of 1869 ...

An Act to amend tlie Procedure in suits
between Landlords and Tenants.

The whole Act.

VIII of 1879 ...

An Act to define and limit the powers
of Settlement-officers.

The whole Act.

Act of the Governor-General in Council.

Number of year.

X of 1859

Subject of Act.

An Act to amend the law relating to
tlie recovery of rent in the Presidency
of Fort William in Bengal.

Extent of repeal.

The whole Act.

276

THE BENGAL TENANCY ACT.

SCIIKI). II.

00
00

Eh
O

o
5?;

SCHEDULE IL
Forms of Receipt and Account.— (See Seotlons 56 an<^? 57.)

1—1

E-T

;?;

ciq

*r;

03
O

r/3
E-"
55
<J

.. CD CD

PQ P3

t-s 05

« 3 t3

C5 c: S

i I •?

O 3 'g
04 0- S

pq
o
pq
(4

Pei
o

O
1^

t— I
H
03
O
0-1

S
.3 «9

bo bo

03 .2

.2 o

I °

00 .—1

2 2

s « »
w W H

— '-•§2

00 *= "o

3 •"

0:5 ss

'"' > 2.0
a) o t. a

*^ , s-a
-a b_ 2

sags

^ "2 ;!: cj
^ S >

s =■§ -5

■S S tJC >,

Sill

a s

.s ■= >. «-=
5 =» r^- o -C

'•3 p is S ,

t. .2 S «

tt o

1.3 3

"3 S

cc o ^ "3
^ r * 2

3 „ s S
= S ii

— J £ o

0) rt
j: be

s g £ «
-li "5 3 .c. .

.2**^ r*^ *S 3E

C ^ J-, 2 M

g'oS 2 E 3

H 2 S c. ^-
I -^ -"t:

=* 5 S e
o ->^ <) C ■=
SCO S s

■fS ■»• :5 o

FOllM OF RECEIPt.

277

SCIIKD. 11.

278

SCIIKP. II.

THE BENGAL TENANCY ACT.

Ah*

>^ H Ph

o
O

^ »- S ^

^ ^ -i -5
^^ W 5

c3 eS

4> 75

■^ "3

»"-<

° 0

-2 ^

« 0

1^ =2

•

.s J

-S 4)

B ^

^ -s

§ 2

^_^

a> 3

U 4.3

• f^

a ««

-a

03 S

3 -S^

d
S

=a f2

!«

: S

*" 03

_r «e

rt '-

2 To

: S

s 2

* C ^

»? .*> «*

{>• H Ph

•^ 2

= 1^

►^ « s

^^^

^,^

.4^

«8

«- 2

05 ^

•

•73

05
0

• rs

J«

LIMITATION.

SCHEDULE III.

Limitation. ->(See Section 184.)
Part I. — Suits.

To eject any tenure - holder or
raiyut. on nccoiint of any breach
of a condition in respect of which
tliere is a contract expressly pro-
vidinar tliat ejectment shall be the
penalty of sucli breach.
For the recovery of an arrear of
rent —

(a) when the arrear fell due
before a deposit was made
under section 61 on ac-
count of the rent of the
same holdinjj
(&) in other cases

Period of
Limitation.

ne year

Six months

Three years.

•K To recover possession of land Two years
claimed by the plaintiff as an
occupancy -raiy at. j

Time from which period
begins to run.

The date of the breacb.

The date of tlie serrice
of notice of the deposit.

The last day of the Ben-
gali year in which the
arrear fell due, where
that year prevails, and
the last day of the month
ofjeytof the Arali or
FasH year in which the
arrear fell due, where
either of those years pre-
vails.

The date of dispossession.

SCHED. HI.

Article 1. — A landlord who has waived his right to sue for the cancelmenfc of
a lease on the raiyat's failure to pay six successive instalments, is not barred by
limitation from suing for cancelment on further breaches of the covenant. (Duli
Chand v. Meher Chand SaJix, 8 W. II , 138.) But in a suit for the cancelment of a
lease on the ground of an alleged breach of its conditions, viz., the defendant's
failure to plant 2,000 betel-nut trees within five years from the date of the lease,
it was held that the plaintiff's cause of action was not a continuing or an annually
recurring one, but accrued when the breach actually took place (i. e.,) at the expira-
tion of the stipulated five years, and that plaintiff was bound to sue within
one year from that date. (Kali Kamal Mazumdar v. Jumat All, 11 W. R., 452.)
The non-payment of rent for a term of twelve years and more does not relieve
an occupancy-raiyat from the status of a tenant, so as to give him a title to the land.
Rent falls due at certain periods, and the failure to pay it becomes a recurring
cause of action, and therefore, when the right to take rent is admitted by the raiyat,
no question of limitation can arise. {Paresh Narain Ral v. Kashi Chandra Talukdar,
I. L. R., 4 Calc, 661.)

Article 2 (a).— A suit for rent due for a period prior to a deposit being
made is not barred, when the deposit has been made not by the tenant, but by a
third party. {Ramdiii Singh v. Chandl Prasad Singh, 21 W. R., 278.) By a
condition in the lease of a taluk, additional rent became payable in respect of
all lands, which, not being in a state of cultivation at the time of the lease,

280

THE BENGAL TENAKCY ACT.

SciiED. III. should be subsequently brought into cultivation, bo soon as the lessee had enjoyed

them rent-free for the space of seven years. Rent having become due under this

condition on certain lands, which had not been in a state of cultivation at the time
of the making of the lease, the lessee deposited in Court as the entire rent payable
in respect of the taluk the same amount as he had paid in previous years. In a
suit brought a year after the lessor had notice of such deposit, to recover the entire
rent payable in respect of the lands newly brought into cultivation, it was held that
such suit, having been instituted more than six months after service of notice of
Buch deposit on the lessee, was barred under sec. 31 of Bengal Act VIII of 18G9.
(^Mam Sankar Senapati v. Bir Chandra Majdjcyo, I. L. II., 4 Calc. 7U.) As the
notice of a deposit of rent has to be served by the Court, it must be presumed,
until the contrary be shown, that the notice was issued and duly served. (JSijai
Gobind Singh v. Karu Singh, 18 W. R., 531.)

Article 2 (b). Period within which suit for arrears may be brought.—
In the case of Kashi Kant Bharttacharjl v. Jlohini Kant Bharttacharji (I. L. R.,
6 Calc, 325), it was ruled, that the last day on which a suit for recovery of arrears of
rent can be instituted under sec. 29, Act VIII (B. 0.) of 1869, is the last day of the
third year from the close of the year in which the rent became payable (see also
Durga Das Chatarji^ v. NoVin Mohan Ghosal, 6 W. R., Act X, 63 ; Umvr Karain Pttri
V. Ararat Lai, 7 W. R., 301 ; Baihant Ram Mai v. Sarfunnissa Begam, 15 W. R.,
523). The limitation of three years allowed for a suit to recover arrears of rent
must be reckoned, not from the date of instalments, but from the last day of the
year in which the arrear becomes due. (^Gobind Kvmar Chaudhri y. JIaro Gojml
iVfl^, 11 W. R., 537.) Rent in kind remaining unpaid is an arrear of rent, and, as
such, a suit may be brought to recover it within three years from the last day of the
Bengali year in which it shall have become due. But inasmuch as the actual
grain is not producible at any time within three years from the time when it became
due, the money value or the grain, as it stood when it was ready for delivery, must
necessarily be taken to represent the grain itself. (^Krishyiabandhu Bharttacharji \.
Rotish Sheikh, 25 W. R.,307.)

Article 3. — The High Court decisions under the old Rent Law as to the period
within which a raiyat can sue to recover possession of land from which he has been
ejected by his landlord are conflicting. In some cases the period Las been held to be a
year. (^Brindaban Cliandra Sirkarv. Bhananjai Lanhkar,!. L. R., 5 Calc, 246 ; Iviavi
Baksh Mandal v. Momin Mandal, I. L. R., 9 Calc, 280 ; Srinath Bharttacharji v. Ram
Ratan Be, I. L. R., 12 Calc, 606.) In others, it has been held that in suits in which
the plaintiff sets out his title, and seeks to have his right declared and possession
given him in pursuance of that title, the period is twelve years. {Guru Das Rai v.
Ram Narain Mitra, B. L. R., F. B., 628; 7 W. R., 186 ; Nutarinl v. Kali Prasad
Das, 21 W. R., 53 ; Asvian Sing v. Obiduddin, 23 W. R., 460; Darjobatti Cliaudhu-
rani v. Chamru Mandal, 25 W. R., 217 ; Nilmadhab Shaha v. Srinibash Karmokar,
I. L. R., 7 Calc, 442; lorbes v. Sri Lai Jha, I. L. 11., 8 Calc, 365; Joyanti Dasi
V. Mahomed All Khan, I. L. R., 9 Calc, 423 ; Basarat All v. Altaf Ilossein, I. L. R.,
14 Calc, 624.) The Rent Commission in their Report (Vol. I, p. 71), proposed to
allow one year only for a suit by a raiyat " against his landlord to recover the posses-
sion of a holding from which such raiyat has been illegally ejected by such landlord
in any case not governed by sec. 9 of the Specific Relief Act I of 1877; in other
words, for a suit intended to try not merely the question of dispossession without
consent, but also the questiou of title." The Select Committee on the Bill remark
with regard to this article. " We consider that a moderately short period of limita-
tion should be fixed for the recovery by an occupaucy- raiyat of land comprised in
his holding, and, following the precedent presented by sec. 81 of the Central
Provinces Act, 1881, we have fixed the period at two years from the date on which

LiMiTAWON.

281

he is ftjected," (Selections from papers relating to the Bengal Tenancy Act, 1885,
p. 242.) In two recent cases the terms of this article have been referred to. In
Ramzani Bihi v. ulmu Baipari (I. L. 11., 15 Calc, 317), it was held that Art. 3, Sched.
Ill of the Bengal Tenancy Act relates to suits brought by an occupancy-raiyat
against his lai^dlord, aud not to a suit brought against a third party, who is a tres-
passer. In diandra K^shor De v. Itaj Xishor Mazumdar (I.L. R., 15 Calc, 450), it
was held that the suit mentioned in sec. 181, and Sched. Ill, Part I, Art. 3, of the
Bengal Tenancy Act, 1885, means a suit by an occupancy-raiyat as such, that is, an
occupancy-raiyat claiming a right of occupancy as against his landlord.

Part 11.— Appeals.

SCIIKI). III.

Description of Appeal.

Period of
Limitatioi).

Time from which period
besriiis to run.

4. From any decree or order under

this Act, to the Court of a Dis-
trict Judge or Special Judge.

5. From any order of a Collector

under this Act, to the Commis-
sioner.

Thirty days...

Thirty days.

'J'he date of the decree or
order appealed against.

The date of the order ap-
pealed against.

Part III. — Applications.

Time from whicli period
begins to run.

(2)

(1) The date of the decree
or order ; or
where there has been
an appejil, the date
of the final decree
or order of the Ap-
pellate Court ; or

(3) where there has been
a review of judgment,
tiiedate of the deci-
sion passed ou the
review.

For the execution of a decree or
order made under tliis Act, or any
Act repealed by this Act, and not
being a decree for a sum of money
exceeding Ks. 500, exclusive of
any interest which may have ac-
crued after decree upon the
sum decreed, but inclusive of the
costs of executing such decree;
except where the judgment-debt-
or has by fraud or force prevent-
ed the execution of the decree,
in which case the period of limi-
tation shall be governed by the
provisions of the Indian Limita-
tion Act, 1877.

Article 6. — It la to be noticed that this article applies not only to decrees passed
under the Tenancy Act, but also to decrees passed under " any Act repealed by this
Act," and, consequently, to decrees passed under Act X of 1859 and Act VIII,
of 1869, B. C.

Limitation runs from date of decree, and not from date of instal-
ment.—Under sec. 58, Act VIII (B. C.) of 1869, limitation runs from the date on which
the decree was passed, and not from the date on which the sum adjudged was made
payable. (Mamiazul Hah v. Nirhai Singh (I. L. R., 9 Calc, 711 ; 12 C. L, R., 318.)
This overrules the ruling in Sharihullah Sirkar y. Mohan Lai Shaha (I. L. R.,
7 Calc, 127; 8 C. L. R., 409).

^^2 '^^^ BENGAL TENANCY ACT.

ScHKD. lit. When rent-decrees for less than Rs. 600 could be executed after the

— — lapse of three years. — The words " no process of execution of any description
whatsoever shall be issued on a judgment in any suit . . . after the lapse of
three years", in sec. 58 of Bengal Act VIII of 1869, mean, that execution shall not
issue unless a proper application for execution is made within three years from the
date of judgment (^Golakmani Dchi v. Mohesh Chandra Mosa, I. L. R., 3 Calc, 547 ;
1 C. L. R., 149 ; see also Jfira Lai Sil v. Poran Matiah, 6 \V. R., Act X, 84 ; Hridai
Krishna Ghosh v. Kailash Chandra Bam, 13 W. R.,F. B., 3; 4 B. L. R., 82) ; even an
informal application cannot be regarded as a nullity, but must be taken as a step in
execution. (^Mahomed v. Obididlah, 12 C. L. R., 279 ; Fazlitr Rahman v. Altaf Hossein,
I. L. R., 10 Calc, 541 ; Hari Charan Basu v. Sithaydar Sheikh, I. L. R., 12 Calc, 161.)
But the meaning of the section cannot be relaxed any further, and it cannot
be held that prior steps with the view to making an application for execution are
sufficient to prevent a decree for less than Rs. 500 being barred under sec. 58, Act
VIII, B. C. of 1869. {Bhola Nath Rai v. Ilarhnani Debt, 12 C. L. R., 58.) So where
an application for the transfer of a rent decree for execution has been made and
granted by the Court, which passed the decree within three years from the date of
the decree, but no application for execution is made to the Court to which the decree
has been transferred within three years from the date of the decree, the execution
of the decree will be barred by limitation under the provisions of Bengal Act VIII of
1869, sec. 58. {Bholanath Rai\. Karendra Nath Rai,l.'L. R., 9 Calc, 380.) None
of these rulings, however, would now appear to be applicable.

What is an application in continuation of former execution-proceed-
ings.— The effect of an order striking ofif execution-proceedings in consequence of
an adverse decision in a claim case is not to dispose finally of the application for
attachment and sale, and if the result of a regular suit prosecuted with due diligence
is a final decree in favour of the decree-holder, and he makes an application for
the execution of his decree, such application, whatever its form, is in substance one
for the continuation of the former proceedings. {Bubu Piarii Tuhobildarmi v. Nazir
Ilossein, 23 W. R., 183.) This ruling has been followed by a Full Bench of the
Allahabad High Court in Paras Ram v. Gardner (I. L. R., 1 All., 355), in Kahjan.'
bhal Dipchand v. Ghanasham Lai Jadunathji, I. L. R., 5 Bom., 29 ; Issari Dasi v.
Abdul Khalah, I. L. R., 4 Calc, 415 ; Basant Lai v. Batnl Bibi, I. L. R., 6 AH., 23, and
Chandra Pradhan v. Gopi Mohan Shaha, I. L. R., 14 Calc, 385. But when the
proceedings were postponed on the consent of the parties, a further application for
the execution of the decree, which was for less than Rs, 500, made after a delay of
two months, and after a lapse of more than three years from the date of passing the
decree, was held to be barred. {Ram Sahai v. Dodraj Mahto, .?0 W. R., 395.) And
va. Ram Siindra Sanyal y , Gopeshar Mastafi (J.. L. R., 3 Calc, 716); the ruling in
the case of Pyarn TuhobUdarini, was not followed because the decree-holder
applied more than three years after his first application for the attachment not of the
same land, as he had previously sought to execute his decree against, but for the
attachment of other land belonging to the judgment-debtor.

Computation of value of decree.— The words "inclusive of costs" in this
article set aside the ruling of the High Court in the case of Kadambhii Debt v.
Kailash Chandra Pal (I. L. R., 6 Calc, 554), in which it was laid down that the
costs of appeals in execution-proceedings should not be added to the amount of
the decree in calculating whether it amounted to more than Rs. 500. (But see Bell
Campbell v. Abdnl Hak, 6 W. R., Act X, 8.)

APPENDICES.

gippntdix I.

RULES UNDER THE BENGAL TENANCY ACT

MADK BT THH

LOCAL GOVERNMENT.

NOTIFICATION.

Bengal Tenancy Act.

The IXst December, 1885. — Under sub-section 5, section 190 of the
Bengal Tenancy Act (VIII of 1885\ the following Rules are published for
general information.

A. P. MacDonnell,
Secy, to the Govt, of Bengal.

Rules under the Bengal Tenancy Act (Act No. VIII of 1885).

CHAPTER I.— General.

Section 189.*

1. In carrying out the following rules, Revenue-officers shall have
regai'd to the instructions of the Board of Revenue for the guidance of
Revenue-officers, so far as such instructions are consistent with the rules
herein prescribed under Act VIII, 1885.

2. Except where otherwise provided for by law or by these rules,
all proceedings and orders of Revenue-officers, passed in the discharge of

* These references are in all cases to the sections of the Bengal Tenancy Act
(Act VIII, 1S85).

286 RULES MADE BY

Appdx. I. any duty imposed upon them by or under this Act, shall be subject to the

Chat" I supervision nnd control of the Board of Revenue ; and the orders of each

Revenue-officer under this Act shall be subject to the supervision and control

of the Revenue-officers to whom he may be declared by the Board of Revenue

to be, for the purposes of the Act, subordinate.

The Collector and the Commissioner, in whose jurisdiction operations
under these rules are iu progress, shall be entitled to inforai themselves of
the nature and progress of such operations.

The words ^' except lohere otluirwlse provided for hy law or hy these rulex" refer
inter alia to decisious in proceedings of the nature referred to in Rules 27 to 32,
Chapter VI, ^(w^, which are appealable to the Special Judge. Executive orders of
Revenue-officers are, under this rule, subject to the supervision and control of the
Board of Revenue, where not otherwise specially provided for by law or by these
rules.

The Board of Revenue have issued the following instructions under this
rule : —

" Under this rule, Assistant Superintendents of the Survey Department ap-
pointed to be Revenue-officers are declared to be subordinate to Deputy Superin-
tendents of the Survey Department appointed to be Revenue-officers. Assistant
Settlement-officers are declared to be subordinate to Settlement-officers, and Settle-
ment-officers are declared to be subordinate to the Director of Land Records or to the
Commissioner, or Collector, as the Board shall in each case direct."

The Director of Land Records is to manage or supervise all settlements in which
the agency of the professional Survey Department is employed, or which are made
under the Bengal Tenancy Act, and his services are to be available for other settle-
ments at the discretion of the Board. He is to exercise, in respect of all these
settlements, the powers of a Commissioner save in matters in which power is by
law vested in the Commissioner.

Asa central authority, he is to be in immediate communication with the Board
and be guided by their instructions : as a local authority, he is to examine the details
of all important settlements on the spot, and direct the Settlement-officers upon all
points of uncertainty or difficulty.

The powers exerciseable by the Commissioner of sanctioning rates and confirm-
ing settlements may be exercised by the Director of Land Records, as regards settle-
ments under his control. (Board of Revenue's Settlement Manual, 1888, Chapter X,
p. 24.)

3. Where no other mode of service of notice is prescribed by the
Tenancy Act or by these rules, service shall be effected in the manner pre-
scribed for the service of a summons on a defendant under the Code of Civil
Procedure, if the notice is addressed to only one person ; and if it is address-
ed to a number of persons occupying or owning land in the same village, the
notice shall be served by proclamation and beat of drum, and by posting it
in the presence of not less than two persons iu some conspicuous place in the
village, and also by fixing it up in the village office, if any, where the rent is
usually paid.

This rule prescribes the mode of service of all notices, for which special pro-
vision is not made in Chapter V, ^j(i.«/.

, BENGAL GOVERNMENT.

CHAPTER II. — Staple Food-Crops and Pricb-Lists.

1. Section 39 (1). — The local areas under this section shall be those
entered in Schedule II annexed to these rules, and the mart specified in the
same schedule for each local area, shall be that at which prices shall be
recorded.

2. Section 39 (7). — The Collector, after such enquiry into the relative
extent to which particular food-crops are grown in his district, as he may
think necessary, shall cause a notice to be affixed in his office and in the sub-
divisional office, specifying the food-crop or food-crops which in his opinion is
or are most extensively grown in each local area. The notice shall distinguish,
as far as may be practicable, between crops grown on high lands and crops
grown on low lands ; and shall fix a day, not being later than 15 days after
the publication of such notice, on which objections will be taken into con-
sideration. On the day so fixed, the Collector shall take into his consider-
ation the objections, if any, to the enumeration of staple food-crops proposed
in the notice, and shall report his opinion thereon to the Board of Revenue.
The Board of Revenue shall submit the Collector's opinion to the Local
Government, with such remarks as may seem to them necessary. The Local
Government, after considering the reports of the Collector and the Board of
Revenue, shall determine and notify in the Calcutta Gazette what shall be
deemed staple food-crops in each local area.

The staple food-crops and local areas determined by the Local Government were
notified by Government notification of May 5tb, 1886. This was amended by Govern-
ment notification of May 23rd, 1888, which will be found printed iu Schedule II
appended to these rules.

The provision that " the notice shall distinguish, as far as may be practicable,
between crops grown on high lands and crops grown on low lands," is intended to
obviate the difficulty in efifecting enhancements, which might arise if two or more
crops were declared to be staple food-crops for the same kind of land in the same
local area, and their prices were to rise or fall in diflferent ratios, or the price of one
were to rise, while that of the other fell.

3. Price-lists of staple food-crops shall be prepared on one market-day
in the month at intervals of not less than 20 days. This market-day
shall be selected by the Collector, subject to the control of the Board of
Revenue.

This rule was substituted for Rule 3 originally drawn up, which prescribed that
the price-lists should be submitted fortnightly, by Government notification of May
23rd, 1888. It was determined to prepare the price-lists monthly instead of fort-
nightly in order to ensure greater accuracy. A statement showing the market-days
selected by the Collectors and approved of by the Board of Revenue was circulated
by Board's No. 874A. of the 7th August, 1888. It will be found appended to these
rxUes.

4. The price recorded for each staple food-crop shall be the pjje-

Wji vailing retail price at which that crop was actually sold in the mart t9

287

Appdx. I,
Chap. II.

288

RULES MADE BY

Appi>x. I. which the price-list refers on the day selected iinder the last preceding

Chap. H. rule.

This rule was substituted for the previous Rule 4 by Government notification of
May 28rd, 1888.

Soai'cVs Instructions.

Under Rule 4, the price recorded for each staple food-crop shall be the prevailing
retail price at which that crop was actually sold in the mart to which the price-list
refers on the day prescribed in Rule 3 of the rules issued by Government—

(a) The price recorded should be the average of the prices of the dififerent
qualities of the staple crop.

(h) The price should always be given in seers of 80 tolahs standard weight per
rupee.

(<•) Care should be taken that the price of the staple crops grown in the locality
is taken into account and not of those imported.

(<Z) When rice is the staple, the price to be recorded is the average of the common
qualities of husked rice {mota chanl) as distinguished from paddy, consumed for the
time being by the middle and poorer classes.

(<i) The average price of the various kinds of aman should be shown throughout
the year, and that of aus separately during the months in which it is sold.

(/) The prices of old and new crop should be shown separately when both are
being sold at the mart.

5. Price-lists shall ordinarily be prepared by a gazetted officer, not
below the rank of a Sub-Deputy Collector. But iu special cases where a
Sub-Deputy Collector is not available, the Collector, with the sanction of
the Commissionei", may authorize a canoongoe to prepare the lists.

6. Every officer charged with the preparation of price-lists shall keep
a record showing, as far as practicable, —

(a) — the date of his visit to the mart, at which prices are to be recorded;
(b) — the names of vendors and purchasers, the quantities sold, and the
price thereof, for any sales effected in his presence.

Board's Instructions.

Under Rule 6 every officer charged with the preparation of price-lists shall keep
a record showing as far as practicable —

(o) The date of his visit to the mart at which prices are to be recorded.

(&) The names of vendors and purchasers, the quantities sold, and the price
thereof, for any sales effected in his presence.

(<0 The record prescribed to be kept up with the oificer charged with the prepara-
tion of price-lists under this rule should also contain entries showing the vernacular
names of the description of rice and the qualities of the other staples selected from
time to time, so as to afford a basis for comparison with the qualities and prices
which may be recorded at any future time, and also in order that, whenever a change
occurs in the officers charged with the preparation of these lists, the new officer may
have the means of ascertaining the qualities of the staple selected by his pre-
decessor.

7. When price-lists are prepared at the sudder sub-division by an officer
other than a Covenanted Deputy Collector, or at other sub-divisions by an
officer subordinate to the Sub-Divisional Officer, they shall be submitted to
the Covenanted Deputy Collector, or a Deputy Collector specially nominated
by the Collector for the purpose, or Sub-Divisional Officei-, as the case may

BENGAL GOVERNMENT.

289

be. Such officer shall scrutinize the lists ; he may call for explanations and
cause manifest errors to be corrected ; and, having satisfied himself of the
accuracy of the lists, he shall countersign them.

8. The price-lists shall be published for not less than one week at the
marts to which they respectively refer, at the Collector's or Sub-divisional
office, and at every police-station and munsifi in the local area.

BoanVn InsirKctions.

Uuder Rule 8 the price-lists shall be published for uoh less than one week at the
marts to which they respectively refer, at the Collector's or Sub-divisional office, and
at every police-station and munsifi in the local area.

The lists shall be published under this rule in the form subjoined : —
Prire-lht for month of 188 for local area

sub-division district , is published under clause 3,

section Si) of the Bengal Tenancy Act, VIII of 188.5. Any objections which any
landlord or tenant of the aforesaid local area may have to any entry in this list
should bo presented to the Collector in writing- within a month from the date of its
publication : —

Staple food-crop.

Number of seers of 80 tolabs
sold per rupee.

Remarks.

Appdx. I,
Chap. II.

Didrict-

Sub-dirisioti
Collectoratc
Dated

-ISS

Signature of the officer prepar-
ing the list

Rank

9. After the expiry of the term of publication of the price-lists in
the mart to which they refer, as mentioned in the last preceding rule, the
lists shall be submitted to the Board with any objections made to them, and
with the opinions of the officers who prepared and countersigned them,
and of the Collector, on such objections.

Under section 39, sub-section (3), any landlord or tenant of land within the local
area may make an objection in writing to the lists within one month of the expiry
of the term of publication. The lists therefore cannot be submitted to the Board
of Revenue until at least five weeks after the date of their first publication.

Board^s Instructions,

Under Rule 9, after the expiry of the term of publication of the price-lists in
the mart to which they refer, as mentioned in the last preceding rule, the lists shall
be submitted to the Board with any objections made to them, and with the opinions
R. & F., B. T A. 19

290

RULES Made by

Appdx. I. o' ^^^ officers who prepared and countersigned tbem, and of the Collector, on such
^— ^^^ objections.

(a) The lists shall be submitted to the Board in the following form : —

CiiAr. III.

Price-list for the month of_
District

.IS8 .

Local area-
Mart

Staple food-crop
or crops.

No. of seers
of 80 s. w.
per rupee.

Substance of

objections*

if any.

Opinions of the officer
who prepared the
list and of the officer
who examiued it
under Rule 7, and of
the Collector, on
such objection.

Remabks.

Signature of Offk-er who cramiiwd the
list under Rule 7

Si If nature of Officer

who prepared the
list

Rank.
Date-

Rank-
Bate-

* Any objections miulc to tliis list must be forwarded with it.

(7>) Whatever the dates fixed for recording prices in local markets may be, the
lists should be submitted to the Board of Revenue immediately after the expiry of
one month from the date of their publication iu the mart to which they refer.

(c) In submitting the lists to the Board, the recording officer should invariably
explain in the column of remarks causes of variation in prices quoted during the
period under report as compared with the last preceding returu. The Collector
should, after satisfying himself as to the correctness of the statement, initial it. The
Collector should, in submitting the lists for the whole district, explain any marked
difference between prices ruling in the several local areas of his district.

CHAPTER III. — Landlords' Improvements.

1. Section 80. — All application for the registration of a landlord's
improvement may be presented to the Collector of tlie district or to the
officer in charge of the sub-division in which the land benefited by the
improvement is situated, or to any Assistant or Deputy Collector who may
be specially appointed by the Government to receive such application. It
shall, as far as practicable, be iu the form specified iu Schedule I appended
to these rules.

BENGAL GOVERNMENT. 291

2. The officei' receiving the application may, if he thinks fit, require Appdx. I.
the applicant to present as many copies of the application as there are tenants chap. III.
mentioned in column 7 of the application, or as there are villages mentioned
in column 2, and he may, as the case may be, either forward by registered
letter copies to the tenants whose names are specified, or may give notice
to the tenants by caiising a copy to be fixed up in the presence of not less
than two persons in some conspicuous place in every such village. In either
case he shall fix a date for hearing objections to the application, and shall
cause that date to be notified to the parties concerned, either by entering
it in the copies forwarded by registered letter or by proclaiming it by beat
of drum, and by posting, in the presence of not less than two persons, a
notice declaring it in each village. The expenses of such service shall be
borne by the applicant for registration.

3. The officer may make over the application to any of his subor-
dinates, not being below the rank of a canoongoe, for local enquiry and
report, and shall, in that case, fix a date for hearing the report, and shall
cause such date to be notified to the parties concerned in the manner set
forth in Rule 2. The enquiry shall be limited to the ascertainment of the
fact whether the alleged improvement is of such a nature as to come within
the meaning of section 76 (2), Bengal Tenancy Act, or not.

" The travelling allowance of officers deputed under this rule should be borne by
Government, who pays the salary of the officers. The officers usually deputed for the
work will be Sub-Depufcy Collectors and Canoongoes, and it will be remembered that
they are only entitled to travelling allowance in special cases. (Board of Revenue's
No. 525 A of the 10th August.. 1887, to the Commissioner of Burdwan.")

4. On the date so fixed, or on any date to which the proceedings may
be adjourned, the ofiicer shall hear summarily such of the parties and their
witnesses as may attend, and shall consider any report submitted to him
under Rule 3. He shall then decide whether the work is an improvement
as defined in section 76 (2), Bengal Tenancy Act, and whether the landlord
is entitled to register it, and shall accordingly order it to be registered or
refuse registration.

5. Nothing hereinbefore contained shall preclude the officer receiving '
the application from holding a local enquiry in person, and from ordering

the improvement to be registered, or refusing registration in accordance
■with the result of the enquiry so held.

6. If an order refusing to register an improvement is passed by an
officer lower in rank than the Collector of the district, such order shall not
take effect until confirmed by the Collector of the district.

7. Section 81 (1).— Evidence relating to any improvement under this
sub-section shall be recorded by the Revenue-officers specified iu Rule 1 of
this Chapter, who shall exercise the powers of a Civil Court in the trial of
suits, and shall be guided by the provisions of sections 182 and 184 of the
Civil Procedure Code.

292

RULES MADE BY

appi.x I. CHAPTER IV. — Record of Puoprietors' Privatk La.nds.

Chap. V. 1. Section 118. — Applicatious under this section may be macle to the

Collector of the district, or to the officer in charge of the sub-diviaiou in
which the laud in- question is situated, or to any Assistant or Deputy Col-
lector specially empowered by Government to receive such applications. If
the application is made to the Collector of the district, he may transfer it
for disposal to any officer empowered by Government to receive it.

2. The application shall be signed by the party making it, and shall
contain the following particulars so far as the applicant is able to furnish
them : —

(a) The name, towji number, and Government revenue of the estate.

(6) The names of the registered proprietors, and the share held by
each.

(f) The specification of each plot of land referred to in the applica-
tion, showing the village in which it is situated aud the area and boundaries
of each plot, if known.

(d) The names of the tenants (if any) in occupation of each such plot.

(e) Grounds of the application.

3. On receipt of the application, the officer shall make such inquiry as
he may think fit by examining the applicant or his agent, and may call for
further particulars before ordering further proceedings.

4. If the area of the lands has not been already ascertained by
measurement made by competent agency under the authority of Government,
or if for sufficient reason a further measurement is considered desirable, the
officer shall order the lauds to be measured, and shall estimate the cost of
measurement in accordance with the rules for the time being in force for the
measurement of lands in partition-cases, and shall require the aj)plicant to
deposit the amount either at once or in such iustalmeuts as he may deem fit.

CHAPTER v.— Service of Notices.

1. Sections 12, 13 and 15. — Notices under these sections shall contain,
BO far as may be possible, the particulars given in the forms specified in
Schedule I, and shall be served on the landlord or his agent, or, where two
or more persons are joint landlords, on their common agent referred to in
section 188, or on their common manager appointed under section 95, as
the case may be, in the manner prescribed for the service of a summons on
a defendant under the Code of Civil Procedure. Where there is more
than one landlord, and no common agent or common manager has been
appointed, the notice shall be served by being posted on the landlord's
village office, if any ; and if there be no village office, by fixing it up in the
the presence of not less than two persons on some conspicuous place on the
tenure, and a copy shall also be forwarded by post in a letter registered
under Part III of the Indian Post Office Act to the person or persons to
whom, immediately preceding the transfer, the rent had ordinarily been

BENGAL GOVERNMENT.

293

paid. When notice is served personally, the landlord's fee shall be tendered Appdx. I.
with the notice. If in cases of personal service a receipt cannot be obtained chap~"v
for the fee from the landlord or his agent, and in all cases when the notice
is not served personally, the fee shall be held in deposit by the Collector
until applied for by the person or persons authorized to receive it.

The Board of Revenue have issued the following instructions under this
rule: —

"It; has been decided by Govcrnraeut that; registration officers are to send the
landlord's fee to the Collectors (including sub-divisional officers under the tei-m) and
not to the Treasury direct. lb will generally be apparent on the face of the notice
accompanying the fee whether the fee can be tendered personally or not, and the
Collectoi", or some gazetted officer of his establishment, will therefore decide at once
whether the fee is to go into deposit in the first instance, or is to be made over to the
Nazir to be tendered to the landlord. It is important to guard against the needless
accumulation of fees in the hands of the Nazir and his peons.

" All deposits of landlords' fees must be treated exactly like any other revenue
deposit, and are subject to the usual rules for the repayment of such deposits. "

The Board of Revenue have further approved of a proposal that if there are
joint landlords and some of them are willing and others are not, to accept the laud-
lord's fee, the fee should be placed in revenue deposit in the names of the joint
landlords as zamindar of such and such an estate. Similarly, if the amount to which
each joint landlord is entitled is not known, because they hold jointly and so forth,
the deposit should be made on account of the zamindars of such an estate without
specifying their names. (Board of Revenue's No. 201 A of May Gth, 1886, to the Com-
missioner of Rajshahye.)

Postafje and Postal Registration CJiargcs,

The Collector of the 21-Parganas having enquired who should pay the postage
and registration charges for sending notices under section 12 of the Tenancy Act to
landlords, and whether a process-fee should be charged for serving such notices in
cases of transfer of rights in holdings within the Panchaunogram Government
estate, the Board of Revenue, in reply to his first question, observed that "if the
transferor cannot point out his landlord so as to enable the notice to be served on
him, or his agent, or at his office, the notice must be served by affixing it on some
conspicuous place on the tenure itself, and also by registered letter on the landlord.
The fee for such service is 12 annas in addition to any cost actually incurred for
railway fare, ferry toll, and the like. Though the cost of postal registration is not
actually specified in Rule 3 of Chapter VII of the Tenancy Act rules, it is evidently
a charge of a similar kind to those specified in the rule, and the levy of it should be
governed by the same priuciple. The registration-fee should therefore be levied
from the person at whose instance the notice is issued. As the form of notice
requires the residence of the landlord to be specified, there would appear to be no
difficulty in sending the notice by post." In reply to the Collector's second question
relating to the transfer of rights in holdings in Pauchannogram, the Board replied
that they saw no reason why the landlord's fee should not be realised in each case ;
but as no peon was employed or expense incurred, the process fee should not be levied.
(Board of Revenue's No. 27SA of the 15th April, 1886, to the Commissioner of the
Presidency Division.)

Subsequently, however, in reply to another reference, the Board of Revenue
observed that '• notices by registered letter need only be sent in cases in which there
are plural landlords, who have no common manager and there is no village office of
the landlords upon the tenure. It may be presumed that such cases will not often
occur, and the Board do not think that it would be reasonable to require th§ tr^psferpf

294 RULES MADE BY

CllAl'. V.

Appdx. I. to deposit the cost of a refjistered letter in the Registrar's office when it is quite
uncertain whether any registered letter will be sent or not. The Board, therefore,
thinks that iu such cases the cost must be borne by Government. It must be taken
against the fee charged for the issue of tlie process, aud no separate charge on this
account must be made in the Registrar's office. (Board of Revenue's No. 781A of the
13th Decembex-, 1887, to the Commissioner of the Presidency Division.)

One process fee to he charged wluni notice in sent by reglxtered letter.
In reply to a reference from Government, the Board of Revenue remarked that
it was not correct to say that Rule 3, Chapter V, required '• that when a number of
landlords resided in the same village, a copy of the notice should be sent by registered
letter to each of them. The rule only says that a copy is to be sent to the person or
persons to whom the rent was previously paid. The object of the rule is to ensure
that the landlord or landlords shall have notice of the transfer, and it is for the
officer who sends the notice to decide whether this requires one or more copies of the
notice to be sent. But if it is necessary to send by post more than one copy of the
notice whether to the same village or to different villages, these are not different
notices, but different copies of the same notice, and the fee charged should be 12
annas in addition to the actual cost of registration aud postage." (Board of Revenue's
No. lf)2A of 26th February, 1886, to the Secretary, Government of Bengal.) The
Board of Revenue subsequently issued the following circular on this subject : '"The
attention of Collectors aud other Revenue-officers is drawn to the procedure under
clause 1, Chapter V of the Rules made by the Government of Bengal under the Ten-
ancy Act by which, when there is more than one landlord and no common agent or
common manager has been appointed, it is not necessary to serve separate notices
upon each landlord, but a single notice, to be served in the manner prescribed in the
rule, is sufficient." (Board of Revenue's C. O. No. 9 of July, 1888.)

Procedure of Begistration Officers vnder this rule.

The Inspector-General of Registration has issued the following circular with re-
ference to this rule : — ''When two or more persons are landlords, whether joint or not,
and have no common agent or manager, only one notice should be issued and a single
process fee levied. The notice should be served by being posted on the landlords
village office, if any, or if there be no village office, by fixing it up in the presence of
not less than two persons on some conspicuous place on the tenure, and a copy of the
notice should be forwarded by post iu a registered letter to the person or persons to
whom imm.ediately preceding the transfer the rent had ordinarily been paid — ride
Rule (6), Appendix B, of the Rules for the registration of documents, under the Ten-
ancy Act, VIII of 1885.

"Postal charges for sending copies of notices under section 12 of the Bengal Ten-
ancy Act to landlords will, under Governmeiit Order No. ^O dated the 12th instant,
be met from, and not added to, the process fee. " (Inspector-General of Registration's
Circular No. 3 of the 18th February, 1889.)

Di.y)oml of notices under section 12 ufter service.

The Board of Revenue have issued the following instructions with regard to the
disposal of notices under section 12 after service : —

" A question having arisen as to whether the notices sent to Collectors under
section 12 of the Tenancy Act by registering offices should remain in the Collector's
office, after service, or should be returned to the Registering Officer, the Board have
to point out to all Collectors that it is not intended that any return of the service of
a notice under the section abovementioued should be made to the Registration Office
from which the notice is received. The duty of the Registering Officer is completed
when he has sent the notice and the prescribed fees to the Collector, and it is un-
necessary to inform the former how the notice has been served" (Board of
Revenue's C. 0 No. 7 of Augu.st, 1888)

BENGAL GOVERNMENT.

295

2. Section 45. — Notice to a raiyat to quit under this section shall be Aprox. I.
served through the Court having jurisdiction to entertain a suit for eject- Q^^y
ment from the holding in the manner prescribed for the service of a sum-
mons on a defendant under the Code of Civil Procedure ; and ghall be

subject to the same process-fee.

3. Section 46 (2). — The agreement under this section shall be filed
in the Court having jurisdiction to entertain a suit for arrears of rent of
tlie holding, and shall be served on the raiyat in the manner prescribed for
the service of a summons on a defendant under the Code of Civil Procedure,
on payment of the fee prescribed by the High Court.

4. Section 46 (4). — The notice under this section shall be filed in
the Court having jurisdiction to entertain a suit for arrears of rent of the
holding, and shall be served on the landlord in the manner prescribed for
the service of a summons on a defendant under the Code of Civil Procedure,
on payment of the process-fee prescribed by the High Court.

5. Section 63 (2). — In cases (a), (6) and {d) of section 61 herein referred
to, the notice of the receipt of the deposit shall be served by forwarding the
notice by post in a letter registered under Part III of the Indian Post Office
Act, 1866, or, where the Court may deem it necessary, in the manner pre-
scribed for the service of a summons on a defendant under the Code of
Civil Procedure.

6. Section 72 (2). — The general notice referred to in this sub-section
may be published by the transferee by fixing up a written notice to the
tenants in the village office, or in the presence of not less than two persons
on some conspicuous place on the lands, and by proclaiming to the tenants
by beat of drum in every village to which the transfer extends, that the
interest of the former landlord has passed to the transferee. The trans-
feree may, if he thinks fit, apply for service of the notice to the Civil Court
having jurisdiction to entertain a suit for arrears of rent of the holding, and
the Court shall thereupon serve the notice as hereinbefore prescribed on
payment of the process-fee prescribed by the High Court.

7. Section 73. — Notice under tliis section shall be in writing, and
shall be delivered to the landlord or his agent, or, where two or more per-
sons are joint landlords, to their common agent referred to in section 188, ,
or to their common manager appointed under section 95, as the case may be,

at the landlord's village office, or at such other convenient place as may be
appointed by the landlord for the payment of rent under sub-section (2) of
section 54.

8. The raiyat may, if he thinks fit, cause the notice to be served
through the Civil Court having jurisdiction to entertain a suit for arrears of
rent of the holding in the manner prescribed for the service of a summons
on a defendant under the Code of Civil Procedure, on payment of the
process-fee prescribed by the High Court.

9. Section 86 (2) aiid (4). — If the raiyat elect to proceed under the
second sub-section of this section, he may personally serve a written notice

296 BULES MADE BY

Appdx. I. of his intention to surrender on his landlord ; bnt if he elect to proceed

CiiAr~Vl under the 4th sub-section of the section, the notice of the raiyat's intention

to suil'ender shall be served on the landlord in the manner prescribed for

the service of a summons on a defendant xmder the Code of Civil Pi-oce-

dure, on payment of the pi'ocess-fee prescribed by the High Court.

10. Section 87. — A notice of the tenant's abandonment of his holding
under s\ib-section (2) of this section shall be in the form specified in Sched-
ule I, shall be published by beat of drum upon the holding alleged to
be abandoned, and a copy thereof shall be affixed, in the presence of not
less than two witnesses, to some dwelling-house, or tree, oi other conspicuous
object upon the holding. The fee payable by the landlord shall be He. 1.

The fee prescribed by this rule, must be paid when Government is landlord and
an estate is managed khnx. In this case the fee must be debited to the management
grant. (Board of Revenue's No. 167 A of 19th March, 1887, to the Commissioner of
Burdwan.)

11. Section 155. — Notice to the tenant under this section shall be
filed in the Court having jurisdiction to entertain a suit for arrears of rent
of the holding, and shall be served in the manner prescribed for the service
of a summons on a defendant under the Code of Civil Procedure, on pay-
ment of the fee prescribed by the High Court.

CHAPTER VI. — Record-of-Rights and Settlement of Rrnts.
Powers of Revenue-offlcers. Section 189.

1. Revenue-officers appointed to be Settlement-officers or Assistant
Settlement-officers for the purpose of making surveys, records-of-rights, set-
tlement of rents, determination of proprietors' private lauds, and such like
proceedings, or any one or more of them, under the Tenancy Act, are hereby
vested with all powers exercised by a Civil Court in the trial of suits, and
with the powers mentioned in section 189 (1), (a), {h) and (c), of the Tenancy
Act, VIII of 1885.

2. Deputy Superintendents of Survey and Assistant Superintendents
of Survey employed in operations under these rules are hereby declared
to be Revenue-officers for the purposes of performing any duty imposed upon
them by these rules, or by instructions, consistent with these rules, issued
by the Board of Revenue. They are hereby vested with the powers specified
in section 189 (1) (6), provided that an Assistant Superintendent shall not
exercise the powers vested in a Superintendent under the Bengal Survey Act.

Rule (\). — Among the powers conferred on officers appointed to be Settlement
and Assistant Settlement-officers by this rule, is that of summoning witnesses. This
power may be exercised in any proceeding and in the discharge of any duty imposed
by the Act or these rules, and is not confined to proceedings in which the Revenue-
officer is acting as a Revenue or Civil Court.

Rxile (2). — Under this rule, Assistant Superintendents of the Survey Department
can exercise such of the powers of a Superintendent of Survey under the Bengal
Tenancy Act as may be delegated to them by the Collector, Settlement-officer, or
Superintendent of Survey, as the case may be.

BENGAL GOVERNMENT.

Procedure for Cadastral Survey and Eecord-of-Rights.

3. The following processes will ordinarily be comprised in a cadastral
survey, recoi'd-of-rights, and settlement of rents : —

I. — Demarcation of boundaries.
II. — Measurement.
III. — Testing of measurement.
IV. — Record of rents and rights.

V. — Determination of fair rents on application, and, in
certain cases, without application, of parties.

According to the Dictionnaire des Dicfcionnaires, the word " cadastral " is derived
from the mediaeval Latin word eapitastrum, " a public register containing the
quantity and value of landed property, names of owners, &c., which served for the
assessment of the tax on property." According to other's, the word is derived from
the French verb " cadrcr,'" to square or correspond with, all objects on a large scale
or plan being shown in their true positions and proportion, whereas in a topographi-
cal map certain features must be exaggerated for sake of distinctness, {Ocean High'
tcays, JVovember, 1872.)

