RAJAH DURGA PROSAD SINGH Vs. RAJENDRA NARAIN BAGCHI

JUDGEMENT

(1.) These two appeals arise out of an action to recover arrears of rent due under a mourasi mokarari lease, dated the 18 Aghran 1301 corresponding to the 3 December 1894, of underground coal in Mauza Dobari belonging to the plaintiff. The arrears claimed are for the years 1311 and 1312 both inclusive at the rate of Rs. 2,800 per annum together with interest for overdue instalments. The defence raised by the defendants is that at their solicitation the predecessors-in-interest of the plaintiff by a sanad or letter dated the 22nd Aghran 1305 corresponding to the 7 December 1898, addressed by the latter to defendant No. 1 reduced the rate of rent from Rs. 7 per bigha reserved in the mourasi mokarari lease to Rs. 5 per bigha and fixed the annual rental at Rs. 2,000 in lieu of Rs. 2,800 and accepted the reduced rent for the years 1305 and 1306, they further pleaded that in pursuance of the terms of the lease, the plaintiff had put them in possession of a certain defined area as being the area demised, that they carried on their mining operations within that area and expended large capital that thereafter the plaintiff in the year 1902, brought a suit being No. 41 of that year against them, wherein it had been finally decided by this Court on appeal that under the lease they are not entitled to any lands beyond the Thak boundaries of the Mauza on the North, West and South, that the effect of this decision has been to reduce the extent of the area demised under the lease from 400 bighas to 274 bighas 4 cottas, that they are only liable to pay rent on this latter area at the rate of Rs. 5 per bigha, i. e. at the rate of Rs. 1,371 annually, that they are entitled to a refund of the bonus, rent and interest, that they duly tendered the rent payable by them but that the plaintiff refused to accept the same, that consequently they are not liable to pay any interest and lastly that they duly paid the cesses directly into the collectorate. The sanad or letter dated the 7 December 1898 was not registered, and hence the question whether the defendants were entitled to claim a reduction of rent depended upon the further question whether that letter was admissible, in evidence. The Court below has answered the question in the affirmative, and has held that the defendants are only liable to pay rent at the rate of Rs. 5 per bigha on the 400 bighas demised under the lease, or in other words at the rate of Rs. 2,000 per annum. As regards the other question whether the defendants are in possession of 274 bighas or more, the Court below has held that the defendants are in possession of 316 and odd, bighas excepting a small quantity of 600 square feet, and that there being a provision in the lease against the enhancement or abatement of rent, the defendants were not entitled to an abatement of the rent of Rs. 2,000 par annum, and lastly that the defendants are not liable to pay cesses or interest as claimed. The Court below accordingly decreed the suit in part and dismissed it as to the rest of the claim.

(2.) From this judgment and decree both parties have appealed to this Court, each of them challenging the adverse findings of the Court below. The plaintiff has preferred Appeal No. 291 of 1907 and the defendants have, preferred Appeal No. 318 of 1907. In Appeal No. 291 of 1907 the cardinal questions for consideration are first whether the letter dated the 7th December 1898 is admissible in evidence without registration, and secondly supposing that it is admissible whether it is founded on a good consideration, so as to be enforceable. The letter is addressed to defendant No. 1 and is in these terms: That you are in possession and enjoyment of 400 bighas of land in Mauza Dobari in Pergunnah Jharia and have previously taken mokurari settlement of the same, at an annual rental of Rs. 2,800. But being unable to bear the annual rent of Rs. 2,800, you have filed an application before me for fixing the mokarari rent for the 400 bighas at Rs. 2,000 by reducing the rate to Rs. 5 per bigha, on the ground that at most parts of the said coal lands, there is no coal fit for use and the coal that exists in the remaining land is not saleable as steam coal. Your prayer being considered reasonable, the mokarari rent for the said coal is fixed at the rate of Rs. 5 per bigha per annum i. e., at Rs. 2,000 per annum for the said 400 bighas with effect from the 1 Baisak of 1305 B.S." The letter goes on to state that the rents are payable in 3 instalments namely in the months of Sraban, Aghran and Chaitra, that interest on overdue instalments is to be paid at the rate of 2 per cent. per mensem and in the event of 3 consecutive instalments being unpaid, the concession as to rate of the rent shall cease and the terms of the original lease would revive.

(3.) On behalf of the appellant it has been contended that this letter is a non-testamentary instrument which purports to limit in future a vested interest of the value of Rs. 100 and upwards in immovable property and, therefore, its registration is compulsory under Section 17 Clause (b) of the Registration Act (III of 1877) and that not being so registered it cannot under Section 49 of that Act be accepted as evidence Of any transaction affecting any such property. I think this contention is well-founded.