1. This appeal arises oat of a suit for arrears of rent, and the only point to be decided is the rate of interest to be given to the plaintiffs on the
arrears.
2. The tenancy commenced with the execution of a registered kabuliyat for a term of three years on the 25th May 1880 and the defendants in this
suit are the sons and son-in-law of the executants of the kabuliyat and they or their predecessor have been holding over since the first term of the
kabuliyat expired. The kabuliyat provides for payment of 24 rupees in cash and 3 aras of paddy, or in lien of the paddy 12 rupees per annum. The
condition as to interest contained in the kabuliyat is that the tenant should pay interest at 6 pies per rapes per menses on the cash rent and one
cotta per rupee per month on the rent payable in paddy. Both the lower Courts have held that the plaintiffs cannot get interest at higher rate then 12
per cent, per annum. This finding is base on two grounds, firstly, that the contract for interest was a hard and unconscionable bargain, and,
secondly, that the provisions of Section 67 of the Bengal Tenancy Act are a bar to the plaintiff''s getting any higher rate of interest then that
provided in that section.
3. On appeal both these grounds were attacked. But the learned Vakil for the respondent was content to rely on the application of Section 67 and
the question of the effect of the finding that the bargain was hard and unconscionable was not argued. As regards the effect of Section67 the point
has recently been considered by a Division Bench of this Court in the cage of Chindra Nath Sharma v. Sheikh Inamdi (7). In that sage it is pointed
out that there has been divergence of judicial opinion as to the effect of holding over and the more important eases dealing with this point are there
discussed. On behalf of the appellants it is strenuously urged that when a tenant holds over there is no new contrast entered into which would make
the provisions of Section 178 of the Bengal Tenancy Act applicable and that consequently there is no bar to recovery of interest under the terms of
the original contract if that is made before the passing of that Act. This contention is overruled by the decision above cited. That decision has been
attacked, We do not think that we should be justified in referring the matter to a Foil Bench. On beta f of the appellant cur attention has been
drawn to another resent decision in the case of Srimati Pramada Sundari Sarkar v. Ledu Mattxbir (5) Sec App 167 and 2269of 1918, decided on
the 3rd June 192C. A short note of this case appears in 24 Calcutta Weekly Notes, (.Votes Portion) Clii. On examination of the judgment we find
that it is of no assistance to the present case. The judgment itself does not state the facts. Prom the paper-book it appears that no question of the
applicability of Section Q7 was ever raised. The lower Appellate Court in-that case reduced the interest arbitrarily on the ground that the bargain
was hard and unconscionable. The tenancy held by the defendant was Cast Him hcwli or permanent tenure and, therefore, that case would be
covered by the Full Bench case in Lal Gopal Butt Chowdhry v. Monmathe Lai Butt (4). The facts of the present case cannot be distinguished from
the facts of the case of Chandra Hath Sharma v. Sheikh Inamdi (7) already referred to and we follow that decision.
4. One other point was argue. It was contended that so far as the rent in kind was concerned Section 67 would have no application. This
contention is based on a decision of the Patna High Court, Bishelhar Nath Sahu v. Husani Sao (6). With all respect to the learned Judges who
decided that case we are unable to agree with them that Section 67 is inapplicable to a case of produce rent which is not paid quarterly. That
decision is based on the decision of their Lordships of the Judicial Committee in Bemanta Kumari Bebi v. Jagadindra Nath Boy (8). That decision
has been considered in two reported cases of this Court, Narendra Kumar Qhoie v. Qora Ohand Poddar 33 C. 683 PC : 3 C. L. J. 391. and
Monohar Mukheriee v. Khetra Nath : Paresh Chandra Mukherjee 19Ind Cas 625 : 18C.L.J. and it has been held that their Lordships of the
Judicial Committee did not rule that the whole of the Section 67 is limited in its application to oases where rent is payable quarterly. We do not see
any reason why Section 67 should not be applicable to interest on arrears of paddy of rent paid annually. On behalf of the appeal-lants it is
contended in support of this objection that arrears of rent is defined by Section 51 Clause (3) and that Clause must be read with Section 53 which
applies only to money rent. Clause (3) of Section 54 is not be exhaustive a definition whish includes every kind of arrears of rent. It only deals with
eases of rent payable in installments. It would be absurd to hold that all arrears of rent were Covered by this definition, otherwise rent payable
annually would never fall in arrear. For these reasons, we hold that this appeal fails and must be dismissed with costs.