Demarcation of Boundaries before Cadastral Survey.

4. The demarcation of village boundaries shall be carried out in accord-
ance with the definition of a village given in section 3 (10), and the bound-
ary according to possession, where different from that demarcated as above,
shall also be shown on the map.

Board's Instruction,

" Detailed instructions for the demarcation of boundaries of villages, estates,
and tenures will be found in the Board's Survey Manual."

5. Boundary pillars of a permanent nature shall be erected at every

point where the boundaries of three or more villages meet, and may be

erected wherever the Revenue-officer considers it necessary to define by

pillars the boundaries of estates or tenures or of lands which have been the

subject of dispute.

Board's Instruction.

" Instructions for erection of pillars will be found in the Board's Survey
Manual."

Measurement.

6. A field map of every village shall be prepared. It shall show the
boundaries of every field separately assessed to rent, or of such plot of land
as the instructions of the Board of Revenue for giving eff'ect to these rules
may lay down.

7. A field register or khasrah shall be pi-epared at the time of survey
in the following form,* or such similar form as the Board of Revenue
may direct.

8. In preparing the khasrah and khatian, officers shall be guided by
such instructions, consistent with these rules, as the Board of Revenue may
issue for the purpose for giving effect to these rules.

* See next page,

297

Appdx. I.
Chap. VI.

298

Appdx. I.
Chap. VI.

RULES MADE BY

»
o
o

'sauTKaji

1 -BIIOB jO B8B|0

fa k. . .

jBiiBi-aapun oj Siupioaay

•JBflSJ OJ SlI!pj0.13V

!'-

fa H

"is

-MBMjvd o) Siiipjooav

•JBJCIK4 01 Suipjoaay

'jBpniaiBZ 01 Siiipjoaay

]

Details of
uncropped

LAND.

vaty

•spiiBi jo SSBp

•Viiv HSBJOQ

<
a

■•s

■oajy

•dojf)

■«aiV

•dojo

•«ajV

•dojo

P^?b2uj!-uox

■aoi^eSuji jo poqiajj

Bqi 0% »qifq Jo Bq*tq aSsnu ut vaiy

'apniu uasq
geq luaaiajnBBSni qoiqAi oj guipjooaB spauX aaenba
JO SBq8iq u; vsjy

■aauapiBaj
puB '91SB0 'atnsu e,Jaqivj '^BjCiBj-aapnn jo amsx

•aauapisai pu« 'aisva 'auisu B,jaqioj 'jBiisj jo omvg

■9aaa|>;8aj puB 'ajsBa
'38Biuaj«<l qifM 'pjO[puB| pnB jo^audojd jo aoiBj;

c«

•9jb;b3 jo ajBqa jo ajBjsa jo ams^

■o

'BauBpunoa

•jaqiunjj

Khatians or abstracts of the particulars of every raiyat's and
under-raiyat's holding, and so far as may be of the tenure of every tenure-
holder and under-tenure-holder, shall be prepared in the following form,*
or such similar form as the Board of Revenue may prescribe.

* See next page.

BENGAL GOVERNMENT.

299

'k.

•^

a4
^ .1

•SSU?K3}I

ipni^u DI83U1U3 3i|) 'suuinioj }o uonnjauinu^

•ajndsip JO toarqns aijj uaaq samij
ifAiiIM Di S9UVI9 9in '$umii|Oj JO uot|iij3ainu%{

«»

9qi JO siaapioui pn« suopipiioa [KiaaJi 3i|.[,

1 «

■«aS80J3

•ni 11 ipiiiu £q sdais 3i() piii! ii.^iii.vv ^b

3U1I1 3I|I 'illlISIOJOIII XllBnpUjd et )U04 9I|1 }l

'3S!.UJal|')0

JO 'jano.T aiil JO jopjo ')ai)j]iio3 Xq jainaq.u
'•» •_« 'paxg no3q su'U jusa i(aui.vk. ui apon

•uotssasso'l JO inSiiai 'eivfiBi- XaiiBd
•naoo-iiou jo 3du3 ui 'pim Suip|oi| jo 89u|3

'(JUK J!) jdJmo-aniiaA3ii jq paxjj }iiai jt8j{

li.

set.

S -IBJOX

•838833

•?U3}I

I =

8 2

•BaBSOf)

•!»U3a

& Si

H °

•o

-833883

1
2 ! 'luaa

■<
U

■<

•<
».

•BBqSiq 38B1IIA UI «ai« itljox 1

la- *"

S B a »

2 2 a o

•1B|0J. :

•psjBAjuns iojj

•paiBAiJin,-)

■o

A
2 es •« 2 fc.-

■sauvponod |

'jaqmnji i

■>»

■nBtiBqii e,iBXiBJ 1
-jsp'in JO i3qiunii puB 'astupi^si pus 's^sbj i
'auiBU s,')u34Bd ijiiAi iB.^iuj-japiiti JO atuBjT

•a.maptsaj pim i

'318*3 'aUtBU E,ia34Vd tlll.U IBXfBJ JO SlUBi; j

■IB-CiBj JO jsquinu iBua^-

•paoipoBi JO soiB^sj 1

Appdx. I.

■^■5 ClIAP. VI.

a
>.5

S bo

I 2

3 3

"2 2

>«

a»

■n

-3

-a

•3

•a

-1

■s

,«"

•a

—

5 3

Board's In.it7iiction.

" The instructions for the preparation of khasrahs and khatians under Rules 8 and
9 will be found in the Board's Survey Manual."

300

RULES MADE BY

Appdx. I. Record-of-Rights.

Chap. VI. 10. The record-of-rights shall consist of, and be contained in —

I. —The khewat.
II.— The khatian.

Rights of Proprietors.

11. The khewat shall contain a record of the character and extent of
proprietary interests.

12. It shall be prepared in the following manner: —

(a.) — An extract from the Collector's Registers A, B, C, D, framed nn-
der the Laud-Registration Act, VII (B.C.) of 187G, containing the names,
extent, and character of the interests of proprietors of all revenue-paying
and reveuue-free lands comprised within the mauzah, shall be supplied by
the Collector of the district to the Revenue-officer on the latter's application.

{&.) — If the Revenue-officer finds that the proprietary interests existing
in the village aie in accordance with the entries regarding extent and character
of proprietary interests as given in the Collector's registers, he shall have
the entries copied into the khewat, which will form the record of proprietai'y
and proprietaiy mortgagees' interests for the purposes of the record-of-
rights under the Tenancy Act. The extracts from the Collector's land-revenue
registers will also show the names and proprietary interests of managei's
and mortgagees of all revenue-fx'ee property within the village.

(c.) — If any person claiming as proprietor or as assignee or mortgagee of
an alleged proprietor deny the accuracy of the khewat, as copied from the
Collector's registers, the Revenue-officer shall refer him to the Collector of
the district, and shall also report the fact to the Collector in order that
the action may, if necessai'y, be taken under the Land-Registration Act, to
compel registration of the proprietor's name.

{d.) — In any proceeding under Chapter X, the Revenue-officer may, at
his discretion, recognise as proprietor the person in possession of the land,
pending the registration of his name and interest under the Land-Registra-
tion Act.

HoanVi^ iHstruct'ion.

'• Under this rale, a record of proprietary rights is to be prepared, wliich must in
general be in accordance witli the entries in the Collector'.^ register.s prepared under
the Land Registration Act ; but inasmuch as it is known that the Collectors' registers
do not in many cases represent the existing facts, and inasmuch as. if the Settleraent-
oflBcer were to decline to recognise as proprietor every person whose name and in-
terest have not been duly registered under the Land- Registration Act, it is possible
that his work might be brought to a standstill, hence discretion is allowed to the
Settlement-officer under clause {d) to recognise a claimant of proprietary interests
as proprietor, though his n:imo may not have been registered. This discretion should
only be exercised when tliere is practically no doubt that the claimant of proprietary
right is really the proprietor. But though a non-registered proprietor may be thus
recognised, such recognition will not dispense with the necessity for registration.
All cases of such recognition of non-registered proprietors should be at once reported
to the Collector, who should take immediate action to compel registration. The khe-
wat or record of proprietary rights cannot be finally published till such registratiou

BENGAL GOVERNMENT. ^Ql

has been completed, but the record-of-iights of tenure-holders, raiyats, and under- Ari-nx. I.

raiyats may be published without awaiting such registration. The forms in -which

the records of proprietary rights are to be prepared are given in Nos. 16 to 18, '^"^p- *'■
Appendix C."

Zakhirajdars.— Owners of revenue-free property are proprietors under the defini-
tion contaiued in section 3 (1 & 2), and are to be treated as such in the preparation of
the record-of-rights.

I'j'oprieior's jvivate lands, — Nij-jote, Sir, Zerat or Khdmdr.

13. Only laud which is proprietor's private land, as defined in section
120 of the Tenancy Act, will be entered as such. Land which, though
cultivated by the proprietor, is not proprietor's private land within the
meaning of the law, will be entered thus — " Cultivated by the proprietor,
but not private land." Separate khatians will be prepared for such land
and for "proprietor's private land."

It is to be remembered that it is cultivation by the proprietor for twelve years or
more which makes any land sir, and not cultivation by a thikadar or ijaradar, who is
a tenure-holder and not a proprietor.

Rights of Tenure-holders, Raiyats and Under-raiyats.

14. The record of tenure-holders', raiyats' and under-raiyats' rights
shall be prepared in the following manner : —

15. As soon as possible after the completion of the field measurements
of each village, the following papers shall be made over to the Revenue-
officer : —

(1) The map. | (2) The amin's khasrah. [ (3) The khatian.

16. On receipt of these papers, the Revenue-officer shall issue a noti-
fication, which may be in the form given in Schedule I attached to these
rules, fixing a day, which shall not be less than one month from the date of
issue of the notification, on which he will be present at some place to be
specified, at or near the village, and after which applications for the settle-
ment of fair rents will not be received. The notification shall further state
that on the day so fixed, or on any other day to which the proceedings may
be adjourned, the Revenue-officer will proceed to record rents when the cir-
cumstances are such as are specified in section 104 ( 1) ; or to settle fair and
equitable rents on the application of either party ; or on the Revenue-offi-
cer's own motion when the case falls under section 10-1 (2) ; and it shall re-
quire all parties interested in the subject-matter of the enquiry to attend at
the time and place specified, with such evidence as they have to offer in con-
nection with the proceedings. Such notice shall be forwarded to the Sub-
Divisional Officer and the Munsif within whose jurisdiction the land is situat-
ed to be affixed in their respective Courts, and it shall also be published by
proclamation and beat of drum, and fixed up in the presence of not less than
two persons in some conspicuous place in the village to which it refers.

17. The Revenue-officer may also, if he deem fit, take such additional
measures, under Rule 1 of this chapter, as may be desirable, to procui-e the
attendance, at the place specified in the notice to be issued under the last

r<2 RULES MADE UY

Appdx. I. preceding rule, of the uuder-raiyats, raiyats, landlords, tenure-holders, and

„ ... proprietors, or their authorized agents.
Chap. VI. i r ' o

18. The record-of-rights of tenure-holders and under-tenure-holders
shall be, as far as may be practicable, prepared in the same way as the
record of raiyats' riglits, or in such other manner, not being inconsistent with
these rules, as the Board of Revenue may direct. The record-of-rights of
under-raiyats shall be, as far as may be practicable, prepared in the same
way as the record of raiyats' rights, or in such other manner, not inconsist-
ent with these rules, as the Board of Revenue may direct.

Board's Instruction.
" The record of the rights of tenure-holders and under-tenure-holders should be
prepared in the same manner, and form, as the record of raiyats' rights, where the
tenure is of a raiyati character, such as that of a head raiyat who, though a tenure-
holder, cultivates part of his tenancy himself, and in the same manner and in
similar form to the record of proprietary interests, where the tenure is of a proprietary
character, such as that of a thikadar, ijaradar, or other proprietary assiguee. See
specimen form No. 19, Appendix C."

19. The record of raiyats' rights shall be prepai'ed in the following
manner.

20. On the date specified in the notice to be issued under Rule 16,
or on any other date to which the proceedings may be adjourned, the
entries which . the amin has recorded in each tenant's khatian at the time of
measurement shall be read out in presence of such of the interested parties
as are in attendance. If the correctness of the entries recorded by the amin
be disputed, the Revenue-officer shall settle the dispute by local enquiry or
otherwise : provided that if the correctness of the measurement is called in
question, and a fresh measurement demanded, the Revenue-officer may require
the costs of the remeasurement to be deposited. If the remeasurement
show the original measurement to have been inaccui'ate, the amount depo-
sited shall be refunded to the objector.

Board's Instruction.
'• It is of great importance that the parties should be made thoroughly to under-
stand the entries made in the khatians against them, and that their objections
should be patiently and carefully enquired into. In order that this may be the more
thoroughly done, the Settlement-ofificer may depute a cauungoe, or trustworthy
subordinate of similar rank to the village to explain the entries and note objections
made to them before he visits himself and before he has the entries read out under
this rule. One of the best safeguards for the accuracy of the work is the admission
of the correctness of the entries affecting them by the parties interested. Without
such assent all other tests are of comparatively little value."

21. The Revenue-officer shall ascertain what raiyats claim the right to
hold at fixed rates, explaining, as far as may be necessary, the provisions of
the Act in this respect. If the right claimed is disputed by the landlord,
the Revenue-officer shall call on the claimants for proof of such right.

22. The Revenue-officer shall ascertain which of the raiyats are
settled raiyats or occupancy-raiyats, as the case may be, and shall record
them as such in column 14 of the khatian.

BENGAL GOVERNMENT. 3Q3

23. The Revenue-officei- shall ascertain what raiyats are non-occu- Appdx. I.
pancy, and to this end he shall be entitled to call upon the landlord or c„][7^i
his agent to produce a statement showing the names of the raiyats alleged

by him to be non-ocoupancy-raiyats. On production of such statement,
the Revenue-officer shall explain to the raiyats whose names are entered
in the statement, and who have not already been recorded as occupancy or
settled raiyats, the nature of the presumption raised by section 20 (7). If,
after such explanation, a raiyat admits himself to be a non-occupancy-
raiyat, he shall be recorded as such. If he does not admit himself to be a
non-occupancy-raiyat, the Revenue-officer shall call on the landlord to prove
the allegation made by him in regard to such raiyat.

24. Abwdbs shall not be recorded with, nor entered as forming part
of, the existing rent. Cesses which ai-e authorised by law shall be recorded
in column 12 (6).

25. The Revenue-officer, on the day fixed by the notice issued under
Rule 16, shall, as far as may be convenient, first proceed to record rents
under section 104, clause 1. When neither the landloi-d nor the tenant has
applied to have a fair and equitable rent fixed, and when it does not
appear that the tenant is holding land in excess of or less than that for
which he is paying rent, the Revenue-officer shall summarily ascertain the
tenant's present rent, and record it in column 12 of the khatiaii as the rent
payable in respect of the land held by the tenant.

26. When all rents to which section 104, sub-section 1, is applicable
have been recorded, as far as may be convenient, the Revenue-officer
shall proceed to settle rents under sub-sections 2 and 3 of the same section.
In settling rents, the existing rent being presumed, under section 104
(sub-section 3), to be fair till the contrary i? proved, if the landlord claims
an enhancement, he will have to prove the grounds of, and amount
of, enhancement ; and if a raiyat claims a reduction, he will similarly
have to prove the grounds of reduction : Provided that it shall be in the
discretion of the Revenue-officer to admit an application made after the
period fixed in Rule 16, if it be established to his satisfixction that the delay
in making it was not due to any negligence or carelessness on the part of
the applicant, and that, if it be not admitted, serious hardship or injustice
would accrue to him. The order passed by the Revenue-officer on all such
applications shall be final.

The Board of Revenue liave issued a circular to the effect that " when an appli-
cation or petition is made to the Settlement-officer under the preceding rule or
during the settlement operations, it should be stamped in accordance with art. 1 ,
Sched. II of the Court-fees, Act VII of 1870," that is to say, it should be stamped
with a Court-fee stamp of eight annas. (See art. 1, CI. (h), Sched. II, Act VII of
1870.)

27. If within the period fixed and notified under Rule 16 the landlord
applies for the settlement of a fair rent, he shall be considered as plaintiff*
and the tenant as defendant, and the proceocHug shall be dealt with as a suit

304

RULES MADE BY

Appdx. I. under this Act. If within the same period the tenant applies for the settle-
CHrp~vr ment of a fair rent, he shall be considered as plaintiff and the landlord as
defendant, and the proceeding shall be dealt with as a suit under this Act.

28. If it appears that a tenant is holding land in excess of or less than
that for which he is paying rent, and if within the period fixed and notified
under Rule IG of this Chapter, neither landlord nor tenant applies for the
settlement of a fair rent, or if an application be not admitted under the
proviso to Rule 26, the Revenue-officer shall, in accordance with the notice,
proceed to fix a fair and equitable rent for the holding under section 104,
Blib-secstion 2 and 3.

29. When a fair and equitable rent has been fixed under the last two
preceding rules, it shall be entered in column 13 of the khalians as the rent
payable in respect of the holding.

30. Where the estate or tenure belongs to, or is managed by, the
Government or tlie Court of Wards, the procedure laid down in the preced-
ing rules for recording or settling rents shall be followed, the Government
or the manager of the estate or tenure respectively, as the case may be,
being regarded as the landlord.

Board's Instruction.

" Under this rule it will be observed that Settlement-officers in makiug settlement
of rents in Government and Wards' estates are bound by the same rules and must
follow the same procedure as iu settling' reubs in private estates. Where theu the
Court of Wards claims au enhancement in the existing rent, a formal application for
settlement of fair rents should be made by au officer duly authorized in that behalf by
the manager, and evidence should b3 recorded in the same way as if the estate were
owned by private landlords. The Settlement-officer is in such cases bound to settle
a fair rent judicially in the same way as in an estate in possession of a private zamiu-
dar with due regard to the provisions of the Tenancy Act. But if the estate belongs
to Government, and a settlement of laud revenue is beiug made, the Settlement-
officer is bound of his own motion to settle a fair rent— c/f/c sec. 101 (2), and
should himself call for and record any evidence that may be necessary to enable him
to ascertain what would be a fair rent, having regard to the grounds of enhancement
or reduction of existing rents given in the Tenancy Act for the determination of
fair rents. In cases of this class the Settlement-officer should, on behalf of Govern-
ment, himself call for and record such evidence as may be necessary in order to
enable him to ascertain what would be a fair rent, and must not leave it to other
parties to produce such evidence before him. The raiyats may be called upon to
produce evidence as if they wcie defendants in such cases, and the proceedings should
be conducted as nearly as may be as in a civil suit.

2. The Tenancy Act gives rules for the assessment of the rent of occupancy-

raiyats. and it is believed that these will be found clear and
Ilcnts of raif ats. , ', ,„, ... , „ . ,

complete. Ihe existing rent must, under sec 101, be con-
sidered fair and equitable until the contrary is proved ; the grounds on which it
may be increased are stated in sees. 30 and .52 ; those on which a reduction can be
claimed in 38 and 52. In the former case, the Settlement-officer is not bound by the
limit of 2 annas in the rupee specified in sec. 20 of the Act, but he is at liberty to
enhance the rent up to any sum to which a Civil Court would enhance it in a regular
suit. The provisions of ihe Act as to the assessment of rent must be observed iu all
settlement-proceedings, whether taken under Chap. X or under the Regulations.

BENGAL GOVERNMENT. 3Q5

The work of ascertaining fair and equitable rates of rent is in its nature diflBcult, Appdx. I.
and too much care cannot be taken in its performance. Every mistake made must be — ^

permanently injurious either to the interests of the revenue or to those of the raiyat. ^"'*«^' » '•

3. The Act does not give precise rules for the assessment of the rent of non-
occupancy- raiyats, but the provisions of sec. 46 (9) should be observed, that in
determining what is fair and equitable, regard should be had to the rents generally
paid by raiyats for land of a similar description, and with like advantages in the same
village. It will seldom be expedient to introduce a difference between the rates of
rent paid by occupancy and non-occupancy-raiyats, respectively, where none at
present exists."

31. With the consent of the Revenue-officer, any number of tenants
occupying land under the same landlord, in the same village or estate, may
make a joint application for the settlement of rents, or may be joined as
defendants in the same proceeding on a similar application by the landlord :
Provided that if at any time it shall appear to the Revenue-officer that the
question between any two of the parties, of whom one is so joined with
others, cannot conveniently be so jointly tried, he may order a separate trial
to be held of that question, or he may pass such other order, in accordance
with the Civil Procedure Code, for the joint or separate disposal of the appli-
cation, as he may think fit.

32. In proceedings under sec. 106, when a dispute arises, before the
final publication of the record, regarding the correctness of an entry (not
being an entry of rents settled under Chap. X) or as to the propriety of
any omission, notice of the objection shall be served on all persons whose
interests may, in the opinion of the Revenue-officer, be effected thereby, and
they shall be called upon to attend at such time and place as the Revenue-
officer may fix for the disposal of the objection. If any person attends and
contests the objection, the proceeding shall be dealt with as a suit between
the parties under the Tenancy Act, in which the objector shall be plaintiff,
and the other parties defendants. If no person attends to contest the objec-
tion, the record may be amended accordingly, or the person who made the
objection may, if the Revenue-officer thinks fit, be called upon to produce
evidence in support of his objection, which may in that case be heard and
decided as a suit ex parte under the Tenancy Act,

Publication of the Record-of- Rights. .

33. When the record-of-rights has been prepared in the manner de-
scribed in Rules 20 to 32, the Revenue-officer shall cause a draft of the khewat
and hhatian, or, when more convenient, of each separately, to be posted, for
the period of one month, at the landlord's village office, if there be one, and
if there be none, then in the presence of not less than two persons in some
conspicuous place in the village, and shall receive and consider any objections
which may be made to any entry therein during this period.

R. & F., B. T. A. 20

306

RULES MADE BY

Appdx. I. of the khatian in regard to each entry what entries have been, and what

y. entries have not been, the subject of dispute. He shall then finally frame the

record and cause it to be published by having it posted in the village office,
at which the rent is usually paid, or in some conspicuous place in the village.*

Supply of copies of the Record-of- Rights to parties interested.

35. The Revenue-officer, having completed the record, shall cause
copies of it to be made, one of which will be made over to the proprietor of
the village or, where there are more proprietors than one, to their common
agent or common manager, as the case may be, one to the village patwari, if
there be a patwari, and one to the Collector or Sub-Divisional Officer.

A copy of the khatian relating to his tenancy shall be given to every
tenant under the signature and seal of the Revenue-officer.

Final Reports.

36. The Local Government may, if it thinks fit, direct that a final
report be written in English for each village and each local area under sur-
vey. The report for the village will show —

(a.) — The number of tenants of each class.

(6.) — The area and classification of the village lands according — (a) to
survey and settlement ; (6) to landlord's yamaSaMcft, if known.

* It has beeu proposed to substitute for the above Rules 33 and 34, the following
amended rules. (See Calcutta Gazette, March 13, 1889, Pt. I, p. 175.)

33. When the record of rights has been prepared in the manner described in
Rules 20 to 32, the Revenue-officer shall cause a draft of the khewat and hhatiun,
or, when more convenient, of each separately, to be published in the following
manner : —

Notice shall be posted up at the landlord's village office, if there be one, and if
there be none, then, in the presence of not less than two persons, on some conspicu-
ous place in the village, statiug that the records will be published in the village at
a place and time to be specified not less than one week from date of such notice, and
calling on all persons interested to attend on the date so specified. The Revenue-officer
shall either proceed to the place so specified himself, and read the contents of the
record in the presence of parties who attend, or he shall depute an officer not below
the rank of cauoongoe, who shall read out the contents of the record in the presence
of so many of the parties as attend, and the Revenue-officer or officer deputed by
him, as the case may be, shall at the same time inform the parties who attend
that the draft record will be open for inspection in the office of the Revenue-officer
for one month. The Revenue-officer shall receive and consider any objection which
may be made to any entry during this period,

34. When all applications for settling a fair rent have been disposed of, and all
disputes of the nature mentioned in Rule 32 have been decided, and all objections of
the nature mentioned in Rule 33 have been considered by the Revenue-officer, he
shall note in the kheivat and the appropriate columns of the khatian in regard to
each entry what entries have been, and what entries have not been, the subject of
dispute. He shall then finally frame the record and cause it to be published by
notifying that its contents will be read out in the village at a time and place to be
specified, not less than a week from date of such notice, and by reading it out him-
self or causing it to be read in the village on the date so specified, in the manner
prescribed in Rule 33 in the presence of the parties, or of so many of them as attend.

BENGAL GOVERNMENT. 3Qj

(c.) — The rental according to settlement and according to landlord's Appdx. I.
jamabandi, with explanation of increase or decrease, amount of Government ciiAP~~vr
revenue, and comparison of rent with revenue.

(d.) — The rates of rent prevailing, with history of past enhancements.

(e.) — Proximity to markets.

(/) — Facilities for irrigation.

{g.) — Village customs, including customs as to payment of village
officials.

(h.) — Arrangements made for maintenance of records.

(i.) — Other matters deserving of notice which have been excluded from
the record-of-rights.

The report for the whole area under survey will contain the following
particulars : —

I. — General description of the tract.

II. — Its fiscal history.

III. — Statistical results.

IV. — Comparison of condition of tract as regards rentals before and
after survey.

V. — Financial results, including approximate division of expenses under
the heads —

(a.) — Survey.

(b.) — Eecord-of- rights.

(c. ) — Preparation and distribution of records.

These reports shall not form part of the record-of-rights.

Board's instruct iotut.

In the cases of large surveys and settlements, whether of Government, wards
or private estates, a full report and description of the tract under survey under each
of the heads mentioned in the preceding rule should be submitted. In cases of petty
settlements, a short history of the settlement accompanied by tabular statements
given in the appendix, forms Nos. 21 (a) to 21 (^), will suffice.

Application by Proprietors for Survey and Record-of-KigTits.

37. Section 103. — Applications under this section shall be made to the
Collector of the district. ,

38. The application shall specify —

(a.) — The status of the applicant, viz.^ whether he is a proprietor or a
tenure-holder, and the particulars in respect of which the application is
made.

(6.) — The number of tenants (so far as the applicant is able to state it)
occupying the estate or tenure, or part thereof in respect to which the ap-
plication is made, the total rent payable by them at the time, and the esti-
mated area covered by the application.

39. If the application is made by a proprietor, it shall not be admit-
ted unless the name of the applicant and the extent of his interest are re-
gistered under Act VII (B.C.) of 1876.

308

RULES MADE BY

Appdx. I. 40. On receipt of the application, the Collector sliall forward it to the

ChIp~VI Commissioner with any remarks which he may think necessary.

41. The Commissioner may call for further information, or may require
the application to be amended.

42. If the Commissioner shall have reason to believe that the number
of tenants affected by the application does not exceed 1,000, and that the
rent payable by them, at the time the application is made, does not exceed
Rs. 25,000, he shall pass an order allowing or rejecting the application ; but
otherwise he shall forward the application with an expression of his opinion

. for the orders of the Board of Revenue.

43. A Commissioner rejecting an application shall record his reasons
for doing so, and the applicant, if dissatisfied with the order, may appeal
within one month to the Board of Revenue.

44. When an application is referred to the Board under Rule 42, or
in consequence of an appeal under Rule 43, the Boai'd shall pass such orders
as it may think fit for allowing or rejecting the application.

45. The Commissioner or the Board, as the case may be, when allow-
ing an application, shall specify the Revenue-officer or officers by whom the
record is to be prepared.

46. As soon as an application is allowed, the Collector shall call upon
the applicant to deposit the expenses at the rate of 8 annas per acre for
the estimated area in respect of which the application has been allowed.
If the Collector is unable to estimate the area, he shall calculate the ex-
penses at the rate of Rs. 2 per each tenant. If the amount does not exceed
Rs. 500, the applicant must deposit the whole amount in advance. If it exceeds
Rs. 500, the applicant shall deposit the sum of Rs. 500, and shall give such
security as the Collector may require for the balance. The applicant shall,
when called upon, from time to time, deposit such further sum as may be
necessary for carrying on the operations. On completion of the proceedings
any unexpended balance shall be refunded to the applicant.

With reference to this rule, the Board of Revenue has observed that " the
amounts mentioned in it were only given as a guide to the Collector in determining
what amount should be required as a deposit before proceedings are commenced.
The rule goes on to say that the applicant shall, when called upon, from time to
time, deposit such further sum as may be necessary. In a petty case an apportion-
ment order under section 114 is evidently uncalled for. If the deposit at the rate
of 8 annas per acre would be manifestly insufficient, the applicant may be required
to deposit or give security for an additional sum. In estimating the cost of the
operation, the pay of the Revenue-officer to frame the record should be charged
in accordance with the time for which he is engaged for the work." (Board
of Revenue's No. 767A of the 18th December, 1886, to the Commissioner of
Burdwan.)

47. In conducting the operations, the Revenue-officer shall proceed in
accordance with the rules for the guidance of officers acting under orders
made under section 101.

BENGAL GOVERNMENT. 3()9

CHAPTER VII. — General Scale of Fees. Appdx. I.

1. Section 189 (2). — For Service of Notices. — For the service of every Chap. VII.
notice under this Act, not being a notice issued by any Revenue or Civil

Court (fees for serving which are regulated by the Court-fees' Act), and not
being provided for by any other rule made under this Act, a process-fee of
12 annas shall be levied, if the notice be directed to one or more persons
residing in the same village.

When a Settlement-officer in proceedings under Chapter X settles fair rents under
section 104 (2), or decides disputes regarding entries in the record-of-rights (section
106) he acts as a Court, for his decisions have the force of decrees (section 107) and are
subject to appeal to the Special Judge and High Court. Hence, in such cases,
he acts as a Revenue Court and processes to parties or witnesses he may issue are
subject to the fees prescribed by the High Court rules under the Court-fees' Act.
Processes issued by Revenue- officers in other cases are subject to the fees prescribed
by this and the three following rules.

2. Where such notices are directed to several persons resident in
different villages, a fee of 12 annas shall be levied for service in each village.

3. In addition to the above fee, the actual charge which must be in-
curred, if it is necessary to travel by railway or boat, or cross ferries, will be
levied from and paid by the person at whose instance the process is issued
before issue of the process. If a peon carries more than one process involv-
ing charges for railway-fare, boat-hire, &c., the sum leviable will be chai-ged
in equal shares upon all the pi-ocesses so carried. The rates at which such
boat-hire is to be charged shall be the same as those fixed for criminal pro-
cesses under Rule VII of the rules prescribed by the High Court under
clause 2, section 20, Act VII of 1870, and shall be sufficient only to cover,
on the whole, the actual cost of hiring boats, or of such boat establishment
as it may be necessary to maintain for the purpose of serving processes of
these classes.

The Board of Revenue have held that under this rule postal charges and charges
for the registration of letters containing notices may be levied. (Board's No. 162A
of February 26th, 1886, to the address of Government. See note to Rule 1, Chap. V.)

4. If a peon is detained at the place of service for more than 24 hours

at the request of the person at whose instance the process was issued, or of
his agent, such person or agent must then and there pay demun*age at the
rate of 5 annas a day. Unless this demurrage is paid, the peon must decline
to wait. No demurrage is to be charged if the delay was not due to the
person requiring the process or to his agent.

5. Section 61 (2). — For Deposits of Rent. — For deposits of rent under
section 61 (2), 4 annas for every such deposit of Rs. 25 or less, with an addi-
tional 4 annas for every Rs. 25 or part of Rs. 25 in excess : Provided that
in no case shall the fee exceed the sum of Rs. 5.

These fees should be paid in Court-fee stamps.

310

EtJLES MADE BY

Appdz. I. 6. Section 134. — For Dutraint of Crops. — The following scale of

charges is prescribed ou account of processes for distraint and sale under the

Chaf. VII. Bengal Tenancy Act :—

(a.) — In respect of the warrant of distraint — 8 annas.
(6.) — In respect of each man necessary to effect the distraint and also
to ensure safe custody, where such man is to be left in actual possession — 4
annas a day.

(c.) — In respect of action taken under section 126 (clause 2) for the
reaping, storing, or preservation of the crop distrained — 4 annas a day for
every person employed, and in addition actual hire of threshing-floor or
store-house, if necessary.

In addition to the charges under clauses (a), (6), and (c) above, railway-
fare, boat-hire, and ferry charges will be levied when necessary as under
Rule 3 of this chapter.

SCHEDULE I.

Notice under section 12, Act VIZI of 1886.
To

The collector of

Let this notice be served on A. B., resident of , as required

by section 12, Act VIII of 1885. The landlord's fee of Rs.
■with process-fee of Rs. , is forwarded herewith.

CD.,

Registering Officer .

BENGAL GOVERNMENT.

A. B., Resident of

Take notice that the transfer of the tenure* specified below, of
which you are alleged to be the landlord, has
and that the landlord's fee of

311

Appdx. I.

SCH. I.

atL'ldSf ■''''"' ^-- -gi^t--^^

Rs.

is tendered to you herewith.

5
1

1
«>

•5

Description of tenure
transferred, with vil-
lage and perguunah
in which situated.

a
S

a
a
a
a

S "

a, a a
So

a e

B d

a ^

e3 'S? *—

9
1

9
O

■^
k>

'Si

Amount of
landlord's fee.

Kemarks.

Bs.

CD.,

Registering Officer.

Ordered that this notice be served on the above-named landlord.

E. F.,
Collecto7\

Received a copy of the above-mentioned notice and rupees
(Rs. ), being the amount of landlord's fee specified above.

stamp, if amount
exceed! Rs. 20.

Landlord.

312

RULES MADE BY

Apfdx. I.

SCH. I.

Notice under section 18, Act VIII of 1885.
In the Court of the oj

The collector of
Let this notice be served on A. B., resident of

required by section 13, Act VIII of
Rs. , with process-fee of Rs.

1885.

, as
The landlord's fee of
, is forwarded herewith.
C. D.,

Judge.

* Or raiyati-holding
at fixed rates.

A. B., Resident of

Take notice that the sale of the tenure* specified below, of which you
are alleged to be the landlord, has been confirmed,
and that the landlord's fee of Rs. is

tendered to you herewith.

Deseription of tenure
transferred, with vil-
lage and pertiunnah
in which situated.

Number of execution
case and names of
parties.

Name, father's name,
and residence of per-
son whose interest
In the tenure has
been sold.

« -a i
5 a «

s
o

Amount of
landlord's fee.

ItEMABKtl.

Rs.

C. D.,

Judge.

Ordered that this notice be served on the above-named landlord.

E. F.,

Collector.

Received copy of the above-mentioned notice and rupees
Rs. ), being the amount of landlord's fee specified above.

Stamp, if amount
exceeds Bs. 30.

A. B.

BENGAL GOVERNMENT.

Notice luder section 14, Act VIII of 1885.
In the Court of the of

The collector of

It is hereby notified to you that the tenure,* the particulars of which

are entered below, was sold on the date specified

1. c J raiyati-holding \jelow in execution of a decree for arrears of rent
at nxed rates.

due in respect thereof.

313

Appdx. I.

SCH. I.

1
I i 2

s
s
■s

•2

3.
•a
a
jt

e as

_o
i

T3
•O

•<

Description of tenure
sold, with village or
p«rgunnah iu which
situated.

Number of execution
uHse and naiues of
parties.

Name, father's name,
and residence of per-
son whose tenure has
been sold.

ill

S ••a
»5

!
1

Remarks.

C. D.,

Judge.

Notice under section 15, Act VIII of 1885.

The collector op

Be pleased to cause this notice to be served ou A. B., resident of

. The landlord's fee of Rs. , with process-fee of

Rs. , is deposited herewith for payment to the said A. B.

C. D.,

Tenure-holder.

314

RULES Made Bt

Appdx. I. To
Scu. I.

A. B., Resident of

Take notice that I have succeeded to the tenure* specified below, of
• Or raiyati-holding which you are the landlord. The landlord's fee
at fixed rates. of j;g_ jg tendered to you herewith.

■ 8
"S

•s

Description of tenure
succeeded to, with
village and pergun-
nah in which situated.

t
1
o
o

-a

a
a

•<

i--

ill
sz:

Date, if known, of
deceased tenure-
holder's death.

ill

s •• ■>

-I!

Amount of
landlord's fee.

Remarks.

Rs.

C. D.,

Resident of

Ordered that this notice be served on the above-named A. B.

E. R,

Collector.

Received copy of the above-mentioned notice and rupees
(Rs. ), being the landlord's fee specified above.

stamp, if amount
exceeds Ua. 20.

A. B.

BENGAL GOVERNMENT.
Application under section 80, Act VIII of 1885.

315

The collector of
The application of , son of , resident

of , for registration of an improvement under

Section 80 of the Bengal Tenancy Act, VIII of 1885.

AFrDx. I.

SCH. I.

Name of pergunnah
and estate in irbich
improvement haa
been effected.

.Si

lit
= a|

° - **

•- B

a ~

<- *

M S

s
g

Xamea of tenants
benefited, if not
more tiian five in
number.

A. R,

Landlord.

Notice under section 87 of Act VIII of 1885,

The collector op
Whereas the holding mentioned below, and hitherto held by C. D.,
resident of , has been abandoned by him without notice to me

and without arranging for the payment of the rent thereof, I hereby notify
that I have treated the holding as abandoned and that I am about to re-
enter upon it accordingly.

Dated >

Landlord.

Schedule of Property.

Name of village and pergaooali in which
situate.

Area and boundaries of holding.

Bent of holding.

316 RULES MADE BY

Appdx. I. Form of Notice under Rule 16, Chapter VI, of these Rules.

ScH. I. Notice to the proprietors, tenure-holders, landlords, raiyats, and under-

raiyats of —

Village

Perguuuah

Thana

District
Take notice that, under the powers vested in me by the Bengal
Tenancy Act, VIII of 1885, and the rules made thereunder, I shall, on
the day of 188 , at , proceed

to record the rents of all tenants holding or cultivating lauds in the above-
named village ; I shall also, at the said time and place, or at such other
time to which the proceedings may be adjourned, proceed, on the application
previously made of either landlord or tenant, to settle fair and equitable
rents under section 104, sub-sections 2 and 3 of the said Act. Furthermore,
notice is given that, should it then appear that any tenant is holding land in
excess of or less than that for which he is paying rent, and should neither
the landlord nor tenant apply to have a fair rent settled, I shall, in
accordance with the said section of the Tenancy Act, proceed of my own
motion to settle a fair and equitable rent for such tenant's holding.

No landlord or tenant shall be entitled to present an application for
settlement of fair and equitable rents after the above-mentioned date. All
applications should therefore be presented to me before the said date.

You are hereby required to attend before me at the above-mentioned
time and place, and at any other time and place to which the proceedings
may be adjourned, and to produce such evidence, written or oral, as you
may have to offer on the subject-matter of the proceedings.

Revenue-officer.

BENGAL GOVERNMENT.

317

«:>

■aivjoi

-naiio.-) otp JO jstsia^i

aiiiipauijaiiii aqi ui

■^

apvuisauviaui ajusjajay

■ladtn

-ap^as inasajd aip oi

8U!|>JO30U SOIKt I^U^IH}!

u
?

•aiBisji ai|i

jO anuaAajt jiiauiujaAOQ

»^

•

B
«

•S a

H o

55-3

'li i:

'£

■<S ii

"s 1

ec- e

5. O

«•

•d

^ c-*

a,'^

as
o

!l|

<o ^

•^"^

<
<

■s-r

ec CS

■—

2^ s

".^-

•ajojoi

•o

-aaiio.t ai|i JO jai^iiiaj

jBM(|«j!noiv uj iariuinii

«sj S

>t •«

O H - 5 H « .

?s zr^

»• 2 w = ' -0 £

S '■ H u. -

8 <^^"

„ 00 •< H o

'^.-

s S « " 5 H-

&i-

s 1

•Si

a -/• = " g 2
z K „ r M 00

< g u < S u

* '3

C. V

Si,

„ g M K a. w
u » o < o 9

2t3

«L

3 h 9 U a. e

eg a

■||0i anuaAaj iii jaqmnx

'S;!

u ■

o . 1

-w

" S

€

— , ■jaqoinji

^
>>

a, ?i

H S

•;3

•joiaaiioa aqj jo jai»i8

-8i a^Bip-jiujaiui aip iii
aiivuisautuao) aouajajag

•joajaiij liBd XUB

JO XtiodOiiX ai|] o] 8111
•]B|aj gjaisijaj jaiiJBa
UI saiJiiia o) aaiiajajaji

•puB| aojj

-anuaAaj ai^ joj 'jChu ji

I » s

•l»?ox

•paj«A

0 •> <
z5

-jiina ION
•poiBAiiino

•pnoj.

<5-i

■pajBA

-<■?;

■< •i)|uaioi{

■<

•pajBAiiino

•dlBJOJ

•o "Oaiioo ai|i JO jaisixaj

jVMi|i!znoui UI jaqiiin^

Sggof

M 0 ■« H f^

K «

U -> U H S

H S • a »• .

0^ u

a 5 z * i 0

0 *>

« 0 i

5 2 > u " c

■'3 1

^ SS u H ^ H

0 1

U 0 B = c^ S

?■ u H a S a

« 0

2 3 u S 0

, w 3 <

H U 9 H H Z

5 HO^HS

S 3

$>;

( 1

•pilBA aq '>l JUBJ8

aqi 8iiisiu8o.ia4

JO guiJB|oap X11

joqjiiBiuJjadnioo

;o japjojoaojaap

XuB 01 aauajajay

•aaiDBjS

IBoiSuo JO auiB};

0 b

1 0 =

■<

!«! t

■pa^nvjS

puei JO BaJ V

•?ubj8 jo aj«(i

•ajy 'q«8ai«l|B

'ji8Bf jainaii* 'iCiJad

•ojd a3j;-anuaAai jo
japBJuqa puB uo!)(lu9s»(i

•jsxi

lunu (Bija,;

Appdx. I.
Sen. I.

318

RULES MADE BY

Areux. I.
Sen. I.

m 1

— c

C 4>

a» «s

e .

•M u

2sS

5 » ®

•^

!■.

-s.

-8

i^.2

S »

a S

■ 'A

•e

'«

»■

f<d

■5 .

-.§§

c>»

S'5

a.S

IS.
5 0

►§

A 1-

5£

5 *

.2-<S

— 2

•^

^ Oi

•*

•si

a-d

-. »

£-a

r' ♦•

0 a a

,„*-s,^

S 0. ■

►'H

s^I

•-«.

s°l

•^

Is^

"o .2

ip.

-si^l

■q

|||I

c8 rt 3 0

a>;

§^

•0 »

f.a

- 3

e»

I-

►^

•S^

«J

§-

■§

*;«5

't?.

cl-

•<
s
u

Eaijati Jama
according to pre-
sent settle-
ment.

Government reve-
nue of land in-
cluded in the
tenure if
known.

Conditions and

incidents
of the tenure.

Period for which
the rem. has
been fixed
from to

e a
- S

.u 3

s a

Serial number of
estate in proprie-
tor's kbewat,
and names of land-
lords.

a
a .

«
0

■e
9i

■jaqoinK

BENGAL GOVERNMENT.

319

SCHEDULE II.

(Referred to in Chapter II, Rule 1.)
PATNA DIVISION.

Afpdx. I.

SCH. II.

District.

Staple food-cropB
proposed b; tlie Collector.

Pats A

Uaya

SlIAHAUAD

MoZUFFEnPORB ...-

DUKBIIUNOA

CHUMFAKt'N

1
■•{

Sauun

Sudder sub-division
Barh ditto

Behar ditto

Diriapore ditto

Sudder sub-division
Nowada ditto

Jetianabad ditto
Aurungabad ditto
Sudder sub-division
Buxar ditto

Sa.<sseram ditto

Bliabunh ditto

Sudder sub-division
Seetamarliee ditto
Hajeepore ditto
Sudder sub-division
Madliubaiii ditto
Taj pore ditto

Sudder sub-division
Bettiali ditto

Sudder sub-division
Gopalgunge ditto
Sewan ditto

■{

Marta at which prices
to be taken.

Makai up-Iand
Rice low-land
Makai up-laiid
Uice low-land
Wheat up-Iand
Rice low-land
Barlej' up-land
Uice low-land
Wheat up-land
Rice low-land
Wheat up-land
Rice low-land
Wheat up-land
Rice low-land
Wheat up-land
Rice low-land
Wheat up-land
Rice low-land
Wheat up-land
Rice low-land
Wheat up-land
Rice low-land
Wheat up-land
Rice low-land
Makai up-land
Rice low-land
Makai up-land
Hice low-land
Makai up-land
Rice low-land
^Yurtoa (I) up-land.
Rice low-land
iVwtoa (I) up-land.
liice low-land
Makai up-land
Rice low -land
Makai up-land
Rice low-land
Makai up-land
Rice low-land
Makai up-land
Rice low-land
Makai up-Iand
Rice low-land
Makai up-land
Rice low-land

BHAGULPORE DIVISION.

I Patna.
I Barh,

> Behar.

> Dinapore.
>Gya.

> Nowada.

> Jehanabad.

> Aurungabad.

> Arrah.

> Buxar.

> Sasseram.
> Bhabuah.

> Mozu£ferpore.

> Seetamarliee.

> Hajeepore.
[ Durbhunga.

> Madhubani.
V Taj pore.

> Motihari.
I Bettiab.

y Chupra.
[• Meerj;unge,
t Sewan.

MONQHYK

Sudder sub-division
Beguserai ditto

Jamui ditto

Wheat up-land
Uice low-land
Wheat up-land
Hice low-land
Wheat up-land
Rice low-land

I Monghyr.
> Beguserai.
i Jamui.

(I) Corrected from Makai to " Marwa " b? Qorernraent DOtiBeation of XoTember 8, 1888.

320

Appdx. I.
Sen. li.

