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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"

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•^ ^^ 



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. 


1. 


Short title 




Commencement 




Local extent 


2, 


Repeal 


3. 


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. 



IX 



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 

B 

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 

h 



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 

D. 

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 

H. 

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 

J. 

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 


60 


,271 




211 


... 


222 


... 


20 


... 


148 




108 


... 


260 




6 


'ibi, 


, 103 


• ■• 


113 


113, 


, 117 




66 


.32. 4i 


5,71 


143 


94 


■ • • 


143 


• • • 


135 




205 


• ■• 


265 




255 




207 




136 


"■■43, 


,258 




191 


... 


131 


... 


H 


• •• 


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 

M. 

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 




39 


... 


66 


... 


205 


44, 131, 


228 




160 


... 59,63 




148 


... 43,70 




160 


59," 61, 


108 


... 


5 




245 




228 




220 




32 


'2O6 


,207 




127 




265 


... 


116 


... 


137 




11 


... 


149 


... 


256 




163 




281 


... 


5.6 


104 


, 105 




39 


... 


108 




133 


61, i'61 


, 164 




96 


••« 


108 


..♦ 


205 




21 


... 


210 


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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 

N. 

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 

O. 

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, 


... 




31 


... 




...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 

R. 

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 




... 207 




... 134 




... 272 




... 104 




... 109 




... 266 




69,111 




... 214 




115, 209 




... 208 


F. 


B., 61... 21 




69, 66 




... 127 


I. 


L. R., 8 




... 217 




... 144 




... 266 




... 247 


R. 


, 2 Calc, 




94 




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 

S. 

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, (\ 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 

T. 

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 

U. 

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 

V. 

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 

W. 

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 

Y. 

Yaknb Hossein v. Wahid Ali, 4 W. R., Act X, 23 ... ... ... 66 

Z. 

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 






2 


107 


...... 




3 (16) 


1 






12—18 


26 


27 




20 (1) 


6 


6 




21 (1) (2) 


6 


6 




30 (a) 


18 (1) 


17 




30 (0 


18 (2) 


17 




38 


19 


18 




42 


8 


8 




a {a) 


22 


21 




50 (1) 


3, 16 


3, 16 




50 (2) 


4,17 


4, 16 




51 


6 


6 




52 (a) 


IS 


17 




(*) 


19 


18 




53 


21 


20 




54 


21 


20 




54 (3) 


21 


20 


V 


66 


11 


10 




68 


11 


10 




61 (1) («) ) 

62 (2) I 


46 





Sec. 4, Act VI of 1864. 


63 (2) ) 

64 (1) ] 


47 




Sec. 6, Act VI (B.C.), 1862. 


66 


62 


78 




67 


21 


20 




68 (1) 


44 




Sec. 2, Act VI (B.C.), 1862. 


68 (2) 


45 




See. 3, Act VI (B.C.), 1862. 


76 


11 


io* 




86 U) I 
(2) ] 


20 


19 




88 


26 


27 




89 


22 


21 




90 (1) 


25 




Sec. 9, Act VI (B.C.), 1862. 


91 


37 




Sec. 9, Act VI (B.C.), 1862, 


92 


41 




Sec. 11, Act VI (B.C.), 1862. 


104—109 


38, 39, 40 




Sec. 10, Act VI (B.C.), 1862. 


116 


6 


'"e* 




121 


68,69 


112, 113 




121 (a) 

(&) ] 


71 


115 




Proviso (2) 


69 


113 




122 


79 


123 




123 


80 


124 




124 


80 


124 




126 (1) 


72 


116 




(3) 


72 


116 




126 


74 


118 




127 


80 


133 




128 


86, 87 


129, 130 




130 


86, 87 


129, 130 




131 


87 


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 


88 


131 




133 


88 


131 




134 


89 


132 




135 


90 


133 




iH(; (1) 


77 


121 




110 


96, 98 


139. 142 




143 


34 






144 


33, 35, 36 






145 


32 






MG 


42 






148 (h) 


43 




Sec. 12, Act VI (B.C.), 1862. 


