1. This appeal arises out of a suit for recovery of Rs. 1,290 from the Defendants as damages on account of the Defendants'' failure to deliver
certain papers under the terms of a patni kabuliyat.
2. The patni kabuliyat is dated the 23rd February, 1880, and was executed by the grand-father of the Defendants. There is a stipulation in the
kabuliyat which runs as follows:- ""I shall deliver one set (or one copy) of the Chita, khatian jamabandi, and sheha, thoka and jama wasil baki and
other lawazima papers of the patni mahals, signed by the persons preparing the same and bearing my signature, into your (sic)hta after the expiry of
two consecutive years at the end of every third year, and obtain receipt for the same, on failure to do so, you will take from me Rs. 215, the cost
of preparing the papers at the end of every 3 years, and if I do not pay the same amicably, you will realize the same by having recourse to law and
get the said papers prepared by making mofussil survey and tumar by appointing Amin at the end of every third year. To this neither 1 nor my heirs
will be able to make any objection.
3. The suit was instituted on the 21st September, 1915. It is found that during the course of 35 years since the execution of the kabuliyat the
putnidar never submitted any paper as aforesaid, nor did the zamindar ever demand the same. The Court of first instance held that the stipulation
was stringent and unreasonable and was never meant to be acted upon, and that in any case the Plaintiff was entitled only to compensation not
exceeding Rs. 215, but there was no evidence to show the amount of loss actually sustained by the Plaintiff. In the result the suit was dismissed. On
appeal the learned District Judge was of opinion that the terms of the kabuliyat cannot reasonably bear the interpretation sought to be put upon it
by the Plaintiff, that ever since the execution of the kabuliyat the papers had never been demanded or submitted, and that the stipulation was never
meant to be enforced. The appeal was accordingly dismissed. The Plaintiff has appealed to this Court.
4. It is contended that the evidence of conduct relied upon by the Courts below is not admissible in evidence having regard to the provisions of
sec. 92 of the Evidence Act. The authorities upon the point are not uniform. A Full Bench of this Court in the case of Preonath Shaha v. Madhu
Sudan Bhuiya (1898) 25 Cal. 603 : 2 C.W.N. 562 held that oral evidence of the acts and conduct of parties such as oral evidence that possession
remained with the vendor notwithstanding the execution of a deed of out-and-out sale is admissible to prove that the deed was intended to operate
only as a mortgage. A question was, however, raised in some later cases whether the Full Bench decision had not been affected by the decision of
the Judicial Committee in the case of Balkeshen Das v. Legge (1899) 22 All. 149 : 27 I.A. 58 : 4 C.W.N. 153 : 2 Bom. L.R. 523 : 7 Sar. 601.
But the evidence which was held to be inadmissible by the Judicial Committee in the case was certain oral evidence of intention which had been
admitted in the Court below and the ground upon which their decision is based is that such evidence is excluded by the provisions of sec. 92 of the
Evidence Act. The evidence there, consisted only of oral statements of the parties, and there was no other evidence of the acts and conduct of the
parties adduced in that case which was considered by the Privy Council. It is upon these grounds that the decision in Balkishen''s case (1899) 22
All. 149 : 27 I.A. 58 : 4 C.W.N. 153 : 2 Bom. L.R. 523 : 7 Sar. 601 was distinguished by Banerji and Brett, JJ., in Khankar Abdur Rahman v.
Ali Hafz (1900) 28 Cal. 256 : 5 C.W.N. 351 and the learned Judges held that Balkeshen''s case (1899) 22 All. 149 : 27 I.A. 58 : 4 C.W.N. 153 :
2 Bom. L.R. 523 : 7 Sar. 601 did not ''in any way affect the rule laid down by the Full. Bench in Preonath Shah v. Madhu Sudan Bhuiya (1898)
25 Cal. 603 : 2 C.W.N. 562, The same view was taken by Maclean, C.J., Banerji and Brett, JJ., in Mahomed Ali Hossein v. Nazar Ali (1901) 28
Cal. 289 - 5 C.W.N. 326.
5. In the case of Radharaman Chowdry v. Bhowani Prosad (1901) 6 C.W.N. 60, Rampini and Gupta, JJ., were of opinion that oral evidence of
the subsequent acts and conduct of the parties is not admissible to show that the rent is less than what was stated in a registered Kabuliyat. A
similar view was taken by Rampini, J., in the case of Beni Madhub Gorani v. Lalmoti Dasi (1898) 6 C.W.N. 242, but his decision was set aside
on appeal by Maclean, C.J., and Macpherson, J., and the learned Judges held that certain rent receipts showing payment of a smaller rent than that
provided in a registered lease were admissible to show either that the parties never intended the terms of the kabuliyat to be strictly carried out, or
that as between the parties there had been a waiver of the strict terms of the lease-The case was followed in the case of Kailas Chandra v.