ClIlTTAOONO

Noakhau.y

TiPPKIlAH

BUICDWAN

MiOXAPOKK
BKKItBIIOuM

hoooiii.t
Bankookah

RULES MADE BY
BHAGULPORE DlYISlO'iH— concluded.

District.

Local areas.

Staple fooj-erop«
proposed bjr the Collector.

Mnrts at wliivh
prices to be taken.

BlIAOtlLPOUK

PUKXRAll ... <

Mai.daii

Sudder sub-division ... j

Banka ditto ... |

Muddelipura ditto ...

Soopole ditto ... J

Sudtler sub-division ... j

Arrareah ditto

Kislieiigunge ditto ... -
District of Maliluli

Miikni ii|»-Iaiid
Kice low-land
Mnhii up-l.'iiid
Kice li>w-land
Murwa up- laud
Rice low-laufl
Murwa upland
Kice low-laud
Wheat up-laiid
Kice low-land
Wheat U|>-laiid
Kice low-l.ind
Wheat up-land
Kice low-land
Kice

Bhagulpore.

Banka.
' Muddehpura.
• Soopole.

Kusba.

Arrareah.

. Kisheiigunge.
£ngli.»h Bazar.

GHITTAGONG DIVISION.

Sudder sub division ...

Kice

Cox's Bazar ditto

Do.

Sudder sub-division ...

Hice

Feiiiiv <litto

Do.

Sudder sub-divisioi ...

Kice

Brail inanheriah dftio

Do.

(haiidpore drto

Do.

BURDWAN DIVISION.

Sudder

Raiieeguiige

L'utwa

Culiia

Sudder

Ghattal

Tuinlook

Coiitai

Sudder

Rampore Hat

Sudder

Sera in pore

.Tehaiiabad

Ilowrali

Uluberiah

Sudiler

Bishenpore

sub-division

ditto

8ub-ilivision

ditto

RAJSHAHYE DIVISION.

Chittagnng.
Cox's Bazar.
Ralitara Hat.
l'aiicli>;achia Hat
Coininilla.
Rrahmaiiberiah.
Chandpore.

Biirdwaa.

Raiieeguiige.

Cutwa.

Culna.

Midnapore.

Ghattal.

'I'umlook.

Contai.

Soory.

Kainpore Hat.

Hoofrlily.

Bliuddressur.

Jehanabad.

Mohaiaree.

Uluberiah.

Bankoorah.

Bishenpore.

Sudder sub-division ...

Kice

Iteaiileah.

Rajshahyk ... <

Nowgoug ditto

Nowgoug.

Nattore ditto

1)0

Nrtttore.

PUBMA

District of Pubiia

Kice

Pubiia.

Sudder sub-division ...

Kice

Rungpore.

RU.^OPOHR ... <

Nelphainari ditto
Kuri'.:aon ditto

Nelphamari.
Kiirigaon.

(

Gvabanda ditto

Gvabanda.

DlNAOKPOKK

District of Dinagepcre

Kice

I.'ailway Bazar Hit.

BuOKA ...

District of Bogra

Rice

Bogra.

BENGAL GOVERNMENT.
DACCA DIVISION.

321

District.

Local areas.

staple food-cropa
proposed by the Collector.

Marts at wliich
prices to be taken.

Dacca <

furkekdpour ... <

Mymensinoii ... ■(

Backbkoungk ... -{

Sadder sub-division ...
Naraingunge ditto
Manickgunge ditto
Munsbigunge ditto

Sudder sub-division ...
Goalundo ditto
Madaripore ditto

Sudder sub-division ...
Tangail ditto
Jamalpore ditto
Kishoregunge ditto
Netrokona ditto

Sadder sub-division ...
Patuakhally ditto
Perozepore ditto
Dakbin-Sbabaz-
pore ditto

Rice

Dacca.

Muddangunge.
Manickgunge.
Meerkadim Mun-
shir Hat.

Furreedpore.

Goalundo.

Madaripore.

Nasirabad.

Kagmari.

Jamalpore.

Kishoregunge.

Netrokona.

Burisal.

Patuakhally.

Perozepore.

Bhola.

Appdx. I.

SCH. II.

PRESIDENCY DIVISION.

MoOnSHEDABAO... <

NtlDDRA

JllSSOUK

24-Pki!Gunnahs... ■{

KlIOOLNA

Sudder sub-division
Lalbagh ditto

Kandi ditto

Jungipore ditto

Sadder sub-division
Uanagbat ditto

Meherpore ditto

i Chuadanga ditto

Kooshtea ditto

Sudder

Narail

Magoorah

Jhenidah

Bongong

sub -division
ditto
ditto
ditto
ditto

Sadder sub-division

Baraset, Dum-Dum, and
Barrackpore sub-divisions

Diamond Harbour sub-divi-
sion.

Bassirbat sub-division

Sudder

Satkhira

Bagirhat

sub-division

ditto
ditto

Rerbampore.
Lalbagh.
Kandi.
Jungipore.

Goaree.

Hanaghat.

Kaliabazar.

Chuadanga.

Babadurkliali

Jessore.

Narail.

Magoorah.

Sulkupah.

Bongong.

Chetia Hat.
Baraset.

Mugra Hat.

Baduria Baraon.

Khoolna.
Satkhira.
Bagirliat.

See Government Notification of May 23rd, 1888, printed in Calcutta Gazette of same date, Part I, p. 446.
R. & F., B. T. A. 21

322

RULES MADE BY

Api'dx. h Statement showivg the market clays selected hy District Offi-cers for
the preparation of price-lists of staple food-crops in the local
areas of Bengal, ivnder section 31) of the Bengal Tenancy
Act {VIII of 1885). (1).

fccii. II.

PATNA DIVISION.

DlSTRrcT.

Local areas.

Marts at which
prices to be taken.

Market days for the preparation
of prioe-liats.

Patna ...^

Gya

Shaiiabad ...-<

MoZUFFKnPOlSK <

DuiiBIIUNGA ...<
CllUMPAISUN ... ■[

Saiui!^ ...<

Sudder sub-division ...
Barb ditto
Hebar ditto
Uinapore ditto

Sndder sub-division ...
Nowada ditto
Jebaiiabad ditto
Aurungabad ditto

Sudder sub-division ...
Buxar ditto
Sasseram ditto
Bhabooah ditto

Sudder sub-division ...
Seetainarbee ditto
Hajeepore ditto

Sudder sub-division ...
Madhiibaui ditto
Taj pore ditto

Sudder sub-division ...
Uettiah ditto

Sadder sub-division ...
Gopalgunge ditto
Sewaii ditto

Patna
Barh
Bebar
Diuapore

Gya
Nowada
Jehaiiabad
Aurungabad ...

Arrah
Buxar
Sasseram
Bhabooah

Mozufferpore ...
Seetamarhee ...
Hajeepore

Durbhuntja ...
Madliubani ...
Tiijpore

Motibari
Bettiah

Cliuprah

Meergunge

Sewau

1st of each month.
Ditto.
Ditto.
Ditto.

1st Sunday of every month.
Last Friday ditto,
1st Monday ditto.
1st Sunday ditto.

1st Saturday of every month.
1st Thursday of eacli month.

Ditto ditto.

30th of each montli.

2nd Sunday of eacli month.

27tU of each month.

25th of each month.
Ditto ditto-
Ditto ditto.

1st Sunday of tlie month.
1st Friday ditto.

15th of each month.

1st Tuesday of each month.

1st Monday ditto.

BHAGULPORE DIVISION.

MONGHYR ...I

Sudder sub-division ...
Beguserai ditto
Jamui ditto

Mongbyr
Beguserai
Jamui

7ih of every month.

25th ditto.

1st Tuesday of every month.

BlIAGUI-POI'.IC ...<

Sudder sub-division ...
Banka ditto
Jluddehpura ditto
Soopole ditto

Bhagnlpore ...
Banka

Muddebpura ...
Soopole

2nd Monday of each monlli.
Ditto ditto.
Ditto ditto.
Ditto ditto.

Puknkah ,..<

Sudder sub-division ...
Arrareali ditto
Kissengunge ditto

Kusba
Arrareah
Kissengunge ...

Last day of the montli.
Last market day of each month.
Ditto "ditto.

Mai.dah

District of Maldah

Habanupur

2iid Monday of each month.

(I) Approved of by the Board of Revenue, and circulated with their Xo. 874A of ITtli August, 1883.

BENGAL GOVERNMENT.
CHITTAGONG DIVISION.

District.

Local areas.

Marts at wlilch
prices to be taken.

Market days for the preparation
of price-lists.

CllITTAGONO ... ]
NOAKHALLT ... j

TiFPKRAH ...<

Sndder sub-divi.sion ...
Cox's Bazar ditto

Sudder sub-division ...
Feuny ditto

Sudder sub-division ...
Brahmunberiah ditto ...
Cliandpore ditto ...

Chittagong
Cox's Bazar ...

Kalitara Hat ...
Panchgachia Uai

Commilah

Brahmunberiah

Chandpore

2nd market day of each month.
Ditto ditto.

Last Friday of each month.
Ditto ditto.

1st market day of the month.
Ditto ditto.
Ditto ditto.

Appdx. I.
Sen. II.

BURDWAN DIVISION.

BURDWAN

MiDNAPOKB

Berrbhouh

HOOGHLT

Bankoorah

{

Sudder sub-division
Raneegunge ditto
Cutwa ditto

Culna

ditto

Sudder sub-division
Ghattal ditto

Tumlook ditto
Contai ditto

Sudder sub-division
Bam pore Hat ditto

Sudder sub-division ,
Serampore ditto
Jebanabad ditto
Howrah ditto

Uiuberiah ditto

Sudder sub-division
Bishenpore ditto

Burdwan

Kaneegunge

Cutwa

Culna

Midnapore
Ghattal
Tumlook
Contai .

Soory
Itampore Hat.

Hooghly

Bhuddressur

Jehanabnd

Mohiaree

Uiuberiah

Bankoorah
Bishenpore

18th of every month.

17th of every month.

Wednesday which immediately
precedes the 15th or falls on
the 15th of each month.

17th of every month.

2nd Saturday of every month.
1st of each month.
.3rd Wednesday of every month.
25th of each month.

2.Srd of each month.
1st market day after the 15th of
each mouth.

2nd Thursday of each month.
Ditto ditto.

Ditto ditto.

30th of the month.
Ditto ditto.

RAJSHAHYE DIVISION.

Rajshahyb

PUBNA

rungporb
Dinaokporb

BOGRA

Sudder sub-division .
Nowgoiig ditto

Naitore ditto

District of Pubna

Sudder sub-division .
Nel|)hamari ditto
Kurigram ditto

Gyabauda ditto

District of Dinagepore .

District of Bogra

Reauleah

Nowgong
Nattone

Pubna

Rungpore
Nelphamari
Kurigram
Gyabanda

Railway

Hat.
B#gra

Bazar

Last Friday of every month.
Last Wednesday of every month.
Last day of every uiouth.

1st Tuesday of every month.

2iid Saturday of every month.
2nd Wednesdnj' of every month.
4th Saturday of everv month.
1st Friday of every month.

1st Sunday of every month.

1st market day after the lat of
each month.

324

Appdx. 1.
ScH. IL

RULES MADE BY BENGAL GOVERNMENT.
DACCA DIVISION.

Local areas.

Marts at which
prices to be taken.

Market days for the preparation
of price-lists.

Dacca

"•••{

FURRKRDPOR

[

BIymknsingh ...■{

Backbroungb.

Sudder sub-division ...
Naraingunge ditto

Manickgunge ditto
Munshigunge ditto ... \

Sudder sub-division ...
Goalundo ditto

Maduripore ditto

Sudder sub-division ...

Attia ditto

Jamalpore ditto
Kii-iioregunge ditto
Netrokona ditto

Sudder

sub-division

Patuaklially ditto

Perozepore ditto

Dakhin-Sliabnzpore ditto

Dacca
Muddangunge.

Manickgunge .
Munshir H&t .
Mirkadim

Furreedpore

GoHlundo

Madaripore

Nasirabad

Kagmnri
Jamalpore
Kishoregunge...
Netrokona

Burrisal

Patuakhally ..

Perozepore

Bhola

Ist Sunday of every month.
Monday following the Sunday

selected for Mirkadim.
Ist Sunday of every month.
Ist Saturday of every, month.
1st Sunday of every month.

2nd Wednesday of every month.
1st Wednesday of every month.
2nd Saturday of every month.

2nd market day on the 3rd

week of every month.
Last market day of each month.
1st Saturdaj' of everj' month.
3rd Thursday of each month.
1st Saturday of each month.

Saturday, 2nd week of the

month.
Tuesday ditto.

Ditto ditto.

Monday, 3rd week of the month.

PRESIDENCY DIVISION.

MOOItSlIK

iDABAD <

NUDDBA

Jhssorb

24-Pkkounmahs

Khulna

Sudder sub-division .
Lalbagh ditto

Kaudi ditto

Jungypore ditto

Sudder sub-division
Ranaghat ditto

Melierpore ditto
Chuadanga ditto
Kooshtea ditto

Sudder sub-division

Narail
Magoorah
Jhenidah
Bongong

ditto
ditto
ditto
ditto

Sudder sub-division

Baraset, Dum-Dum and
Barrackpore sub-divi-
sions.

Diamond Harbour sub-
division.

Bussirhat sub-division ...

Sudder sub-division
Satkhira <litto
Bagirhat ditto

Berhampore
Lalbngh
Kaudi
Jungypore

Goaree

Ranaghat

Kalinbazar

Chuadanga

Bahadarkhally

Jessore

Narail
M.igoorah
Sulkupah
Bongong

Chetla Hat
Baraset

Mugra Hat
Baduria Baraon

Khulna

Satkhira

Bagirhat

20th of every month.
Ist Monday of each month.
4th Saturday ditto.

1st Tuesday ditto.

3rd Wednesday of each month.
3rd Monday ditto.

Ditto ditto.

3rd Saturday ditto.

3rd Monday ditto.

Monday, 2nd week of every

month.
Thursday, ditto.

Ditto ditto.

Saturday, ditto.

Mouday, ditto.

2nd Wednesday of every month.
Last Friday of each month.

2nd Thursday of every month.
2nd Tuesday ditto.

... 1st Wednesday of every month.
... Ist Tuesday ditto.

Ist Wednesday ditto.

%^^v\Ah II.

Registers 2'>rescribed hy the Board of Revenue, under the Bengal
Tenancy Act {G, 0. No. 2 January 7, 1887).

The following Registers under the Bengal Tenancy Act are prescribed
by the Board : —

This will be kept up by Sub-divisional Officers as well as by Collectors.

Register I (a) — of notices of transfers of tenures or raiyati holdings at
fixed rates under sections 12, 13, 14, 15, and 18a.

This will also be kept up by Sub-divisional Officers as well as by Collec-
tors.

This will also be kept at Sub-divisions, but it need only be maintained
in districts in which the hhaoli system prevails.

This need only be kept in districts in which the hhaoli system prevails.

This will also be kept up by Sub divisional Officers.

Register V — of applications to record evidence of improvements under
section 81 (1), and of applications to decide questions of the right to make
improvements under sections 78(a) and 78 (6).

This will also be kept up by Sub-divisional Officers.

102 (to make record of rights under section 101) whether made under section

103 or 101 (2) (a).

These Registers came into use on the 1st April 1887.

326

REGISTERS PRESCRIBED BY

Appux. II.

^
^

•<S>

•T3
I

m
I— I

w
P5

•Z\ JdisiSan Bssaoj^ oi isqninx

e
s

h>
•<

O
P

C3
11

■0}«p UBiiBqo

•OJJ UBIIBIJ.T

•pjoi
-pu«i 01 juaniJsd jo 9?b(i

•uoad 01 4aA0 apsm ajflcj

fai
7.

•eDtAjas JO aanuBK

• OOIAJOS }0 OIBQ

H
H

H
iJ

D
§

•IB?O.I.

•t>%\ uoiioas

•gi uoiiaas

•ei noii09^

•Z\ nonoas

•oij 'OJBj i«Mirea

•S89J-8S90OJ^

ig
is

•ssaappv

•atuuK

«o

•paAWB SI aonou jsanba.i oeotiM ?v

'pSAiaSSJ TIOS

-J8d JO <(|jnoa 'ssyyo tBiiM moa^

•aiBQ

•i9»iiunu i»ii9s

BOAtlD OF REVENUE.

327

«-

•<
s
a

o g

as
i5

b ,

■*» b>

*c2

B
2;

f '

•<

•^aaj iBnunv

-<l

, 1

»j

■<

•OMOUJl JI 'b9IV

•iaB JI

»;

'jaqmnu HifMOj,

H
H

K
•<

•J

Xq soiton jo ^dpoaa jo a^Bci

•asisnaai jo

9jni«n pus MB| 9in .10 SUOIJ

-aas qtiM 'paAiaosj gt aai^ou
moqji luojj jjnoo JO uogjs^

'asqoinn jBua^

Appdx. il.

328

REGISTERS PRESCRIBED BY

Afpdx. II.

f4i

O
-"ft

«-»

(-H

1— 1

•<s>

<©

?3i

t»

i
•2

^ a

a
o

£ ft
^^

»5

Name of applicant with
his (leslKnation, i.e.,
whether raiyat or land*
lord.

e<5

.a
'Sri

•S-s

•non«a

Idd« JO

BOARD OF REVENUE.

■<
a

•paits
-odap sasuadxs jo
[Bsodsip JO aeuuwK

B H «■

< 5 w

•o

•(Ooi"oj»

-938 jspun jap JO
s^o^oanoo JO 9?Ba

•(e)Oi "onoss japnn
jaagjo iq pailitn
•qns iiodaj jo a)«a

•aanpojd aq?
apiAip JO aeisjddH
0% pajuioddB 'iuB
J! 'jaasBo jo otnBii

t»

•69 uonaas
japun 'japjo jo a?«a

•pajtsodap
saeaadza jo )unouiy

•ajBJISlSBIV JO

'lUBnaj 'pjoipuBi
jaq^aqM '-aiA 'lusa
-t|d<lii JO noi^duasaa

•

■jnBaiiddo
JO aanapisaj puB
'emBQ 8,jaq)Bj 'aniBx

■pa^Biijis
81 Saipioq qaiqjii
Qi qvanndjad
pire aJBiiiA }0 ouiBjsi

•OOl^BajlddB JO OIBQ

■ja

quina

BUOS 1

s a

8 h

REGISTERS PRESCRIBED BY

AtrtiX. II.

e
o

1— )

^i'l

C5i
5-

Substance of final

order showing whether

registration refused or

admitted.

cS —

^ a

•6
e 2

By whom

executed and

at whose

expense.

Name of appli-
cant and nature
of applicant's
interest.

Name of village

in which

iiDprovemeut

effected.

•«)■

Name of per-

gunnah and

estate in which

improtement

effected.

Date of
application,
for registra-
tion.

•j9qninD pueg

BOARD OF REVENUE.

331

Arros. IF.

Register of application to record evidence of improvement under
section 81(1) {to be kept also by Sub-divisional Officers) and of
applications to decide questions of right to make improvement
under sections 78(a), 78(6.)

Serial

Name, address and

desianalion of applicant

whether landlord or tenant,

with name of

village in which the land

is situated.

Date of applica-
tion and
natnre thereof,
wh>-ther under
sections 78(a),
78(6), or 81(1)

Date of final
order.

Sdbstance of obder,
whether application —

number.

Granted,
(a)

Kefnsed.

•■

a
a

Date of ai-
ing notice.

Name and
address of
landlord.

Name of last

tenant and

of village and

pe'gunnah in

which land

is situated.

a
"3

<.- S

o s

a
-3
■3

Date of publication
of notice by Col-
lector under Kule
10, Chapter V of
the Tenancy Act
Kules.

REUAREB.

332

REGISTERS PRESCRIBED BY

Appdx. II.

■^

5- ^

« js

►^ ^"^

C3 ■"">

^ (M

S: ^

O 1-t

•
l-H

5^ s«

l-H ^

^ CO

•2 '-'

s 5

00 .S

l-H

'^ o

•5 i

'^ '

•i-l

S s

^5J

^-^

** i

;g »

•S ^"

'^S

■^

'8 pnv L saiiiii|nn
nf UMOqa ^jsotlap jo (vsodsiu

'38V»J09a

'9 amnioa at paaoifaani tnat

•9<\ iBiu 3ffBa 8« 'pauiag jo
'papaooaj juai aqj jo funoniv

•enoii
-Bjado JO no!i9[<lmo9 jo 0)bu

Amount deposited
from time to time
UNDER Rule
46.

•o)«a

•^nnomy

CXA J9ld«qo
«e» »ITia) pawdajd eq o%
81 pjoa9J moq^ £q jsa^o |0

e'oisa 'p3M0||« 81 D0I)B3!ld(lV Ji

■o

■pajaAoo
«3J« pa^smijES pDH inaq] £q
a[q«iCBd inaji \vioj oqj 'spsni
81 DOitvojtddv oqj qsiqM
JO %aadB9i lit josjaq) ()j«d jo
Sinn?) JO a^sis aq) Jgnifdnaao
(it 9?«i8 oi ajqc SI }nBaiiddB
BV 'jvj Bv os) BiiiBoai JO jaqmn({

•apBtn et nonBDtid
-d« qaiqM jo joadeai ni 8JB|na
•ilJBd pnBS^UBiia] jo'8jap|oq
-ajtiiia; JO BjojaiJdojd
jaq^aqu Btn«3itdd« jo eiijbis

■oanap
•nai pnB ^nvaiidds jo auiBji

'noi)«a!idd« jo a^ea

'jaqinnn iBuag

BOARD OF REVENUE.

•<

Area deter-
mined to
be private
lands if
any.

Amount
refunded if
any, under

Kule 46,
Chapter VI.

ill

«»

o«

Z >

a H

H E H
E = i

e
<

Area in respect

of which

application

has been

made.

^12
§11

o c «

2»

■*

n
■5 2

2 S

Name of
applicant and
designation
whether pro-
prietor or
tenant.

■jeqmni

I iBues

333

Appdx. II.

334 REGISTERS PRESCRIBED BY BOARD OF REVENUE.

Arrnx. II. REGISTER IX.

Eegister of notices of annulment of encumbrances under section 167.

•c

«
a.

I^amo and
reeidpiiou of
•ppliennt.

Nnnie and

residence of

cneuuibrancer.

Dnfe of
application.

Dale of

Bervicc of

notice.

How
served.

ItEUAIlKS.

ii|jp{;udije III.

HIGH COURT RULES.

Rules under section 100.

1. Every manager, appointed under Chapter IX of tlie Bengal Tenancy
Act, shall in all matters act in accordance with such orders as may, from
time to time, be issued by the District Judge.

2. The manager shall pay the Government revenue, rent, and other
demands of the like nature, as also all just liabilities upon the estate, in
due and proper time.

3. No manager shall have power to sell or mortgage any pi'operty,
nor shall he grant or renew a lease for any period exceeding three years,
without the express sanction of the District Judge : Provided that this
Rule shall not render valid any lease for a shorter time than three years, if
the District Judge directs by a written order that his sanction is to be
obtained as regards all leases granted by the manager.

4. The manager shall apply for the sanction cf the District Judge to
a,ny act which may involve extraordinary expense.

5. No manager shall have power to compromise any suit or relinquish
any claim without the express sanction of the District Judge.

J?ules under Chapter XII.

6. All applications to distrain shall be presented and heard in open
Court. The examination mentioned in Section 123, Sub-section (2), shall
be on oath or affirmation.

7. All such applications and all notices of distraint under Section
141 shall be entered in a register to be called the "Distraint Register,"
which shall be kept in the form annexed. A copy of every such application,
to be furnished by the applicant, shall be given to the officer appointed to
make the distraint, and a copy of notice under Section 141, to be similarly
furnished by the applicant, shall be given to the officer placed in charge of
the distrained property.

336

Appox. Ill,

RULES MADE BY

55
0^

'«

Sin
5.

e
^

<
a
u

ill

||-

S u

■B1800

«~

■jBau\r

i
»

o
S
<

•l«»0X

■Bnidjng

•*

•B1303

■JBajjv

•8IT?3 JO 3J«a

*nOn«UI«[90jd 8(86 JO 0»Ba

•ijniBJisip JO e^BQ

•paapjij
-stp i%idioid JO a8j«<io

OJJBJ OJ JO 'niBJ^Sip 01

pa^ndap joajgo oq) jo aoiB^

•p98SBd

ei )! qaiiiM no di«p pas
pessBd J3pjo sq) jo )JodJn,i

■paoiiBio gi )! qaiqM
JO ia9d83J Qi pouad paB
pauiisp JB3JJB JO ^unoray

•J31in«j3p
aqi JO najppB pas aorex

•in noriaas aapnn aanoa
SiiiAiS no«jad aq) jo JO i^i
uoiiaas Japan ^UBaqddB
aq) JO ssajppB puB amsK

'II' I nopaas japnn juibj^
-Bip JO aaitoa jo jo ni«j?
-Bip 0) noi^BaiiddB jo oivq

•in oon
•83* Japan aapon

•IJI nonaag
Japan aopBa!(<l<lT

HIGH COURT. 337

8. The officer deputed to make a distraint uuder section 124, or to Appdx. Ill,
take charge of produce distrained under Section 141, must in all cases be

able to read and write the language of the district.

9. The written demand under section 125, shall be framed in
accordance with entries contained in the application or notice referred to in
Rule 2.

10. The notification of distraint directed in section 124, Act VIII,
1885, shall be published —

By fixing up in a conspicuous part of the holding, or other place, in
which the produce is, a notice that such produce has been distrained, and
by proclaiming at the same time the contents of the notice by beat of drum.

11. The notice shall specify the name of the person at whose instance
the distraint is made, the name of the defaulter, the name of the person in
whose charge the produce has been placed, and the amount of the arrear
due, and it shall direct any person intending to reap, gather, or store the
crop or produce, if unreaped or ungathered, or intending to do any other
act necessary for its preservation, to give due notice of his intention to
the person who has been placed in chai'ge.

12. The notice shall be fixed up in the presence of not less than two
persons, in addition to the agent of the distrainer, who points out the crop
or produce.

13. In the event of it being necessary for the distraining officer, or the
officer placed in charge of distrained property, to reap, gather, or store any
crops or produce, or to do any other acts for the due preservation of the
same, as provided by section 126, the person at whose instance the distraint
was made shall advance the funds necessary to this end.

14. The officer holding a sale under section 131 shall record a descrip-
tion of the property off'ered for sale, the names of all persons bidding for
the same, and the am'ount bid by each ; and, if the sale is postponed, he
shall record an order to this effect, and shall then and there notify the place
where, and the time when, the sale will be held.

15. When the sale is concluded and the sale proceeds are realised, the
officer who held the sale shall, after paying the costs of the distraint and

sale, as directed in section 134, forthwith pay the balance into Court. ,

16. The officer holding the sale shall take separate receipts for all sums
paid by him as costs of the distraint and sale under section 134, sub-section
(1), and if the person giving the receipt is unable to write, the receipt shall
be attested by some person able to do so.

17. When a distraint is withdrawn under section 136, the notification
of distraint, published under section 124, shall be taken down.

18. All officers deputed to distrain property under this chapter shall,
if there is a post office in the vicinity, report to the Court by letter imme-
diately the distraint is made, or, if there is no such post office, shall,
immediately on his return, report in writing the nature and extent of the
crop or produce distrained, the day on which the distraint was made, the name

R. & F., B. T. A. 22

338 RULES MADE BY HIGH COURT,

Appnx. III. of the person (if any) placed in charge of the crop, and the day fixed for the
sale, or if the sale has taken place, the day on which it took place. He shall
also immediately on his return file an account of all money received and
disbursed by him, together with the receipts for the same and the record of
the biddings at the sale, if a sale has taken place.

19. Every person, distraining produce by virtue of the authority con-
ferred on him under section 141 of Act VIII, 1885, shall give notice of such
distraint to the Civil Court having jurisdiction to entertain an application
for the distraint of such produce, in a tabular form which shall contain the
, following particulars : —

(a) The name and address of the person at whose instance the distraint
was made and a description of his interest in the property,
whether as proprietor, tenure-holder, or raiyat.
(6) The name of the defaulter, and of the place in which he resides, or
was known to be last residing.

respect of which it is claimed.

(d) The holding in respect of which the arrear is claimed, the bound-

aries thereof, or such other particulars as may suffice for its
identification.

(e) The description and approximate value of the produce distrained,

and if the same has been reaped or gathered, the place in which

it is stored.
(/■) The name of the person by whom the distraint was actually made,

and the name and address of the person in whose charge the

produce has been placed.
(g) The date on which the distraint was made.
(h) If the crop or produce is standing or ungathered, the time at which

it is likely to be cut or gathered.

Published in the Gazette of India, dated 7fch August 1886, Part II, pages 470
and 471, and in the Calcutta Gazette , AaAxA the 28th July 1886, Part I, pages 886
and 887.

^irpijiidh IV.

RULES FOR THE REGISTRATION OF DOCUMENTS UNDER THE
BENGAL TENANCY ACT VIII OF 1885 FRAMED UNDER SEC-
TION 69 OF THE INDIAN REGISTRATION ACT III OF 1887.

1. A document presented for registration under sections 12, 18, 85
and 175 shall be first examined with reference to registration Rule 42, and
next with reference to the particular section of the Tenancy Act under which
it is presented.

2. In certifying its admissibility to registration, the registering officer
shall quote registration rule 42, as well as the particular section of the
Tenancy Act under which it is admitted. Thus " Admissible under rule 42 ;
also under section of the Bengal Tenancy Act VIII of 1885. Cor-
rectly stamped under the Indian Stamp Act, Schedule , No. ,"

3. When a sub-lease executed by a ryot purporting to create a term
exceeding nine years is presented for registration, it shall be returned at
once with a note to the following effect recorded on its back, viz., " Not
admissible under sub-section 2, section 85 of the Bengal Tenancy Act VIII
of 1885." The note shall be signed, sealed, and dated by the registering
officer.

4. When a docviment is admitted to registration, the fees levied shall
be noted below the certificate of admissibility in the following manner,
viz. :^

Fees paid A
Ditto R

Landlord's fee

Process fee (in court-fee stamps)

1. A.

Rs. A. p.

2 4 0

2 12 0

Total ... 5 0 0

(Sd.)

Sub- Registrar.

340

Appdx. IV.

REGISTRATION RULES.

f^ote.—T\\e fee-l)Ook, wliicli is now in
use, is called the IJesistrrttimi Fee-book,
nnd the new fee-book is called the Te-
nancy Act Fee-book.

5. The document sliall be entered in the Registration Fee-book in

order of presentation in the same manner
as any other document presented under
the Indian Registration Act. The regis-
tration fee shall be credited in column 7

with the necessary details, and included in the total of other registration
fees for credit to Government.

6. Fees for processes shall be paid in Court-fee stamps, which shall
be affixed to the notices, and cancelled by the registering officers in the
manner prescribed in section 30 of the Court-fees' Act, i.e., by punching
out the figure-head so as to leave the amount designated on the stamps
untouched. The pieces punched out shall be immediately destroyed.

7. The landlords' fees and the process shall be shown separately in a

new fee-book (hereinafter called
* Tenancy Act Fee-booh, pre-icrihed in para- ^j^g Tenancy Act Fee-books.)*

graph 7 of the rules. g^ Column 1 of the Tenancy

Act Fee-book should be filled up
on the presentation of the docu-
ment, whether the particular
notice is ready or not. The num-
ber in that fee-book should be
transferred to the notice when
it is ready. Columns 2 to 8
should also be filled up imme-
diately on the presentation of the
document. Column 9 should be
filled up on the date on which
the notice and landlord's fees are
sent to the Collector or the Sub-
divisional ofiicer, as the case may
be. Column 10 should be filled up on receipt of the fees for copy under
section 176. The registering officer should affix his initials to each entry
iu column 11 of the Tenancy Act Fee-book.

9. On the completion of the registration of documents relating to the
transfer of the tenures under section 12, of ryoti holdings at fixed rates
under section 18, notices shall be prepared in duplicate ^ in the form
specified in Schedule I of the Rules under the Bengal Tenancy Act pub-
lished in the Calcutta Gazette of the 23rd December, 1885 ; and they
shall, with the landlords' fees, be forwarded to the Collector or the Sub-

s c

t3 a ^

c
o

>
'3

= 55
2 « »
JS-5

0) e

-S-

£.2

S «
3 i:

S
o

T3
C

•Si

Z " V

^ ay

3 O)

o
*

-2 ''t

c
c

•5

JD ^ -=
§ 5 _c

tc c

t Collector includes a Sub-divisional Officer 'vith-
in whose jurisdiction the landlord of the transferred
tenure resides.

* Every Sub-Registrar eball keep an office copy of each original notice sent by
him, noting on the back the number of copies prepared and to whom they were
addressed. (Inspector-General of Registration's Circular No. 21 of 17th September,
1888.)

REGISTRATION RULES. 34 J

divisional ofificer* as the case may be, under a covering letter to the fol- Appdx. IV.
lowing effect : —

No.

Dated
To— The
Sib,

I HAVE the honour to forward the notices under section 12, Act
VIII of 1885 in the prescribed form, together with the landlords' fees,
amounting to Rs. . The details of the landlords' fees and

process fees realised on account of these notices are shown below : —
Number of notice. Landlords' fee. Process fee.

Rs. A. p. Es. A. p.

56 15 0 0 12 0

57 3 12 6 18 0

58 5 4 9 3 0 0

Total ... 10 6 3 5 4 0

I have, &c.,

Sub-Registrar of

10. The amount of landlords' fee and the process fees shall be entered
in the printed receipt for the document granted under section 52 of the
Registration Act.

11. An application under section 176 for notification of incumbrances
to the landlords may be made either verbally or in writing, and when made
in writing it shall bear a court-fee stamp of annas eight. It shall be accom-
panied by the fee for the copy iinder articles G and H of the schedule of fees
under the Registration Act, as well as by the amount of process fees. A
receipt for the amounts thus taken shall be granted in the form (with neces-
sary alteration) of receipts prescribed under section 52 of the Registration
Act.

12. An entry shall at the same time be made in the Registration Fee-
book and the fees credited to the Registration Department. The process fee
shall be accounted for in the Tenancy Act Fee-book as directed in paragraph
7 of these rules.

* Ch'cular No. 20 of the Inspector- General of Registration, dated 28th July, 1887,
directs that Sub-Registrars shall send the landlord's fee to Collectors and Sub-divisional
officers by means of money-order or remittance transfer receipt, and debit the amount in
their contingent bills.

342 REGISTRATION RULES.

AppDx. IV. 13. The copy of the instrument under section 176 shall be forwarded

to the Collector or the Sub-divisional officer, as the case may be, with a cover-
ing letter to the follo^Ying effect : —

No.

Dated
To— The
Sib,

I HAVE the honour to forward the copy herein enclosed, and to

request that it may be served on A B, resident of , as

■ required by section 176, Act VIII of 1885. Court-fee stamps for process fee

of Rs are affixed to the copy.

I have, &c.,

Sub-Registrar of

A notice in the form prescribed in the rules under the Tenancy Act,
referred to in paragraph 9, is not required in transmitting a copy to the
Collector or the Sub-divisional officer under section 176. The stamps received
under that section are to be treated in the same manner as directed in
Rule 6, supra.

14. A separate challan shall be prepared for the landlords' fee credited
in the Tenancy Act Fee-book. For this purpose the details shall be entered
on the reverse of the challan. These shall be as follows : —

Serial

number of

cballan.

Number of
notice.

NAM. or D.rOS,XOH. •*«- I'-'/JX"' '"

Amount.

Rs.

F. B. Peacock,
Chief Secy, to the Govt, of Bengal.

It has been proposed to substitute the following rules for the above, but they are
still under the consideration of Government and have not yet been sanctioned.
Registration of docvments under the Bengal Tenancy Act, VIII of 1885.
229. The sections of the Tenancy Act, which refer to the registration of docu-
ments, are sections 12, 18, 85, 175, and 17G. Section 12 has
been amended by Act VIII of 1886, and has reference only
to the transfer of a permanent tenure by gift, voluntary sale, or usufructuary mort-
gage, ie., where the mortgagor delivers possession and authorises the mortgagee to
retain the rents and profits accruing from the property mortgaged. [Section 58 (d), of
the Transfer of Property Act, IV of 1882.]

Leadiag provisions.

REGISTRATION RULES. 343

Section 18 enacts that a raiyati-holding at a fixed rent or fixed rate of rent is Appdx. IV.

subject to the same provisions with respect to its transfer by gift, sale or mortgage

as a permanent tenure.

The period allowed by section 175 for the registration of a certain class of docu-
ments expired on the 31st October, 1886, and after that date their registration was
barred.

Section 176 relates to the notification of incumbrances to the landlord. For
definition of the term " incumbrance," see section 161.

230. A document presented for registration under sections 12, 18, and 175, shall

be first examined with reference to registration rule 51,
and next with reference to the particular section of the
Tenancy Act under which it is presented. Care should be taken not to carry out the
procedure under sections 12 and 18, unless it appears on the face of the deed itself
that the tenure transferred is a permanent tenure, or that the holding transferred is
a holding at a rent, or rate of rent, fixed in perpetuity.

231. Under section 88 of the Tenancy Act, a division of a tenure or holding, or

distribution of the rent payable in respect thereof, shall
and'holdings.'^"^' °^ *^°"'^' ^^^ ^® binding on the landlord unless it is made with his

consent in writing. When, therefore, it appears from the
document that only a fractional share of a tenure or holding is being transferred,
and the landlord's consent in writing is not produced, the procedure under sections 12
and 18 should not be carried out.

232. When a sub-lease executed by a rairat purporting to create a term exceed-

ing nine years is presented for registration, it shall be
sub-ta3es executed bfr^alyats returned at Once with a note to the following effect record-
creating a term exceeding nine ed on its back, viz., "Not admissible under sub-section 2,
years.

section 85 of the Bengal Tenancy Act." The note shall be

signed, sealed, and dated by the Registering-officer. The order of refusal will be
entered in Book II.

233. In certifying the admissibility to regi stration of a document presented for

registration under these rules, the Registering oflScer shall

of adSbiiUy! "^ **'■"'''*'« quote registration rule 51 as well as the particular section

of the Tenancy Act under which it is admitted. Thus :

Admissible under Rule 51, also under section of the Bengal Teiiancy Act. Correctly

stamped under the Indian Stamj) Act, Schedule , No.

The fees levied shall be noted below the certificate of admissibility in the follow-
ing manner, viz, .-—

Rs. A. P. Rs. A. p.
Fees paid A ... ... ... ... 1 0 0

Ditto R ... ...14 0

Landlord's fee

Process fee (in Court-fee stamps)

Peon's charges, &c. ,. .

Total 6 8 0

Sub-Registrar,

234. The amount of landlord's fee, process fee, peon's charges, &c., shall be
. „ , entered in the printed receipt for the document granted

Keceipt for fees- ^ . .

under section 52 of the Registration Act. In calculating
the amount of landlord's fee, pie should be omitted.

844

REGISTRATION RULES.

Ai>PDx. IV. 235. The document shall be entered in the Registration Fee-book in order of
,,, . . , , . . presentation in the same manner as any other document

All doenments to be entered ^ •'

in tiie ordinary Kegistration presented Under the Indian Registration Act. The regis-
"'*''**' ■ tration fee shall be credited in column 7 with the necessary

details, and included in the total of other registration fees for credit to Government-
The serial number of the document in the Tenancy Act Fee-book shall be noted in
the column of remarks of the Registration Fee-book with the letters T. A. for
reference.

236. Fees for processes shall be paid in Court-fee stamps, which shall be affixed
to the notices, and cancelled by the Registering-officers in
the manner prescribed in section 30 of the Court-fees,

Act,— /.^., by punching out the figure head so as to leave the amount designated on
the stamps untouched. The pieces punched out shall be immediately destroyed.

237. Charges on account of peons' railway fare, boat-hire, or ferry charges shall
be levied according to the rule quoted in paragraph 3 of
Appendix A, subject to the instructions of the Collector of
the District.

238. Landlords' fees, process fees, and charges on account of peons' railway fare,
boat-hire, or ferry charges, or on account of serving notices
by registered cover (vide Rule 243), shall not be shown in

the Registration Fee-book, but shall be shown separately in a Fee-book called the

Tenancy Act Fee-book.

Tenancy Act Fee-hook.

rrocess fees.

TeoDS* charges.

Tenancy Act Fee-book,

s
a

3
W

o
hi

c
o

V
1.1

g
©

«
S

3
g

>^
3
03

a
<

es
m

o
U

9)
§

h —

« 5
o «*

1 99

1 ^ -

a
<u

|o
■~ a>

® «

3 "•

'3>

hi
«

!»•

.-«■ u

Bs.

Rs.

239.

Column 1 of the Tenancy Act Fee-book should be filled up on the presenta-
tion of the document, whether the particular notice is
ready or not. The number in that column should be
transferred to the notice when it is ready. Columns 3 to 9
should also be filled up immediately on the presentation of the document. Columns

Uode of filling up Tenancy
Act Fee-book.

REGISTRATION RULES.

345

Rules for preparing notices.

P'ocess fee in case of joint
landlords.

10 and 11 should be filled up on the date on which the notice and landlords' fees are
sent to the Collector or the Sub-divisional oflBcer, as the case may be. The Registering
officer should affix his initials to each entry in column 11 of the Tenancy Act Fee-
book. The serial number of a copy sent under section 176 should be entered in the
column of remarks.

240. Columns 7, 8 and 9 of the Tenancy Act Fee-book shall be totalled daily,

and the daily totals of all cash receipts — that is, all
cas'^-iJ^ok"**" "''^P°''*<^'" receipts except process fees paid in Court-fee stamps-
shall be posted in the cash-book under the heads of land-
lords' fees and peons' charges, &c.

Pivparatlon and forwarding of notiet's under sections 12 and 18 of the Tenancy Act.

241. On the completion of the registration of documents relating to the transfer
of the tenures under section 12, or raiyati-holdings at fixed
rates under section 18, notices shall be prepared in accord-
ance with Rule 1, Chapter V of the general rules under the Tenancy Act, reprinted
in Appendix B. The form of the notice is shown in Schedule I, Appendix B.

242. When two or more persons are joint landlords, a
single process fee only should be levied.

243. If the joint landlords have a common agent or a common manager, it will
What notices required in ^^ sufficient to prepare a single notice to be served on him.

case of joint landlords. If there is no commou agent or common manager, the per-

son or persons to whom the rent has ordinarily been paid for the period immediately
preceding the transfer must be ascertained, and the necessary copy or copies to be
served on such person or persons must be prepared. In this case, for each copy so pre-
pared it will be necessary to levy an additional charge of 2 annaa as the cost of
sending the copy by registered cover.

244. When there are two or more landlords but they are not joint, it will be

necessary to prepare a copy of the notice for each landlord.

What notices required in^,, , iiiui-ji

case of two or more landlords Only, however, as many process fees should be levied as

who are not joint. there are villages in which it will be necessary to serve the

notices.

245. All notices or copies of notices shall be prepared in duplicate, and shall with
the landlords' fees, process fees, Sec, be forwarded to the
Collector or the Sub-divisioiial officer, as the case may be,

under a covering letter to the following efiEect: —

No.

Dated
To— The
Sir,

I HAVE the honour to forward the notices under section 12, Act VIII of 1885,

in the prescribed form, together with the landlords' fees, amounting to Rs.
The details of the landlords' fees, process fees, peons' charges, &c., realized on ac-
count of these notices are shown below : —

ArPDx. IV.

Kotices how lo be forwarded
to the Collector.

Serial number
of notice.

56
67
58

j Seal J

Number of

notices
forwarded.

4
2
3

Landlords'
fee.

Rs. As. P.

15 0
3 12 0
5 4 0

Process
fee.

Us. As. P.

0 12 0 Peons' railway fare

1 8 0 Do. boat-hire

0 12 0 Registered cover charge

Rs.
... 0
... 0
... 0

As.

10
6
4

0
0
0

10 5 0

3 0 0

I have, &c.,

Sub-Registrar of

346

REGISTRATION RULES.

Arrnx. IV. 246. When it is necessary to issue more notices than one, only one serial number

„ . , • , .. should be entered in column 1 of the Tenancy Act Fee-

Copies of original notice. . i mi y^^a^y^j "v^u * v^o

book. There will thus be one original notice in which the
names of all the proprietors concerned will be entered, and as many copies of this
original notice will be made as are necessary, each copy bearing the serial number of
the original notice.

247. One copy of the original notice shall be filed for reference in the Regis-
Praft copy to be filed in tlie tration office, a note being made upon it of the number of
°"'*- copies sent.

248. When the landlord is himself the transferee,
there is no occasion to levy fee or send notice.

249. Notices for landlords in Calcutta should be sent to
the Collector of 24-Pergannahs for service.
When a transferred tenure or holding is held jointly by several landlords
residing in different districts, the notices and the landlords'
residing in drfflrLnt dUtricu"' ^^e should be sent to the Collector within whose jurisdiction
the tenure or holding is situated.
251. Landlords' fees, &c., must be remitted to the Collector with the same
Remittance of landlords' fees, regularity as is required in the case of remittance to the
*'*• Treasury of ordinary registration receipts.

A separate challan shall be prepared for the landlords' fee, peons' charges,
&c., credited in the Tenancy Act Fee-book. For this pur-
pose the details shall be entered on the reverse of the
challan. These shall be as follows : —

No notice required when
landlord is himself the trans-
ferce.

Notices for landlords in Cal-
cutta.

250.

252.

Form a cballan.

Serial num-
ber of
cballan.

Number of
notice.

Name of depositor.

Name of tlie person to
whom payable, and de-
tails of peons'charges,(fec.

Amount.

Rs.

Remittance Transfer Receipts.

Mooey-orders.

253. When it is necessary to remit landlords' fees, &c., to the Collectors of other
districts, they should be sent, if possible, by Remittance
Transfer Receipts. When they are so sent, a note should

be made to that effect in column 13 of the Fee-book.

