COMMISSIONER OF INCOME-TAX, BIHAR & ORISSA Vs. VISWESHWAR SINGH

JUDGEMENT

(1.) The question to be decided on this reference is whether a sum of Rs. 1,800 received by the assessee as salami for the settlement of certain lands during the years of assessment is taxable. The lands settled are 4 1/2 bighas in area, and the terms of the settlement are to be found in a kabuliyat which is printed at page 16 of the Paper Book. Under this kabuliyat the settlement was made for an indefinite (bemeyadi) period with effect from the beginning of 1340 Fs. and it was provided that rent was payable by the lessee year after year, and neither the lessee nor his heirs and representatives shall put forward any plea or objection with regard to the payment thereof. It was further provided that in the event of default of two consecutive instalments, the lessor or his heirs and representatives shall have the power to realise the arrear rent with interest thereon and dispossess the lessee by taking proceedings in Court, and that the landlord or his heirs and representatives shall have the power to enhance the rent if at any time the area of the land, as specified in the lease, is on measurement found increased. Lastly, the lessee bound himself not to sell the residential right to any one without a reference to the landlord or his heirs and representatives and without obtaining his or their permission in writing. The lease clearly stated that the lands had been settled with the lessee to enable him to build a gold house and platform for ricemill.

(2.) The first question which arose upon the terms of this lease was whether the lease was a permanent one or it created a mere tenancy at will or a tenancy from year to year. The learned Commissioner of Income-Tax relying upon the decision of this Court in Must. Parshan Kaur V/s. Must. Tulsi Kuar held that the lease was not a permanent one. That case, however, is no authority for the proposition that a bemeyadi patta can in no circumstance be regarded as a permanent lease and it has been fully explained in two subsequent cases, viz. Kangali Charan Mukerji v. Suraja Narain Sah and Forbes V/s. Hanuman Bhagat In the last mentioned case where the lessee had obtained settlement of a parcel of land under a bemeyadi lease for the purpose of erecting a goal on the demised land, it was held that the lease was intended to be a permanent one and not from year to year. In Raja Janki Nath Roy V/s. Dinanath Kundu the Privy Council held a bemeyadi patta to be a permanent lease in the following circumstance : the lease recited that the executant was already in possession of the premises (a hat, bazar, bandar and ghat) under a meadi settlement, that his request for a bemeyadi settlement had been granted by the execute on receipt of a premium and on an annual rent being fixed, (such premium being a substantial sum and higher than previously), that the executant had been called upon to execute a kabuliyat whereupon he was executing the present bemeyadi kabuliyat and promising to abide by the terms as set forth therein. Among the terms was one for an enhancement of rent in specified circumstances and another forbidding bemeyadi settlements by the lessee whereas others imposed restrictions on the powers of the lessee to dig tanks and erect masonry structures and also provided for the lessor assuming khas possession in certain circumstances.

(3.) In my opinion, the fact that the lands in the present case were let out for the purpose of enabling the lessee to build a gola and a platform for a rice mill strongly suggests that the lease was intended to be a permanent one. This inferences is supported by two other facts, viz., (1) that no term was fixed in the lease and (2) provision was made for certain rights being exercised not only by the lessor and the lessee but by their heirs and legal representatives. It is abundantly clear on reading the lease that it was to continue as long as the terms settled between the parties were carried out by the lessee and his heirs or legal representatives, and this shows that the lease was intended to be a permanent one. Besides, the settlement was described as a Mokarari settlement in landlords own challan, a contemporaneous document, to which reference has been made by the commissioner of Income-Tax as evidencing the payment of the salami of Rs. 1,800.