Darbaria (1915) 20 C.W.N. 347 = 32 I.C. 251 and Manindra Chandra v. Durga Sundari (1915) 20 C.W.N. 680 = 32 I.C. 185, one of the
members of the present Bench being a party to both the decisions, it may be open to doubt, however, whether there can be a waiver of the
essential terms of a registered lease except by a registered instrument having regard to the decision of the Full Bench in the case of Lalit Mohan
Gosh v. Gopali Chuck Coal Company (1911) 39 Cal. 284 = 14 C.L.J. 411 - 16 C.W.N. 55 = 12 I.C. 728 (F.B.), where, however, the variation
was sought to be effected by documents. But in the cases mentioned above, the Court held, upon the evidence of the subsequent acts and conduct
of the parties, that certain terms of the contract were never intended to be acted upon. On the other hand, in the case of Lakhatulla v.
Bishwambkar (1910) 12 C.L.J. 616 = 6 I.C. 577, Jenkins, C.J. and Doss, J., held that an agreement is none the less oral because it is to be
inferred from the conduct of the parties.
6. The question was raised before the Judicial Committee in the case of Maung Kyin v. Ma Shwe La (1911) 38 Cal. 892 : 38 I.A. 146 : 15
C.W.N. 958 : 10 M.L.T. 103 : (1911) 2 M.W.N. 30 : 14 C.L.J. 276 : 13 Bom. L.R. 797 : 8 A.L.J. 1184 : 21 M.L.J. 1105 : 4 Bur. L.T. 273 :
12 I.C. 39 (P.C.), but was not decided. Their Lordships observed:- ""The evidence which the Appellants thus proposed to tender was described in
general terms, and their Lordships have not the advantage of dealing with it in the form of questions specifically put and argued. So far, however,
as it is still pressed, it, no doubt, consisted only of evidence relating to the acts and conduct of the parties as distinguished from evidence of oral
statements and conversations constituting in themselves some agreement between them. Its object was to show that whatever the terms of the
documents may have been, none of the parties had acted on them as effecting an absolute sale, but that through a long course of mutual dealings
materially affecting their respective positions, they had always treated the business between them as one of loan secured by mortgage.
7. This may give rise to important and difficult questions under sec. 92 of the Indian Evidence Act, which provides that when the terms of any
contract required by law to be reduced to the form of a document (and sales or mortgages of land are, by sees. 54 and 58 of the Transfer of
Property Act, 1882, included among such contracts), ""no evidence of any oral agreement or statement shall be admitted, as between the parties to
any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms.
8. We have not referred to the decisions of the other High Courts, some of which have taken a view contrary to that taken by the Full Bench of
this Court in Preonath''s case (1898) 25 Cal. 603 : 2 C.W.N. 562 of the effect of the decision in Balkishen''s case decision in Balki. The question
therefore is not free from difficulty nor settled. But the weight of authority so far as this Court is concerned is in favour of the admissibility of
evidence of the acts and conduct of parties, and as stated above in some cases, this Court has held upon the subsequent acts and conduct of the
parties that certain terms of a contract were never intended to be acted upon i.e., from the very beginning.
9. It is unnecessary, however, to discuss the matter further having regard to the view we take of the construction of the kabuliyat. The covenant
relied upon provides that one set (or one copy) of ""chita, khatian, jamabandi, seha, thoka, jama wasil baki and other lawazima papers"" are to be
submitted at the end of every third year bearing the signature of the persons preparing the same. The tenure created by the kabuliyat was acceded
against for damages, they too made patni tenure. Ordinarily no such papers are delivered by the patnidar to the zamindar. There is, however,
nothing in the law to prevent the parties from entering into such a contract. But child, khatian and jamabandi can be prepared only after
measurement of lands. Such papers are not prepared every third year and under sec. 90 of the Bengal Tenancy Act, the landlord can (subject to
any contract) cause a measurement of the lands of tenants only once in 10 years except in certain cases which do not apply to the present. The
palnidar therefore cannot have such measurement made and therefore cannot have chita, khatian and jamabandi prepared every third year. It was
not possible therefore for the patnidar to comply with such a stipulation.The zamindar could not also for the same reason get a measurement of the
lands by appointing an Amin every third year, even if he could realize Rs. 215 every third year from the patnidar. It is probably for those reasons
that such papers were never demanded nor submitted. It is true selui, thoka and jama wasil baki papers are prepared every year, but the sum of
Rs. 215 agreed upon to be paid in the event of the breach of the contract includes the cost of preparation of the chita, khatian and jamabandi, as
well as for preparation of shea, thoka and jama wasil baki papers. As stated above, the papers were never demanded nor submitted at any time
during the 35 years that the patni is in existence, and the Plaintiff after having acted in a particular way for 35 years has instituted a suit for recovery
of Rs. 1,290 as damages for failure to submit such papers for six years, claiming Rs. 215 for each year. We are of opinion that the Courts below
are right in dismissing the suit. In this view it is unnecessary to consider the other contentions raised before us.
10. The appeal is accordingly dismissed with costs.