254. Remittance Transfer Receipts will be only available for remittance to Collec-
tors at sudder stations. When it is necessary to remit land-
lords' fees to Sub-divisional officers in other districts, or

when remittances have to be made to other districts by Sub-Registrars at a distance
from sudder or sub-divisional treasuries, the amounts should be sent by money-order.
The commission fee on money-orders should be defrayed from permanent advance. The
payee's receipts of amounts sent by money-order should be carefully filed as vouchers.

255. Remittances from sudder Sub- Registers to Sub-divisional officers in the

... , , same district should be made by Treasury cheques granted

Cheques ID hen of cash. .....

in lieu of cash.

256. Any fees realized which may remain in the hands of the Registering-officer
may be refunded if the document is refused registration, a
note to that effect being made in the column of remarks in

the Fee-book. Court-fee stamps may be returned if they have not been punched. It ia
not necessary to enter these refunds in the Monthly Returns.

Befnnds of Tenancy Act fees.

REGISTRATION RULES. 347

257. Astatemenbof operations under sections 12 and 18 of the Tenancy Act, Appdx. IV.

,, ,^, ^ , shallbesubmittedmonthly by Sub-Registrars inform No. 12

Monthly Return. -^ •' *

of the second scheaule. A statement for the whole district,

countersigned by the Collector, shall be submitted by each Registrar to the Inspector-
General. The statement can be easily compiled from the Fee-book, if column 15 is
carefully filled up.

Notifieatkm of Incumhraiices to the Landlord under section 176 of the Tenancy Act.

258. An application under section 176 for notification of incumbrances to the

landlords may be made either verbally or in writing, and

Application now made, , ,....,,,,

when made m writing, it shall bear a Court-fee stamp of

annas eight. It shall be accompanied by the fee for the copy under Articles G and H
of the schedule of fees under the Registration Act, as well as by the amount of process
fees. A receipt for the amounts thus taken shall be granted in the form (with neces-
sary alteration") of receipt prescribed under section 52 of the Registration Act.

259. An entry shall at the same time be made in the Registration Fee-book, and

the fees credited to the Registration Department. The pro-
Fee how shown. - , ,, , ,-,».,, m . , -r, , I

cess fee shall be accounted for m the lenancy Act I'ee-book,
as directed in Rule 238. The serial number of the copy sent shall be noted in the
column of remarks in the Tenancy Act Fee-book.

260. The copy of the instrument under section 176 shall be forwarded to the
Copy of instrument to be Collector or the Sub-divisional officer, as the case may be,

forwarded with covering letter. ^ith a covering letter to the following effect :—

No.

Dated
To— The
Sib,

I HAVE the honour to forward the copy herein enclosed, and to request that it

may be served on A B, resident of , as required by section 176, Act

VIII of 1885. Court- fee stamps for process-fee of Rs. are affixed to the copy.

I have, &c.,

Suh-Registrar of
A notice in the form prescribed in rnle 215 is not required in transmitting a
copy to the Collector or the Sub-divisional officer under section 176. The stamps re-
ceived under that section are to be treated in the same manner as directed in Rule 2.38.

261. A copy of an instrument served in order to notify an incumbrance is

equivalent to a notice under section 12, and Registration
Process-fee. officers are referred to Rule 3, Chapter I of the general rules

under the Tenancy Act, quoted below for the procedure to be followed in serving such
a copy.

262. For every copy made under section 176 of the Bengal Tenancy Act VIII of '

1885, such copying fee, or copying and searching fees shaU

Copying fees. ^^ charged as may be leviable under Article G, or under

Articles G and H of the schedule of fees under the Registration Act for the time being

in force. These shall be shown in the ordinary Registration Fee-book, and not in the

Tenancy Act Fee-book.

gtp^undi^t V.

A Glossary of teyms used in the authorised translations of the Bengal
Tenancy Act, 1885, and rules framed under it.

English.

Hindi.

Bengali.

Abaiidonments

Chhor dena

Paritydg.

Accoimts

Hisab

Hisdb.

„ Forms of

Hisab ke naksh

Hisdber pat.

„ Statement of ...

Hisab ki tafsil

Hisaber bibaran patra.

Acquittance

Saf di J A f arighkhati

Fdrkhati.

„ Valid

Puri safdi yi farighkhati

Upajukta fdrkhati.

Area

Rakba

Bhumir parimdn.

„ Alteration of

Rakba k{l badalna

Bhumir parimdn paribar-

tan.
Sthaniya bhumir parimdn.

„ Local

Sarzamin kd I'akba

Assessrnent of revemie

Sarkdri mdlguzari ka
bandobast.

Rdjasver bandobast.

Boundaries

Chauhaddi

Sfmdnd.

Catcse

Wajeh

Kdran.

„ Keasonable

Wajeb mundsib

Jukti siddha kdran.

Clause

Claz

Prakaran.

Contract

Kaul kardr

Chukti.

Counterparts

Part-i-sani

Miiri.

Custom

Rewaj

Desachdr.

Damages

Harja

Kshati.

„ Award

Harja dilana

Kshati puran.

Demand

Talbi

Ddvipatra.

Deposit

Amdnat rakhna

Amanat.

„ Receipt of

Amdnat raklie rupyd ki

rasid.
Amdnat rakhe rupyd ka

Amdnat pdwan.

„ Refund of

Amanati taka phiraya

"wapas dena.

dewa.

Distraint

Kurki

Krok.

„ Wrongful

Be-aini kurki

Anydya kroka.

Ejectment

Bedakhli

Uchchhed karaua.

„ Restriction

Bedakhli ki kaid

Uchchheda karibar niyam.

EnJiancement

Barhdnd

Briddhi

„ Conditions of ...

Barhdne ki sharten

Briddhir niyam.

„ Gradual

Rafte rafte barhdnd

Kramasah briddhi.

„ Progressive . . .

Rafte rafte bai'hand

Krame krame briddhi.

„ Restriction on . . .

Barhdne ki kaid

Briddi bishaye niyam.

Execution of decree

Ijrdi digree

Decree jari.

Explanation
Fallow

Tashrih

Artha karana.

Parti

Patit.

„ new

Parti jadid

Nutan patit.

GLOSSARY.

349

Appox. V.

English.

Hindi.

Bengali.

Fallow, old

Parti kadim

Puratan patit.

„ for part of the year

Chaumas

Farm,

Thika

Ijara.

Forfeiture

Zabti

Sampatti danda.

„ Eelief against...

Zabti ka ildj

Sampatti dander pratikdr.

Full discharge

Farighkhati

Farkhati.

Holding

Jot

J6t.

„ Abstract of particu-

Khatian

Khatian.

lars of.

„ at fixed rates

Sharah mukarrar par

Mukarrari hdre bhumi

rakhi hui jot.

bhog.

„ Conditions of

Jot x'ahhne ki sharten ...

Jotbhoger niyam.

„ Occupancy

Hak dakbal ki jot

Dakhali svatva prapta j6t.

Homesteads

Hasgit zamin

Bastu bhumi.

Improvement

Zamin ki liakat barhdna

Utkarsha sadhana.

„ C 0 m p e nsation

Liakat barhaui ki liye

Utkai-sha sddhana niraitta

for.

taldfi.

kshati puran.

„ Registration of..

Lidkat barhdni ki registri

Utkareha sddhana registari
karana.

„ Eight to make..

Zamin ki lidkat bai'hdw

Utkarsha sadhana karibar

kd hak.

svatva.

niegal cesses

Be aini abwdb*

A in biruddha abwab.

„ „ Exaction of ...

Khilaf din abwdb kd lena

A in biruddha abwab

anyaya kariya lewa.

„ Interferences

A in ke khildf dastanddzi

Be Sinimat hastakshep
karan.

Incumbrance

Dain

Dkya.

„ Avoidance of ...

Dain rad karna

Daya asiddha karna.

„ I n s t r n m e nt

Dain paidd karne wdli

Daya srishtikari nidarsan

creating.

dastdvez.

patra.

Interest

Hak

Svfirtha.

„ Protected

Bachde hue hak

Sanrakshita svartha.

Land

Zamin

Bhumi ba jami.

„ Acquisition of

Zamin hasil karna

Bhumi grahan.

„ Dearah

Dearah zamin

Diarah bhumi.

„ Kharaart

Khamar zamin

Khamar bhiimi.

„ D e t e r m i nation of

Nij dakhili zamin ki

Nij jami nirnaya karan.

private.

tajviz.

„ Proprietor's private.

Malik ki nij dakhli zamin

Bhiisvamir nij jami.

„ Waste

Parti zamin or uftada
zamin.

Patit bhumi.

Landlord

Zamindar

Bhiimyakdhikari.

„ Inferior

Zamindar-i-matahat

Adhastana bhumyadhikari.

„ Superior

Patta

Patta.

Lease

Zamindar-i-mafauk

Uchchatana bhiimyadhi-

kari.
Pattdr miydda atita.

Lease, Expiration of

Patta ki miyad khatam

hona.

Lessor

Patta dena wala

Pattdddtd.

Limitation

Tamadi

Miyadd bd tamddi.

Manager

Kdrjyadhyaksha.

„ Common

Manager ijmali

Sadhdrdn kdrjyddhyaksha.

* Abwab, plui-al of bab, a gate, door, or way — now cesses imposed subsequently to
the fixing of the asal standard of assessment. The word indicates the means by which
alone it was thought a door was opened to increase the asal.

t Literally a threshing floor ; lands for which n\oney-rent was not paid, but the
produce was divided on the threshing floor — contrajdistinguished from raiyati land.

350

Appdx. V.

GLOSSARY.

English.

Measurement

Standard of.

Mortgagee
Occupation

Admitted to ...

Owner
Payment

Appropriation of

' „ of rent
Presumption
Produce

„ Appraisement of
„ Division of
Proprietor

„ Kegistered

Provisions

Miscellaneous,.,

Raiyat

holding at fixed

rate.
Inferior
Non-occupancy . . .

Occupancy-
Resident cultivator
Non-resident culti-
vator.
Head raiyat
Settled
Under

Rate

Prevailing

Receipts

„ Effect of
„ Forms of

„ Withholding
Record

„ Entries in
„ of -rights
Record-of-rights, Publica-
tion of
Register

„ of suits
„ Field
Rent
„ Alteration of
„ Arrears of
„ Bar to recovery of ...

Hindi.

Paimaish

Paimaish ka paimanah ...

Rihn rakhne wala

Dakhal

Zaniin par dakhal paya.,,

Malik

Ada karna

Ada kiyi-hui malguzari

ko hisab men Wnti.
Malguzari ada karna ...
Kiyas

Paidawar ya jins
Paidawar ki kankut
Batai
Malik
Registree-kiye hue malik

Kaide

Mutfarrik kaide
Raiyat

Sharah mukarrar par za-
min rakhne wala raiyat,
Raiyat-matahat
Ghair dakhalkar raiyat,.,

Dakhalkar raiyat

Dehi Kashtkar
Pahi Kashtkar

Jeth raiyat

Kaimi raij^at

* Shikmi ya kolaiti raiyat

Sharah nirikh

Sharah mamuli ya maru-

waj,
Rasid

Rasid ka asar
Rasid ka namuna ya nak-

sha.
Rasid na deua
Ruedad

Ruedad ki madain
Ruedad hakuk
Hakuk ke ruedad ka

mushtahir karna.
Register

Mukaddama ki register
Khasra
Malguzari

Malguzari ka badalna ...
Baki malguzari
Malguzari ki wasuli ki

kaid.

Bengali.

(

Bhiirai mdp,

Mdper niyam,

Bandhakagrahitd,

Dakhal.

Dakhal prdpta,

Malik.

Taka dewa,

TAkd je rupe jama dite
hoibe.

Khajank dewa,

Anumkn.

Fasal,

Fasal jachai,

Fasal bibhdga.

Bhusvami.

Registari karJi bhiimya-
dhikai'i va bhusvami,

Bidhkn,

Bibidh bidhan.

Rdiyat.

Mukarrari hare je rfliya-
tera bhumi bhdg kare.

Adhastana raiyat,

Dakhali svatva siinya rai-
yat.

Dakhali svatva bisishta
raiyat,

Khudkast.

Paikast,

Mandal.

Sthitibdn rdiyat.
Korfa rdiyat.
Hdr,
Prachalita hdr,

Ddkhill
Dilkhilar phal.
Dakhilar pat.

Djlkhila na dewa.
Likhan.

Likhaner lekhd.
Svatver likhan.
Likhan prakash karan.

Mukaddamar register.
Khasra or chitha,
Khajana,

Khajana paribartan.
Baki khajana,
Khajana aday karite na
para.

* Sliikmi : this word is, in Gaj'a, applied to land, the rent or rate of rent of which has not
been altered since tlie Permanent Settlement, though a cess may have b3en charged for growth
of a special crop, such as opium, the cess being only charged when the special crop is grown.

GLOSSARY.

351

Appdx. v.

English.

Hindi.

Bengali.

i2ew^ Commutation of

Bhaoli ki jagah nagdi
kaim karna.

Khajarta nagdan karana.

„ Deposit of

Malguzari amAnat rakhna

Khajana anianat.

„ En lanceraent of

Malguzari ka barhiin;! ...

Khajaua briddhi.

„ Fair and equitable . . .

Wajib aur munasib mal-

Upajukta or nyajya kha-

guzari

jana.

„ free

Lakhira j

Lakhiraj.

„ Fixity of

Malguzari ka mukarrar

bona.
Shui'u ki malguzari

Khajana mukarrar thaka.

„ Initial

Prathama sthaliya kha-

jana.

„ Instalments of

Malguzari ki kist

Khdjaniir kisti.

„ Limit of

Malguzari ka had

„ payable in kind

* Bhaoli malguzari

Sasya rupe deya khajana.

„ Produce

Malguzari jins men

Fasli ba bhaoli khajana,
gula dhanya.

„ Reduction of

Malguzari ka ghatfina ...

Khajana kamana.

„ Settlement of

Malguzari ka bandobast
karna.

Khajanar bandobast.

Revenue

Malguzari

Rajasva.

„ free

Lakhiraj

Lakhiraj.

„ officer

Afsar mal

Rajasva karmacharf.

Mights

Hak

Svatva.

„ and liabilities

Hakuk-o-jawabdihi

Svatva o daya.

„ Devolution of occu-

Hak dakhal ka dusre ko

Mrityu hoile dakhali svat-

pancy.

pahuncha.

va Ijartana.

„ Forest

Bankar

Bankar svatva.

„ of fishery

Jalkar

.Jalkar.

„ Incident of occu-

Hak dakhal ke mutalliq

Dakhali svatvarauushanga.

pancy.

batain.

„ Occupancy

Hak dakhal

Ddkhali svatva.

„ of pasturage

Charagah ka hak

Gocharan svatva.

„ Record-of

Ruedad hakuk

Svatver likhan.

liides and pi'esumptions . . .

Kaide o kiyas

Vidhi 0 anumana.

Rules under Act

Act ke mutalik kaede ...

Ei din mata vidhi.

Sale

Bikri ya nilam

Bikray va nilam.

„ Liability to

Bikri ke laik bona

NiMnid jogyata.

„ proclamation

Nilami ishtihar

Nilamer ghoshanjl patra.

„ To set aside

Nilam rad karna

Nflam anyatha karana.

Settlement

Bandobast

Bandobast.

„ Permanent ...

Davami bandobast

Chirasthflyi bandobast.

Staple food-crops

Khane ki jins ki dm fas-

Pradhdn utpddya khddya

len.

sasya.

Subletting

Shikmi patta dena

Korfabili karana.

Succession

Kaim makam bona ya
warsa pana.

Uttaradhikdra.

Surrender

Istifd, dena

Istafa.

Survey

Paimaish

Jarfpa.

„ Cadastral

Kistwar paimaish

Kshetrabant jarip.

Temporarily -settled dis-

Miadi bandobasti zile ...

Je jildy kiyat kdlin bando-

tricts.

basta thdke.

Tenancy

Jot ya zamin rakhna ,..

Prajd svatva.

„ Incidents of

Zamin rakhne ki nisbat

baten.
Jot ki taksim

Prajd svatver anushanga.

„ Sub-division of ...

Prajd, svatver bibhag.

Tenants

Asami

Prajd.

' S4id to be corrnption of bahuliya, abundance.

852

GLOSSARY.

Appox. V.

English.

Hindi.

Bengali.

Tenants, Classes of

Asami ki kismen

Prajdder srenf.

„ Inferior

Asami matahat

Adhastana prajd.

„ Under

Shikmi asami

Petjlo prajd.

Tenure

Darmiani hak

Madhya svatva.

„ holder

Darmiani hakdar

Madhya svatvadhikdrf.

„ Incidents of

Darmini hak ke mutalik

Madhya svatver anu-

baten.

shanga.

„ Permanent

Davami hak darmiani ...

Kaerai madhya svatva.

„ Sale of

Hak darmiani ka nilam ...

Madhya svatver nildma.

„ Service

Chakran zamin

Chdkriin taluka.

„ Transfer of

Hak darmiani ka intikal

Madhya svatver hastiin-
tara.

„ Transmi£>sion of ...

Hak darmiani ka intikal

Madhya svatver uttarddhi-
kara.

Use of land

Zamin ka istimdl

Bhiimi byabahdr.

Utbandi

Uthband'i.

To violate conditions

Sharton ka toma

Niyara langhan karan.

Some Ter

ms used in Zamindari

Accounts.

English.

Hindi.

Bengali.

Field register

Khasra

Khasra or chitha.

Abstract of particulars of

holding.
Record of interests of pro-

Khatian

Khatian.

Khewat

Khebat.

prietors.

Record of the annual rent

Jamabandi or hastabud*

Jamabandi.

demand or rent-roll.

Record of daily receipts

Siyaha

Seha.

from tenants.

Abstract of sfaha and

jamabandi.
Record showing demand,

Arsattd

Thoka.

JamS, wasilbaki

Bakijai.

realization and balance.

Abstract of receipt and

Jama kharach

Jamakharach.

disbursements.

Record showing the name

Terij assimwar

Dagbili khatian.

of each tenant, the total

area of holdings and

rates of rent.

Abstract of village area

Goshwarah

and accounts.

Village expenses

Dih kharcha

Dihi kharcha.

Miscellaneous receipts,

Sair

Sair.

such as fisheries, &c.t

Proprietor's private land

Zerait, sir, nankar or ka-
mat.|

Sir, khamar or nij-jote.

* Hastabud, literally Iiast-o-biid, what " is and was," used in Bebar for jamabandi, also
general inquiry into value of land before harvest,

f Literally, what moves.

X Zerait, cultivation, used for land cultivated under indigo by thikadars in Behar, and thus
often confounded with n£/ land.

Naiikar means subsistence. Sir is the Sanskrit for a plough.

GLOSSARY.

English.

Hindi.

Bengali.

Expenses of collection ...

Akhrajat

Akhrajat.

Rent in suspense account

Hajat

Hajat.

Shares of a revenue -pay-

Pattidar*

Pattidar.

ing estate.

Free Grants.

Eent-free grants

Brit or jagir t

Jagir.

„ for the worship

Brahmattar

Brahmattar.

of Brahma.

„ for the worship

Bishnuprit

Bishnuprit.

of Bishnu.

„ for the worship

Sivattar

Sibattar.

of Siva.

-■

„ dedicated to Pirs.

Pirottar

Pirattar.

„ for ghatwals ...

Ghatwali

Ghatwali.

„ made to village

Goraiti jagir

Chaukidari chdkrdn.

watchmen.

„ made to the

Marwat

{Nil.)

family of a

man killed in

the Rajah's

service.

Grants of land at reduced

Minhai or mddfi

Aima. \

rent.

Assigned by a Rajah

Khorish

for maintenance to a

younger son or brother.

Royal grants in perpe-

Altamgah

Altamgah.

tuity.

353

Appdx. V.

♦ Paitidars are occupant shnrers of a revenue-paying estate, eacli managing his share
separately, but paying liis revenue through one of tlio sharers called a lumberdar.

t Birt, corruiition of vriti, a small plot of land for a house generally with some ground
round it, often given to Brahuians.

% I'lural of Imam, originally a grant to religious Mahomedans.

R. & F., B. T. A.

gippnuU^ VI.

ADDITIONAL NOTES.

Law of Santal Parganas (p. 3).— Reg. Ill of 1872 has been amended by the
Santal Parganas Laws Regulation, 18S6. lu the Schedule to this latter Regulation
arc Bpecified the Regulations and Acts now in force in the Santal Parganas.

Interests in lands in Rungpore (pp. 33 and 34).— The Commissioner of
Rajshahye, Mr. E. E. Lowis, in a report on the re-settlement of the Jalpaigori District,
No. 352 Rot., dated 23rd October, 1888, describes the interests in land in that
district, which are similar to those of Rungpore as follows : —

" Jotedar — Is a person possessing a permanent, heritable, transferable right in
the area of land settled with him. His title accrues immediately on his getting the
lease, and is not confirmed, or improved, in consequence of occupancy for any given
period. The rent cannot be enhanced during currency of settlement, but is enhance-
able on such terms as Government may order on the expiry of the settlement.
The land in the jotedar's possession must be re-settled with him on the expiry of a
settlement subject to the rules in the matter of waste land, and to the right of Gov-
ernment to resume during the currency of the lease, or at its expiry, land required for
any public purpose, proportionate decrease of rent for land so resumed being allowed
and compensation granted for any permanent improvements on the land effected by
the holder.

ChuJianidar — Is a person who holds within a jote, on very much the same terms
as the jotedar himself ; his title is permanent, heritable, and transferable ; it accrues
on his entering on possession ; his original rent is a matter of contract, but it is not
enhanceable during the currency of the settlement, but may be enhanced at re-
settlement. The jotedar has no power to resume land, that is the prerogative of
Government alone, who may resume land in a chukan in the same way as jote land
may be resumed.

Dar ChuJtanidar — Has similar rights as above within a chukan.
Maiyat — Is a cultivator who pays a money-rent and can acquire rights of posses-
sion in his holding after twelve years' occupancy ; after haviug acquired an occu-
pancy-right, his rent is not enhanceable, except by an amicable settlement with his
superior holder, or by a regular suit which will be decided according to the provisions
of Act X of 1859. A raiyat has no rights until he has been twelve years in occu-
pancy, except that he cannot be ousted as long as he pays his rent, except under
decree of court.

Praja — Has no rights ; he is an adhyar who pays a corn-rent in the shape of
half produce."

It would seem, then, that in Jalpaigori a jotedar is a tenure-holder, and a chu-
kanidar and a dar-chukanidar are under tenure-holders. The occupancy-raiyat is the
" raiyat " of Mr. Lowis's report,

ADDITIONAL NOTES. 355

Purohase by oceupanoy-raiyat of share in holding (seotion 22, p. 65) . Aitdx. VI.

— An occupancy-raiyat, who commenced to occupy his holding in 1871, purchased in

1878 a fractional share in the proprietary interest in the holdiug. Held, that there
was nothing in Bengal Act VIII of 1869 to prevent an occupancy-right being acquired
by the raiyat, if after his purchase he continued to hold the land as a raiyat and the
relation of landlord and tenant existed between himself on the one hand, and the
proprietors on the other, and if the period for which he so held extended for twelve
years from the date of the commencement of his holding. (Guv Balish llai v, Jeo
Lai Rai, I. L. R., 16 Calc, 127.)

Sub-division of tenancy-right of appeal (sections 88, 153, pp. 165,
223). — When on behalf of a defendant, it was contended, that there had been a
division of the tenancy under which he was liable for only half the rent, ifc was held
that an appeal lay, iuasmuch as there was a question of the amount of rent annually
payable. It was further held that rent-receipts did not amount to a written consent
to a division of the tenancy, as required by section 88 of the Bengal Tenancy Act.
{Abhay Charan v. Sashi Bhuslian Basu, I. L. R., 16 Calc, 155.)

Managers, (section 93, p. 171). — In a case in which an application was made
by twelve co-sharers in a property consisting of numerous estates, tenures, and raiyati
holdings, calling upon the remaining four co-sharers in the property to show cause
why a common manager should not be appointed under section 93, it was held that tho
Court should, before granting the application, call upon the applicants to state
whether all of theoi are entitled in common to the various estates and tenures, and
if not so entitled, should call upon them to divide themselves into as many groups
as there are properties held by them in common ; and, in the latter case, each group
of share-holders should put in separate applications on which separate Court-feea
should be levied The notice in the case of tenures should be as provided by section 93
of the Act, and should be of the same character and to the same effect as in the case
of estates, {Fazlali Chandhri v. Abdul Mazid Chaudhri, I. L, R., 14 Calc, 659.)

Powers of a Collector under sections 69—71 (p. 138).— The Deputy
Collector of Howrah has been vested with powers of a Collector under sections 69 to 71
by Government Notification of 28th May, 1886. {^Calcutta Gazette, June 2nd, 1886,
pt. I. p. 652.)

Court-fees in suit for ejectment (section 144, p. 214).— In a suit to eject a
defendant as being a tenant-at-will, the Court-fee upon the plaint or memorandum of
appeal is 8 annas under Soh. II, cl. 5 of Act VII of 1870. (IVitrJahan v. Marfan Man^
dal, 11 C. L. R., 91.)

INDEX.

ABANDONMENT:

of holding by raiyat, s. 87, pp. 163, 164.

in case of, landlord may enter on holding but must give notice of his intention

to do so through Collector, s. 87 (2), p, 163.
when landlord enters on abandoned holding, occupancy-raiyat may sue for

possession within two years and non-occupancy within six months of date

of publication of notice, 8. 87 (3), p, 163.
when holding has been sublet by registered instrument, landlord must offer

holding to sub-lessee for remainder of term on couditiuu of payment of

arrears, s. 87 (4), p. 163.
rulings under former law as to, p. 164.

effect of non-payment of rent in determining question of, p. 164.
protection against collusive abandonment, p. 165.
rules for service of notice of, Appdx. I, Chap. V, p. 296.
form of notice of landlord's intention to euter on abandoned holding, Appdx. I,

Schd. r, p. 315.

ABATEMENT : See Reduction.

ABETMENT:

of illegal interference with produce amounts to abetment of criminal trespass,
un.ler Penal Code, s. 186 (2), p. 264.

ABWAB:

imposition of abwabs illegal, and stipulations for payment void, s; 74, p. 147.

what abwabs have been held to be illegal, and what have been held to be other-
wise, pp. 147, 148, 149.

dak-cess is not an abwab, p. 149.

penalty for exaction by landlord from tenant of sums in excess of rent payable,
8. 75, p. 150.

ACCOUNT :

statement of, tenant entitled to get, from landlord at close of year, g. 57,

p. 122.
landlord to keep copy of, s. 57 (3), p. 122.

penalty for failing to give, or to keep copy of, s. 58 (2) (3), p. 123.
forms of, to be prepared and kept for sale at sub-divisional offices, s. 59, p. 1 23,
form of, Sch. II, p. 278.

ACCOUNTANT-GENEIIAL :

instructions of, regarding procedure to be adopted with regard to money ad-
vanced by Government for survey and record-of-rights, p. 179.

ACQUISITION :

of laud of holding by landlord for building or other purposes, s. 84, p. 157.

358 INDEX.

ACT X OF 1859:

in force in Darjeeling and in Jalpnigori in tract south of Teestn, p. 2.

in force in Manbbnm, p. 3.

date of commencement of, p. 3.

amended by Acts VI of 1862, B. C, and IV of 1867, B. O., p. 4.
ACT I OF 1868 (General Clauses Act) :

effect of 8. 6 in proceedings in rent-suits commenced under old law, pp. 5, 6.

ACT VIII OF 1 869, B. C. :
in force in Sylhet, p. 3.
date of commencement and of repeal of, by this Act, p. 4.

ACT VII OP 1876: See Land Registration Act.

ACT m OF 1877 : See Registration.

ACT XV OF 1877: See Limitation.

ACT I OF 1879 : See Stamp Act.

ACT VIII OF 1879, B. C.

effect of repeal of, by this Act, p. 4.

ACT IX OF 1879, B. C. : See Wards' Act, 1879.

ACT IV OF 1882 : See Transfer of Property Act.

ACT VIEI OF 1885 : See Bengal Tenancy Act.

ACT VIII OF 1886:

amending Bengal Tenancy Act, object of, p. 50.

ACT V, B. C, of 1875: See Bengal Survey Act.

ACT II, B. C, of 1882: See Bengal Embankment Act.

ACT XXV OF 1885 : See Deposit of Rent and Distraint.

ACTS REPEALED :

Schd. I, pp. 274, 275.

ADDITI05TAL JUDGE:

no appeal from decree or order of, in suit for recovery of rent, when amount
claimed does not exceed Us. 100, and no question relating to title to land,
or to some interest in land, or of right to enhance or vary rent, or amount
of rent has been decided, s. 153, pp. 223, 224.
when held to be included in term " District Judge," p. 224.

ADMITTED TO OCCUPATION:

explanation of expression when used with reference to a non-occupancy raiyat,

s. 47, p. 96.

AGENT :

naib or guraashta to be recognized agent for purpose of rent-suit, s. 145, p. 214.
no provision in this Act for suits for money, papers, or accounts against,

p. 265.
power for landlord to act through, s. 187, p. 264.
joint landlords to act collectively or through common agent, s. 188, p. 265,

AG ORE BAT AI SYSTEM:

of dividing produce, description of, p. 137.

INDEX. 359

AGRICULTURAL LAND: Hee Lund.

AGRICULTURAL YEAR:
definition of, a. 3 (II), p. 16.
different ngrioultural years, where prevalent, p. 16.

AIMA TENURE :

incidents of, in Bengal, p. 33.

ALLUVION :

alteration of rent in consequence of, s. 52 (1) (6), p. 112.
abatement of rent under old law in consequence of, p. 115.

ALTAMGHA GRANTS:
are estates, p. 26.

AMLI YEAR:

when commences and where prevalent, p. 16.

ANGUL:

Act X of 1859, not extended to, p. 3.

APPEAL:

order of Collector on application for commntation of rent payable in kind shall
be subject to appeal as if it were an order in an ordinary revenue-proceed-
ing, s. 40 (5), p. 90.

no appeal from order of Collector appraising or dividing produce, s. 70 (5),
p. 140.

no appeal from order rejecting an application under s. 93 for appointment,
of common manager, p. 171.

to lie from decisions of Settlement-officer to Special Judge and from decisions
of Special Judge, to High Court in proceedings under Chap. X for prepara-
tion of record-of-rigbts and settlement of rents, ss. 108, 119, pp. 184, 192
and note to Rule 2, Chap. I, Government Rules, Appd^. I, p. 286.

no appeal from order of Civil Court in distraint proceeding, s. 140, p. 202,

no appeal from order of District, Additional, or Subordinate Judge in suit
for recovery of rent, when amount claimed does not exceed Rs. 100, s. 153
(a), pp. 223, 224.

or when order is passed by officer specially empowered with final jurisdiction
up to Rs. 50, s. 153 (b\ p. 223.

unless question relating to title to land, or interest in land, or a question of
right to enhance or vary rent, or of amount of rent payable annually
is decided, s. 153, pp. 223, 225, 226, Appdx. VI, p. 355.

from decree or order under this Act to District or Special Judge, to be brought
within 30 days, Schd. Ill, Art. 4, p. 281.

from any order of Collector under tliis Act to Commissioner to be brought
within 30 days, Schd. Ill, Art. 5, p. 281.

APPLICATION :

for commutation of rent to whom to be made, s. 40 (2), p. 90.

for commutation of rent when opposed, procedure to be followed, p. 90.

to deposit rent in Court, s. 61, p. 125.

for appraisement or division of produce, s. 69, p. 137.

for registration of landlord's improvement, s. 80, p. 153.

360 INDEX,

APPLICATION— (coH/.Hue J).

form of application for improvement, Appdx. I, Schd. I, p. 815.

to record evidence as to improvement, s. 81 (1), p. 153.

for distraint, cases in which may be made, s. 121, p. 194.

application for distraint, what to specify, s. 122, p. 195.

procedure on receipt of, s. 123, p. 196.

to determine incidents of tenancy, s. 158 (I), pp. 230, 231.

for execution of decree for arrears of rent by sale of tenure or holding what to

contain, s, 162, p. 238.
for service on incumbrancer of notice declaring incumbrance to be annulled,

8. 167, p. 241.
by judgment-debtor to set aside sale, s. 174, p. 246.

for declaration that land has ceased to be char or dearah land, s. 180 (3), p. 252.
for execution of decree or order under this Act, or any Act repealed by this

Act, for sum not exceeding Rs. 500, limitation in case of. Art. 6, Schd. Ill,

pt. Ill, p. 281.
what is application in continuation of former execution>proceeding, p. 282.

APPORTIONMENT :
of rent, pp. 144 — 146.

under Estates Partition Act (VIII, B. C, of 1876), p. 144.
all co-sharers must be made parties in suit for, p. 146.

APPRAISEMENT : See Produce-rents.

APPROPRIATION : See Payment.
of payments of rent, s. 55, p. 120.

AREA:

of tenancy, alteration of rent in respect of alteration of, s. 52, pp. 112—113.
of tenancy, former and present law as to increase in, pp. 113, 114.
Board of Revenue's instructions as to assessment of excess areas in wurda'
estates, p. 181.

ARREAR :

of rent, what is, s. 54 (3), p. 119.

of rent, permanent tenure-holder, raiyat at fixed rates, and occupancy-raiyat

cannot be ejected for, but tenure or holding may be sold for, s. 65, p. 131.
tenures and holdings now hypothecated for, p. 132.
execution of decree for, p. 1 33.

non-occupancy and under-raiyats liable to ejectment for, s. 66 (1), p. 134.
decree for ejectment for, what to specify and when to be executed, s. 66 (2)

(3), p. 134.
interest on, runs at 12 p. c, s. 67, p. 135.
damages for, withheld without reasonable cause, or defendant improperly sued

for, 8. 68, p. 136.
of rent, transfer of, p. 143.

two-fold claim for arrears and ejectment not maintainable, p. 213.
plaint in suit for, what to specify, s. 148 (6.), p. 218.
landlord not bound to proceed against other than registered tenant for, pp.

234, 235.
provisions of this Act as to recovery of, to apply to suits for recovery of arrears

of rent for rights of pasturage, forest rights, rights of fisheries, &c., s. 193»

p. 270.

INDEX. 361

AlUiE AK—iconliimpd).

suit for, when deposit of rent has been made under s. 61, to be brought within

six months of date of deposit, Schd. Ill, Art. 2 («), p. 279.
suit for, when no deposit has been made under s. 61, to be brought within three

years of last day of year in which deposit fell due, Sch-l.III, Art 2 (h), p. 279.

ASSAM :

rent-law of, p, 3.

ASSESSORS:

may be appointed to assist Revenue-officers in appraising or dividing produce,

8. 70 (1), p. 140.
Local Government may mnke rules for appointment of assessors to assist Court

in estimating compensation for raiyat's improvements, s. 82 (5), p. 154.
no such rules made as yet, p. 155.

ASSIGNEE :

of decree for arrears of rent may not apply for execution, unless landlord's in-
terest in land is vested on him, s. 148 (A), pp. 219, 220.

AT L'ACHMENT :

when distrained property is under, order for distraint to prevail, but snrplus

proceeds not to be paid without sanction of Court ordering attachment,

8. 139, p. 202.
order of, and proclamation of sale to be simultaneous, when holder of decree

for arrears of rent applies for execution by sale of tenure or holding, s. 163

(1), p. 238.
. tenure or holding under attachment in execution of decree for arrears due

thereon to be released from, only on payment into Court of amount of

decree with costs, or on confession of satisfuctioa by decree-holder, s. 170

(2), p. 243.

AVOIDANCE :

of tenancies and incumbrances by sale for arrears of Government revenue,
enactment for, not affected by this Act, s. 195 (c), p. 273.

J3ANKI :

annexed to Cuttack by Act XXV of 1881, p. 3.

BASTU LAND: See Homestead Land.

BBNAMIDARS:

rulings regarding, p. 208.

BENGAL EMBANKMENT ACT:

Act II, B. C, of 1882, claims under, recoverable as rent, pp. 15, 150.

BENGALI YEAR:

when it commences and where prevalent, p. 16.

BENGAL SURVEY ACT:

Act V of 1875, B. C, claims under, recoverable as rent, pp. 15, 150.

power given to make rules, conferring on Revenue-officers any power exer-
cisable by any officer under Bengal Survey Act, 1875, s. 189 (1) (Z»),
p. 268.

Deputy and Assistant Superintendents of Survey vested with powers speci-
fied in s. 189 (1) (6), Rule 2, Chap. VI, Appdx. I, p. 296.

3G2 INDEX.

BENGAL TENANCY ACT:

passed on the 14th March, 1885, p. 1.
not a complete code of rent-law, p. 1.

objects of, p. 1.

operates from 1st November, 1885, p. 2.

is not in force in Calcutta, Orissa, or the scheduled districts, but may be ex-
tended to Orissa or any scheduled district or part thereof, s. 1 (3), p. 2.

is not in force in Assam, p. 3.

settlements which involve enhancement of rent, and which are meant to be
binding on raiyats, must be made under, pp. 4, 176.

8S. 12 and 13 of, amended by Act VIII of 1886, pp. 46, 47, 49, 50.

jurisdiction in proceedings under, s. 144, p. 213.

does not aSect gliatwali or other service tenure, s. 181, p. 253,

applies to homestead land, subject to local custom or usage, s. 182, p. 256.

does not affect custom, usage, or customary right not inconsistent with, or ex-
pressly or impliedly abolished by it, s. 183, p. 258.

does not affect powers and duties of Settlement-officers, s. 195 (a), p. 272.

or realization of rent in Government or Wards' Estates, s. 185 (Z>), p. 273.

or avoidance of tenancies and incumbrances by sale for arrears of revenue,
s. 195 (c), p. 273.

or partition of revenue-paying estates, s. 195 (rf), p. 273.

or patni tenures, s. 195 (e), p. 273.

but rent of patni tenures may be sued for under this Act, p. 232.

or any special or local law not expressly or impliedly repealed, s. 195 (/),
p. 273.

to be read subject to Acts hereafter passed by Lieutenant-Governor of Bengal,
s. 196, p. 273.

BEQUEATH: S>ee Transfer.

BHAOLI SYSTEM; See Produce- rent.

BIDDING :

meaning of, p. 240.

BIRT TENUKE:

description of, p. 31.

BOARD OF REVENUE :

instructions of, regarding payment and remittance of, and Cour'j-fee duties on

applications i*egarding landlords' fees, pp. 47 — 49.
price-lists prepared by Collector to be submitted to, and to be approved or

revised by — error in price-lists may be corrected with sanction of, s. 39

(3) (4), pp. 88, 89.
power to revise price-lists of staple food-crops, s. 39 (4), p. 89.
circulars issued by, regarding payment of Court-fees on deposits of rent and

applications to deposit rent, p. 1 28.
instructions of, regarding procedure in disposing of applications for appraising

or dividing produce, pp. 138, 139.
instructions of, for estimating cost.of operations for record-of-rights, p. 179.
to prescribe fee to be paid by purchaser of estate or tenure at sale for arrears

of service of notice of annulment of incumbrance, s. 167 (2), p. 241.
fees prescribed by, for service of notice on incumbrancer, p. 242, and Appdx.

I, Chap. VII, Rules 1—4, p. 309.

INDEX. 363

BOARD OF REYENUE-iconlinucd).

instructions of, under rules framed by Government under Tenancy Act, Appdx.

I, passim, pp. 285—310.

registers prescribed by, to be kept by Collector under Tenancy Act, Appdx.

II, pp. 323—334.

BOUNDARIES:

of land subject of tenancy to be sLown in plaint in suit for recovery of rent,
s. 148 (J), p. 218.

BREACH :

of conditions of contract, liability to ejectment for, ss. 10, 18 (6), 25 (b), 44 ij)),

pp. 40, 55, 69, 93.
of contract, compensation for, s. 155 (I), p. 227.
suit for ejectment of tenure-holder or raiyat for breach of condition to be

instituted witbin one year of breach. Art. 1 of Schd. Ill, p. 279.

BUILDING :

effect of occupation of land with buildings, pp. 43, 258.

acquisition of land of holding by landlord for building purposes, s. 84, p. 157.

BURDEN OF PROOF: See Ohms of Proof.

BURNING OR BURYING GROUND :

a protected interest in case of sale of tenure or holding for arrears of its own
rent, s. 160 (c), p. 236.

CALCUTTA :

Tenancy Act does not apply to s. 1 (3), p. 2.
rent-law of, p. 2.

CANAL:

a protected interest in case of sale of tenure or holding for arrears of its own
rent, s. 160(c), p. 236.

CASTE :

of raiyat, when to be taken into consideration when determining rate of rent,
s. 31 (c), p. 81.

CERTIFICATE PROCEDURE :

under Act VII, B. C. of 1868, and Act VII, B. C. of 1880, for recovery of
rent in Government or Wards' Estates not affected. by Tenancy Act, s. 195
(b), p. 273.

CESS: See Abwab, Dak- Cess.

Cess Act (IX, B. C. of 1880), sums due under, recoverable as rent, pp. 15, 150.

cess returns, effect of non-submission of, by landlord, p. 101.

cess returns, forms of, to be submitted by, pp. 102, 103.

supply a binding record of rent, p. 103.

deposit of rent must include, if due, p. 127.

cess returns, rulings regarding, pp. 205, 206.

CHAR OR DEARAH LAND:

raiyat of, not to acquire right of occupancy in land until he has held it for 12
years, and meanwhile to pay such rent asmay be agreed on, s. 180 (1), p. 251.

Collector on application of landlord or tenant may declare that laud has ceased
to be, s. 180 (3), p. 252.

3{U INDEX.

CHAUKIDARI CHAKEllAN LAND: Sse Set vice -Tenure.

CllITTAGONG HILL TUAOTS :
uo rent-law in force in, p. 3.

CllITTAGONG TALUK:

incidents of, pp. 27, 28, 29.

CHITTAS:

rulings rej»nrding, pp. 205, 206,

CllUTIANAGPUR:

rent-law current in, p. 3.
CIVIL COURT :

procedure to be followed by, when permanent tenure or holding at fixed rates

is sold in execution of decree other than decree for arrears of rent, s. 13,

p. 49.
procedure to be followed by, when permanent tenure or holding at fixed rates

is sold in execution of decree for arrears of rent, s. 14, p. 51.
to give receipt for deposit of rent, which will operate as a valid acquittance,

8. 62, pp. 128, 129.
stay of proceedings in, in suits for alteration of rent or determination of status

of tenant, during preparation of record-of-rights, s. Ill, p. 186.
to have regard to same rules as Revenue-officer in deciding what is proprietor's

private land, s. 120 (3), p. 193.
distraint order to prevail over attacliment by, but surplus sale-proceeds not to

be paid to owner of property without sanction of, s. 139, p. 202.
special register of suits to be kept by, in forms prescribed by Local Govern-
ment, 8. 146, p. 215.

CIVIL PROCEDURE CODE :

provisions of s. 373, permitting plaintiff to withdraw his suit not affected by

provision prohibiting landlords from bringing rent-suit until lapse of

three months, s. 37 (2), p. 86.
provisions of Chap. XLII of, to apply to second appeals from decisions of

Special Judge under Chap. X, s. 108 (3), p. 184.
High Court has power to modify Civil Procedure Code in its application to

landlord and tenant-suits, s. 143 (1), p. 204.
subject to High Court Rules, Civil Procedure Code, to apply to such suits, s. 143

(2), p. 204.
■what sections of, do not apply to suits for recovery of rent, a. 148 (a), p. 218.
8. 278 to 283 do not apply to a tenure or holding attached in execution of

arrears due thereon, s. 170 (1), p. 243.
these apply to claims to the tenure, and not to claims which are adverse to the

tenure, p. 244.

COLLECTION PAPERS:

rulings regarding, pp. 205, 206.

COLLECTOR :

defined,s. 3 (16), p. 17.

has ex-officio powers of a Revenue-officer, p. 17.

does not include Deputies and Sub-Deputies, unless specially empowered, p. 17.
Sub-divisional officers vested with powers of a, under ss. 12, 13, 15, 69 to 71
of this Act, pp. 17, 138.

INDEX, 365

COLLECTOR— (fOH/tw«e^^

Deputy Collector of Howrah vested with powers of, iiiuler ss. 69 to 71 by

Government NotiGcation of 28th May, 1886, Appdx. VI, p. 355.
to serve notice and pay fee to landlord in case of transfer of, or succession to

permanent tenures, ss. 12 — 17, pp. 46 — 52.
preparation of price-lists of staple food-crops by, s. 39, pp. 88, 89.
to decide on applications for commutation of rents, s. 40 ('2), p. 90.
procedure of, in case applications for appraisement and division of produce,

ss. 69-71, pp. 137—142.
may give certificate that land of holding is wanted by landlord for building or

other purposes, s. 84, p. 157.
to cause publication of notice by landlord of intended entry on abandoned

holding, s. 87 (2), p. 163.
with permission of, landlord may measure land oftener than once in ten years,

8. 90 (2), p. 167.
to serve notice of annulment of incumbrance on incumbrancer, s, 167 (3), p.

241.
on application of landlord or tenant may declare that land has ceased to be

char or dearah land, s. 180 (3), p. 252.
appeal from order of, under this Act to Commissioner to be brought within 30

days, Schd. Ill, Art. 5, p. 281.

COMMENCEMENT :

of Tenancy Act, from Ist November, 1885, p. 2.
of various rent-laws, pp. 3, 4.

of provisions of Tenancy Act regarding deposit of rent and distraint, from
1st February, 1886, pp. 125, 193.

COMMISSIONER:

Government notification regarding I'ank of, to be appointed to make local

enquiry under ss. 31 (b) and 158 (2), pp. 82, 231.
Court-fees payable on applications for appointment of, pp. 82, 232.
appeal to, from order of Collector under this Act to be brought within 30 days
of date of order appealed against, Art. 5, Schd. Ill, p. 281.