153 00 


102 






158 


2 






159 


66 




Sec. 16, Act VIII (B.C.), 1866. 


IGO 


66 




Sec. 16, Act VIII (B.C.). 1865. 


162—165 


59, 60 


1*05 


Sees. 4 and 5, Act VIII (B.C.) of 
1865. 


170 


63 


106 




171,172 


62 




Sec. 2, Act VIII (B.C.), 1865. 


187 


32 






188 


70 


114 




Sched. Ill (1) (3) 


27 


30 




Sched. Ill (2, a) 


31 




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. 



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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. 



i 



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. 

V 

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, 



b 



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. 



22 



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 

(c) non-occupancy -raiyats, that is to say, raiyats not 

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 



I 



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. 



I 



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 



34 



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. 



I 



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. 



88 



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 



I 



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. 



41 



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. 



I 



42 



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, 



I 



44 



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, 



46 



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, 



47 



(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 

o 

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 



k 



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. 



49 



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 



I 



REGISTRATION OF TENURES. 



53 



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 



54 



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. 



5^ 



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 



56 



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. 



57 



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. 



59 



I 



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. 



61 



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. 



L 



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 



64 



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. 



69 



(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- o ne. 2 6. 
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. S v-c. J l, 

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. 



77 



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. 



L 



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 ; 

(c) that the productive powers of the land held by the 

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 



I 



80 



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- 
Skc s. 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 



88 



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 

I 

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 
Skc 8. 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. 



93 



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 ; 

(c) where he has been admitted to occupation of the 

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. 



97 



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 



98 



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 



I 



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 : — 



1 


2 


3 


4 


5 


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 : — 



1 


2 


3 


4 


5 


6 


7 


E 
es 

1 


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 



3 






O •? S3 

'«S 2 

® c- 

C-e8 « 
55 "■■" 



a £ a> 
<D.e 2 



««9 2 



sS^-^ 



5 


6 




>. 




.a 




_ ^ 






c 


« . 


» 




X 


*jr3 








5 2 






?r 








< 


~ <u 




"5 



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. 



1 


2 


3 


4 


5 


6 


7 


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 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.) 



I 



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". 



I 



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 ; 

(c) the length of time during which the tenancy has lasted 
witliout dispute as to rent or area ; and 

{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 



I 



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- 



I 



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 



k 



142 THE BENGAL TENANCY ACT. 

CnAP. VIII. damage to the plaintiff was the value of the crops, at the time they were due, and 
S no.7 2. 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 



lU 



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 



I 



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 



I 



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 ; 

(c) to the labour and capital required for the makino- of 
such an improvement ; 

(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|ȣ^ 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 



I 



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- Su e. 10 0. 
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 Sk c. 10 2» 

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 

16 

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 ; 

(c) the situation, quantity and boundaries of the land 
held by him ; 

(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- S bc. 10 4. 
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- 
S hc. 1 04. 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 Sic c. 10 9. 
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. Se c. 11 7. 

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. 



I 



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 



I 



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- Sic c. 14 3. 

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 



REGISTER OF RENT-SUITS. ^15 

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 
Sk o. la p. 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- 



i 



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- S ko. 1 59. 
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. Sit e. 16 1. 

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. 



I 



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 

(c) shall entitle a landlord to eject a tenant otherwise than 
in accordance with the provisions of this Act, 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 ; 

(c) take away the right of a raiyat to surrender his hold- 
ing in accordance with section 86 ; 

(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 Sic c. 18 1. 
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., 
Sk c. 18 3. 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, 
S kc. 1 83. ^^^ ^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 



I 



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 Sh c. 18 4. 
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 

Sk c. 18 5. 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 
Sk c. 16 8. ^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 publicatio