COMMUTATION:

of produce-rent, rules for, s. 40, pp. 89, 90.

of rent, landlord or raiyat's right to apply for, not taken away by anything in
any contract made after passing of Tenancy Act, s. 178 (3) (§), p. 250,

COMPENSATION:

for raiyat's impi-ovements in case of ejectment, ss. 82, 83, pp. 154, 155.

relief against forfeiture by payment of, s. 155. p. 227.

person whose property has been wrongfully distrained may sue for, s. 140,

p. 202.
tenant cannot by contract made before or after passing of this Act contract

himself out of right to claim, for improvements made, s. 178 (1) (d), p. 249.

CONTRACT:

for enhancement of rent, registration of, p. 21.
enhancement of rent by, s, 29, pp. 76, 77.

what rights not affected by contract between landlord and tenant made before
or after passing of Act, s. 178 (1), p. 249.

366 INDEX.

CO:S'rRACT— (continued).

notLing in contract made between \5t\i July, 1880, and passing of this Act to
bar acquisition of occupancj-right, s. 178 (2), p. 249.

what rights not affected by coiitract between landlord and tenant made after
passing of this Act, s. 178 (3), p. 249.

leases for reclamation of waste land, contracts barring acquisition of occupancy-
ritfht in land reclaimed by landlord, and contracts for temporary cultiva-
tion of orchard land not aflected by provisions of s. 178, s. 178, provi-
soes i, ii, and iii, p. 250.

notwithstanding contract as to rent of land, a Revenue-officer when making
settlement of land not permanently settled may fix a fair and equitable
rent for the land, s. 192, p. 270.

COPY :

landlord bound to keep copy of statement of account given to tenant at close

of year, s. 57 (3), p. 122.
penalty for failing to keep, 8. 58 (3), p. 123.

CO-SHAllEllS:

each co-sharer raiyat acquires status of settled raiyat, s. 20 (4), pp. 62, 63.

an occnpancy-right acqiiired by co-sharer proprietor or permanent tenure-
holder ceases to exist, but a per son having a right of occupancy does
not lose it by becoming co-sharer, proprietor or tenure-holder, s. 22,
pp. 65, 66.

cannot enhance rent of his share, p. 79.

tenant may deposit rent p.iyable to co-sharers, when he is unable to obtain
their joint receipt, s. 61 (1) (c), p. 126.

service of notice of deposit of rent due to co-sharers, 63 (2), pp. 129, 130.

cannot apply for measurement, p. 168.

cannot apply for survey and record-of-rights, p. 180.

cannot distrain, p. 195.

joint landlords must act collectively or through common agent, s. 188, p. 265.

old law as to powers of, p. 265.

present law as to, p. 267.

interpretation put by High Court on s, 188, p. 267.

COUNTERFOIL :

landlord to keep counterfoil of each receipt given to tenant, s. 56 (2), p. 121.
penalty for failing to keep, s. 58 (3), p. 123.

COURT-FEES:

on applications for payment of landlord's fees placed in deposit, p. 48.

on applications for appointment of Commissioner to bold local enquiry under
ss. 31 (ft) and 158 (2), pp. 82, 232.

on applications to deposit rent remitted by Government of India, p. 128.

on applications for payment and refund of deposit of rent, p. 130.

applications for service of notice of surrender exempt from, p. 161.

on appeals from decisions of Settlement-officers and Special Judge in proceed-
ings under Cbap. X of this Act, p. 185.

on applications for distraint, p. 196.

in suits to enhance rent of occupancy-raiyat, to recover occupancy of land
from which tenant has been illegally ejected, and for abatement of rent,
p. 214.

INDEX. ' 367

COURT-FEES— (coH/r«Me(i) .

on written statements, p. 220.

on dej)osiJs of rent, p. 128, and llule 5, Chap. VII, Government Rules,

Appdx. I, p. 309.
when High Court rules as to processes apply in settlements under Chap. X of

this Act, p. 309.
in suit for ejectment of tenant-at-will, Appdx. VI, p. 355.

COURT OF WARDS :

notliing in Tenancy Act affects procedure for realization of rent in estates
under management oF, s. 195 (b), p. 273.

CROP: See Produce-rent.

enhancement of rent when raiyat holds hand at specially low rate in considera-
tion of his cultivating a particular crop, s. 29, proviso iii, p. 77.
rights and liabilities as to possession of, in case of produce-rent, s. 71, p. 141,
tenant entitled to exclusive possession of, p. 141.
penalty for interference with, s. 186 (1), pp. 141 — 264.
what and whose, may be distrained, p. 195,
right to reap distrained crop, s. 126, p. 198.
when distrained crop m.'.j be sold standing, s. 129, p. 199.
right of ejected raiyat in respect of, and of land prepared for sowing, s. 156,

pp. 229, 230.
Local Government may empower Revenue-officers to cut and thresh crop, and

weigh produce in order to estimate capabilities of soil, s. 189 (1) (c), p. 268.

CULTIVATOR :

lease of, exempt from stamp duty, p. 19.
meaning of, p. 19.

CUSTOM : See Ulbandi, Usage.

to be regarded in determining whether a tenant is a tenure-holder or raiyat,

s. 5 (4\ p. 25.
tenures permanent by, p. 42.

occupancy-rights may be acquired by, s. 19, p. 57.

occupancy-raiyat not entitled to cut down trees in contravention of local cus-
tom, s. 23, p. 66.
occupancy-rights transferable by, and not otherwise, p. 71.
prevalence and proof of custom of transferability of occupancy-rights, p. 72.
occupancy -rights may be bequeathed by, p. 74, and s. 178 (3) (d), p. 249.
a non-occupancy-right may be transferable by, p. 97, s. 178 (3) (d), p. 249.
right of occupancy may be acquired by nnder-raiyat by, p. 99, s. 183, p. 258.
to be regarded by Revenue-officer in determining whether land is proprietor's

private land, s. 120 (2), p. 193.
incidents of tenancy of homestead land held by raiyat otherwise than as part
of raiyat's holding to be regulated by, and subject to, by provisions of
this Act, s. 182, p. 256.
local custom or usage as to homestead land, p. 258.
nothing in this Act to affect custom, usage, or customary right not expressly or

impliedly modified or abolished by its provisions, s. 183, p. 258.
effect of custom under former law, p. 259.
what custom is, and how proved, p. 259.
difference between, and usage, p. 260.

368 INDEX.

CUSTOMARY RATE :

rent of tenure-hulder, when liable to enhancement may be enhanced to limits

of, 8.7(1), p. 38.
when no customary rate, may be enhanced up to limit Court may think fair and

equitable, s. 7 (2), p. 38.
up to which a tenure-holder's rent may be enhanced, p. 39.
rulings under old law regarding, p. 39.

DAK CESS:

is not an illegal cess, but cannot be collected as rent, p. 149.

DAMAGES :

up to 25 p. c. may be awarded for rent withheld without reasonable cause, and
to defendant improperly sued for rent, s. 68, p. 136.

DANABANDI SYSTEM:

of appraising and dividing produce, description of, pp. 137, 138.

DARJEELING:

Act X of 1859 in force in, p. 2.

DEAR AH: See Cha?- land.

DECREE :

holder of, for arrears of rent may execute it in any way lawful under Civil Pro-
cedure Code, p. 133,

for ejectment for arrears of rent to specify amount of urrear and interest, if
any, due thereon, s. 66 (2), p. 134.

no ejectment except in execution of, s. 89, p. 166.

for rent given ex-parte, effect of, p. 211.

for enhancement, date from which takes effect, s. 154, p. 226.

for ejectment, what to declare, s. 155 (2), p. 227.

period for payment of compensation fixed by, may be extended by Court, s. 155
(3), p. 227.

sale for arrears under, Chap. XIV, pp. 232—249.

DEFINITION :

of terms used in Tenancy Act, s. 3, pp. 7—18.

DEPOSIT :

of rent, operations of ss. 61 to 64 relating to, postponed to 1st February, 1886,

p. 125.
of rent, when tenant may make, s. 61 (1), pp. 125, 126.
application for, what particulars must be specified in, s. 61 (2), p. 126.
in case of, limitation in suit for arrears, p. 127.
must include interest and cesses, p. 127.
fees prescribed by Government, and Hoard of Revenue's circulars regarding

fees on deposits and on applications for permission to make deposits of rent,

p. 128.
receipt granted by Court for, to be valid acquittance, s. 62, p. 128.
notification and notice of, how to be published and served, s. 63, pp. 129, 130,

and Rule 5, Chap. V, of Government Rules, Appdx. I, p. 295.
payment and refund of, how to be made, s. 64, pp, 130, 131.
Court-fees on applications for payment and refund of, p. 130.
suit for recovery of rent prior to, uuder 8. 61 to be brought within six months,

Schd. Ill, Art. 2 ;a), p. 279.

INDEX. 369

DILUVION:

alteration of rent in conseqaence of, s, 52, pp. 112, 113.

DISCHARGE:

in full, tenant entitled to get from landlord, or statement of acconnt at close of

year, s. 57, p. 122.
penalty for failing to give or keep copy of, s. 58 (2) (3), p. 123.

DISTRAINT:

operation of provisions of Act relating to, postponed to 1st February, 1886, by

Act XX of 1885, p. 193.
cases in whicli an application for, may be made, s. 121, p. 194.
history of law of, pp. 194, 195.
what and whose crops may be distrained, p. 195.
by co-sharers, p. 195.

application for, what to specify, s. 122, p. 195.
how to be signed and veri6ed, and by whom to be presented, p. 196.
Court-fee stamp on application for, p. 196.
procedure on receipt of application for, s. 123, p. 196.
execution of order for, s. 124, p. 197.
service of demand and account, s. 125, p. 197.
right to reap distrained produce, s. 126, p. 198.
sale-proclamatlon to issue unless demand satisfied, s. 127, p. 198.
place of sale, s. 128, p. 199.

when produce may be sold standing, s. 129, p. 199.
manner of sale, s. 130, p. 199.
postponement of sale, s. 131, p. 199.
payment of pnrchase-money, s. 132, p. 199.
certificate to be given to purchaser, s. 133, p. 200.
proceeds of sale how to be applied, s. 134, p. 200.
certain persons may not purchase, s. 135, and persons violating this section

punishable under s. 185, Penal Code, p. 200.
procedure where demand Is paid before sale, s. 136, p. 200.
amount paid by under-tenant for his lessor may be deducted ffom rent, s. 137,

p. 201.
in case of conflict between rights of superior and inferior landlords, right of

superior, to prevail, s. 138, p. 202.
distraint of property which Is under attachment, s. 139, p. 202.
no appeal from an order under Chap. XII, but suit for compensation for wrong-
ful distraint will lie, s. 140, p. 202.
power of Local Government to authorize distraint by landlord In certain cases,

s. 141, p. 203.
power of High Court to make rules under Chap. XII, s. 142, p. 204.
penalty for distraining or attempting to distrain otherwise than is accordance

with this Act, s. 186, (I) («), p. 264.
High Court Rules made under s. 142, Chap. XIl, Appdx. Ill, pp. 335 — 338.

DISTRICT JUDGE :

power of, to call on co-owners to show cause why common manager should not

be appointed, s. 93, p. 171.
power of, to order co-owners to appoint common manager if cause not shown,
9. 94, p. 172.

R . & F., B. T. A. 24

370 INDEX.

DISTRICT JUDGE— (cojJiiMMerfi.

power of, to appoint manager if ordernot obeyed, 8. 95, p. 172.

powers of supervision of, over manager appointed under s. 95, s. 98, p. 173.

power of, to restore management to co-owners, s. 99, p. 173.

no appeal from order of, in suit for recovery of rent, when amount claimed does
not exceed Rs. 100, and no question relating to title to land, or to some
interest in land, or of right to enhance or vary rent, or of amount of
rent annually payable has been decided, s. 153, pp. 223, 224.

may call for record in which a judicial officer has passed non-appealable order
and in certaiu cases may pass such orders aa he thinks fit, s. 153, proviso,
pp. 223, 224.

when held to include Additional Judge, p. 224.

appeal to, to be brought within 30 days from date of decree or order appealed
against. Art. 4, Schd. Ill, p. 281.

DIVISION :

of tenancy not binding without consent of landlord in writin^j, s. 88, p. 165.
rent receipts do not amount to written consent of landlord to, Appdx. VI, p. 355.

DRAINAGE :

of land used for agricultural purposes, or of culturable waste land to be deem-
ed an improvement until the contrary is shown, s. 76, (2) (c), p. 151.

DWELLING-HOUSE :

erection of, for raiyat and family, together with necessary out-offices to be deem-
ed an improvement until the contrary is shown, s. 76, (2) (/), p. 151.

non-occupancy-raiyat entitled to erect a suitable dwelling-house for himself
and family with necessary out-offices, s. 79 (1), p. 152.

lease of land in which dwelling-houses have been erected to be deemed a pro-
tected interest in case of sale of tenure or holding for arrears of its own
rent, s. 160 (c), p. 236.

EJECTMENT :

grounds on which permanent tenure-holder is liable to, s. 10, pp. 40, 43, 44.

limitation in suits for, of permanent tenure-holders, p. 44.

grounds on which raiyat holding at fixed rate is liable to, s. 18 (6), p. 55.

occupancy-raiyat protected from, except on specified grounds, s. 25, p. 68.

protection from, under old law, p. 69.

grounds of, of non-occupancy-raiyat, s. 44, p. 93.

conditions of, of non-occupancy-raiyat on ground of expiry of lease, s. 45,

pp. 93, 94.
conditions of, of non-occupancy-raiyat on ground of refusal to pay enhanced

rent, s. 46, pp. 95, 96.
restriction on, of nnder-raiyat, s. 49, p. 98.
permanent tenure-holder, raiyat at fixed rates, and occupancy-raiyat, not liable

to, for arrears of rent, s. 65, p. 131.
grounds of, under old law, p. 131.
grounds on which tenants are liable to, pp. 131, 132.
grounds of, under present law, p. 132.

decree for, what to specify and when not to be executed, s. 66 (2) (3), p. 134.
receipt of rent after decree for, operates as waiver of right of, p. 135.
compensation for improvements to raiyat ejected from holding, ss. 82, 83,

pp. 154—156.

INDEX. 37l

EJECTMENT —(continued).

no tenant to be ejected except in execution of decree, s. 89, p. 166.

remedies for illegal ejectment, p. 166.

trespassers cannot be forcibly ejected, p. 167.

two-fold claim foi*, and arrears of rent not maintainable, p. 213.

rights of ejected raiyats in respect of crops and land prepared for sowing,

s. 156, pp. 22P, 230.
power for Court to fix fair rent as alternative to, s. 157, p. 230.
nothing in any contract made before or after passing of Tenancy Act to entitle

landlord to eject a tenant otherwise than in accordance with its provisions,

8. 178 (1) (c), p. 249.
limitation in suits for, under this Act, Schd. Ill, Art. 1, p. 279.
in other cases, p. 229.
Court-fee duty in suit for, of tenant-at-will, Appdx. VI, p. 355.

ENACTMENTS :

repealed by Tenancy Act, s. 2, pp. 3, 4, 5, and Solid, I, pp. 274, 275.

ENCROACHMENT :

by a tenant is for his landlord's benefit, p. 114.

ENHANCEMENT :

of rent, registration of contract for, p. 21.

of rent of tenure held since time of Permanent Settlement, s. 6, p. 36.

what reductions of rent entitled landlord to, in case of permanent tenure, p. 37.

notices of, not now required, pp. 37, 78.

limits of, of rent of tenures, s. 7, p. 38.

of rent of tenure may be gradual, s. 8, p. 40.

of rent of tenure can take place only once in fifteen years, s. 9, p. 40.

of occupancy-raiyat's rent, ss. 27 — 37, pp. 75—87.

of produce-rents, not provided for by this Act, p. 76.

of occupancy-raiyat's rent by contract, s. 29, pp. 76, 77.

of occupancy-raiyat's rent by suit, s. 30, p. 78.

wlio may institute suit for, p. 79.

rules for, of occupancy-raiyat's rent on ground of prevailing rate, s. 31,
pp. 79, 80.

of occupancy-raiyat's rent on ground of rise in prices, s. 32, pp. 80, 83, 84.

of occupancy-raiyat's rent on ground of increase in productive powers of land
due to fluvial action, s. 34, pp. 80, 85.

working of rules for ascertaining prevailing rate, p. 81.

Government notification regarding rank of Commissioner who may be appointed
to hold local enquiry as to prevailing rate, p. 82.

what decennial periods may be taken for comparison in calculating rise in prices,
p. 83.

rules as to enhancement on ground of landlord's improvement, s. 33, p. 84.

by suit to be fair and equitable, s. 35, p. 85.

progressive, power of Court to order, s. 36, p. 86.

limitation of right to bring successive suits for, ss. 37, 113, pp. 86, 187.

of rent of non-occupancy-raiyat, conditions of, ss. 43, 46, pp. 92, 95.

when decree for, has been obtained, acceptance of old rent is not a waiver of
right to higher rate decreed, p. 212.

of rent, procedure of Settlement-officers, when claim is made for, in proceed-
ing under Chap. X, Government Rules, Chap. VI, Rule 26, p. 308

372 INDEX.

ENHANCEMENT— (con/««Me^).

dftte from which decree for, takes eflfect, s. 154, pp. 226, 227.
of rent in temporarily settled estate may take place upon the expiration o(
temporary settlement, s. 191, p. 269.

ENTRY UPON LAND :

when landlord may enter on abandoned holding, s. 87, p. 163.

purchaser of distrained crop may enter on land for purpose of tending, reaping

or gathering them, s. 129 (2), p. 199.
Local Government may confer upon Revenue-officers power to enter upon land,
and survey, demarcate, and make map, s. 189 (1) (h), p. 268.

ESTATE :

defined, s. 3 (1), p. 7.

number of, in Bengal in 1887-88, p. 7.

not permanently settled, landlords entitled to enhance rent in, on expiration of

temporary settlement, s. 191, p. 269.
not permanently settled, landlord entitled to alter rent in, in case of new

assessment of revenue, s. 192, p. 270.

EVIDENCE :

application to record, of improvement, s. 81, pp. 153, 154.

in suits for recovery of rent how to be recorded, s. 148 (/), pp. 219, 220.

EXACTION :

meaning of, and penalty on landlord for, of any sum in excess of rent, s. 75,
p. 150.

EXECUTION :

of decree for arrears of rent, p. 133.

of decree for arrears of rent, no restrictions on, p. 133.

of decree for ejectment to be stayed on payment of decretal amount and costs
within 15 days or within time fixed by Court, s. 66 (2) (3), p. 134.

no ejectment except in, of decree, s. 89, p. 166.

of order for distraint, s. 124, p. 197.

Court may, on oral application of decree-holder, order immediate execution of
decree, except of decree for ejectment for arrears, s. 148 (g), p. 219.

of decree in suit for ejectment on ground of misuse of land or breach of condi-
tion in lease not to issue if within time fixed by Court the judgment-
debtor pays the compensation mentioned in the decree, or remedies the
misuse or breach, s. 155, p. 227.

application for, of decree under Tenancy Act, or any Act repealed by Tenancy
Act for sum less than Rs. 500, to be made within three years from date of
final decree or order, except when judgment-debtor has by fraud or
force prevented execution, Schd. Ill, Pt. 3, Art, 6, p. 281.

of decree for less than Rs. 500 under former law, p. 282.

what is an application in continuation of former proceeding for, p. 282.

computation of value of decree in proceeding for, p. 282.

EX-P ARTE DECREE:
for rent, effect of, p. 21 1.

EXPENSES :

of proceedings under Chap. X, Local Government may pass order for appor-
tionment of, between landlord and tenants, s. 114, p. 188.

INDEX. 373

FARMER :

of rents, effect of acquisition of occupancy-riglit by, s. 22 (3), p. 65.
FARMING LEASES:
description of, p. 31.

FASLl YEAR :

•where prevalent, p. 16.

FEES : See Landlord' s-fee, Process-fees.

FINE :

landlord liable to, for failing to Iceep counterfoil or copy of receipt or statement
of account granted to tenant, s. 58, to be imposed by Magistrate, p. 123.

FISHEIIY RIGHTS:

provisions of Tenancy Act for recovery of arrears of rent apply to suits for

recovery of money due in respect of, s. 193, p. 270.
wliat provisions of this Act apply and what do not apply to such suits,

pp. 270,271.
applicability of Stamp Act, and Transfer of Property Act, to instruments relating

to, p. 272.

FIXITY OF RENT : See Rent.

rights of raiyats holding at fixed rate, s. 18, pp. 55 — 57.

rules and presumptions as to, s. 50, pp. 107 — 111.

raiyats holding at fixed rates cannot be ejected for arrears, s. 65, p. 131.

FLUVIAL ACTION :

enhancement of rent on ground of increase of productive power of land due

to, s. 30 (rf), i)p. 78, 79.
rules as to enhancement on this ground, s. 34, p. 85.

FOREST RIGHTS:

provisions of Tenancy Act for recovery of arrears of rent apply to suits for

recovery of money due on account of, s. 193, p. 270.
what provisions of this Act apply, and what do not apply, to such suits,

pp. 270, 271.
applicability of Stamp Act, and Transfer of Property Act, to instruments

relating to, p. 272.

FORFEITURE : See Ejectment.

of tenant's rights by denial of landlord's title, pp. 106, 107.
relief against, s. 155, pp. 227, 228.

FORM :

of special register of rent, s. 146, p. 215.

of receipt, Schd. II, pp. 276, 277.

of account, Schd. II, p. 278.

of khasrah or field register to be prepared at time of survey, Appdx. I, Chap.

VI, p. 298.
of khatian, Appdx. I, Chap. VI, p. 299.
of notices under Act, Appdx. I, Schd. 1, pp. 310 — 316.
forms of khewats prescribed by Board of Revenue, pp. 317, 318.
of registers to be kept under Tenancy Act by Collectors and Sub-divisional

ofTicers, Appdx. II, pp. 325—334.
of distraint register prescribed by High Court, Appdx. Ill, p. 336.

374 INDEX.

FRAUD :

may vitiate sale fur arrears, p. 233.

GAUDEN :

pernanueiit, a protected interest, on sale of tenure or holding for ita own

arrears, s. 160 (c), p. 236.
cnbancenaent of rent of, on proof that rent was unfair at time of grant of

lease, s. 167 (4), p. 241.

GAZETTE:

price-lists of staple food-crops to be annually published in, s. 39 (5), p. 89.
notification in, of order for survey and record-of-rights to be conclusive

evidence that order has been duly made, s. 101 (3), p. 177.
publication of rule in, to be conclusive evidence that it was duly made, s. 190

(5), p. 269.

GHATWALI TENURES:

incidents of, not affected by this Act, which confers no right to transfer or

bequeath such tenures, s. 181, p. 253.
law relating to, pp. 253—256.

GLOSSARY :

of terms used in authorised translations of Bengal Tenancy Act and of rules
framed under it, Appdx. V, pp. 348—353.

GOUABANDI HOLDING :
incidents of, pp. 32, 57.

GOVERNMENT: See Local Government.

included in definition of" landlord," s. 3 (4), p. 13.

GOVERNMENT ESTATES :

included in definition of estate, s. 3 (1), p. 7.

effect of inclusion of, in definition of" estate," pp. 7, 8.

nothing in this Act aff'ects procedure for realisation of rent in, s. 196 (b), p. 273.

GOVEllNOR-GENERAL :

notification of, remitting fees on applications for deposit of rent, p. 128.
power of, to order survey and record-of-rights in any case, s. 101, p. 177.
power of, to authorize Local Government to make special settlement in special

cases, s. II 2, p. 186.
rules made by High Court declaring that portions of Civil Procedure Code shall

not apply to rent-suits to be subject to approval of, s. 143, p. 204.

GUMASHTA :

to be recognized agent of landlord for purpose of rent-suit, s. 145, p. 214.
cannot grant leases without special authority, or recognize transfer of holding,
p. 215.

GUZASTHA HOLDING:

incidents of, in Shababad, pp. 32, 57.

HALHASILI TENANCY:
incidents of, p. 34.
description of, p. 253.

HERIT ABILITY :

of permanent tenure, p. 45.

of status of settled raiyat, a. 20 (3), pp. 62, 63,

INDEX. 375

HIGH COURT :

power of, to make rules defining power and duties of managers under Tenancy
Act, s. 100, p. 173.

appeal to lie to, from decisions of Special Judge in proceedings under Chap. X,
for preparation of record-of-rights and settlemeat of rents, s. 108, p. 184.

may transfer proceeding ill Civil Court for alteration of rent or determination
of status of tenant to Revenue-officers engaged in preparation of record-
of-rights, s. Ill {b\ p. 186.

power of, to make rules under Chap. XII, s. 142, p, 204.

power of, to modify Civil Procedure Code in its application to landlord and
tenant suits, s. 14.^, p. 204.

may make rule for service of summons on defendant in suit for recovery of
rent by registered letter, s. 148 (d), p. 218.

powers of revision of, under s. 622, C. P. C, p. 267.

procedure to be followed by, for making, public.ition and confirmation of rules
untler this Act, s. 190, p. 268.

rules made by, under Court-fees' Act when to apply in proceedings for settle-
ment of fiiir rents, Appdx. I, p. 309.

rules framed by, under s. 100, Appdx. Ill, p. 335.

rules framed by, under s. 142, Appdx. Ill, pp. 335 — 338.

HOLDING:

definition of, s. 3 (9), p. 15.

registration of incumbrance on, p. 21.

different kinds of, p. 32.

guzastha, incidents of, p. 56.

gorabandi, incidents of, p. 57.

presumption as to amount of rent and conditions of, s, 51, p. 111.

rent is first charge on, and holding may be sold for arrears of rent, s. 65,

p. 131.
acquisition of land of, by landlord for building or other purposes, s. 84, p. 157.
right of raiyat to surrender, s. 86, p. 159.
part of, cannot be surrendered, p. 161.
under the utbandi or bhaoli system can be measured annually, s. 90 (2) (6),

pp.167, 168.

HOMESTEAD LAND:

incidents of tenancy of, when held by raiyat otherwise than as part of his
raiyati-holding to be regulated by custom and usage, and subject to cus-
tom and usage by this Act, s. 182, p. 256.

rent of, in towns not enhanceable under rent-law, p. 257.

occupancy-right in, could not be acquired under former law save by custom ;
now can be acquired in all land held by a raiyat, unless barred by custom,
p. 257.

whether possession of a tenant in, can be disturbed, pp. 257, 258.

local custom or usage as to, p. 258.

IJARA:

meaning of, p. 31.

IJARADAR :

effect of acquisition of occupancy-right by, s. 22 (2), pp. 65, 66.

376 INDEX.

IMPROVEMENT :

bj landlord, enhancement of reat un ground of, ss. 30 (c), 31 (</), 33, pp. 78,

81, 84.
definition of, used with reference to raiyati -holding, s. 76, p. 151.
right to make, in case of holding at fixed rates, and occupancy holding, s. 77,

p. 152.
Collector to decide as to right to make, in case of non-occupaucy holding,

8. 79, p. 152.
by landlord, registration of, s. 80, p. 153.

application by landlord or tenant to record evidence as to, s. 81, p. 153.
by raiyiit, compensation for, in case of ejectment, s. 82, p. 154.
principle on which compensatiou is to be estimated, s. 83, p. 155.
effect of ss. 76 to 83 regarding, p. 156.
nothing in contract made before or after passing of this Act to take away or

limit tenant's right to make improvements and claim compensation for

them, 8. 178 (!)(</), p. 249.
by landlords, rules framed by Government under tliis Act regarding, with Board

of Revenue's instructions thereon, Appdx. I, Chup. Ill, pp. 290, 291.

INCUMBRANCE :

on tenures and holdings, registration of, p. 21.

meaning of, and of registered and notified incumbrance in case of sale of tenure

or holding for arrears of rent, 8. 161, p. 237.
copy of instrument creating incumbrance how to be served, p. 237.
when tenure of holding at fixed rates to be sold subject to, and effect thereof,

8. 164, p. 240.
sale of tenure or holding at fixed rates with power to avoid, and effect thereof,

8. 165. p. 240.
sale of occupancy holding with power to avoid, and effect thereof, s. 166, p. 241.
procedure for annulling, s. 167, p. 241.
power for Local Government to direct that occupancy holdings be sold subject

to registered and notified incumbrances, s. 168, p. 242.
extended period for registration of certain instruments creating incumbrances,

s. 175, p. 248.

INSTALMENT:

rent payable, subject to agreement or established usage, in four equal install

ments, s. 53, p. 118.
of rent, time and place of payment of, s. 54, p. 1 19.
INTEREST :

deposit of rent must include, if due, p. 127.

on arrears of rent runs at 12 p. c. up to date of institution of suit, s. 67, p. 135.

damages may be awarded in lieu of, s. 68, p. 136.

at 5 p. c. on purchase-money to be paid to purchaser when sale of tenure or

holding sold for arrears of rent is set aside, s. 174 (1), p. 247.
nothing in any contract made after passing of Act to affect provisions of s. 67
relating to payment of interest on arrears ofici it, s. 178 (3) (A), p. 250.

INTERPLEADER SUIT :

cannot be raised by tenant, p. 212,

INTERVENORS :

rulings regarding, p. 207.

INDEX. 377

IRRIGATION :

preparation of land for, to be considered an improvement until the country
ia shown, s. 76 (2) (6), p. 151.

JAGIRS :

description of, p. 26.

JALPAIGORI :

rent hiw in force in, p. 2.

JAMABANDI PAPERS:

value of, as evidence, p. 182.
rulings regarding, pp. 205, 206.

JANGALBURl LEASE :
incidents of, p. 34.

JOINT LANDLORDS:

one of two or more, cannot measure, p. 168.

must do anything which the landlord is under this Act required or authorized
to do, either collectively or by common agent, s. 188, p. 265.

JOTE :

incidents of, in Bengal, p. 33.

incidents of, in Rungpore, Appdx. VI, p. 354.

JUDICIAL PROCEDURE :

in what Courts suits and applications between or by landlord and tenant are

to be brought or made, s. 144, p. 213.
naibs or gumashtas to be recognized agents of landlord for purposes of suit.

or application under rent-law, s, 145, p. 214.
rent-suits to be registered in special register to be kept in form prescribed by

Local Government, a. 146, p. 215.
successive rent-suits not to be brought against raiyat for recovery of rent of

bis holding until lapse of three months from institution of previous suit,

s. 147, p 216.
special provisions regarding suits for recovery of rent, s. 148, pp. 218, 219.
when defendant pleads that rent is due by him to third person, money must be

paid into Court, and procedure to be followed by Court on payment, s. 149,

p. 221.
when defendant admits rent to be due by him to landlord, amount to be paid

into Court, except for special reasons to be recorded in writing, s. 150, p. 222.
Court may take cognizance of defendant's plea on payment into Court of por-
tion of money due, s. 151, p. 223.
Court to grant receipt for amount paid into Court, s. 152, p. 223,
in what cases an appeal will lie, and in what cases an appeal will not lie, from

decrees or orders passed in suits for recovery of rent, s. 153, pp. 223—226.
date from which decree for enhancement shall take efiect, s. 154, p. 226.
relief against forfeiture in suits for ejectment, s. 155, pp. 227 — 229.
right of ejected raiyat in respect of crops and land prepared for sowing, s. 156,

pp. 229, 230.
Court to have power to fix fair rent as alternative relief in suit for ejectment of

trespasser, s. 157, p. 230.
power for Court to determine incidents of tenancy on application of landlord

or tenant, s. 158, pp. 230, 231.

378 INDEX.

JURISDICTION:

in proceedings under Bengal Tenancy Act, p. 213.

KABULIYAT :

suits for, done away with, p. 231.

KAMAT: See Proprietor's private land.
K HAM A 11: See Proprietor's private land.

KHAllIJA TALUK:

menning of, p. 7.
description of, p. 27.

KHAS MAHAL: See Government estate .

KIND : RENT PAYABLK IN : See Produce-rent.

LAKHIRA JDAR :

meaning of, p. 9.

LAND : See Homestead land.

meaning of, in this Act, pp. 9, 10.

non-agricultural, rulings as to application of rent-law to, pp. 10, II , 12.

agricultural, classes of, p. 12.

raiyati, presumption that all land is, s. 120 (2) and (3), pp. 12, 193.

origin of tenancy to be considered when determining nature of, p. 12.

interests in, in Bengal, pp. 26 to 23.

effect of occupation of, with buildings, pp. 43, 258.

rights of occupancy-raiyat in respect of use of, s. 23, p. 66.

classes of, and proprietor's rights in them, p. 190.

LANDLORD : See Joint Landlords.
definition of, 8. 3 (4), p. 13.
notice to, in case of transfer of permanent tenure or raiyati-holding at fixed

rates, ss. 12 to 18 (a), pp. 46—55.
eflect of acquisition of occupancy-right by, s. 22, p. 65.
danger of landlord's sleeping on his rights, when occupancy-raiyat misuses land

or breaks condition of his lease, p. 69.
relation of landlord and tenant must exist before provisions of rent-law are

applicable, p. 100.
how the relation may arise, p. 101.
bound to give a tenant peaceable possession, p. 104.
title of, cannot be denied by tenant, p. 105.
possession of tenant not adverse to, p. 106.

forfeiture of rights under former law by denial of title of, p. 106.
bound to give tenant a receipt for each payment of rent, s. 56, p. 121.
bound to give tenant a full discharge or statement of account at close of year,

s. 57, p. 122.
liable to penalty for withholding receipt and statement of account and to fine

for failing to keep counterfoil or copy, s. 58, p. 123.
liable to damages for suing tenant for arrears without reasonable or probable

cause, s. 68 (2), p. 136.
right of, to transfer his interest, p. 142.
tenant's liability on transfer of interest of, p. 143.

INDEX. 379

LA.NDL011D— (continued).

notice of transfer of interest of, p, 144.

liable to penalty for exacting from tenant sum in excess of rent, s. 75, p. 150.

improvements by landlord, registration of, s. 80, 153.

of holding, right of, to acquire holding or part of it for building or other pur-
poses, s. 84, p. 157.

may enter on surrendered holding and let or cultivate himself, s. 86, (5), p. 160.

miiy enter on abandoned holding and let or cultivate himself, but before doing
so, must give notice lo Collector, s. 87, p. 163.

division of tenure or holding not binding without consent of, in writing, s. 88,
p. 165.

right of, to measure hind, s. 90, p. 167.

can measure lakhiraj land, p. 168.

one of two or more joint landlords cannot measure, p. 168.

may apply for determination of incidents of tenancy, s. 158, pp. 230, "231.

not bound to proceed against other than registered tenant for arrears of rent,
pp. 234, 235.

special rule of limitation in case of suspension of relation of landlord and
tenant, p. 263.

may act in Court through agent empowered by written authority, s. 187, p. 264.

tenant not enabled by this Act to violate conditions binding on, a. 194, p. 272.

L.\NDL011D'S FEE :

payment of, in case of transfer of tenure, s. 12 (2), p. 46.

payment of, in case of transfer of rent-free tenure, p. 47.

Government entitled to, in case of transfer of tenures or holding in Gov-
ernment estates, p. 47.

a single fee chargeable for tenure consisting of several plots, p. 47.

remittance of, p. 47.

when to be placed in deposit, p. 48.

when payable to Government how to be credited, p. 48.

Court-fee duty on applications for payment of, p. 48.

procedure when payable to several landlords residing in different districts, p. 48.

procedure when tenure-holder is resident in Calcutta, p. 49.

to be paid into Court by purchaser or mortgagee in case of gale of permanent
tenure in execution of a decree, or of foreclosure of mortgage of per-
manent tenure, s. 13, p. 49.

LAND RECORDS, DIRECTOR OF:

powers and duties with regard to settlements, p. 286.

LAND-REGISTRATION" ACT (VII OF 1876, IJ.C.) :

effect of non-registration of proprietor's name under, p. 101.

receipt of person registered as proprietor, manager, or mortgagee under, to

be sufficient discharge for rent, s. 60, pp. 124.
person not registered under, not entitled to distrain, s. 121, p. 194.

LAND REVENUE REGISTERS:
description of, p. 7.

LEASE : See Mukarari Leases.
meaning of, in this Act, p. 19.
cultivator's exempt from stamp duty, p. 19.

380 INDEX.

LEASE— (continued).

agricultural, registration of, ^hen compulsory, p. 19.

when optional, p. 20.

of under-raiyat, registration of, p. 20.

cannot be granted for term exceeding grantor's interest, p. 104.

LIMITATION :

objectiotis to price-list to be made within one month, s. 39 (3), p. 88.

suit for ejectment on ground of expiry of lease not to be brought against non-
occupancy-raiyat after six months from date of expiry of term, s. 45, p. 93.

suit for ejectment on ground of refusal to agree to euhuiicemeiit not to be
brought against non-occui)ancy-raiyat after three months of raiyat's refusal
to execute agreement, s. 46 (1), p. 95.

penalty on landlord for withholding receipt to be sued for within three months
of date of payment, s. 58 (1), p. 123.

penalty on landlord for withholding receipt in full or statement of account to
be sued for within next ensuing agricultural year, s. 58 (2), p. 123.

in suits for arrears in case of deposit of rent, p. 127.

penalty for exaction by landlord from tenant of sum in excess of rent payable
must be sued for within six months of date of execution, s. 75, p. 150.

application for registration of landlord's improvement if made before com-
mencement of Act to be made within 12 months of date of commencement,
if made after commencement of this Act, to be made within 12 months of
date of completion, s. 80 (2), p. 153.

suit for recovery of possession of holding which landlord has treated as aban-
doned may be brought within two years, and in case of non-occupancy-
raiyat within six months of publioatiou by Collector of notice of abandon-
ment, s. 87 (3), p. 163.

application to measure by purchaser otherwise than by voluntary transfer must
be made within two years of his entry under the purchase, s. 90 (2) (c),
p. 167.

suits, appeals, and applications specified in Schd. Ill to be dismissed if not pre-
sented within the prescribed time, although limitation has not been pleaded,
s. 184, p. 261.

provisions of Act XV of 1877 apply to suits, appeals, and applications not
specified in Schd. Ill, p. 261.

88. 7, 8 and 9 of Act XV of 1877, do not apply to suits, appeals, and appli-
cations specified in Schd. Ilf, but subject to the provisions of Chap. XVI,
other provisions of Limitation Act apply, s. 185, p. 262.

disabilities of minority and lunacy inapplicable to rent-suits, p. 262.

limitation in cases of suspension of relation of landlord and tenant, p. 263.

suits to eject a tenure-holder or raiyat on account of breach of condition of
contract providing for ejectment as penalty to be brought within one year
from date of breach. Art. 1, Schd. Ill, p, 279.

suit for recovery of arrears of rent when deposit has been made under s. 61
to be brought within six months from date of service of notice of deposit,
Art. 2 (a), Schd. Ill, p. 279.

when no deposit has been made to be brought within three years from last day
of year within which arrear fell due, Art. 2 (i), Schd. Ill, p. 279.

suit for possession of land claimed as occupancy-raiyat to be brought within
two years from date of dispossession, Art. 3, Schd. Ill, p. 279.

INDEX. 381

LIMITATION— (continued).

nppeal fi-om decree or under this Act to District or Special Judge to be

brought within 30 days of date of decree or order appealed against, Art. 4,

Schd. Ill, p. 281.
appeal from order of Collector under this Act to Commissioner to be brought

within 30 days of date of order appealed against. Art. 5, Schd. Ill,

p. 281.
application for the execution of a decree or order under this Act or any Act

repealed by this Act for sum not exceeding Rs. 500, exclusive of interest

after decree but including costs, to be made within three years of date of

final decree or order, Art. 6, Schd. Ill, p. 281 .
runs from date of decree and not from date when sura adjudged was made

payable, p. 281.
in cases of decrees for less than Rs. 500 under former law, p. 232.

LOCAL ENQUIRY:

Court may direct, to be held by such Revenue-officer as Local Government

may appoint for purpose of ascertaining prevailing rate of rent, s. 31 (A),

p. 81.
Government notification regarding rank of Commissioner to make local enquiry

under these sections, pp. 82, 231.
Court may order, to be held by such Revenue-officer as Local Government

may authorize on this behalf for the purpose of ascertaining any incident

of tenancy, s. 158 (2), p. 231.

LOCAL GOVERNMENT: See Notification.

power for, to fix time for commencement of Act, s. 1 (2), p. 1 .

has fixed 1st November, 1885, as date of commencement of Act, p. 2.

may extend Act to Orissa, s. 1 (3), p. 2.

may appoint any officer to discharge functions of a Collector, s. 3 (16), p. 17.

may appoint any officer to discharge functions of Revenue-officer, s. 3 (17),

p. 17.
may authorize Revenue-officer to make local enquiry regarding prevailing rate

of rent, s. 31 (6), p. 81.
may select local areas, price-lists of the staple food-crops grown in which shall

be prepared, s. 39 (1) (2), p. 88.
shall cause to be compiled and published lists of the average prices prevailing

throughout each year, s. 39 (5), p. 89.
may make rules for determining what are to be deemed staple food-crops,

s. 39 (7), p. 89.
may appoint Court or officer before whom agreement to pay enhanced rent

tendered by landlord to non-occupancy-raiyat may be filed, s. 46 (2), p. 95.
may make rules authorizing tenant to pay rent by postal money ordei*, .<?. 54

(2), p. 119.
may prescribe or sanction modified form of rent receipt, s. 56 (3), p. 121.
shall cause to be prepared and kept for sale at sub-divisional offices, forms of

receipt and account, s. 59, p. 123.
may prescribe fees to be paid on deposit of rent, s. 61 (2), p. 126.
fees prescribed by, under this sub-section, p. 128.
may direct payment or refund of rent deposited in Court to be made by postal

money order, s. 64 (2), p. 130.

382 INDEX.

LOCAL GOVERNMENT— (continued).

mny appoint Revenue-ofBcer to register landlord's improvements, s. 80 (1),

p. 153.
may prescribe form of application for registration of landlord's improTements,

information to be specified in, and mode of verificution of such application,

8. 80 (2), p. 153.
may make rules regarding appointment of assessors to assist Court in determin-
ing amount of compensation payable for raiyat's improvements, s. 82 (5),

p. 154.
may make rules for publication of notice of intention of landlord to treat hold-

ing as abandoned, s. 87 (2), p. 163.
may make rules decliiring local standards of measurement, s. 92 (3), p. Ifi9.
may nominate person to be common manager for certain local area, s. 96,

p. 172.
power of, to order survey and preparation of record-of-rights, s. 101, p. 177.
may make rules prescribing procedure to be adopted by Settlement -officer in

proceedings for settlement of fair rents, s. 107, p. 184.
shall appoint Special Judge to bear appeals from decisions of Settlement-officers

in proceedings for settlement of rents, s. 108 (1), p. 184.
has power to order special settlement of rents in special cases, s. 112, p. 186.
empowered to pass order for apportionment of expenses of survey and record-
of-rights, except when ordered under s, 101 (2) (d), a. 114, p. 188.
empowered to order survey and record-of-rights of proprietor's private lands,

8. 117, p. 191.
may make rules prescribing procedure to be adopted by Revenue-officers in

recording proprietor's private land, s. 118, p. 192.
may make rules prescribing scale of charges for distraint and sale of distrained

property, s. 134 (1), p. 200.
may authorize landlord by himself or agent to distrain produce without having

recourse to Civil Court, s. 141 (1), p. 203.
may rescind any such order, s. 141 (3), p. 204.
may prescribe special form of register for rent-suits, s. 146, p. 215.
has directed that special register of rent-suits be kept in form No. 116 of 4th

Schd. to Civil Procedure Code, p. 215.
may empower Judicial-officer to exercise final jurisdiction in suits for recovery

of rent when amount claimed does not exceed Rs. 50, s. 153 (2), p. 223.
may authorize Revenue-officer to make local enquiry when local enquiry in case

for determination of incidents for tenancy has been ordered by Civil Court,

8. 158 (2), p. 231.
notification under this section issued by, p. 231.
power for, to direct that occupancy holdings be sold subject to registered and

notified incumbrances and to rescind such direction, s. 168, p. 242.
may fix fees to be charged by Registration-officers for notifying incumbrances

to landlords, s. 176, p. 248.
may make rules regarding procedure, powers of officers, and service of notices,

s. 189, p. 268.
procedure to be followed by, for making, publication, and confirmation of rules,

s. 190, p. 268.
Bengal Tenancy Act to be read subject to any Act hereafter passed by, s. 196,

p. 273.
rules framed by, under this Act, Appdx. I, pp. 285-310,

INDEX, 383

LOCAL LAW :

nothing in tliis Act nffccts any local law not expressly or impliedly repealed by
it, s. 195 (/), p. 273.

LUNACY :

disability of, does not apply in rent-suit, 8. 185, p. 262,

MADADMASH GRANTS:

are estates, p, 26.

MAG HI YEAH:

where prevalent, p. 16,

MAHTUT : See Abwab.

MANAGER:

District Judge may call on co-owners to show cause why they should not ap-
point a common manager, s. 93, p. 171.

previous enactments as to, p. 171.

an order rejecting application under s, 93, for appointment of, not appeal-
able, p. 171.

District Judge may order co-owners to appoint common manager, s. 94, p. 172.

if order not obeyed may (a) direct management by Court of Wards, or (6) ap-
point common manager, s. 95, p. 172.

Local Government may nominate person to act as common manager in certain
local areas, s. 96, p. 172.

provisions of Court of Wards Act, to apply to case in which Court of Wards
undertakes management of property of co-owners, s. 97, p. 172.

remuneration, powers, duties, and removal of, appointed under s. 95, s. 98,
p. 173.

District Judge may remove manager and restore management to co-owners,
s. 99, p. 173.

High Court may make rules defining powers and duties of, s. 100, p. 173.

rules framed by High Court under s. 100, Appdx. Ill, p. 335.

procedure when application for appointment of, is made by numerous co-sharers
in different estates, Appdx. VT, p. 355.

MANBHDM :

Act X of 1859 in force in, p. 3.

MANDAL :

rights of a, in Midnapore, p. 33.

MAP:

Local Government may, by notification in Gazette, empower any Revenue-
officer to enter upon any land and survey, demarcate and make a map of
the same, s. 189 (1) (b), p. 268.

MARKET DAYS:

selected by District Officers for the preparation of price-lists of staple food-
crops in local areas of Bengal, Appdx. I, Schd. II, pp. 322 — 324.

MARTS:

at what, prices of staple food-crops shall be recorded, Appdx. I, Schd. II,
pp. 319—321.

384 INDEX.

MEASUREMENT :

rent may be altered on alteration proved by, to exist in area of tennre or hold-
ing, 8. 52, pp. 112—118.

landlord's right of, s. 90, p. 167.

of holdings under the utbandi or bhaoH systems can be made annually, s. 90
(2) (b), pp. 167, 168.

of lakhiraj land can be made, p. 168.

landlord desiring to measure may obtain order from Civil Court directing tenant
to attend and point out boundaries— in default, map and measurements of
land to be presumed correct, s. 91, p. 168.

made by order of Civil Court or Revenue-officer to be made by acre, unless
there be order to contrary, s. 92 (1), p. 169.

Local Government may declare standard of, for any local area, s. 92 (2), p. 169.

local standards of, diversity and causes of, p. 170.

MERGER:

of occupancy-right on its acquisition by landlord, s. 22, p. 65.
of occupancy-right on its acquisition by ijaradars, p . 66.

MINORITY:

disability of, does not apply in rent suit, s. 185, p. 262.

MIRAS TENURE :
nature of, p. 31.

MUKADDAMI GRANTS:
description of, p. 26.

MUKAllRARI LEASES :

nothing to prevent proprietor or permanent tenure-holder in permanently settled
area from granting permanent mukarrari leases on any terms agreed on
between him and his tenant, s. 179, p. 251.

NAIB:

to be recognized agent of landlord for purpose of rent-suit, s. 145, p. 214.
cannot grant leases withont special authority, p. 215.

NIJ-JOTE LAND : See Proprietor's private land.

NON-OCCUPANCY-RAIYAT :

meaning of term, ss. 4. (c) and 41, pp. 22, 92.

law relating to, ss. 41 — 47, pp. 91 — 97.

when admitted to occupation of land, liable to pay rent agreed on by himself

and landlord, s. 42, p. 92.
conditions of enhancement of rent of, s. 43, p. 92.
grounds of ejectment of, s. 44, p. 93.

conditions of ejectment of, on ground of expiry of lease, 8. 45, pp. 93, 94.
former law as to notice to quit to, p. 94.
conditions of ejectment on ground of refusal to agree to enhancement, s. 46,

pp. 95, 96.
meaning of " admitted to occupation " when used with reference to non-

occupancy-raiyat, s. 47, pp. 96, 97.
changes made by Act in the position of, p. 97.
further incidents of status of, p. 97.
liable to ejectment for arrears of rent, s. 66 (1), p. 134.

INDEX. 385

NON.OCCUPANCY.RAIYAT-(con/?nMcrf).

what improvements he may make upon bis holding, s. 79, p. 152.
rent of, settled in proceeding under Chap. X to remain unaltered for 5 years,
s. 113, p. 187.

NOTICE :

of transfer and registration of permanent tenure, s. 12 (3.), p. 47.

form of do., Appdx. I, Schd. I, pp. 310, 311.

not required when landlord himself purchases, p. 49.

of sale of permanent tenure in execution of decree other than decree for

arrears, s. 13 (2), pp. 49, 50.
form of do., Appdx. I, Schd. I, p. 312.

of transfer by sale in execution of decree for arrears of rent, s. 14, p. 51.
form of do., Appdx. I, Schd. I, p. 313.
of succession to permanent tenure, s. 15, p. 51.
form of do., Appdx. I, Schd. I, pp. 313, 314.
of succession to permanent tenure not being given, recovery of rent barred,

s. 16, p. 52.
of ei\hancement no longer required, pp. 37, 78.
to quit to non-occupancy-raiyat, s. 45, p. 93 ; and rule for service of, Rule 2,

Chap. V of Government Rules, pp. 94, 295.
to quit to be given to under-raiyat without written lease, in year preceding

that of ejectment, s. 49 (J), 98.
of deposit of rent how to be given, s. 63, pp. 129, 130.
of transfer of landlord's interest, how to be given, s. 72, p. 142.
of transfer of occupancy-raiyat's interest, how to be given, s. 73, pp. 146, 147.
raiyat bound by lease must give his landlord 3 months' notice of intention to

surrender, or liable for rent of holding for one year, s. 86 (2), p. 159.
of surrender of holding how^' to be served, p. 161 and Appdx. I, Chap. V,

pp. 295, 296.
.application for service of, exempt from Court-fees, p. 161.
by landlord, of intention to enter on abandoned holding, 87 (2), p. 163.
form and rule for service of do., pp. 164, 165, Appdx. I, Chap. V, p. 296,

Schd. I, p. 315.
notice to Collector of landlord's intention to enter on abandoned holding need

not be accompanied by an application, but if an application is presented,

it must be stumped, p. 165.
of misuse of land, or of breach of conditions of tenancy to be served on ten-
ant before suit for ejectment can be instituted, s. 155, pp. 227, 228.
where to be tiled and how to be served, p. 229.
required by Act to be served on or given to landlord to be served on or

given to agent if empowered to accept service or receive the same, s. 187

(2), p. 264.
Local Government may prescribe mode of service of notices where no mode

of service is elsewhere prescribed, a. 189 (2), p. 268.
service of, rules framed by Government under this Act regarding, with Board

of Revenue's instructions thereon, Appdx. I, Chap. V, pp. 292 — 296.

NOTIFICATION:

fixing time of commencement of Tenancy Act, p. 2.

vesting Sub-divisional officers with powers of a Collector under ss. 12, 13, and
15, pp. 17, 48.
R. & F„ B. T. A. 25

386 INDEX.

NOTIFICATION— (con/iH«crf).

vesting Sub-divisional officers with powers of a Collector under ss. 69 to 71, p. 17.
as to officer by whom local enquiries under ss. 31 (6) and 158 (2) shall be

made, pp. 82, 231.
remitting fees payable on applications for deposit of rent, p. 128.
appointing certain officers to be special judges under s. 108, p. 185.
regnrding rules, framed under this Act, pp. 269, 285.
regarding stiiplo food-crop.s for local areas, and marts at which prices shall be

taken, p. 320.
vesting the Deputy Collector of Howrah with powers of a Collector under

ss. 69 to 71, Appdx. VI, p. 355.

OCCUPANCY-RAIYAT :

distinction between, and settled raiyat, p. 63.

rights of, in respect of use of land, s, 23, p. 66.

obligation of, to pay rent, s. 24, p. 67.

cannot create a tenure intermediate between himself and his landlord, p. 75.

right of sub-letting of, p. 75.

rent paid by, to be presumed fair and equitable, s. 27, p. 75,

enhancement of rent of, ss. 27 — 37, pp. 75—87.

money rent paid by, not enhanceable except under Tenancy Act, s. 28, p, 76.

enhancement by contract of rent of, s. 29, pp. 76, 77.

provisions of sec. 29 as to enhancement of rent of, not applicable to settle-
ments, p. 77.

enhancement of rent of, by suit, s. 30, p. 78.

prevailing rate as ground of enhancement of rent of, p. 79.

ri.se in prices as ground of enhancement of rent of, p. 80.

increase in productive powers of land as ground for enhancement of rent of,
p. 80.

fluvial action as ground of enhancement of rent of, p. 80.

rules as to enhancement of rent of, on ground of prevailing rate, s. 31, p. 80,

rules as to enhancement of rent of, on ground of rise in prices, s. 32, p. 83.

rules as to enhancement of rent of, on ground of landlords' improvement, s. 33,
p. 84.

rules as to enhancement of rent of, on ground of increase in productive powers
due to fluvial action, s. 34, p. 85.

enhancement by suit of rent of, to be fair and equitable, s. 35, p. 85.

power of Court to order enhancement of rent of, to be gradual, s. 36, p. 86.

no suit for enhancement of rent of, shall be entertained until expiry of 15 years,
if after March 2nd, 1883, rent of, has been enhanced on ground of rate of
rent paid being below prevailing rate, or on ground of rise in prices, or if
produce rent of, has been commuted under ss. 40, 37, p. 86.

grounds on which, may institute suit for reduction of rent, s. 38, p. 87.

cannot sue for reduction of rent of any ground not mentioned in, s. 38, p. 87.

when and to whom njay apply for commutation of rent payable in kind, s. 40,
pp. 89, 90,

changes made by Act in position of, p. 91.

cannot be ejected for arrears of rent, but holding may be sold, s. 65, p. 13 J.

when occupancy-raiyat transfers his holding without consent of landlord,
transferor and transferee to be liable for rent, until notice is given to land-
lord, 8. 73, pp. 146, 147.

INDEX. 387

OCGVPAI^CY'RAIY AT-(coniinued).

lias right to make improvements on Lis holding, s. 77, p. 152.

rent of, settled in proceeding under Chap. X to remain nnaltered for 15 years,

s. 113, p. 187.
when suing for possession to brini? suit within 2 years from date of disposses-

sion, Art. 3, Schd. Ill, p. 279.
effect of acquisition by, of fractional share of proprietory interest in Holding,

Appdx. VI, p. 355.

OCCUPANCY. RIGHT :
is not a tenure, p. 22.

previously existing, continues under the Act, s. 19, p. 57.
can be acquired by custom, p. 57.

rulings as to acquisition of, under former law, pp. 57, 58.
who did not acquire, under former law, pp, 59, 60.
determination of, under former law, pp. 60, 61.
settled raiyat to have, with retrospective elFect, s. 21, pp. 63, 64.
raiyat cannot contract himself out of, p. 64, s. 278, pp 249, 250,
effect of acquisition of, by landlord, s. 22, p. 65.
effect of acquisition of, by ijaradars, p. 66.
incidents of, ss. 23—26, pp. 66—75.
devolution of, on death, s. 26, p. 70.
transferability and non- transferability of, p. 70.
not transferable save by custom, p. 71.
transferable by custom, p. 71.

prevalence, proof, and onus of proof of custom of transferability of, p. 72.
effect of transfer of, when not transfer.ible by custom, p. 73.
effect of receipt of rent by landlord from transferee of non-transferable occu-
pancy-right, p. 74.
when non-transferable occupancy-right can be bequeathed, p. 74.
effect of transfer of, when transferable by custom, p. 75.
transfer of, how to be effected, p. 75.
acquisition of, by under-raiyat, p. 99.

ONUS OB PROOF:

as to tenure having been held from time of Permanent Settlement, p. 38.

as to transferability of tenures, p. 45.

as to rights of settled raiyat, s. 20 (7), pp. 62, 63.

rulings regarding, p. 205.

ORCHARD LAND:

provisions of s. 178, imposing restrictions on contract do not affect contracts
for the temporary cultivation of orchard laud with agricultural crops,
s. 178, proviso 3, p. 250.

ORISSA :

rent- law of, p. 2.

Tenancy Act does not extend, but may be extended to, s. 1 (3), p. 2.
on extension of Tenancy Act to Orissa, enactments in force there shall be
repealed, s. 2 (2), p. 5.

PARTITION :

of revenue-paying estates, nothing in this Act affects enactments relating to,
not repealed by this Act, s, 1 95 {d), p. 273.

388 INDEX.

PASTURAGE:

rinbts of, provisions of Tenancy Act for recovery of arrears of rent apply to

suits for recovery of money due on account of, s. 193, p. 270.
what provisions of this Act apply and what do not apply to such suit?,

pp. 270, 271.
applicability of Stamp Act and Transfer of Property Act to instruments relat.

ing to, p. 272.

PATNI TALUKS :
incidents of, p. 27.

not aflfected by, but rent of, may be sued for under this Act, p. 232.
nothing in this Act affects any enactment relating to, s. 195 (e), p. 273,

PAY, PAYABLE, PAYMENT:

when used with reference to rent include •' deliver, " " deliverable," and " deli»

very," s. 3 (6), p. 15.
distinction between lawfully payable and lawfully recoverable, pp. 98, 10}, and

150.

PAYMENT OF RENT :

to be made subject to agreement or usage in 4 equal instalments, s. 53, p. 118.
time and place of payment of each instalment, s. 54, p. 119.
by postal money order sanctioned in the Burdwan division, p. 120.
appropriation of payments of rent, s. 55, p. 120.
■ tenant entitled to receipt on, s. 56, p. 121.
payment of deposit of rent how to be made, s. 64, p. 130.
in advance, liability of tenure in case of, p. 143.

PAYMENT :

into Court of rent admitted to be due to third person, s, 150, p. 222,
into Court of rent admitted to be due to landlord, s. 150, p. 222.
into Court of portions of rent admitted to be due, s. 151, p. 223,
into Court, receipt to be granted in esse of, s. 152, p. 223.

PENALTY:

on landlord for withholding receipt and statement of accounts from tenant or

failing to keep counterpart or copy, s. 58, p. 123.
for exaction by landlord of sum in excess of rent, s. 75, p. 150.
for interference with possession of crop in case of produce-rent, s. 186 (1)

pp. 141,264.
for distraining or attempting to distrain the produce of a tenant's holding

otherwise than according to law, s. 186 (1) (a), p, 264.
for resisting a distraint duly made under this Act, or forcibly or clandestinely

removing distrained property, s. 186 (1) (6), p. 264.
for abetting illegal interference with produce, s. 186 (2), p. 264.

PERMANENT SETTLEMENT :
meaning of, s. 3 (12), p. 17.

PERMANENT TENURE : See Tenure.
definition of, 8. 3 (8), p. 15.

PLAINT :

what to contain in suits for recovery of rent, s. 148 (b), p, 218,

INDEX. 389

PLANTATION :

a protected interest in case of sale of tenure or holding for arrears due thereon,
s. 160 (c), p. 236.

POSSESSION :

peaceable, landlord bound to give, to tenant, p. 104.
of tenant not adverse to, landlord, p. 106.

suit for, claimed by occupancy -raiyat to be brought within 2 years from date of
dispossession, Art. 3, Schd. Ill, p. 279.

POTTAH :

suits for, done away with, p. 231.

PRESCllIBED :

meaning of, iu this Act, b. 3 (15), p. 17.

PRESUMPTION :

as to tenant being tenurC'hoIder, when area of his tenancy exceeds 100 bighas,

s. 5 (5), p. 26.
as to raiyat being settled raiyat until contrai'y is proved or admitted, s. 20 (7),

p. 62.
as to rent for the time being payable by an occupancy-raiyat being fair and

equitable until the contrary is proved, s. 27, p. 75.
as to fixity of rent, s. 50, pp. 107 — 110.
as to amount of rent and conditions of holding being the same as in last

preceding year, s. 51, p. 111.
as to receipt which does not contain substantially prescribed particulars being

an acquittance in full, s. 56 (4), p. 121.
6s to notice of surrender having been given, s. 86 (3), p. 159.
as to correctness of map or other record of boundaries and measurements of

land, s. 91 (2), p. 168.
as to correctness of standard of measurement declared by Government to be

in use in any local area, s. 92 (3), p. 169.
as to the existing rent when settlement-proceedings are going on being fair and

equitable till the contrary is proved, s. 104, p. 181.
as to undis^puted entries in record-of-rights being correct until the contrary is

proved, s. 109 (2), p. 185.
presumption as to fixity of rent not to apply when record-of-rights has been

prepared, s. 115, p. 188.
as to land not being proprietor's private land until the contrary is shown, s. 120

(2)(3), p. 193.
PREVAILING RATE:

occupancy-raiyat's rent may be enhanced on ground that rate of rent paid by

him is below, s. 30 (a), pp. 78, 79.
rules for enhancement of occupancy-raiyat's rent on ground that the rate of

rent paid by him is below, s. 31, pp. 80, 81.
working of rules for ascertaining, p. 81.

PRICE-LISTS :

of staple food-crops, rules regarding preparation of, s. 39, pp. 88, 89.

rules framed by Government under this Act regarding, with Board of Revenue's

instructions thereon, Appdx. I, Chap. II, pp. 287 — 290.
local areas for which price lists of staple food-crops are to be prepared,
Appdx. I, Schd. II, pp. 319—321.

390 INDEX.

PRICE-LISTS— (confmucrf).

market days selected for the preparation of staple food-crops in local areas of
Bengal, Appdx. XI, pp. 322—324.

PRICES :

occupancy •raijat'a rent may be enhanced on the ground of rise in, s. 30 (b),

p. 79.
rules as to enhancement of occupancy-raiyat's rent on ground of rise it), s. 32,

p. 83.
what decennial periods may be taken for comparison of, p. 83.

PROCEDURE ; See Judicial Procedure.

Local Government may make rules for procedure of Revenue-officers in pro-
ceedings under this Act, s. 189 (1), p. 268.

PROCEEDINGS:

meaning of, in s. 6, Act I of 1868 (General Clauses Act), pp. 5, 6.
commenced under old luw, to be continued under it, pp. 5, 6,

PROCLAMATION :

of sale of tenure or holding for arrears, what to contain and how to be publish-
ed, 8. 163 (2) (3), p. 239.

PRODUCE :

illegal interference with, to amount to criminal trespass under Penal Code,
8. 186 (1), p. 264.

PRODUCE-RENT :

is not a rent at fixed rate, p. 56.

cannot be enhanced so long as it remains payable as such, p. 76.

procedure for commutation of, s. 40, pp. 89, 90.

order for appraising or dividing produce, s. 69, p. 137.

system of appraising or dividing produce in Hehar, pp. 137, 139.

application for appraisement or division may be joint one, p. 138.

Sub-divisional officers have been vested with powers of a Collector for purpose

of appraising and dividing produce, p. 138.
procedure when there is a dispute as to tenancy being liable to payment of,

p. 138.
what officer should be appointed to appraise and divide produce, p. 139.
proceedings for appraisement and division to be summary, p. 139.
procedure when officer is appointed to appraise or divide produce, s. 70,

p. 140.
dispute as to appraisement or division of produce may be referred by Collector

to Civil Court, s. 70 (5), and procedure to be thereupon adopted by

Civil Court, p. 140.
rights and liabilities as to possession of crops in case of, s. 71, p. 141.
rulings under old law as to, p. 141.
penalty for illegal interference with produce in case of, s. 186 (1) (c), pp. 141,

264.
holding held under system of, can be measured annually, s. 90 (2) (ft), pp. 167,

168.
Deputy Collector of Howrah has been vested with powers of Collector for ap-
praising or dividing produce, Appdx. VI, p. 355.

INDEX. 391

PRODUCTIVE POWERS:

increase in, of land, occupancy-riiijat's rent may be enhanced on ground of,

s. 30 (c) (d), pp. 78, 80.
rules for enhancement of occupancy-raiyat's rent on this ground, ss. 33, 34,

pp. 84, 85.

PROPRIETOR :

definition of, s. 3 (2), p. 8,

effect of non-registration of interest of, p. 8.

elTect of acquisition of occupancy-right by, s. 22, p. 65.

registered, effect of receipt of rent by, s. 60, p. 124.

tenant not entitled to violate conditions binding on, s. 194, p. 272.

PROPRIETOR'S PRIVATE LAND:

the provisions of Chap. V, do not confer occupancy-right in, and provisions of

Chap. VI, do not apply to, s. 116, p. 190.
Local Government empowered to order survey and record-of-rights of, s. 117,

p. 191.
Revenue-officers on application of proprietor or tenant may ascertain and,

record whether land is or is not, s. 118, p. 192.
procedure for ascertaining and recording, s. 119, p. 192.
rules for determination of, s. 120, p. 192.
record of, rules framed by Government under this Act regarding, Appdx. I,

Chap. IV, p. 292,

PROTECTED INTEREST :

what shall be deemed to be, at sale of tenure or holding for arrears of rent,
s. 160, p. 236.

RAIYAT : Bee Fixity of rent, Raiyat at Fixed Hates, Settled- Raiyat, Occiiparicy-

Raiyat, Non-Occupa7icy- Raiyat and Under-Raiyat.
definition of, s. 5 (2), pp. 24, 25.

must hold land either under a proprietor or tenure-holder, s. 5 (3), p. 25.
in determining whether tenant is raiyat, regard to be had to local custom and

origin of tenancy, s. 5 (4), p. 25.
compensation for improvement by, s. 82, p. 154.
principle on which compensation is to be estimated, s. 83, p. 155.
I)cwer of, to sub-let, restrictions on, s. 85, p. 157.
rulings under old law as to sub-letting by, p. 158.
all raiyats may sub-let, p. 158.
power of; to surrender holding, s. 86, p. 159.
right of relinquishment under former law, p. 160.
riglits of ejected raiyat in respect of crops and land prepared for sowing, s. 156,

pp. 229, 230.
cannot after passing of this Act contract himself out of his right to acquire

occupancy-right (s. 178 (3) (a) ), to surrender his holding, s. 178 (3) (c)^

to transfer or bequeath his holding in accordance with local usage,

(s. 178, (3) (d) ), or to apply for a reduction of rent, (?. 178, (3) (/) ),

p. 249.

RAIYAT AT FIXED RATES :

incidents of holding of, s. 18, p. 55.
status of holding of, p. 55.

392 INDEX.

RAIYAT AT FIXED RATES— (co»<i«ued).

cannot be ejected for arrears of rent, but holding may be sold, s. 65, p. 131.
has rij^ht to make improvements on his holding, a. 77, p. 152.

IIAIYATI-HOLDINGS :

difierent kinds of, pp. 32 to 35.
registration of ordinary, not required, p. 72.

RECEIPT :

tenant making payment of rent entitled to a receipt, s. 56 (1), p. 121.

landlord bound to keep counterfoils, s. 56 (2), p. 121.

what to be specified in receipt and counterfoil, s. 56 (3), p. 12!.

receipt not containing substantially the particulars required to be presumed to

be receipt in full, s. 56 (4), p. 121.
landlord liable to penalty for withholding or failing to keep counterfoil of, a. 58,

p. 123.
forms of, to be prepared and kept for sale at sub-divisional offices, s. 59, p. 123.
of rent, effect of, by registered proprietor, manager, or mortgagee, s. 60, p. 124.
for deposit of rent granted by Court to be a valid acquittance, s. 62, pp. 128,

129.
to be granted by Court for rent paid into Court, 8. 152, p, 223.
suits for, appeals in, s. 153, p. 223.
form of, Schd, II, pp. 276, 277.

RECLAMATION :

of land, shall be presumed to be an improvement of a raiyat's holding, s. 76 (2)
(c)(rf),p. 151.

RECORD-OF-IUGHTS :
objects of, p. 174.

procedure for, as originally proposed, p. 174,
procedure for, prescribed by Act, p. 175.
Chap. X applies to settlements of land revenue, p. 175.
power of Local Governments to order, s. 101, p. 177.
procedure with regard to costs of, p. 177.
form of security bond for costs of, p. 178.

Board of Revenue and Accountant-General's instructions as to costs of, p. 179.
particulars to be i*ecorded in, s. 102, p. 179.
power of Revenue-officer to record particulars on applications of proprietor or

tenure-holder, s. 103, p. 180.
costs of record-of-rights applied for under s. 103, to be paid by applicant,

p. 181.
procedure as to recording or settling rents, s. 104, p. 181.
Revenue-officers bound to settle rent for all land on application of landlord

or tenant, s. 104 (2), p. 181.
Revenue-officers bound to settle fair rents in case of change of area, s. 104

(2), p. 181.
Board of Revenue's instructions as to assessment of excess areas in Wards*

Estates, p. 181.
Revenue-officer bound to settle fair rents when settlement of land revenue

is proceeding, p. 182.
in proceedings under Chap. X existing rents to be presumed fair, p. 182.
publication of record, s. 105, p. 182.

INDEX. 393

RECORD'OF-mGRTS— (continued).

procedure in case of disputes as to entries in record, s. 106, p. 183.

Revenue-oflScers in deciding disputes to be guided by Civil Procedure Code
subject to rules framed by Local Government, s. 107, p, 184.

appeal to lie from decision of Settlement-officer to Special Judge and from
Special Judge to High Court, s. 108, p. 184.

disputed entries in, to be distinguished from undisputed entries, and tbe Intter
to be presumed to be correct until the contrary is shown, s. 109, p. 185.

settlement of rent to take effect from beginning of agricultural year next after
publication of, s, 110, p. 186.

proceedings in Civil Court for alteration of rent or determination of status of,
tenant to be stayed, when record-of-rights is under preparation, s. Ill, p. 186.

Local Government with sanction of Governor-General may, in interests of
public order or local welfare, empower Revenue-officer to settle and reduce
rents, s, 112, p. 186.

rents settled by Settlement-officer in proceedings under Chap. X to remain
unaltered for 15 years in case of tenure-holder and occupancy-raiyat and
for 5 years in case of non-occupancy-raiyat, s. 113, p. 187.

Local Government empowered to pass order for the apportionment of the ex-
penses of a survey and record- of-rights except when ordered under
sec. 101 (2) (d), a. 114, p. 188.

presumption of s. 50 as to fixity of rent not to apply to tenancy of which
record- of-rights has been prepared, s. 115, p. 188.

summary of processes of survey and record-of-rights, p. 189.

result of survey and record-of-rights in Mozufferpore, p. 189.
• and settlement of rents, rules framed by Government under this Act regard-
ing, with Board of Revenue's instructions thereon, Appdx. I, Chap. VI,
pp. 296—308.

REDUCTION :

of rent, grounds on which occupancy a'aiyat may institute suit for, s. 38, p. 87.

of rent, whether can be claimed in a suit for arrears, pp. 88, 116.

of rent, every tenant entitled to, on ground of proved deficiency in area of

his tenure or holding, s. 52 (2) (4), pp. 112, 113.
of rent, Local Government with sanction of Governor-General may, in special

cases, empower Revenue-officer to reduce rents, s. 112, p. 186.
of rent, raiyat cannot, after passing of this Act, contract himself out of his

right to apply for, s. 178 (3) (/), p. 249,

REGISTERED :

meaning of, in this Act, s. 3(18), p. 18.

REGISTERS: ^qq Land Revenue Registers.

of rent-suits, form prescribed for, s. 146, p. 215.

under Tenancy Act, forms of, prescribed by Board of Revenue to be kept by
Collectors and Sub- divisional officers, Appdx. II, pp. 325—334.

REGISTllATION :

of deeds of sale or transfer, p. 18.

of agricultural leases, when compulsory, p. 19, when optional, p. 20.

of under-raiyat's leases, pp. 20, 21.

effect of non-registration of leases the registration of which is compulsory, p. 21.

of contracts for eahaucemeat of rent, p. 21 .

394 INDEX.

REGISTRATION— (con/inucrf).

of incuiubrniices on tenures and holdings, p. 21.

of documents, except sub-leases, even if invalid cannot be refused, p. 22.

officers, procedure to be adopted hy, in caae of transfer of parts of a tenure
or holding, p. 52.

of transfers of permanent tenures, former law regarding, pp. 52 — 54.

of transfers of and successions to permanent tenures, present system of, p. 54.

effect of do., pp. 54, 55.

of ordinary raiyati-holding not required, p. 72.

of contract of enhancement of occupancy-raiyat's rent compulsory, s. 29 (a), p, 76.

of contract of enhancement of non-occupancy-raiyat's rent compulsory,
, 8. 43, p. 92.

of lease of under-raiyat for rent exceeding raiyat's rent by 25 p. c, compul-
sory, s. 48 (a), pp. 97, 98.

effect of absence of, of proprietor's name under Act VII of 1876, 13. C, p. 101.

efiect of, of proprietor's name on receipt of rent, s. 60, p. 124.

of landlord's improvement, s. 80, p. 153.

of sub-leases by raiyats, s. 85, p. 157.

of certain instruments creating incumbrances, extended period for, s. 175, p. 248.

incumbrances to be notified to landlord by Registering-officers, s. 176, p. 248.

department, rules of, under Bengal Tenancy Act, Appdx. IV, pp. 339—347.

REGULATIONS :

partially repealed, sections and subjects of, pt. 4, Schd. I, p. 274.

RELINQUISHMENT: See Surrender. Abandonment.

RENT:

definition of, s. 3 (5), p. 13.

money recoverable as, under various enactments, pp. 15, 150,

is moveable property, p. 15.

at fixed rate, produce-rent is not, p. 56.

oblig.ition of occupancy-raiyat to pay, s. 24, p. 67.

fair and equitable rates of, meaning of, p. 67,

eflect of receipt of, by landlord from transferee of non- transferable rif^ht of

occupnncy, p. 74.
paid by occupuucy-raiyat to be presumed fair and equitable, s. 27, p. 75,
of occupancy-raiyat, enhancement of, ss. 27 — 37, pp. 75—87.
reduction of, grounds on which occupancy-raiyat may institute suit for,

8. 38, p. 87.
whether reduction of, can be claimed in a suit for arrears, pp. 88, 116.
rules and presumptions as to fixity of, s. 50, pp. 107 — 111.
to what lands presumption as to fixity of rent does not apply, p. 108.
presumption arises notwithstanding unlawful eviction, p. 108.
pleadings sufficient to raise presumption, p. 108.
when presumption dues not arise, p. 109.
proof of payment necessary to raise presumption, p. 109.
eflect of division or consolidation of holdings on presumption, p. 111.
presumption as to amount of tenant's rent and conditions of holding, s. 51, p. 1 1 1.
alteration of rent on alteration of area, s. 52, pp. 112 —118.
abatement of, on account of decrease in area, pp. 114 — 116.
can be claimed in a &uit for arrears, p. 116.

INDEX. 395

RENT--(coH/»«werf).

subject to agreement or usage, to be payable in four equal instalments,

s. 53, p. 118.
time and place of payment of each instalment, s. 54, p. 118,
payment of, by postal money orders sanctioned in the Burdwan division, p. 120.
appropriation of payments of, s. 55, p. 120.

tenant making payment to his landlord entitled to a receipt for, s. 56, p. 121.
effect of receipt by registered proprietor, manager, or mortgagee, s. 60, p. 124.
deposit of, operations of s. 61 to 64, relating to, postponed to 1st February,

1886, p. 125.
when tenant may make deposit of, s. 61, pp. 125, 126.
tender of, when valid, p. 127.

limitation in suit for arrears, in case of deposit of, pp. 127, 279.
deposit of rent must include interest and cesses, p. 127.
foes prescribed by Government on deposits, pp. 128, 309.
Board of Revenue's circulars on subject of fees on deposits and applications

for permission to deposit, p. 128.
receipt granted by Court for deposit of, to be valid acquittance, s. 62, p. 128.
notification and notice of deposit of, how to be given, s. 63, pp. 129, 130.
payment of refund of deposit of, s. 64, pp. 130, 131.
arrears of permanent tenure-holder, I'aiyat at fixed rates, and occupancy-raiyat

cannot be ejected for, but tenure or iiolding may be sold for, s. 65, p. 131.
liability of permanent tenure, holding at fixed rates, or occupancy-holding to

sale for arrears of, s. 65, p. 131.
tenures and holdings now hypothecated for, p. 132.
. execution of decree for arrears of, p. 133.
non-occupancy and under-raiyat may be ejected for arrears of, s. 66 (1), p. 134.
receipt of rent after decree for ejectment operates as waiver of right to

eject, p. 135.
interest on arrears of, runs at 12 p. c, s. 67, p. 135.
damages up to 25 p. c. may be awarded for, withheld without reasonable cause,

or to defendant improperly sued for, s. 68, p. 136.
tenant not liable to transferee of landlord's interest for rent paid to former

landlord without notice of transfer, s. 72 (1), p. 142.
paid in advance, tenant's liability in case of, p. 143.
transfer of arrears of, p. 143.
apportionment of, pp. 144 — 146.

liability for, after transfer of occupancy- holding, s. 73, pp. 146, 147.
penalty for exaction by landlord from tenant of sum in excess of, s. 75, p. 150.
settled in proceedings under Chap. X to remain unalterable for 15 years in cnse

of tenure-holder and occupancy-raiyat, and fur 5 years in case of non-

occupancy-raiyat, s. 113, p. 187.
ex-parte decree for, eflfect of, p. 21 1 .
suit for, should not be dismissed, because it should have been brought as a civil

suit and vice versa, p. 215.
suit for, cannot be brought until lapse of three months from date of institution

of previous suit, s. 147, p. 216.
suit for, must include whole claim and all rent due at time of institution,

pp. 216, 217.
under old law landlords failing in suit for, at enhanced rate could get decree

for rent at old rate, p. 217.

396 INDEX.

RENT— (co« an werf).

suits for recovery of, procedure in, s. 148, pp. 218 — 221.

payment into Court of, admitted to be due to third person, s. 149, pp. 221

222.
payment into Court of, admitted to be due to landlord, s. 150, p. 222.
provision for payment into Court of portion of, admitted to be due, s. 151, p. 223.
receipt to be granted by Court for, paid into Court, s. 152, p. 223.
power for Court to fix fair rent as alternative to ejectment, s. 157, p. 230.

IIENT-FREE LAND :

in area not permanently settled may be assessed with rent when land revenue
is for first time made payable or fresh settlement of land revenue is made,
8. 192, p. 270.

RENT-FllEE TENURE :

pnyment of landlord's fee in case of transfer of, p. 47.

RENT-LAW:

of Calcutta, p. 2.

of Orissa and the scheduled districts, p. 2.

of Assam, p. 3,

REPEAL: Bee Enactme7its.

enactments repealed by Tenancy Act, s. 2 and Schd. I, pp. 3 — 5, 274, 275.

RES JUDICATA :

rulings regarding application of rule of, to rent-suits, pp. 209 — 211.

REVENUE-OFFICER : See Re cord- of- Rights.
definition of, s. 3 (17), p. 17.
Collector has ex-officio powers of, p. 17.
Local Government may make rules for procedure of, in discharge of duties

under this Act, s. 189 (1), p. 268.
may fix fair and equitable rent for land in temporarily settled area in case of

new assessment of revenue, s. 192, p. 270.

REVENUE SURVEY MAPS :

for what parts of Bengal prepared, p. 16.

REVISION :

powers of, of High Court, under s. 622, C. P. C, p. 267.

RULES :

power of Local Government to make rules regarding procedure, powers of ofii-
cers and service of notices, s. 189, p. 268.

procedure for making, publication, and confirmation of rules, s. 190, pp. 268,
269.

made under this Act may be amended, added to, or cancelled by authority hav-
ing power to make them, s. 190 (6), p. 269.

framed by Government under this Act with Board of Revenue's instructions
thereon, Appdx. I, pp. 285 — 324.

framed by High Court under this Act, Appdx. II, pp. 335 — 338.

of Registration Department under Bengal Tenancy Act, Appdx. IV, pp. 339—
347.

RUNGPORE :

interests in laud in, p. 33 and Appdx« VI, p. 354.

INDEX. 397

SALES:

or transfer, registration of, deeds of, p. 18.
of distrained crop, ss. 128 — 131, p. 199.

SALE FOR ARREARS OF RENT :

general power of purchaser as to avoidance of incumbrances on sale of tenure

or holding for arrears, s. 159, p. 232.
what passed at, under former law, p. 233.
fraud may vitiate, p. 233.
a share of a tenure could be sold, p. 234.
what now passes at, p. 235.

sale is valid, even if decree under which it was held is reversed, p. 235.
what shall be deemed protected interests at, s. 160, p. 236.
meaning of " incumbrance," and "registered and notified incumbrance," s. 161,

p. 237.
application for sale of tenure or holding what to specify, s. 162, p. 238.
order of attachment and proclamation of sale of tenure or holding for arrears

to be issued simultaneously, s. 163 (1), p. 238.
proclamation of sale what to contain and how to be published, a. 163 (4),

p. 239.
when tenure or holding at fixed rates to be sold subject to registered and noti-
fied incumbrances, and effect thereof, s. 164, p. 240.
meaning of bidding at, p. 240.
sale of tenure or holding at fixed rates with power to avoid all incumbrances,

and effect thereof, s. 165, p. 240.
of occupancy-holding with power to avoid all incumbrances, and eff*ect thereof,

s. 166, p. 241.
procedure for annulling incumbrances, s. 167, p. 241.
rules for disposal of sale proceeds at, s. 169, p. 243.
ss . 278 to 283 of Civil Procedure Code not to apply to a tenure or holding

attached in execution of a decree for arrears, s. 170 (1), p. 243.
but this applies to claims to tenure, and not to claims which are adverse to the

tenure, p. 244.
tenure or holding to be released from attachment only on payment into Court

of amount of decree with costs, or on confession of satisfaction by decree-
holder, s. 170(2), p. 243.
rights of an unregistered transferee of a tenure or holding to pay the decretal

amount into Court, p. 244.
amount paid into Court to prevent sale to be in certain cases a mortgage-debt

on tenure or holding, s. 171, p. 244.
remedies of persons whose interests are aff'ected by, p. 245.
inferior tenant who pays money into Court to prevent sale may deduct amount

from rent due by him, s. 172, p. 246.
decree-holder may bid at sale ; judgment-debtor may not, s. 173, p. 246.
application by judgment - debtor to set aside sale, s. 174, pp. 246,

247.
sale to be set aside if judgment-debtor deposits decretal amount with costs,

and 5 p. c. on purchase-money (to be paid to purchaser) within 30 days of

sale, s. 174 (2), p. 247.
amount deposited must be at once payable to parties, pp. 247, 248.
the provisions of g. 174 cannot have retrospective cff'ect, p. 248.

398 INDEX.

SALE FOR ARREARS OF REVENUE :

nothing in this Act affects enactment for avoidance of tenancies and iacum-

brances by, 8. 195 (c), p. 273.
law relating to, p. 273.

SANTALPARGANAS:

rent-law relating to, p. 3 and Appdx. VI, p. 354.

SARBARAK ARI TENURES :
incidents of, pp. 30, 31.

SATTUA PATUA OR SUDI3HARNA LEASE:
description of, p. 32.

SCHEDULED DIS TRICTS :
rent-law of, p. 2.
Bengal Tenancy Act may be extended to, p. 3.

SERVICE TENURES:

incidents of not to be affected by this Act, which confers no right to transfer

or bequeath such tenures, s. 181, p. 253.
law relating to, p. 256.

SET-OFF :

in rent-suits, rulings regarding, p. 212.

SETTLED RAIYAT:

definition and incidents of status of, s. 20, pp. 61, 62.
acquisition of rights of, p. 62.
distinction between, and occupancy-raiyat, p. 63.
co-sharer raiyats can acquire rights of, s. 20 (4), pp. 62, 63.
retention and recovery of rights of, s. 20 (5) and (6), pp. 62, 63.
onus of proof of right of, s. 20 (7), pp. 62, 63.
has occupancy-rights, s. 21, pp. 63, 64.

retrospective effect of provisions as to acquisition of occupancy-rights by, s, 21
(2), p. 64.

SETTLEMENT : See Temporary Setllement.

law of, in Bengal, when enhancement of rent is involved, p. 4.

provisions of s. 29 as to enhancement of occupancy-raiyat's rent by contract

not applicable in case of, p. 77.
of land revenue, provisions of Chap. X applicable to, s. 175.
law of Bengal, p. 176.

SETTLEMENT-OFFICER :

in proceedings under Chap. X to adopt procedure of Code of Civil Procedure

subject to rules framed by Local Government, s. 108, p. 184.
nothing in this Act affects powers and duties of, as defined in law not repealed

by this Act, s. 195 («), p. 272.
powers of officers appointed by Local Government to be, to have powers of a

Civil Court and powers under s. 189 (1) (a) (i) and (c) of Tenancy Act,

Appdx. I, Chap. VI, Rule 1, p. 296.

SETTLEMENT OF RENTS:

and record-of-rights, rules framed by Government under this Act regarding,
and Board's instructions thereon, Appdx. I, Chap. VI, pp. 296—308.

INDEX. 399

SlilKMI TALUK :

menning of, pp. 7, 27.

SIGNED:

meaning of, in this Act, s. 3 (14), p. 17.

SIR : See ft-oprietor' s private land.

SPECIAL JUDGE :

appeals to lie from decisions of Settleraeufc -officers under- Chap. X to, and

from decisions of Special Judge to High Court, s. 108, p. 184.
■what decisions of Revenue-officers are, and what are not, appealable to

pp. 184, 185.
appeal to, to be brought within 30 days from date of decree or order appealed

against. Art. 4, Schd. Ill, p. 281.

SPECIAL LAW :

Tenancy Act does not affect any special law not expressly or impliedly repeal-
ed by it, s. 195 (6), p. 273.

STAMP ACT :

cultivator's leases exempt from provisions of, p. 19.

receipts for more than Rs. 20, if on account of rent of land not assessed to

Government revenue, not exempt from stamp duty, p. 121.
appraisement of crops for the purpose of ascertaining amount to be given to

landlord as rent exempt from stamp duty, p. 140.
written authorities to naib gumashtas, or agents of landlords to Act in Court

must be stamped under Art. 50, Act I of 1879, pp. 214, 265.
applicability of, to instruments relating to rights of pasturage, forest rights,

rights over lisheries, &c., p. 272.

STAPLE FOOD-CROPS :

rules for preparation of price-lists of, s. 39, pp. 88, 89.

rules framed by Government under this Act regarding, with Board of Reve-
nue's instructions thereon, Appdx. I, Chap. II, pp. 287—290.

what are, in each local area, and marts at which their prices are recorded,
Appdx. I, Schd. II, pp. 319—321.

SUB-DIVISIONAL OFFICER :

market days selected for preparation of price lists of, in local areas of Bengal

pp. 322—324.
vested with powers of a Collector under ss. 12, 13, and 15, p. 48.
vested with powers of Collector under ss. 69, 70, and 7 1 , for purpose of appraising
and dividing produce-rents, p. 138.

SUB-LEASE :

registration of, if invalid, can be refused, p. 22.

SUB-LETTING :

occnpancy-raiyat's right of, s. 20 (7), pp. 62, 63.

restrictions on, s. 85, p. 157.

rulings under old law as to, p. 158.

all rniyats have right of, p. 158.

when whole or part of abandoned holding has been sub-let by registered instru-
ment, the landlord before entering on it must offer the holding to sub-
lessee for remainder of term on condition of sub-lessee paying up arrears,
s. 87 (4), p. 163.

400 INDEX.

SUB-LETTING -(con/mwerf).

landlord cannot distrain produce of part of holding sub-let with bis written

consent, s. 121 (3), p. 194.
sub-lessee whose property has been distrained for amount due from superior

tenant and has paid that amount to release his property may deduct

amount so paid from rent due to his immediate landlord, s. 137 (1)

p. 201.
may sue for any amount so paid by him which he has not deducted from his

rent, s, 137 (2), p. 201.
when land is sub-let and a conflict arises between superior and inferior land-

lords as to distrained property, the right of the superior landlord shall

prevail, 8. 138, p. 201.
after passing of this Act occupancy-raiyat cannot contract himself out of right

to sub-let, s. 178 (3) (e), p. 249.

SUBORDINATE JUDGE :

no appeal from order of, if the amount claimed does not exceed Rs. 100, unless
decree or order has decided question of title, or of right to enhance or
vary rent or of amount of rent annually payable, s. 153 («), p. 223.

SUCCESSION :

meaning of, in this Act, s. 3 (13), p. 17.
procedure in case of, to permanent tenure, s. 15, p. 51.
I'ecovery of rent barred pending notice of, s. 16, p. 52.
procedure in case of, to holding at fixed rates, s. 18 («), p. 55.

SURRENDER:

raiyat not bound by lease, may surrender his holding at end of agricultural

year, s. 86 (1), p. 159.
but liable to landlord for rent of next year, unless he has given 3 months'

notice, 8. 86 (2), p. 159.
notice to be presumed to have been given, if raiyat takes new holding or ceases

to reside in same village 3 months before end of year, s. 86 (3), p. 159.
raiyat may serve notice through Civil Court, s. 86 (4), p. 160.
when holding subject to incumbrance, surrender not valid unless made with

consent of landlord and incumbrancer, s. 86 (6), p. 160.
subject to this exception raiyat and his landlord may arrange for surrender

for whole or part of holding, s. 86 (7), p. 160.
rulings as to relinquishment under former law, p. 160.
part of holding cannot be surrendered without landlord's consent, p. 161.
applications for service of notice of, exempt from Court-fee duty, in case of

joint tenants who may surrender, p. 161.
protection against collusive surrender, pp. 161, 162.
raiyats only can surrender their holdings, p. 162.
after passing of this Act raiyat cannot contract himself out of his I'ight to

surrender his holding, s. 178 (3) (c), p. 249.
rule for service of notice of surrender, Appdx. I, Chap. V, Rule 9, pp. 295,

296.

SURVEY:

Local Government may confer on any Revenue-officer power to enter on any
land and survey it and any power exercisable under Bengal Survey Act,
8. 189 (b), p. 268.

INDEX. 401

SURVEY MAPS :

revenue survey maps Lave been prepared for al! Bengal except jungle raebals
of Midnapore and certain hilly tracts in Chittagong, p, 16.
SYLflET:

Act VIII of 1869, B. C, in force in, p. 3.

TALUK:

distinction between kharija and shikrai, p. 7.

TANK :

is a protected interest at sale of tenure or holding for arrears of rent due there-
on, a. 160 (c), p. 236.
when occupancy-right accrues in, p. 271.

TEMPORARY SETTLEMEN^T :

in area under, rent of tenure may be enhanced on expiry of temporary settle-
ment unless the right to hold beyond term of settlement has been expressly
recognized in settlement proceeding, s. 191, p. 269.

in area under, a Revenue-ofBcer may in case of new assessment of revenue
fix a fiiir and equitable rent, notwithstanding terms of contract between
the parties, s. 192, p. 270.

TENANCY:

origin of, to be considered when determining nature of land, p. 12.
payment of rent not necessary to maintenance of, p. 13.
division of, not binding without consent of landlord in writing, a. 88, p. 165.
application to determine incidents of, s. 158, pp. 230, 231.

TENANT:

definition of, s. 3 (3), p. 9.

classes of tenants for the purposes of this Act, s. 4, p. 22,

considerations by which Court should be guided in detcirmining whether a

tenant is a tenure-holder or raiyut, 8. 5 (4), p. 25.
must be presumed to be a tenure-holder when the area of land held by him

exceeds one hundz-ed bighas, s. 5 (5), p. 26.
relation of landlord and, must exist before provisions of rent-law are appli-
cable, p. 100.
how the relation may arise, p. 101.
cannot deny title of landlord, p. 105.
possession of, not adverse to landlord, p. 106.
forfeiture of riglits of, by denial of landlord's title, p. 106.
presumption as to amount of rent and conditions of holding, s. 51, p. 111.
entitled to a receipt on payment of rent to his landlord, s. 56, p. 121.
entitled to get from landlord a full discharge or statement of account at close

of year, s. 57, p. 122.
may institute suit against landlord to recover penalty for withholding receipt

and statement of account, s. 58, p. 123.
not entitled to plead payment of rent to third person against proprietori

manager or mortgagee registered under Laud Registration Act, e, 60,

p. 124.
when entitled to make deposit of rent, s. 61, pp. 125, 126.
liability of, in case of rent paid in advance, p. 143,
all impositions on, under denominations of abwab, mahtut, &c., illegal, and all

stipulations for payment void, b. 74, p. 147.

R. & F , B. T. A. 26

402 INDEX.

TENANT— (con/inued).

penalty for exaction by landlord from, of sum in excess of rent payable, •. 75,

p. 150.
may be ordered by Court to attend and point out boundaries of land when

landlord desires to measure and if lie refuses or neglects to attend, map

and measurements of laud to be presimied correct, s. 91, p. 168.
inferior tenant may deduct from bis rent any amount he may have paid to get

his distrained property released, s. 137, p. 201.
cannot raise interpleader suit, p. 212.
landlord not bound to proceed against other than registered tenant for arrears

of rent, pp. 234, 235.
cannot either before or after passing of this Act agree to his being ejected

otherwise than under this Act, or contract himself out of his right to make

improvements and claim compensation for them, s. 178 (1) (c) (d), p. 249.
cannot after passing of this Act contract himself out of right to apply for a

commutation of rent payable in kind, s. 178 (3) (g), p. 250.
not enabled by this Act, tu violate conditions binding on his landlord, s,. 194,

p. 272.

TENDER :

of rent when valid, p. 127.

TENURE : See Fixity of rent. Sale for arrears of rent.
^Jefinition of, s. 3 (7), p. 15.
permanent, definition of, a. 3 (8), p. 15.
an occupancy-right is not a tenure, p. 22.

description of different kinds of, prevalent in Bengal, pp. 27 — 32.
temporary, description of, p. 31.
held since Permanent Settlement liable to enhancement only in certain cases,

s. 6, p. 36.
what reductions of rent entitle landlord to enhance rent of, p. 37.
what evidence of, being held from time of Permanent Settlement sufficient, p. 37.
onus of proof as to whether a tenure has been held from time of Permanent

Settlement, p, 38.
limits of enhancement of rent of, s. 7, pp. 38, 39.

Court may order that enhancement of rent of, may be gradual, s. 8, p. 40.
rent of, if once enhanced, may not be altei-ed for fifteen years, s. 9, p. 40.
holder of permanent tenure not liable to ejectment except on proof of breach

of condition for which he is liable to be ejected, but if contract made

after passing of this Act condition must be consistent with provisions of

this Act, 8. 10, pp. 40, 41.
permanent tenures how created, p. 41.

permanent by contract, instances of, and rulings regarding, p. 41.
permanent by custom and course of dealing, instances of, and rulings regarding,

p. 42.
transfer and transmission of permanent tenure, 8. 11, pp. 44, 45.
onus of proof as to transferability of, p. 45.
heritability of, p. 45.
sub-letting of, permanent tenures, p. 46.
abandonment of permanent tenure, p. 46.
voluntary transfer of, by sale, gift or mortgJFge to be made only by registered

instrumeut, 8. 12, p. 46.

INDEX. 403

TENURE- (con<j«uet/).

procedure for voluntary transfer of permanent tenure, s. 12 (2) (3), pp. 46, 47.
procedure on transfer of permanent tenure by sale in execution of a decree

other than a decree for arrears of rent, or of foreclosure of mortgage,

8. 13, p. 49.
procedure on transfer of tenure in execution of a decree for arrears of rent,

s. 14, p. 51.
procedure in case of succession to permanent tenure, s. 15, p. 51.
recovery of rent barred pending notice of succession to permanent tenure,

s. 16, p, 52.
provisions of sees. 12, 13, 14, 15 and 16 apply to the transfer of and succession

to a share in a permanent tenure, provided division of tenure has been

made with consent of landh)rd in writing, s. 17, p. 52.
procedure to be adopted by Registering-officers in case of transfer of parts

of tenure orholding, p. 52.
former law regarding the registration of transfer of permanent tenures, pp. 52

to 54.
present system of registration of transfers of and successions to permanent

tenures, p. 54.
effect of present system, pp. 54, 55.
proposed rescission of provisions of, ss. 12 to 15, p. 55.
presumption as to permanency of, arising from undisturbed occupation of land

with buildings, pp. 43, 258.
rent of, unchanged from time of Permanent Settlement cannot be increased

except on proof of increase in area, s. 50 (1), p. 107.
presum{)ti()n that rent of, has not been changed since time of Permanent Settle-
ment, when proved to have been held ut same rate for 20 years, s. 50 (2),

p. 107.
but this does not apply to tenure for a term or determinable at will of land-
lord, 8. 50 (4), p. 108.
or to land for which record-of-rights has been prepared, s. 115, p. 188.
rent of, liable to alteration on proof of alteration in area, a. 52, pp. 112, 113.
rent is first charge on, and tenure may be sold for arrears of rent, a. 65,

pp. 131, 132.
rent of tenure in temporary settled area may be enhanced on expiry of tempo*

rary settlement unless the right to hold beyond term of settlement has

been recognized in settlement-proceedings, a. 191, p- 269.

TENURE-HOLDER :

definition of, s. 5 (1), pp. 22, 23, 24.

when determining vrhether tenant is tenure-holder or not, regard to be had to

local custom and origin uf tenancy, s. 5 (4), p. 25.
a tenant must be presumed to be, when area of land held by him exceeds one

hundred bighas, s. 5 (5), p. 26.
limits of enhancement of rent of, s. 7, p. 39.
rent of, may be eidianced up tu customary rate, p. 39.
profits to be left to, p. 39.

restrictions on enhancement of rent of, by Court, sa. 8, 9, p. 40.
grounds on which, can be ejected, a. 10, pp. 40, 43, 44.
rent of, settled in proceeding under Chap. X, to remain unaltered for 15 years,

s. 113, p. 187.

404 INDEX.

TERMS :

definitiona of, used in Tenancy Act, as. 3, 5, pp. 7 — 3<J.

glossary of vernacular terms used in authorized translations of Tenancy Aot
and rules framed under the Act, Appdx. V, pp. 348—353.

TRANSFER :

and transmission of permanent tenure, extent to which permitted, s. M, p. 44.
procedure in case of voluntary transfer of permanent tenure by sale, gift or

mortgage, s. 12, p. 46.
no notice required when landlord himself purchases tenure, p. 49.
procedure in case of transfer of permanent tenure by sale in execution of

decree other than decree for arrears of rent, s. 13, p. 49.
procedure on transfer of permanent tenure by sale in execution of decree for

arrears of rent, s. 14, p. 51.
procedure in case of transfer of share in permanent tenure, s. 17, p. 52.
of holding of raiyat at fixed rates, s. 18 («), p. 55.
of occupancy-right how to be effected, p. 75.
of landlord's interest, right of, p. 142.
tenant's liability in case of, p. 14 3.
of arrears of rent, p. 143.
apportionment of rent on transfer of share of landlord's interest, of transfer

of his interest to several co-sharers, or of division of his interest,

pp. 144—146.
of landlord's interest, service of notice of, rule 3, Chap. I, Rule 6, Chap. V,

Govt. Rules, pp. 144, 286, 295.
of occupancy-holding, liability for rent in case of, s. 73, pp. 146, 147.
after passing of Act raiyat cannot contract himself out of riglit to transfer his

holding according to local usage, a. 178 (3) (rf), p. 249.
nothing in Act confers right to transfer a service tenure which could not

formerly be transferred, s. 181, p. 253.

TRANSFERABILITY:

of permanent teuures, s. 11, p. 44.
onus of proof as to, p. 4f.
of occupancy-rights, pp. 70 — 72.
of non-occupancy-rights, p. 97.
of rights of under raiyats, p. 159.

TRANSFER OF PROPERTY ACT :

eflect of provisions of, on registration of deeds of sale or transfer, p. 18.

effect of provisions of, on registration of agricultural leases, p. 20.

provisions of, regarding liability of person who has paid rent after transfer of

his landlord's interest, p. 143.
provisions of, as to rent paid in advance, p. 143.
provisions of, as to transfer of arrears of rent, pp. 143, 144.
applicability of, to instriTments relating to rights of pasturage, forest rightg,

rights over fisheries, &c., p. 272.

TRESPASSER :

cannot be forcibly ejected, p. 167.

may be made to pay fair rent as alternative to ejectment, s. 157, p. 230.

cannot be ejected except af(er suit, p. 230.

INDEX. 405

UNDER.RAIYAT :

registration of leases of, pp. 20, 21.

definition of, s, 4 (3), p. 22.

rights of, in Bengal, p. 35.

limits of rent recoverable from, s. 48, p. 97.

restrictions on ejectment of, s. 49, p. 98.

cannot be ejected except in execution of decree, p. 9S.

notice to quit to, when necessary and liow to he served, p. 99.

acquisition of occupancy-right by, p. 99.

further incidents of status of, p. 99.

may be ejected for arrears of rent, s. 66 (1), p. 134.

restrictions on power of sub-letting to, s. 85, p. 158.

rulings under old law as to right of sub-letting, p. 158.

acquisition of occupancy-rights by, and transferability of such rights', p. 159.

further provisions of present law as to, p. 159.

may acquire occupancy -rights by custom or usage, s. 183, ill. (2), p. 259.

UNDRR-TENURES :
description of, p. 32.

USAGE;

nothing in this Act to affect any nsnge not inconsistent with and not expressly

or impliedly abolished by it, s. 183, p. 258.
of raiyat's selling his holding without consent o'f his landlord may exist, s. 183,

ill. (I), p. 258.
of under-riiiyat's acquiring occupancy- right may exist, s. 183, ill. (2), p. 259.
difference between custom and, p. 260.

USE AND OCCUPATION :

trespassers liable to landlords for mesne profits for, pp. 167, 230.
persons make themselves tenants by, pp. 167, 230.

UTBANDI:

tenancy, incidents of, p. 34.

land held under utbandi system can be measured anniiiilly, s. 90 (o) (A)

pp. 167, 168.
raiyat not to acquire right of occupancy in land hell under system of, until lie

has held it for 12 years, and meanwhile to pay such reut as may be a^iet'd

on, 8. 180 (1), p. 251.
Chapter VI (relating to oocupancy-raiyats) not to apply to land held under

custom of, s. 180 (2), p. 252.
description of tenancies under custom of, p. 252.

VILLAGE:

definition of, s. 3 (10), pp. 15, 16.

person wlio has held land for 12 years in sarag village becomes settled raiyat,

8. 20 (1), p. 61.
person shall be deemed to be settled raiyat of, as long as lie holds any land in

village and for one year after, s. 20 (5), p. 62.
demarcation of boundaries of, in course of record-of-riglits and settlement of

rents, Appdx. I, Chap. VI, Rule 4, p. 297.

VILLAITI YEAR:

where prevalent, p, 16.

406 INDEX.

WAIVER:

of right of ejectment by receipt of rent, p. 135.

aoceptanco of old rent does not amouut to, when a decree for enhanced rent
has been obtained, p. 212.

WARDS ACT, 1879:

when management of estate or tenure is undertaken by Court of Wards under

sec. 95, 80 much of, as relates to manngemeat of immoveable property shall

apply, 8. 97, p. 172.
provisions of, to be applicable to property of co-owuers managed by Court of

Wards, s. 97, p. 1 73.

WARDS, COURT OF:

District Judge may, in case of dispute between co-owners, order estate or tenure
to be managed by, if Court of Wards consents, s. 95, p. 172.

when management of estate or tenure undertaken by, under s, 95, pro-
visions of Court of Wards Act relating to management of immoveable
property shall apply, a. 97, p. 172.

WASTELAND:

ordinarily raiyati, but may be proprietor's private land, p. 190.
provisions of sec. 178 not to afiect lease for reclamation of waste land, but where
after the expiry of the lease the lessee would under Chap. V be entitled to
occupancy-right, nothing in lease shall bar his acquiring such right, s. 178,
proviso 1, p. 250.
when landlord has reclaimed by his own labor, he may bar accrual of occupancy -
right in it for 30 years, s. 178, proviso 2, p. 250.

WATER :

works for storage, supply or distribution of, for purposes of agriculture or for
use of men and cattle engaged iu agriculture to be deemed an improvement,
8.76(2) (a), p. 151.

WELL:

to be deemed an improvement of a raiyat's holding, s. 76 (2) (a), p. 151.
raiyat holding at fixed rates, occupancy-raiyat, and non-ocoupancy-raiyat
entitled to construct, without landlord's couseutj ss. 77, 79, pp. 67, 152.

WORSHIP :

land on which place of, has been made a protected interest at sale of tenure or
holding for arrears of rent due thereon, s. 160 (c), p. 236.

WRITING :

naib or gumashta acting as recognized agent of landlord, in any suit or appli-
cation must be authorized by, under hand of landlord, s. 145, p. 214.

must be stamped under art. 50 of Stamp Act, pp. 214, 265.

authority to act as agent and representative of landlord iu Court must be in
writing, s. 187 (1), p. 264.

YEAR :

njiricultural, definition of, s. 3 (11), p. 16.
difierent years where prevalent, p. 16-

ZAR-I-PESHGI LEASE:
description ofj p. 31.

ZIRAT : See Propruior'i private land.

Calmtla^ July i8go,

THACKER, SPINK & CO.'S
LAW PUBLICATIONS.

Third EditWH. Roy^l %vo., cloth. Rs. 16.

THE CODE OF CIVIL PROCEDURE,

Act XIV of 1882, as amended by sttbsbqubnt Acts,
WITff NOTES, APPENDICES, ^^c.

By the Hon'ble J. O'KINEALY,

One of the Judges of Her Majesty's High Court qf Judicature, B^tigml,
Second Edition. Octavo, cloth. Ss. 16.

MEDICAL JURISPRUDENCE FOR INDIA.

J. B. LYON, F.C.S., F.I.C.,

Brigade-Surgeon, Bombay Medical Service ; Chemical Analyst
to Government ; Professor of Chemistry and Medical Juris-
prudence, Grant Medical College, Bombay.

Revised as to tlie Legal Matter,

By J. D. INVERARITY, Esq.,

Barrister-at'Law.

To all those who are engaged in the administration of the
law — to magistrates, lawyers, medical men, and police, as well

as to students — the book will be found quite invaluable In

the arrangement of the matter, Dr. Lyon has left nothing to be
desired in the effort to render the book valuable for reference.
The work is a monument of industry and research, is marked by-
great lucidity of exposition, and deserves, on every ground, to
take rank as a standard production of its class. — Home N'ews.

2 Tliacker, Spink and Co., Calcutta.

Third Edition. Boyal 8rfl., cloth. Rs. 12 ; Post-free, Jig. 12-6

THE INDIAN PENAL CODE,

And other Laws and Acts of Parliament i-elating to the Criminal

Courts of India, With Notes, «fcc.

Third Edition.

By the Hon'ble J. O'KINEALY,

One of the Jvdgex of Her Majesty's Eigh Court of Judieatvre, Bengal.
Second Edition. Royal 9>vo., cloth, lis. 18.

THE CODE OF CRIMINAL PROCEDURE,

ACT X OF 1882,

TOGKTHKK WITH

Rulings, Circular Orders, Notifications, etc., of all the High

Courts in India; and Notifications and Orders of the

Government of India and the Local Governments.

EDITED WITH COPIOUS NOTES AND FULL INDEX.

By WILLIAM FISCHER AGNEW, Esq.,

Barrister-at-Law ;

AND GILBERT S. HENDERSON, Esq, M.A.,

Barrister-at-Law,

Author of " A Treatise on the Law of Succession in India."

Second Edition.

By GILBERT S. HENDERSON.

"To judge from the style in which their present work is edited, the number
of cases cited bearing upon the various sections, the ample notes appended where
«ny explanation is necessary, and the full and complete indexes to the cases cited,
we liave little hesitation in saying that, while undoubtedly it is at present the
best work on the subject, it need fear no competition in the future." — Englishman^

Royal Svo., cloth. Rs. 16 ; Post-free. Rs. 16-9.

THE Li^^V OF

INTESTATE AKD TESTAMENTARY SUCCESSION

INCLUDING

The Indian Succession Act (X of 1865), with a Commentary, and
the Parsi Succession Act (XXI of 1865), the Hindu Wills' Act
(XXI of 1870), the Probate and Administration Act (V of 1881),
the District Delegates' Act (VI of 1881), Acts XII and XIII of
1855, the Regimental Debts' Act, 1863 (26 and 27 Vict., c. 57),
the Acts relating to the Administrator-General (Acts II of 1874,
XIII of 1875, and IX of 1881), the Certificate Act (XXVII of
1860), and the Oudh Estates' Act (I of 1869).
WITH NOTES AND CROSS REFERENCES.

By gilbert S. HENDERSON, M.A.,

Barrister-at-Law, Advocate of the High Court, Calcutta.

" We strongly recommend the book to District Judges, who have had to work
JVct X o! 1865 rather in the dark hitherto."— PioHeer.

" Mr. Henderson . . . has furnished the professional and business man with
work of great.practical utility."— Cit;»7 and Military Gazette.

Thacker, Spink and Co., Calcutta,

Ninth Edition, revised to July 1890. Royal 8vo. Rs. 12.

THE CODE OF CRIMINAL PROCEDURE;

BEING

ACT X OF 1882,

AS AMENDED BY

ACTS III OF 1884, X OF 1886, AND V OF 1887,
With Notes of all Judgments & Orders thereon.

The Hon'ble H. T. P R I N S E P,

ftuiget High Court, Calcuticu
Second Edition. Octavo, cloth. Jis. 6 ; Post-free, Rs. 6-4.

THE LAND ACQUISITION ACTS

(ACT X OF 1870 AND (MINES) ACT XVIII OF 1885),

WITH INTRODUCTION, NOTES, ETC.;

The whole forming a complete Mannal of Law and Practice on tlra

subject of compensation for lands taken for public purposes,

Hiis New Edition has been adapted for more useful reference throughout

British India.

By H. BEVERLEY, Esq., M.A., B.C.S.
Demy 8vo., cloth. Rs. 8.

POSSESSION IN THE CIVIL LAW,

ABRIDGED FROM THE TREATISE OF VON SAVIGNY.

To 'Which is added the Text of the Title on Possession
from the Digest, -with Notes.

Compiled by

J. KELLEHER, Esq.,

Bengal Civil Service,

Just Published, Demy 8vo., cloth. Rs, 8.

PRINCIPLES OF SPECIFIC PERFORMANCE AND MISTAKE,

J. KELLEHER, Esq.,

Bengal Civil Service.

Thacker, Spink and Co., Calcutta.

JUST PUBLISHED, PRICE Rs. 13.

INDIAN CRIMINAL LAW

FIFTH EDITION,
Revised and Enlarged,

M. H. STARLING, b.a.. ll.b..

BarFister-at-La-w and Clerk of the Crcwn,

HIGH COURT, BOMBAY,

INCLUDING

THE INDIAN MERCHANDIZE MARKS ACT, 1889.

The Metal Tokens Act, 1889, and
Offences under the Post Office and Teleg:raph Acts.

With Notes on Evidence, forms of charges and Indian and English
cases up to the latest possible date before publication.

THE INDIAN CONTRACT ACT,

NO. IX OF 1872,

TOGETHER

WITH AN INTRODUCTION AND EXPLANATORY NOTES.
Table of Cases, Contents, Appendix, d:c.

By H. S. CUNNINGHAM, Esq., M.A.,

One of the Jndges of H. M.'s High Court of Judicature, Calcutta^

AND

H. H. SHEPHARD, Esq., M.A.,

Barj'Uter-at-Lam.

Edited by H. H. SHEPHARD, Esq.

Thacker, Spink and Co.y Calcutta.

Second Edition. Royal %vo., cloth. Ms. 7.

THE BENGAL TENANCY ACT:

BEING

ACT VIII OF 1885 AS AMENDED.

With Notes and Annotations, Judicial Rulings, and the Rules
under the Act framed by the Local Government, the High Court,
and tlie Registration Department.

By R. F. RAMPINI, M.A., C.S.,

Sarriste^-^at'Law, Duitrict and Sessions Judge, Dacca;

AND

M. FINUCANE, M. A., C. S.,

Director, Agricultural Department. Bengal.

Octavo, cloth. Ms. 7-8 ; Post-free, Re. 7-12.

THE

NI^GOTIABLE INSTRUMENTS' ACT,

isei;

Being an Act to define and amend the Law relating to
PROMISSORY NOTES, BILLS OF EXCHANGE, AND CHEQUES.

EDITKD BY

M. D. CHALMERS, M.A.,

Of the Inner Temple, Barrister-at-Law ,

Author of " A Digest of the Law of Bills of Exchange," ^c, and

Editor of Wilson's •' Judicature Acts."

OPINIONS OF THE PRESS.

"From a perusal of the introduction and of tlie notes giren to each section, a
clear idea of the scope and meaning of the Act is obtained, and what in the bare
text was ver.v involved becomes intelligible. Mr. Chalmers' book will, therefore,
be most useful to all those who eitlier deal in negotiable instruments in the course
of their business, or wlio iiave to give le^'al opiiiiims ow, or conduct cases arising
out of the rights and liabilities founded on. sncli instruments." — Pioneer.

l88a~lMsLATIVE ACTS. 1889.

Octavo, cloth. Rs. 7.

OF THE

GOVERNOR-GENERAL
IN COUNCIL,

1889.
WITH TABLE OF CONTENTS AND INDEX.

Annual Volume in continuation of ThechcJd't Edition,

Thacker, Spink and Co., Calcutta.

Fourth Edition. Thick 8vo., cloth. Rs. 18 ; Post-free, Rt. 18-8.

THE

LAW OF EVIDENCE IN BRITISH INDIA.

By C. D. FIELD, M.A., LL.D.,

Bengal Ciril Service,
Recently a Judge of the High Court of Judicature, CalctUta.

This morh contains th^ Indian Evidence Act (at amended by Act
XVIII of 1872^ and all provisions on the subject of Evidence which are
to be found in the Acts of Parliament applicable to India, in the Acts of
the Legislative Council of India, in the Ads of the Local Legislatures if
Rengal, Madras and Bombay, and in the Regulations of the Bengal,
Madras and Bombay Coda, and which are in force and unrepealed by the
Evidence Act or any other Act. These provisions of the Statute Law,
which constitute the only I'ules of Evidence now in force in India, are
explained in detail, and the history and meaning of the principles con-
tained in them illustrated by the decisions of the Privy Council, of the
Courts in England, and of the High Courts in India,

OPINIONS OF THE PRESS.

" Tliis is a very interesting work, and
tlie second edition Tias increased in btilk
threefold ns compared with tlie first.
Mr. Field has the capacity of a master,
and deals with liis subject as one
intimately acquainted with it. Tlie
history of the Law of Evidence in India
will repay study, and, at patre 12, Mr.
Field begins to trace this history up
to the time of the passing of the
Evidence Act. . . . We have care-
fully looked into Mr. Field's work, and
our opinion is that it is worthy of the
law of -which it treats, but it is made
additionally and exceptionally valunble
by an Introduction, which is an original
essay upon evidence in general and
Indian evidence in particular. His
authorities, of course, are almost ex-
clusively English, but lie uses his
mateiiai with skill." — Law Times, 27th
September 1873.

" The object of the Author has been
to snppletnent the new Act with such
information as may be necessary to
elucidate fully the principles on which
the abstract rules contained in it are
based ; to illustrate the meaning, object,
and application of these rules by giving
some account of the origin, develop-
ment, and history of the princi|)les in
question ; and pointing out the difierent
stages through which the.v have passed,
and the alterations to which they have
from time to time been subjected. This

purpose is most atdmirably carried out
in tlie copious notes, accompanying each

section of the Code All

outstanding rules of evidence expressly
.saved by the second section of the
Evidence Act have been included in the
volume; and as these were onh- to be
found scattered through a multitude of
different Acts and Regulations of the
various Indian Legislatures, the work
thus done is both extensive and import-
ant The work in

fact forms a complete Treatise on Evi-
dence in India, arranged side by side
with the express law connected with
each point referred to." — Englishman.

"AH this has been done with Mr.
Field's usual care; and the copious List
of Cases and ample Index render the
book easy of reference and eoi»prehen-
sion." — Indian Daily News.

" Mr. Field observes with great truth
that ' the Codes must be administered
by men whose education in law is not
merely limited to the letter of the Codes
themselves.' — ' The rule itself,' he con-
tinues, ' will be often misunderstood,
where the reason of the rule is not
known,' To impart such knowledge,
commentaries of this description are

of great practical usefulness

The book bears abundant evidence of
the labour and trouble taken in making
it a complete guide," — Hindu Patriot.

Thacker, Spink and Co., Calcutta.

Second Edition. Demy %vo., cl. gilt. Its. 17-12 ; CasJi 16 ; Postage 12 as,

LANDHOLDING

AND THE RELATION OF

LANDLORD AND TENANT

IJV^ V A BIO us COTJN TRIES OF THE WORLD.
By C. D. FIELD, M.A., LL.D., B.O.S.,

Late a Judge of Her Majesty's High Court of Judicature in Bengal.

COJMTE]S(T^.

TTie Tenure of Land and Relation of Landholding and the Helation of
Landlord and Tenant. Landlord- and Tenant in India.

I. — Early Times and under the Ro-
man Empire —The Feudal Sys-
tem in Europe,

II. — England.

III. — Prussia.

IV. — France.

V. — Bavaria. Wurtemburg, Saxony,
Baden, Hesse, and Saxe-Coburg-
Gotha.

VI. — Belgium, the Netherlands and
the Hanse Towns.

VII. — Denmark, Sweden, Geneva,
and Austria.

VIII. — Italy. Sicily, and Greece.

IX.— Spain and Portugal.

X. — Russia.

XI. — Asiatic Turkey, European Tur-
key, and Egypt.

XII. — Ireland— Eighteenth Century.

XIII. — Ireland-Nineteenth Century.

XIV. — Ireland — Proposed Remedies.

XV.— Ireland— Legislation of 1881-
1882.

XVI. — The States of America,

XVII. — Australia, Tasmania, and
New Zealand,

XVIII.— The Condition of Things
under the Native Governments.

XIX.— From the First Settlement
of the English to the Grant of
the Diwani.

XX. — From theGrantof theDiwarf
to the Permanent Settlement.

XXI. — Tlie Permanent Settlement.

XXII.— The Immediate Effect of the
Permanent Settlement.

XXIII. — Tlie Zemindars and Raiyats
from the Permanent Settlement
to 1882.

XXIV. — Acquisition and First Ad-
ministration of Benares, and of
Ceded and Conquered Provinces,

XXV. — The Zemindars and Raiyats
from 1822 to 1859.

XXVI. — Some Account of the Settle-
ment of the North-Western
Provinces.

XXVII.— Some Account of the Ten-
ures in the Bengal Presidency.

XXVIII.— The Rent Act of 18.59.

XXIX. — Government Khas Mahals.

XXX.— The Necessity for Fresh Le-
gislation since the Act of 1859.

THE BENGAL TENANCY ACT, 1885,
With Notes and Observations, and an Index.

" We maj' take it that, as regards Indian laws and customs, Mr. Field siinws
himself to be at once an able and skilled aiitiioiiry. In order, however, to render
his work more complete, he has compiled, ciiiefly from Bhie-books and siiniiar
public sources, a mass of iiiforniatioii having reference to tiie land-laws of most
European countries, of the United States of America, and our Australasian
Colonies." — The Field.

"Mr. Justice Field has treated his subject with judicial impartiality, and his
style of writing is powerful and perspicuous." — Notes and Queries.

*' Supplies a want much felt by the leading public men in Bengal . . . will
enable controversialists to appear omniscient. On the Indian law he tells U8 all
that is known in Bengal or applicable in this Province." — Friend of India und
Statesman.

Thacker^ Spink and Co., Calcutta. .

2 Vols. Demy 8vo., cloth. Rs. 12,
COMPARATIVE CRIMINAL JURISPRUDENCE;

Showing the Law, Procedure, and Case-law of other Countries,
arranged under the corresponding sections of the Indian Codes.

By H. a. D. PHILLIPS, B.C.S.

Vol. I.— Crimes and Punishments.
„ II.— Procedure & Police.

The I^otes in this work are arranged under the text of the Indian Criminal
Codes, and are taken from the Penal and Criminal Procedure Codes of France,
Belgium, Germany, Italy, Hungary, Holland, Denmark, Russia, New York, and
Louisiana, from English and American Case-law, Rulings of the Court of Cassa-
tion in Paris, and other sources.

PHILLIPS' CRIMINAL MANUAL.

Second Edition, Enlarged. Thick Crown 8ro. Rg. 10.

INDIAN CEIMINAL LAW;

Fully annotated, and containing all applicable Rulings of all High

Courts arranged under the appropriate Sections up to date, also

Circular Orders and Government Notifications.

By H. a. D. PHILLIPS, C.S.

COj^TEj^T^.
Ihdiam Pknal Cods (Act XLV of 1860).

CODK OF ClUHINAL PltOOKDUKK (ACT X OP 1882).

Evidence Act (I of 1872).

Protection of Judicial Officers Act

(XVIII of 1850).
Stste Prisoners Act (XXXIV of

1850).
Penal Servitude Act (XXIV of 1855).
State Offences Act (XI of 1857).
State Prisoners Act (III of 1858).
Police Act(V of 1861).
Whipping Act (VI of 1864).
Post Office Act (XIV of 1866).
General Clauses Act (I of 1868).
Prisoners' Testimony Act (XV of

186^).
Cattle Tresrnss Act (I of 1871).

Prisoners Act (V of 1871).

Criminal TriL>es Act (XXVII of

1871).
Indian Oaths Act (X of 1873).
European Vagrancy Act (IX of 1874),
Reformatories Act (V of 1876).
Arms Act (XI of 1878).
Railways Act (IV of 1879).
Legal Practitioners Act (XVIII of

1879).
Foreign Jurisdiction Act (XIII of

1879).
Telegraph Act (XIII of 1855).
Penal Clauses of Stamp and Ret^islra*

tion Act».

Thacker, Spink and Co., Calcutta.

In Thicli Crown %vo., cloth. Ms. 10 ; Post-free, Its. 10-6.

l^J^l<TTJJ^JLi

REVENUE AND COLLECTORATE LAW.

H. A. D. PHILLIPS, Esq., B.C.S.,

Author of " Manual of Indian Criminal Lam.^^

CONTAINING

Alluvion and Diluvion : Reg. XI,
182.5 ; Act IX, 18i7 ; Act XXXI,
1858 ; Act IV (B.C.), 1868.

Certificate : Act XXVII. 1860.

Cesses, Road and Public Works :
Act IX (B.C.), 1880, as amended
by Act II (B.C.), 1881.

Collectors. Assistant Collectors, &c.
Reg. II, 179.3; Reg. XII. 1806
Reg. IV. 1821 ; Reg. VII, 1823
Reg. V, 1827 ; Act XX, 18-18.

Drainage : Act VI (B.C.), 1880.

Embankments : Act II (B.C.), 1882.

Evidence : Act I, 1872, as amended
by Act XVIII. 1872.

Excise: Act VII (B.C.), 1878, as
amended by Act IV (B.C.), 1881,
and Act I (B.C.), I«8.S.

Lakh iraj Grants and Service Tenures:
Reg. XIX, 1793 ; Reg. XXXVII,
1793 ; Reg. II, 1819; Regs. XIII
and XIV, 1825.

Land Acquisition : Act X. 1870.

Land Registration : Reg. VIII. 1800,
sec. 19 ; Act VII (B.C.), 1876, as
amended by Act V (B.C.), 1878.

Legal Practitioners :ActX VIII, 1879.

License Tax : Act II (B.C.), 1880.

Limitation : Act XV, 1877.

Minors. See Wards.

XX, 1817, sec. 29,

Opium : Reg,

Act I, 1878.
Partition : Act VIII (B.C.), 1876.
Public Demands Recovery : Reo'.

Ill, 1793; Act VII (B.C.), 1868,

as amended by Act II (B.C.),

1871; Act VII (B.C.). 1880;

Act XIV, 1882, sees. 278—285 ;

286—295 ; 305, 320, 322, 323,

324; 328—335; 336—343; and

344—360.
Putni Sales: Reg. VIII, J819;

Reg. I, 1820; Act VIII (B.C.),

1865.
Registration : Act III, 1877.
Revenue Sales : Act XI, 1859 ; Act

XII, 1841 ; Act III (B.C.), 1862.
Salt: Act VII (B.C.), 1864, as

amended by Act I (B.C.), 1873

Act XII, 1882.
Settlement: Reg. VIII, 1793

Reg. VII, 1822; Reg. IX, 1825

Reg. IV, 1828; Reg. IX, 1833

Act VIII (B.C.), 1879.
Stamps: Act I. 1879.
Survey : Act V (B.C.), 1875.
Wards: Act IX (B.C.), 1879, as

amended by Act III (B.C.), 1881 ;

Act XXXV, 1858 (Lunatics);

Act XL, 1858 (Minors).

WITH NUMEROUS AND IMPOBTANT

RULINGS AND ANNOTATIONS,

Extracted frovi English, High Coitrt, Privy Council, and Sudder Dewani
Adawlut Beports,

10 Thacker^ Spink and Co., Calcutta.

In Crorvn 8vo., cloth. Rs. 4-4 ; Post-free, Rs. 4-8.
OUR

ADMINISTEATION OF INDIA,

AN ACCOUNT OF THE

CONSTITUTION AND WORKING OF THE CIVIL DEPARTMENTS
OF THE INDIAN GOVERNMENT,

With special reference to the Work and Duties of a District Officer
in Bengal.

By H. a. D. PHILLIPS, C.S.,

Author of " Manual of Indian Criminal Law" '^Manual of Revenue and
Colleotorate Lam."

•' A seasonable and reasonable little book. Mr. Phillips is wholly free from
the spirit of bigotrj* a.n^ parti-prii so abundantly credited to Indian Officials; no
one can fail to be struck b)' tiie earnest sincerity of the book. Useful as a cor-
rective of mucli mischievous and ignorant pamphleteering, it will also be of great
service to all who cannot command the multitudinous Government Reports, or
delve for truth in the Blue-Books." — Saturday Review, Feb. %th, 1886.

"Mr. Phillips has brought together a quantity of really instructive particulars
relevant to hia subject. The facts which he records must, in the long run, tend
to refute the allegations of the sworn enemies of the Indian Service." — Asiatic
Quarterly Review, Jan., 1886.

" Mr. Phillips deals with his subject in detail, his survey including the charac-
ter of Land Tenures, l.and-Reveiiue Settlements, Government Estates, Duties of
Collectors, Excise, Revenue and Opium, Acquisition and Registration of Land, and
other questions of equal interest and importance. He has clearly shown that the
loud outcries which have been sometimes made upon our Indian Government by
irresponsible people, imperfectly informed, are deserving of little or no notice." —
Manchester Courier.

" An adequate exposition of the system of administration in India, free from
all official and political bias, yet interesting enough to form a volume that will
both please and instruct the reader." — Mercantile Journal.

" His object is to instruct the public in the s)stem on which onr Empire in
India is administered. A valuable and timely publication — a noteworthj* and
higlilj' creditable contribution to the discussion of Indian questions."— ^omc
News.

"The excellent little book which Mr. H. A. D. Phillips has just published
■will be more especially serviceable to the English reader whose zeal for Indian
reform sometimes goes be}-ond his knowledge of the subject, but it contains a
great deal of information which even those who have in a convenient form a fair
general acquaintance with the subject, may often find it difficult to lay their
bands on. And in one respect in particular Mr. Phillips does good service, by
his outspoken reference to evils of which every one is sensible, but few liave the
courage to denounce." — Pioneer.

"In eleven chapters Mr. Phillips gives a complete epitome of the civil, in
distinction from the criminal, duties of an Indian Collector. The information is
a'l derived from personal experience. A polemical interest runs through the
book, but this does not detract from the value of the very complete collections of
facts and statistics given." — London Quarterly Review.

" It contains much information in a convenient form for English readers who
wish to study the working of our sj'Stem in the countrj' districts of India." —
Westminster Review.

" A very handy and useful book of information upon a very momentous
subject about which Englishmen know very Uttle." — Pall Mall GazfXte.

Thacker, Spink and Co., CalcutUi. \\

V^orks by F. R. STANLEY COLLIER, C.8.

Second Edition. Crown 8to,, cloth, Ms. 5,
THE

BENGAL LOCAL SELF-GOVEMMENT ACT

(B. C. ACTIIIOF1885)

AND

THE GENERAL RULES FRAMED THEREUNDER.
With Critical and Explanatory Notes, Hints regarding Procedure,
and References to the Leading Cases on the Law relating to Local
Authorities. To which is added an Appendix containing the

principal Acts referred to, &c., &c. ; and a full Index,

By F. R. STANLEY COLLIER, B.C.S.,

Iiditoi- of the " Bengal Municipal Manual."

CONTENT^.

Bengal Local Self-Government Act, 1885.

Bules made by the Lieutenant-Goveruor under the Act.

Revised Dispensary Manual. Model Rules of Business.

The Bengal Ferries Act (B. C. Act I of 1885).

The Bengal Vaccination Act (V of 1880) and Rules.

The Cattle-Trespass Act, 1871 and 1883.

The Local Authorities Loan Act, 1879, and Rules.

The Bengal Tramways Act, 1883.

THE BENGAL MUNICIPAL MANUAL,

CONTAINING

THE MUNICIPAL ACT (B.C. ACT III OF 1884)

AND

Other Laws relating to Municipalities in Bengal, with the

Rules and Circulars issued by the Local Government, and a

Commentary.

Second Edition,

Revised and Enlarged.

By F. R. STANLEY COLLIER, B.C.S.

CONTENTS.

1. The Bengal Municipal Act, B.C.

Act III of 1884.

2. Revised Rules for the Election of

Municipal Commissioners.

3. Rules for the Preparation of the

Annual Administration Report.

4. Account Rules issued under s. 82.

5. Model Rules for the conduct of

business at MeetiTigs.

6. Model Pension and Leave Rules.

7. The Municipal Taxation Act,

Ko. Xlof 1881. 1 14. Index.

8. Tlie Hacknev Carriage. Act, B.C.

No. Vof 1866.

9. An Act for RcKistering Births and

Deaths, B.C., No. IV of 1873.

10. The Sl.-iuKhter-House Act, B.C.,

No. VII of 1865.

11. The Cattle-Trespass Act, No. I

of 1871.

12. The Local Author ties Loan Act

No. XI of 1879.

13. Local Authorities Loan Rules.

12 Thacker, Spink and Co.^ Calcutta.

An entirely Original Work. Demy 8ffl., cloth, gilt. Its. 12 ;
Post-free. lis. 12-6.

A COMMENTARY ON HINDU LAW

INHERITANCE, SUCCESSION, PARTITION, ADOPTION, MARRIAGE, 8TRIDHAN,
AND TESTAMENTARY DISPOSITION.

PUNDIT JOGENDRO NATH BHATTACHARJI, M.A., D.L.
(JOGENDRA SMARTA SIROMANI.)

All the important questions of Hindu Law are discussed in this work in accord-
ance with those rules atid princip^s which are recognised among Hindu jurists as
beyond dispute. By going through the work, the reader will become familiar with
the Hindu lawyers' modes of thought and reasoning, and will be prepared to argue
or discuss any point of Hindu Law.

The work before us seems to have some claims to antliorif3* which is wanting
in other works that treat of the same subjects. The author has the advantage of
living in the midst of tlie comniunit}' and of having studied the subject with (lie
additional advantage of a knowledge of Sanskrit, and the whole literature on the
subject. Tliis being so, tlie work under notice is likelj- to be consulted by all wlio
are interested in adoption, inlieritance, succession, &c., and the abilities "and dis-
abilities pertaining to rights and duties in native society. — Indian Daily News.

I consider the work very abh' done. The principle you follow is the right
one and you have worked it out with much tact and wisdom.

DR. RAJEXDRA LALA MITRA.

" Babu Bhattacharji is the greatest name in the recent history of the Uni-
versity. He has alreadj' made his mark, having written a reall}' original work
on Hindu Law, which must assert itself against the crude compilations and false
views of European writers." — Reis and Kayyat, Deer. 26/A, 1885.

"Tlie result of his labours is an accurate, well-arranged, comprehensive and
convenient manual of Hindu Law eminentlj' fitted to be a text-book for students,
and a guide to practitioners in all cases where questions of principle are involved.
Upon several important topics the book is rich in original information and
observations; and we may notice particularly the Rules of Interpretations, the
Legal Maxims, and the Theory of Spiritual Benefits, as remarkable for original-

it}- The most valuable feature

of the book is, that it gives us an insight into the real nature of Hindu Law, the
manner in which its rules are expressed, and in which its principles must be dis-
covered, and the methods by which its problems must be solved." — Indian Nation,

" It is, indeed, a new departure in the art of legal commentar}'

" Our author, therefore, approaches his subject as a pundit, and brings to bear
on his original authorities all the acumen which the prolonged discipline of the
Nuddea school imparts to those of its pupils who have tlie patience to undergo
its severest ordeal." — Statesman.

" There is thus in him a combination of liigh Western legal education witli
a masterly possession of pure Eastern legal lore gathered from the very fountain
of original Sanskrit books. Such a combination is a rare thing. Yet such a
combination is what is essentially wanted for a proper exposition of the Hindu
Law. The superiority of the work before us to mere books of translation, such
as the translation by Messrs. Colebrook, Sutherland, and Wynch, or to digests
preprred bj' Englishmen, such as those by Messrs. Mayiie, McNaughten and
Cowell, is owing to such a combination of qualifications in the author of the
work

" Wiiile he has been careful to put the actual state of the Hindu Law as inter-
preted and assumed by our Courts, he has very largely dealt with the principles
which underlie the positive texts of the two authorities in these provinces —
Jimutvahan and Vijnaneshwar. He has very fiilh' explained the systems on
which these two authorities respectively proceeded. He has clearly shown wherein
these authorities have been rightly understood, as also wherein they b»ve been
niiaaiiderytuod." — Amritn Bazar Putrika.

Thacker^ Spink and Co., Calcutta. 13

Demy 8ro., hoards. Rs. 8 ; Post-free, Jls. 8-4.

A COMPENDIUM OF THE LAW

SPECIALLY RELATING TO

THE TALUQDARS OF OUDH;

BEING

THE OUDH ESTATES ACT (I) OF 1869 :

An Act to amend the Oudh Estates Act 1869, (X) of 1885;
The Oudh Sub-Settlement Act (XXVI) of 1866; The Oudh
Taluqdars' Relief Act (XXIV) of 1870 ; and parts of the Oudh
Rent Act (XIX) of 1868 and the Oudh Land-Revenue Act
(XVII) of 1876.

With a full Introduction, Notes, and Appendices.

JOHN GASKELL WALKER SYKES, LL.B. (Lond.),

0/ Lincolti's Inn, Barrister-at-Law,
and Advocate, Sigh Court, JV.-W, Provinces, India.

" An admirable compendium. Tlie arrangement is clear, simple, and con-
secutive, and the selections have been made with such judgment, and are so
carefully explained and elucidated that nothing essential to a thorough and
accurate understanding o! this form of Zemiudary-Tenancy in Oudh has been
omitted." — Calcutta Review.

Royal %vo., cloth. Us. 3-8 ; Interleaved, Us. 4 j Postage 4 ayis.

INCOME-TAX MANUAL;

BEING

ACT II OF 1886.
WITH NOTES.

By W. H. grim ley, B.A., C.S.,

Commissioner of Income Tax, Bengal.

Contents : — The Act, with Notes embodying the Rules of the
Government of India, the Government of Bengal, and the Instructions
issued by the Commissioner of Income-Tax, Bengal, under the authority
of the Board of Revenue.

Rulings of the Commissioner of Income-Tax, Bengal, on references
from various Districts.

Rulings and Precedents under former Income-Tax Acts in India,
and under the existing Income-Tax Act in England.

Rules, Forms of Notices, Return Registers, &c.

A complete Index.

14 Thacker, Spink and Co., Calcutta.

THE INDIAN LAW EXAMINATION MANUAL.
Third Edn., consideraily enlarged with new Chapters, ivo., cloth gilt. Jig. 6.

THE

INDIAN LAW EXAMINATION MANUAL.

By FENDALL CURRIE, Esq.,

Of Lincoln'' s Inn, Barrister-at-Law.

Introduction — Hindoo Law — Mahometan Law — Indian Penal Code-
Code of Criminal Procedure— Code of Civil Procedure — The Specific
Relief Act — Evidence Act — Limitation Act — Succession Act — Contract
Act — Registration Act— Stamp and Court Fees' Acts — Mortgage — The
Easement Act— The Trust Act — The Transfer of Property Act— The
Negotiable Instruments' Act.

OPINIONS OF THE PRESS.

"The experience of the compiler in
Hie learned profession with which he
is connected, speaks for the usefulness
and importance of the questions that
have been put in with a view to pre-
pare candidates for the examination."
— Indian Mii~ror.

"This new edition has been rendered

necessary by recent alterations in the
Code of Civil Procedure, Stamp, Limit-
ation, Kejjistratioii, and other Acts, as
well as by the fact that the first edition
was rapidly sold oflF. We are not sur-
prised that there was a large demand
for the work, for it is excelleitly ar-
ranged."— Englighman.

TAGORE LAW LECTURES, 1887.

Royal 8»;o., cloth. Rs. 16 ; Post-free, R^. 16-8.

THE LAW OF

TESTAMENTARY DEVISE

AS ADMINISTERED IN INDIA, OR, THE LAW RELATING TO

WILLS IN INDIA.

With an appendix containing — The Indian Succession Act (X of
1865), The Hindu Wills Act (XXI of 1870), The Probate and
Administration Act (V of 1881), with all amendments. The Pro-
bate and Administration Act (VI of 1889), and The Certificate
Succession Act (VII of 1889).

By G. S. HENDERSON, Esq., M. A.,

Barrister-af-Law.

Thacker, Spink and Co., Calcutta.

TAGORE LAW LECTURES, 1885.

Royal 8vo., cloth, gilt. Us. 10 ; Post-free, Its. 10-10
THE LAW RELATING TO

THE JOINT HINDU FAMILY.

BHATTAGHARYYA,

Presidency College of Calcutta,

On Right to Maintenance.

On the disqualified Members of a
Joint Family.

On the Property of Joint Hindu
Family.

Alienation of Joint Family Pro-
perty.

On Son's Liability for Father's
Debts.

On Partition.

On Property not liable to Parti-
tion.

Presumption in relation to Joint
Hindu Family.

Br KRISHNA KAMAL

Late Professor of Sanskrit in the

The Constitution of the Ancient
Hindu Family and on the im-
port of the Expression " Joint
Hindu Family."

The Origin and Gradual Develop-
ment of the Joint Hindu
Family.

Joint Hindu Family considered
as a whole.

On the Managing Member of a
Joint Hindu Family.

On Limitation as affecting the
Rights of the Members of a
Joint Family,

TAGORE LAW LECTURES, 1884.

Royal 8vo., cloth gilt. Rs.\2; Post-free, Rs. 12-10.
THE LAW RELATING TO

GIFTS, TRUSTS, AND TESTAMENTARY DISPOSITIONS
AMONG THE MAHOMMEDANS

ACCOBDING TO

THE HANAFI, MALIKI, SHAFIC, AND SHIAH SCHOOLS

COMPILED FROM

Authorities in the Original Arabic, with Explanatory Notes and

References to Decided Cases, and an Introduction ou the Growth

and Development of Mahommedan Jurisprudence.

By SYED ameer ALI, M.A.,

Barrister-at-Law Sf Author of " The Personal Lam of the Mahommedant."

The Matwalli.

The Powers of the Wakif,

Importanceof Mahommedan Law.

The Law relating to Gifts.

Formalities relative to Gifts.

The Revocation of Gifts.

Consideration on Ewaz.

The Sbiah Law relating to Gifts,

The Law of Gifts according to
the Shafic Doctrines.

The Law of Wakf.

The Alonkoof Alaihiin or the Ob-
jects of Wakf.

Wakf in favour of non-existing

Objects.
The Principles of Construction.
The Shiah Law relating to Wakf.
The Maliki Law relating to

Wakf.
The Law of Wakf according to

Shafic School.
The Law relating to Wills.

i6 Thacker, Spink and Co., Calcutta.

TAGORE LAW LECTURES, 1883.
Royal %vo.. cloth, gilt. Rs. 10 ; Post-free, Rs. lC-6

THE HINDU LAW OF

INHERITANCE, PARTITION, & ADOPTION,

AS CONTAINED

IN THE ORIGINAL SANSKRIT TREATISES.
By Dr. JULIUS JOLLY, Ph.D.,

Professor of Sanskrit and Comparative Philology in the University

of Wilrzburg.

Materials for a Historical Study
of Hiudu Law.

The Hindu Family System accord-
ing' to the Smritis.

The Early Law of Partition.

The Modern Law of Parti-
tion.

The Law of Adoption historically

considered.
Unobstructed Inheritance.
Obstructed Inheritance.
The History of Female Property.
Succession to Female Property.
Exclusion from Inheritance.

TAGORE LAW LECTURES, 1881.

Royal 8vo.. cloth. Rs. 12 ; Post-free, Rs. 12-8.

THE LAW OF TRUSTS IN BRITISH INDIA.

WITH AN APPENDIX.
The Registration of Societies Act (XXI of 1860), Religious
Endowments Act (XX of 1863), Official Trustees Act (XVII of
1864), Indian Trustee Act (XXVII of 1866), Tiie Trustees' and
Mortgagees' Powers Act (XXVIII of 1866), The Religious Societies
Act (I of 1880), and The Indian Trust Act (II of 1882).
By WILLIAM FISCHER AGNEW, Esq.,

Of Lincoln^s Inn, Bar.-at-Laio, Author of ' A Treatise on the La7v of
Patents,^ and ' A Treatise on the Statute of Frauds.''

TAGORE LAW LECTURES, 1879.

Royal Octavo, cloth. Rs. 10 ; Post-free, Rs. 10-8.

THE LAW RELATING TO

THE HINDU WIDOW.

By Baboo TRAILOKYANATH MITRA, M.A., D.L.,

Law Lecturer, Presidency College.

I. — Tlie Sources of Hindu Law.

II, — Tlie Condition of Women and
the Obligation of Widows.

III.— The Widow's Rights of Succes-
sion.

IV.— The Obligations of the Widow

as Heir.
V. — The Re-marriage of Widows.

VI.— The Nature and Extent of the
Widow's Estate.

VII,— The Nature and Extent of the

Widow's Estate (continued).

VIII. — The Alienations by the Widow.

IX. — The Alienations by the Widow

(continued).
X.— The Uights of the Rever-
sioners.
XI. — Suits by Reversioners.
XII. — TheBlaiiitenance of tlie Widow.

Thacker, Spink and Co., Calcutta.

TAQORE LAW LECTURES, 1880.

Boyal 8iv., clotli. Its. 16 ; Post-free, JRs. 16-13,

THE PRINCIPLES

OF THU

HIIDTJ LAW OP IIHElilTlIfOE,

TOGETHER WITH

I. — A Description, and an Inquiry into the Origin of the Skaddha
Ceremonies :
II. — An Account of the Historical Development of the Law of Suc-
cession, from the Vedic Period to the present time :
III. — A Digest of the Text-Law and Case-Law, bearing on the Subject
of Inheritance.

By RAJKUMAR SARVADHIKARI, B.L.,

Law Lecturer and Professor of Sanskrit, Canning College, L\icknow.

I, — Introduction.

II. — Origin and Growth of Ancestor-
worship.
III. — Nature of Sraddha Rites. Persons
competent to perform tlicse
Kites.
IV. — Sources of Hindu Law.
V. — Principles of Succession in the
middle ages.
VI. — Principles of Succession in the
middle ages (contd.).
VII.— The Modern Schools of Hindu

Law.
VIII. — Modern Text-writers.
IX. — Development of the Principles of
Succession from tlie Eleventh
to the Fifteenth Century.

X. — Development of the Principles of
Inheritance from the Sixteenth
to the Eighteenth Century.
XI. — The Succession of an Adopted

Son.
XII. — Principles of Succession under

the Mitakshara Law.
XIII. — Order of Succession under the
Mitakshara Law.
I. Gotrajas.
II. Bandhus.

HI. The Principles of Survivor-
ship.
XIV. — Principles of Succession under

the DiiyabhaRa Law.
XV. — Principles of Succession under
the Dayabhaga Law (continued.)

OPINIONS OF THE PRESS.

" To the class of readers for whom it is primarily intended, tlie work should
prove of great value, and to those also who are no longer students in the sense
of learners, but who still desire to devote their leisure fiours to increase and
verify their knowledge, the work in question should afford considerable interest." —
Civil and Military Gazette.

" Tlie volume before us forms a complete guide to the complex questions of
inheritance which are continually arising, and is therefore extremely useful to
law students and lawyers. But apart from its legal merits there is mucl: to
interest the general reader, both in the account given of the Srnddhas, aud in
the historical development of the law of succession from the Vedic ages to the

present time Before taking leave of the author, we would

give as our opinion that, for a very long time, no such intelligent, clear, and
masterly exposition of such a difficult branch of Hindu law as inheritance is,
has been brought before the public. A far more thorougli knowledge of what
the true Hindu law on this subject is, will be obtained from reading this book
than from wading tlirough all the] reports of decided cases that have ever been
written." — Pioneer.

Thacker^ Spink and Co., Calcutta.

TAQORE LAW LECTURES, 1878,

Royal Octavo, cloth. Ms. 10 ; Poit-free, Rs. 10-8.

THE HINDU LAW OF

MAERIAGE AND STEIDHANA.

By the Hon'blb GURUDASS BANERJEE, M.A., D.L.,
Judge, High Court, Calcutta.

I.— Introdnctory Remarks.
II. — Parties to Blarriage.
III. — Forms of Marriage and Formali-
ties requisite for a valid
Marriage.
IV. — Legal consequences of Marriage.
V. — Dissolution of M a r r i a g e —
Widowiiood.
VI. — Certain Customary and Statu-
tory Forms of Marriage.
VII. — What constitutes Stridhan,

VIII. — Rights of a Woiaan over her
Stridhan.
IX. — Succession to Stridhan, accord-
ing to the Benares School,
X. — Succession to Strrdhan, accord
ing to the Maharashtra, Dra-
vida, and Mithila Schools.
XI. — Succession to Stridlian, accord-
ing to the Bengal School.
XII. — Succession to Woman's Proper-
ty other than her Stridhan.

TAGORE LAW LECTURES, 1877.

Royal Octato, cloth. Rs. 10; Post-free, Rs. 10-8.

THE LAW RELATING TO

MINORS IN BENGAL.

By E. J. TREVELYAN, Esq.,

Barritter'at-Law.

I.— The Ag« of Majority.
II.— The Right of Guardianship,

Natural and Testamentary.
III.— The Court of Wards.
IV. — Appointment of Guardians by

Civil Courts in the Mofussil.
V. — Appointment of Guardians by

the High Court.
VI — Summary Powers possessed by

the Courts in Bengal with

reference to the custody of

Infants.

VII. — Maintenance of Infants.
VIII. — Liabilities of Infants.
IX. — Duties and Powers of Guar-
dians.
X. — Powers of Guardians.
XI. — Decrees against Infants ; Rati-
fication of Acts of Guardian;
Limitation of Suits ; Avoid-
ance of Acts of Guardian;
and Liability of Guardian.
XII. — Some Incidents of the Status of
Infancy.

Thacker, Spink and Co., Calcutta.

TAGORE LA.W LECTURES, 1876.

Second Edition. Royal Octavo, cloth. Ms. 12.

THE LAW OP lORT&A&E IN INDIA,

INCLUDINa

THE TRANSFER OP PROPERTY ACT,

And Notes of Decided Cases brought up to date.

Baboo RASHBEHARY GHOSE, M.A., D.L,,

Tagore Law Professor.

Revised and re-written to date.

Early Notions of Security.

Hindu and Mahomedan Law of Mort

Conventional Mortgages.
Simple Mortgages.
Conditional Sales.
Equity of Redemption.

COjyTEJMT^.

Usufructuary Mortgage.
Liability of Mortgagee

sion.
Liens, Legal and Judicial.
Subrogation.
Pledge of Moveables.
Extinction of Securities.

in Posses

The Transfer of Property Act, with Notes of Decided Cases.
" I take this opportunity to acknowledge the help obtained, in drawing
Chapter IV of the Transfer of Property Act, from the work of another acute and
learned Native lawyer, Rashbehary Ghose, The LaxD of Mortgage in India.^^

DR. WHITLEY STOKES,
{Anglo-Indian Codes, Vol. 7, Introd.)

TAGORE LAW LECTURES, 1875.

Royal Octavo, cloth. Rs. 10 ; Postage, 8 annas.
THE LAW RELATING

THE LAND TENURES OF LOWER BENGAL

By ARTHUR PHILLIPS, Esq, M.A,

Barrister-at-Law.

t.— The Hindoo' Period.
II. — The Mahomedan Period.
III. — Akbar's Settlement.
IV.— The Zemindar,
v.— The Talookdar and other Officers.
Assessment of Revenue and
Rent, and their Amount.
VI. — The Payment vif Revenue. As-
signment of Revenue.
Vll.— The English Revenue System
up to the Permaneat Settle-
man t.

C0]S(TEj^T3,
VIII.-

IX.—

X.—

XI.—

XIL—

•The Decennial and Permanent

Settlement.
Changes in the Position of the
Zemindar, Intermediate
Tenure-holder, and Ryot.
Relative Rights of Zemindars
and Holders of Under-Tenures.
The Putnee Talook. Remedies
for Recovery of Revenue.
Remedies for the Recovery of
Rent. Lakheraj and Services
Tenures

Thacker^ Spink and Co., Calcutta.

THE TAGORE LA.W LECTURES, 1873 and 1874.

In 2 wis, Rl. %vo., cloth, lettered. Rs, 16. Vols, sold separately, Rs. 9 each ;
Postage 8 ans. each.

MAHOMEDAN LAW,

BEING

A DIGEST OF THE LAWS APPLICABLE PRINCIPALLY

TO THE SUNNIS OF INDIA.

By Baboo SHAMA CHURN SIRCAR,

Member of the Asiatic Society of Bengal.

1SY3.

C0JMTE]S(T3.

II.
III.
IV.

V.
VI.

VII.
VIII.

IX.

XI.
XII.

XIII.
XIV.

XV.
XVI.

XVII.
XVIII.

Introductory Discourse.

Shares, Residuaries, &c.

Distant Kindred.

Pregnancy. Missing Per-
sons, &c.

Computation of Shares.

The Increase and Re-
turn.

Vested Inheritance, &c.

Exclusion from Inherit-
ance, &c.

Marriage.

Guardianship and Agency
in Marriage.

Dower.

Fosterage, Parentage,
&c.

Divorce.

Khula, Iddat, Raj6t, and
Re-marriage.

Maintenance.

Minority and Guardian-
ship.

Sale.

Pre-emption.

1974:,

I. On Gifts.

II. On Wasayah. or Wills.
III. On Executor. his Power8,&c.
IV. On Wakf, or Appropriation

V. On the Wakf, or Appro-
priation of Masjids, &c.

SuMMABY OP Contents of the
Imamiyah Code.

VI.

VII.

VIII.

IX.

xr.

XII.

XIII.

XIV.

XV.

XVI.

XVII.

XVIII.
XIX.

Introductory Discourse.

On Inheritance.

General and Special Rules
of Succession.

Succession.

Impediments to Succession.

On Computation of Shares.

On Permanent Marriage.

Dower, &c.

Temporary Marriage.

On Divorce.

On Khula, &c.

On the Revocation of Di-
vorce, &c.

On Sufa. or Pre-emption.

On Wakf, or Appropriation.

"A valuable contribution to the existing; stock of information on the subject

of the Mahomedan Law The first elements of good writing are that

a man should evince a warm interest in the subject he is treating of, and that lie
sliould know more about it than other people. These important conditions of
success the learned lecturer has fully achieved. From a mature consideration of
the subject, and from the possession of a vast fund of information, he is enabled
to speak as one having authority. No writer, however obscure, that could throw

liglit on his path, has been permitted by him to pass unnoticed He

Las spared no trouble in sifting every available source of knowledge likely to
elucidate that subject." — Indian Observer.

"The work is admirably 'got up.' In appearance it is all that a law-book
should be, and its contents do not belie the promise of a fair outside. They
eonsist of the pith of nineteen Lectures delivered in Calcutta last year by the

learned author In concluding the present notice we are bound

to say that the Tagore Law Lectures of 1874 should form part of every lawyer's
library m this country." — Friend of India.

Thacker, Spink and Co., Calcutta.

THE TAGORE LAW LECTURES, 1872.

Second Edition. Demy Sro., cloth, lettered. Rs. 6; Post-free, lis, 6-4.

THE HISTORY AND CONSTITUTION OF THE COURTS
LE&ISLATIYE AUTHORITIES II INDIA.

By HERBERT

I. Early History— The Grant
of the Dewani.
II. Early History— The Regu-

latiug Act.
III. Early History— TheSettle-
ment of 1781.
IV & V. The Legislative Council.
VI. Later History — The Presi-
dency Town System.

COWELL, Esq.

VII. Later History— The Pro-
vincial Civil Courts.
VIII. The Provincial Criminal
Courts.
IX. Privy Council.
X. The Superior Courts.
XL The Inferior Civil Courts.
XII. The Inferior Criminal
Courts and Police.

THE TAGORE LAW LECTURES, 1870 and 1871.

Bl.8vo.Cl. Parti— 1870, Ms. 12; Part II— 187 1, Ms. 8; Postage,8a7is.ea.

HE HINDU LAW:

A Treatise on the Law administered exclusively to Hindus by the
British Courts in India.

By HERBERT

I. — Introductory Lecture.
XL — The Position of the Hindus
in the British Empire.
III.— The Hindu Family— The

Joint Worship.
IV.— The Hindu Family— The

Joint Estate.
v.— The Hindu Family — Its
Management and Limits.
VI. — The Members of the Family
— Maintenance and Guar-
dianship.
VII.— The Members of the Family
— Their Civil Status.
VIII.— The Hindu Widow.
IX.— The Right of Adoption.

X. — The Contract of Adoption.
XL— The Right to Adopt.
XII. — Permission to Adopt— Plural

Adoption.
XIII.— The Right to give in Adop-
tion— The Qualifications
for being adopted.
XIV. — The Qualifications for being
adopted (continued).
XV.— The effects of Adoption,

COWELL, Esq.

I & II. — Alienation.
Ill & IV.— Partition.

V. — The Law of Succession.
VI. — The Law of Succession —

Lineal Inheritance.
VII. — Collateral and Remote
Succession.
VIII. — The Law of Succession —
Women and Bandhus.
IX. — The Law of Succession —
Exclusion from In-
heritance.

X. — The Law of Succession —
Exceptional Rules.
XL— The Law of Wills ; their
Origin amongst Hin-
dus.

XII.— The Law of Wills ; Testa-
mentary Powers,

XIII.— The Law of Wills,

XIV.— Construction of Wills.

XV.— On Contracts,

22 Thacker, Spink and Co., Calcutta.

Demy ivo., cloth. Rs. 7 ; Post-free, Us. 7-4.
THE

NORTH-WESTERN PROVINCES RENT ACT

BEING

ACT XII OF 1881, AS AMENDED BY ACT XIV OF 1886.
WITir NOTES, Sfc.

By H. W. REYNOLDS, C.S.

COJ^TEj^T^.
Rights and Liabilities of Land- I Procedure in Execution of DecreeB

holders and Tenants.
Distress.
Process.

Jurisdiction of Courts.
Procedure in suits up to Judgment.

in suits.
Appeal, Rehearing and Review.
Miscellaneous, Schedule Forms, &c.
Index of Cases and General

Index.

Demy Octavo. Cloth. Rs. 10 ; Postage 8 ans.

THE LAW OF SPECIFIC RELIEF IN INDIA

BEING

A COMMENTARY ON ACT I of 1877.
By CHARLES COLLETT,

OF UMCOLN'B-INN, barrister- AT-LAW, late of the UADRA8 civil, BEBVJCE, AND KBMZBLT

A JDDOB OF THE HIGH COURT AT MADRAS; ADTBOB OF "A TBEATUE

ON THE LAW OF INJDNCTIONS" AND "THE LAW OF TOBTS."

This work seeks to trace to their source, and to fiilh' expound the equitable
principles embodied in the Specific Relief Act, and will thus, it is hoped, form a
compendium of equity jurisprudence adapted to, and sufficient for, the require-
ments of the general body of legal practitioners and officials in India.

Third Edition. In Royal %vo.. Cloth. Rs. lo.
THE

INDIAN LIMITATION ACT,

ACT XV OF 1877

{^as amended by Act XII of 1879 and subsequent enactments).
WITH NOTES.

H. T. RIVAZ,

Of the Inner Temple, Barrister-at-Law, and Advocate of the High Court,
N.-W. P., and of the Chief Court, Punjab.

Thacker, Spink and Co.^ Calaitta. 23

Demy Octavo, Cloth, Jts. 5 ; Post-free, Us. 5-3.

REVENUE SALE LAW

LOWER BENGAL.

Comprising Act XI of 1859, Bengal Act VII of 1868, Bengal
Act VII of 1880 (The Public Demands Recovery Act), and
the Unrepealed Regulations and the Rules of the Board of
Revenue on the subject.

EDITED WITH NOTES BY

WILLIAM E. H. FORSYTH, Esq.,

0/ the Inne7' Temple, Barrister-at'Law.

OPINIONS OF THE PRESS.

"The work, without being pretentious, is calculated to prove exceedingly useful
and should find a place on the shelves of everj^ one connected with land matters,
as well as on the table of every lawyer." — Indian Daily News.

"A very useful volume." — Statesman.

"Forms a complete record of all the existing laws and regulations that are
required to be mastered by all interested in the procedure of the law for the sale
of landed properties for arrears of revenue." — Indian Mirror,

Demy Octav«, Cloth. Ms. 5 ; Post-free, Jls, 6-3.
THE

PROBATE AND ADMINISTRATION ACT;

BEINa

ACT V OF 1881.

WITH NOTES,

EDITED BY THE LATE

W. E. H. FORSYTH, Esq.,

And prepared for Publication by

F. J. COLLINSON, Esq., Barrister-at-Law,

Demy 8vo. Cloth, Ms. 5 ; Postage, 4 annas,

COMMENTS

ON THE

INDIAN PENAL CODE.

By Charles Collett,
Of Lincoln's Inn, Barrister-at-Law.

24 Thacker, Spink and Co., Calcutta.

Svo. /Is. 5-8 ; interleaved, Rs. 6 ; Postage, 4 annas.
MANUAL OF

THE REVENUE SALE LAW

AND

CERTIFICATE PROCEDURE OF LOWER BENGAL;

Being Act XI of 1859 ; Act VII, B. C, of 1868 ; and Act VII, B. C,

of 1880 ; The Public Demands Eecovery Act, including Selections

from the Rules and Circular Orders of the Board of Eevenue.

WITH NOTES.

By W. H. GRIM LEY, B.A., C.S.

Octavo, Cloth. i?.«. 10: Post-free, Rs. 10-6.
A TREATISE

ON THE

LAW OF BILLS OF LADING,

COMPEISING : — The various incidents attaching to the Bill of Lading, the
Legal Effects of the Clauses and Stipulations, the Rights and Liabilities
of Consignees, Indorsees, and Vendors under the Bill of Lading.
WITH AN A PPENDIX CONTAINING FORMS. Sfc.

By EUGENE LEGGETT,

Solicitor.

OPINIONS OF THE PRESS.

" A useful contribution to the literature 011 Maritime Law." — Law Journal.

" The arrangement of the book is systematic ami gi'0(], ami the style clear and
popular. There is also a good Index, and the Appendix of forms of Bills of
Lading ma%' be of use to merchants."— Z.a20 Times.

" Tiie book is well written, in a clear and non-technical style." — Liverpool
Journal of Commerce.

Octavo, Cloth. Rs. 12; Post-free, Rs. 12-6.
THE

LAW OF INDIAN RAILWAYS

AND

COMMON CARRIERS:

A COMMENTARY UPON THE INDIAN RAILWAY ACT OF 1879,

THE CARRIERS' ACT OF 186.5. AND THE ACT KNOWN

AS LORD CAMPBELL'S ACT (XIII OF 186.5).

Together with such Sections and Quotations from the Merchant Shipping

Act, the Contract Act, the Railway Act, and Canal Traffic Act, Civil

e, Court-Fees' Act, and the Statute of Limil

to Carriers by Land and Water.

By W. G. MACPHERSON, Esq.

REVIEW.

" The Author deals in a concise and succinet inanner with a subject of which
he is specially fitted to treat, and he seems to have spiired no pains to make his
work at once a reliable and exhaustive practical law-book

"The book cannot fail to command the attention and due appreciation of that
portjcnof the community for whose edification it is more particularly intend-
ed."— htiitesman.

Thacker, Spink and Co., Calcutta. 25

JP O C K K T X: ]> I T* I O ]V {i .

\&mo. Cloth. Ms. 4; Post-free, Ms. 4-i.

T K E r^ O G K: E T

PENAL, CRIMINAL PROCEDURE

AND

POLICE CODES,

ALSO

THE WHIPPING ACT, AND THE RAILWAY SERVANTS' ACT ;

BEING

.lets XLV of 1860 (with Amendments), X of 1882, V of 1861,

VI of 1864, XXXI of 1867, and X of 1886.

WITH A GENEMAL INDEX.

16»jo. Cloth. New Edition in the Press.

THE POCKET
CODE OF CIVIL LAW,

CONTAINING

The Civil Procedure Code (Act XIV of 1882).

The Court-Fees' Act (VII of 1870).

The Evidence Act (I of 1872).

The Specific Relief Act (I of 1877).

The Limitation Act (XV of 1877).

The Stamp Act (I of 1879).

WITH A GENERAL INDEX.

Ilcfliiced ill Price to Rs. 9; Post-free, lis. 7-14.

WITH

4. Supplement containing the amended Sections in Act XII of 1879, and
Act XIV of 1882.

THE

CODE OF CIVIL PEOCEDUEE

(ACT X OF 1877),

WITH NOTES AND APPENDIX.

By the Hon'blb L. P. DELVES BROUGHTON.

Just published. Moyal 8vo. sewed. Me. 1-8.
THE

MERCHANDISE MARKS ACT, 1889.

With a short Compendium of the Law relating to Trade Marks
and Designs in India, &c.

By R. GILBERT, Esq.,

Solicitor.

26 Thacker, Spink and Co., Calcutta.

THE TEXT-BOOK FOR GOVERNMENT EXAMINATIONS.
Crcyivn 8i'<»., cloth. Rs. 3 ; Post-free, Jis. 3-3.

INTRODUCTION

TO THE

REaULATIOIS OF THE MMAL CODE.

By C. D. field, M. A., LL.D.

COJ^TEjMT^.

CfiAPTEB I. — The Acquisition of Territorial Sovereignty by the English
in the Presidency of Bengal.
„ II. — The Tenure of Land in the Bengal Presidency.
„ III. — The Administration of Land-revenue.
„ IV. — The Administration of Justice.

Thick 8vo. Us. 11 ; Postage, 8 ans,

THE PRACTICE

OP THE

PRESIDENCY COURT OF SMALL CAUSES OF CALCUTTA,

UNDEE THE

PEESIDENCY SMiLL CITJSE COURTS' ACT (XY OF 1882),

with notes and an appendix.

By R. S. T. MacEWEN, Esq.,

Of Lincoln's Inn, Barrister-at-Law, one of the Judges of the Presidency
Court of Small Causes of Calcutta.

Part I. — General Outline of Practice.

„ II.— The Presidency Small Cause Courts' Act (XV of 1882), with Notes.

„ IIL— The Code of Civil Procedure (XIV of 1882), as extended to the
Small Cause Court of Calcutta, with Notes.

„ IV.— The Rules of Practice of the Court,

„ V. — Appendix: Containing Rules defining the powers and duties of Minis-
terial Officers and for the transaction of business ; the Local Limits
of Calcutta; Schedules of Forms; Rules relating to References to
the High Court ; Table of institution and Court Fees ; Table of Fees
for Legal Practitioners; Scale of expenses to witnesses, and other
information.

Royal 8t7o., cloth. Rs. 9 ; Postage, 10 ans.
THE

LAW OF RENT AND REVENUE OF BENGAL

Being the Bengal Tenancy Act, Putni Laws and other Revenue

Acts, with Notes, Annotations, Judicial Rulings and Rules of the

Local Government, High Court, and the Board of Revenue.

By Baboo KEDAR NATH ROY.

Second Edition. Revised, Re-written, and much enlarged.

Thacker, Sphik and Co.^ Calcutta. 27

Second Edition. HI. 8vo,, cloth, Ms, 5 ; Post-free, Es. 5-8.

THE INDIAN CONTRACT ACT

(ACT IX OF 187 2)

AND

THE SPECIFIC RELIEF ACT

(ACT I 0 F 1877),
WITH A FULL COMMENTARY.

By D. SUTHERLAND, Esq.,

Middle Temple.

Tioo Volumes. Imperial 8fo., cloth.

DI&EST OE lOUir LAW REPORTS,

A COMPENDIUM OF THE RULINGS OF THE HIGH COURT OF
CALCUTTA AND OF THE PRIVY COUNCIL, 1831 TO 1876.

By D. SUTHERLAND, Esq.,

Barrister-at- Law, Middle Temple, Editor of " The Weekly Reporter,

" FuZl Bench Rulings," ^* Judgments of the Privy Council," ^'c.

Vol. 1, 1831 to 1876, Rs. 16. Vol. II, 1876 to 1881, Rs. 6.

PRIVY COUNCIL JUDGMENTS.
From 1831 to 1880.

JUDGMENTS OF THE PRIVY COUNCIL

APPEALS FROM INDIA.

By D. SUTHERLAND, Esq.,

Of the Middle Temple, Barrister-at-Lam.

Vol. I. 1831 to 1867. Half-calf. Rs. 12-8.

„ II. 1868 to 1877. Half-calf. Rs. 12-8.

„ III. 1878 to 1880. Half-calf. Rs. 12-8.

Or, Bs. 27-8 for the three volumes together, half-calf.

Royal 8fo., cloth. Rs. 16 ; Post-free, Rs. 16-6.

THE RULES AND ORDERS

OP THE

HIGH COURT OF JUDICATURE AT FORT WILLIAM IN
BENGAL, IN ITS SEVERAL JURISDICTIONS,

INCLUDING

Such of the Rules of the late Supreme aud Sudder Courts as are
still in force, and Forms, with an Abstract of the Charter, 14
Geo. Ill, the Charter Act and Charter of the High Court, the
last Vice-Admiralty Commission, &c.

with notes.
By R. BELCHAMBERS,

Regiitrar, etc., of the High Court in its Original Jurisdiction.

28 T hacker, Spink and Co., Calcutta.

Octavo, fiewed. Us. 4 ; Post-free, Us. 4-2.

DECLARATOET DECREES,

BEING

AN EXTENDED COMMENTARY ON SECTION XV, CODE OF CIVIL
PROCEDURE, 1877.

Br L. p. DELVES BROUGHTON,
Barrister-at-Law.

Royal 9)V0., cloth, lettered. Ms. 12.

AN INTRODUCTION TO THE

DUTIES OF MAGISTRATES AND JUSTICES OF THE
PEACE IN INDIA.

By Sir P. BENSON MAXWELL, Kt.

SPECIALLY EDITED FOR INDIA.

By the Hon'ble L. P. DELVES BROUGHTON,

Ba7-rister-at-Laiv.

Seventh Edition. 9iV0., cloth. Rs. 8 ; Post-free, Rs. 8-4.
THE

INDIAN EVIDENCE ACT

(ACT I OP 1872),

As amended by Act XVIII of 1872, together with luti-oductiou
and Explanatory Notes.

Thf. Hon'ble H. S. CUNNINGHAM, M.A.

SEVENTH EDITION.

By J. H. SPRING BRANSON, Esq.,

Barri-tter-at-Latv.
Second Edition. \%mo.. cloth. Rs. 2; Post-free, Rs. 2-3.

MEDICAL AND MEDICO- LEGAL TERMS,

INCLUDING

THOSE MOST FREQUENTLY MET WITH IN THE COURTS

COMPILED BY

E. F. HUTCHINSON, M.D.,

Surgeon-Major, Bengal Army.

Thacker, Spink and Co., Calcutta. 29

llediiced to Its. 7; Postag-e 12 ans.

INDIAN CRIMINAL DIGEST

(REVISED EDITION).
CONTAINING ALL THE IMPORTANT CRIMINAL RULINGS OF THE VARIOUS

HIGH COURTS IN INDIA

Since 1862.
With marginal Notes, giving the corresponding Sections of the present
Criminal Procedure Code (Act X of 1882) wherever the Old Codes of 1861
and 1872 are quoted. Together with many English Cases which bear on the
Criminal Law as administered in India.

IN FOUR PARTS:

I. — Indian Penal Code. I III. — Criminal Procedure.

II. — Evidence. | IV. — Special and Local Acts.

By J. T. HUME,

Solicitor, High Court.
Cro7vn %vo., cloth. Re. i ; Postage, 2 ans.

A CHAUKIDARI MANUAL;

BEING

ACT VI, B.C., OF 1870,

AS AMENDED BY

ACTS I, B.C., OF 1871 & 1886,
Sec. 45, Code of Criminal Procedure, and s. 21, Regulation XX of 1817

WITH

NOTES, RULES, GOVERNMENT ORDERS, AND INSPECTION NOTES.

By G. TOYNBEE, Esq.,

Magistrate of Hooghly.
Demy St'o., cloth. Rs. 10 ; Post-free, Rs. 10-4.

THE INDIAN CONTRACT ACT

(ACT IX OF 1872),

With a Commentary — Critical, Explanatory, and Illustrative.

By C. C. MACRAE, Esq., B.A.,

Of Lincoln's Inn, Rarrister-at-Larv.
Demy 8vo., cloth. Rs. 6 ; Post-free, Rs. 6-3.

THE HINDU WILLS ACT

(ACT XXI OF 1870),

WITH

The Sections of the Indian Succession Act (Act X of 1865) made
applicable to the Wills of Hindus, Jains, Sikhs, and Buddhists,
printed in extenso and in consecutive order.

EDITED BY

W. C. BONNERJEE,

Of tlie Middle Temple, Barritter-at'Law.

30 Thacker, Spink and Co., Calcutta.

Demy 8t'o., cloth, gilt lettered, Jit, 8 f Post-free, Rs. 8-4.
With supplement containing Amendments and Rulings to 1890,

THE STAMP LAW OF BRITISH INDIA

AS CONSTITUTED BY THE

INDIAN STAMP ACT (No. I op 1879) ;
RULINGS AND CIRCULAR ORDERS OF ALL THE HIGH COURTS.
Notifications, Resolutions, Rules, and Orders of the Government
of India, and of the various Local Governments, up to date ;
Schedules of all the Stamp Duties chargeable on Instruments
in India from the earliest times.

EDITED WITH NOTES AND COMPLETE INDEX,

By WALTER R. DONOGH, M.A.,

Of the Inner Temple, Barrister-at-La\t3.

" The work is the most comprehensive of its kind that we have yet seen, and
no practical lawyer can afford to be without it." — Statesman, I7th August.

Crown 8vo. Inteipaged. lis. 2-4 ; Cash Rs. 2 ;
THE

INLAND EMIGEATION ACT,

WITH

ORDERS, RULES, FORMS, ETC.

COJVTEJVT^.
THE INLAND EMIGRATION ACT.
Schedule of Fobms.

Orders by the Lieutenant-Governor of Beng-al, dated 24th February 1882
Forms prescribed by the Government of Bengal.

Resolution of the Government of India in the Revenue and Agri-
cultural Department, dated 27th January 1882.
Resolution of the Government of Assam (Duties of Officers under

Act), dated 3rd February 1882.
Rules made by the Chief Commissioner of Assam, 1883.

Chap. I. — Rules, Schedules, and Forms under the Inland Emigra*
tion Act.
„ II. — Deputy Commissioner of Goalpara.

„ III.— Dhubri Depots.
„ IV.— Transport by River Steamer.

,, V. — Officers in charge of Depots at Ports of Debarkation.

„ VI. — House- Accommodation. Food, Water-supply, Medical and
Sanitary Arrangements on Estates in the Laboup'
Districts.
„ VII.— Employers.

„ VIII. — Magistrates and Inspectors of Labourers.
Orders by the Lieutenant-Governor, N.-W. P., dated 11th July 1882,

Tkacker, Spink and Co., Calcutta.

LEGISLATIVE ACTS.

With
Inter-

With Table
Interleaved,

9th

CODE OF CRIMINAL PROCEDURE (Act X of 1882).
Table of Contents and Index. Royal 8vo. Cloth, Rs. 4
leaved, Rs. 5.

CODE OF CIVIL PROCEDURE (Act XIV of 1882).

of Contents and Index. Royal 8vo. Cloth, Rs. 4-i
Rs. 5-8.

INDIAN INSOLVENT DEBTOR'S ACT (Vic. Cap. XXI.

June 1848). Royal 8vo. Stitched. Re. 1-8.

INDIAN EVIDENCE ACT; being Act I of 1872, as amended by
Act XVIII of 1872. Crown 8 vo. As. 12.

INDIAN LIMITATION ACT; being Act XV of 1877, as amended
by Act XII of 1879. Crown 8vo. As. 8.

INDIAN STAMP ACT (No. I of 1879). Crown 8vo. As. 8.

INDIAN REGISTRATION ACT; being No. Ill of 1877, as amended
by Act XII of 1879. Crown 8vo. As. 8.

INDIAN INCOME-TAX (Act II of 1886). With Eules by the
Government of India and the Bengal Government. Table of Con-
tents. Royal 8vo. As. 12.

INLAND EMIGRATION ACT (No. I of 1882). With Rules,
Instructions, Resolution for the working of the Act, by the Revenue
and Agricultural Department, the Assam Government, and the
Chief Commissioner, Assam. Printed on one side only. Crown 8vo.
Cloth. Rs. 2-4. Cash Rs. 2.

BENGAL TENANCY ACT (B.C., No. VIII of 1885). With Table

of Contents and Index. Royal 8vo. Re. 1.

LEGISLATIVE ACTS,

Published Annually

In Continuation of Mr. Theobald's Edition. Royal 8vo., cloth.
Acts for 1872. With Tables of Contents and Index, Rs. 8 0
,, 187i5. ,, ,, ,, ... I, 5

1874.
„ 1875.

1876.

1877.
„ 1878.
„ 1879.
„ 1880.
„ 1881.
„ 1882.
„ 1883.
„ 1884.
„ 1885.
„ 1886
„ 1887

1888

1889

8; cash 14

32 Thacker, Spink and Co., Calcutta.

GRIMLEY'S EXAMINATION GUIDES.

9>vo., boards. Its. 4 ; Post-free, lis. 4-3.

a- XJ I D E

TO THE

SUBORDINATE CIVIL SERVICE EXAMINATIONS,

INCLUDING

A Selection from the Questions set in previous Examinations and
the Orders of Government on the subject.

By W. H. GRIMLEY, Esq.

8ro., boards. Rs. 5 ; Post-free, Rs. 5-3.

RULES

FOR THE

DEPARTIEITIL EXllIMIOIS

Junior Members of the Covenanted Civil Service, the Subordin-
ate Executive Service, the Non-Regulation Commission, Police
and Opium Departments; including a Selection of Examination
Papers, in which are incorporated specimens of questions in Ben-
tham's Theory of Legislation, Fawcett's Manual of Political
Economy, Marshman's History of ludia, for the Examination of
Candidates for admission into the Staff Corps, and of Officers
in the Political Department.

Br W. H. GRIMLEY, Esq., C.S.,

Secretary to the Central Examination Committee.

In Demy %vo., cloth. Rs. 7-8; Interleaved, Rs. 8-8.

THE SEA-CUSTOMS LAW, 1878,

WITH
NOTES AND APPENDICES.

By W. H. GRIMLEY, B.A., LL.B., C.S.

Pakt I. — The Customs Act, -with Notes.

„ II. — Hules issued under the Act by the Government of Bengal and the
Board of Revenue.
A List of Forts in India.
Specimens of Hills-of-Entry, Bills-of-Ladinp:, Siiipping-Bills, ManU

fests, Bonds, and other EKocuments referred to in the Act.
Table of Port-dues.
Wharf Rules.

A Collection of Miscellaneous information, Orders, and Rulings,
including a Comparative Table of the Weights, Measures, and
Money of the principal countries trading with India; and a Table
of the Stamp-duties chargeable on Custom-house documents.
„ III.— The Tariff Act.

An Alphabetical List of Articles of Import and Export, showing
whether they are dutiable or free, and the denomination under
which they are to be entered in the Castom-house documents.
Indkx to Customs- Act, Appendices, ibc.

HENDEKSON.— Law of Testamentary Devise as administered

in India ; or, the Law relating to Wills in India, with an Appendix contmn-
iug the Indian Succession Act and the Hindu Wills A«t, the Probate
and Administration Act and the Certificate Succession Act. By G. 8.
Hendeksow, B»q., Bar.-ntLaw, being the Tagore Law Lectures, 1889.
Royal 8 vc, cloth. Rs. 16.

JOLLY.— The Hindu Law of Inheritance, Partition, and

Adoption according to the Smritis. By Dr. Julius Jolly, Tagore Law
Lecturer, 1883. Rs. 10.

KELLEHER.— Possession in the Civil Law, abridged from
the Treatise of Von Savigny. To which is added the Text of the Title
on Possession from the Digest, with Notes. Compiled by J. Kelleheb, Esq.,
Bengal Civil Service. Demy 8vo., cloth. Rs. 8. [1888.

KELLEHER.— Principles of Specific Performance and

Mistake. By J. Kelleher, Esq.. Bengal Civil Service. Demy 8vo., cloth.
Rs. 8. [1888.

Legislative Acts, 1889 ; being the Annual Volume in continu-
ation of Acts from 1834. Royal 8vo., cloth. Rs. 7.

LYON.— Medical Jurisprudence for India. By I. B. Lyon,

F.C.S., F.I.C.. Brigade-Surgeon, Professor of Chemistry and Medical Juris-
prudence. Grant Medical College, Bombay. Revised as to the Legal Matter
by J. D. luverarity, Bar.-at-Law. Illustrated. Second Edition. 8vo., cloth.
Rs. 16.

MACPHERSON.— Law of Indian Railways and Common

Carriers. With Sections and Quotations from the Merchant Shipping Act,
the Contract Act. the Railway and Canal Traffic Act, Civil Procedure
Code. Court Fees' Act. and the Statute of Limitations as they apply to
Carriers by Land and Water. By W. G. Macpherson. 8vo., cloth. Rs. 12

O'KINEALY.— The Code of Civil Procedure, Act XIV of

1882. With Notes. Appendices, &c. By the Hon'ble J. O'Kinealy. Third
Edition. 8vo., cloth. Rs. 16.

O'KINEALY.— The Indian Penal Code and other Laws and

Acts of Parliament relating to the Criminal Courts of India. With Notes,
Ac. Third Edition. By the Hon'ble J. O'Kinealy. Royal 8vo. Rs. 12.

PHILLIPS.— Comparative Criminal Jurisprudence; being

a Synopsis of the Law, Procedure, and Case-Law of other Countries. Ar-
ranged, as far as possible, under the corresponding sections of the Indian
Codes. By H. A. D. Phillips, B.C.S. 2 vols., 8vo., cloth. Rs. 12.

PHILLIPS.— Manual of Revenue and Collectorate Law.

"With Important Rulings and Annotations. By H. A. D. Phillips, Bengal
Civil Service. Crown 8vo., cloth. Rs, 10.

CoNTKNTs:— Alluvion and Diluvion, Certificate, Cesses, Road and Public Works,
Collectors, Assistant Collectors, Drainage, Embankments, Evidence, Excise, Lakhiraj
Grants and Service Tenures, Land Acquisition, Land Registration, Legal Practitioners,
License Tax, Limitation, Mortgages, Opium, Partition, Public Demands Recovery,
Putni Sales, Kegistration, Revenue Sales, Salt, Settlement, Stamps, Survey, and Wards.

PHILLIPS.— Manual of Indian Criminal Law; being the

Penal Code, Criminal Procedure Code, Evidence, Whipping, General Clauses,
Police, Cattle-Trespass, Extradition Acts, Legal Practitioners' Act, Regis-
tration, Arms, Stamp, &c.. Acts. Fully annotated and containing all applic-
\ able Rulings of all High Courts arranged under the appropriate Sections |

\ up to date. By H. A. D. Phillips, C.S. Second Edition. Crown 8vo., I

\ cloth. Rs. 10.- I

'^ . ^_^

LAW PUBLICATIONS BY THACKBR, SPINK k CO., CALCUTTA. 4

PHILLIPS. — Our Administration of India. An Account of

the Constitution and Working of the Civil Departments of the Indian
Government, with special reference to the Work and Duties of a District
Officer in Bengal. By H. A. D. Phillips, C.S. Crown 8vo. Rs. 4-4.

PRINSEP.— The Code of Criminal Procedure ; being Act

X of 1882 as amended by Acts III of 1884, X of 1886, and V of 1887.
With Notes of all Judgments and Orders thereon. By H. T. Pbinsep,
Bengal Civil Service. Ninth Edition. Annotated up to June 1890. R. 8vo.
Rs. 12.

^AtOUXmiCAEL— The

pc:l

u
o

UNIVERSITY OF TORONTO
LIBRARY

Acme Library Card Pocket

Under Pat. " Ref. Index File."
Made by LIBRARY BUREAU

Principles of the

i Case-Law bearing on the
res, 1880. By Rajcoomab

al Tenancy Act;

III of 1886. With Notes
,de under the Act by the
Registration Department,
3 Board of Revenue. By
Second Edition. Rs. 7.

[ortgage in India,

s of Decided Cases. The
-6. Revised and partly re-
Royal 8vo., cloth. Rs. 12.

Provinces Rent Act.

8vo,, cloth. Rs, 7.

A.ct (XV of 1877), as

lent enactments. With Notes.
N.-W. P. and Punjab, Third

imedan Law of Inheritance,
lliam Jones. With Notes and
iition, revised with Additions.

ammadan Law ; being

16 Sunnis of India. (Tagore
A Churn Sircar. 2 vols,
'^^ogether, Rs. 16.

1 Law of Inherit-

Stridhan, and Testament-
Smarto Siromani, M.A.,

Fifth Edition, Revised
With Notes on Evidence,

8vo., cloth. Rs, 13.

V relating to the

Trailokya Nath Mitba
Royal 8vo., cloth. Rs. 10

Lo i<.. >»..** .-Jode, as amended, the

Criminal Procedure Code, the Police Code, the Whipping Act, Railway
Servants' Act ; with a General Index, Foolscap Svo., cfoth. Rs. 4.

Internet Archive Audio

Featured

Top

Images

Featured

Top

Software

Featured

Top

Books

Featured

Top

Video

Featured

Top

Mobile Apps

Browser Extensions

Archive-It Subscription

Save Page Now

See other formats