1. This is a first appeal from a decision dated 10th March 1932, of an Assistant Collector of the First Class of the Bijnor District. The suit was one under Section 132, Agra Tenancy Act, for recovery of 'theka' money, with interest at 12 per cent per annum, for the years 1336, 1337 and 1338-F, the total amount claimed being Rs. 15,871. The learned Assistant Collector has decreed the plaintiff's claim for Rs. 8,948 with past interest at 12 per cent per annum, and future interest at 6 per cent per annum, and proportionate costs. The money was ordered to be paid in two equal instalments at intervals of six months. Against that decision the plaintiff has appealed. On 11th August 1928, the defendant-respondent, Mufti Mohammad Tawassul Husain, executed a usufructuary mortgage in respect of the properties concerned in favour of the plaintiff-appellant, Sahu Makhan Lal, for a sum of Rs. 1,45,000. On 24th August 1928, the mortgagor executed a qabuliat in favour of Sahu Makhan Lal, by which he agreed to hold the property on lease for an annual payment of Rs. 13,000. The terms of the lease were that the lessee should pay the Government revenue and cesses, amounting to Rs. 43,000 annually, and should pay the balance, Rs. 8,700, to the mortgagee lessor. As regards the revenue, it was provided that if it was reduced, enhanced or remitted at any future settlement, or for any other reason, the lessee, and not the lessor, should be affected by any such change. That portion of the lease concludes with the words: 'I, the lessee, shall under all circumstances, continue to pay the aforesaid amount of profits to the mortgagee zamindar.' As regards the rents, it was stipulated in para. 6 of the lease that:
If on account of terrestrial or celestial calamities, any remission or suspension be made by the Government, it shall have no effect as against the lessor; I, the lessee, the executant, shall enjoy the benefit and be liable for the loss resulting therefrom, and I shall, as per conditions set forth above, continue to pay the lease money to the mortgagee, the lessee (lessor?) without raising the aforesaid pleas.
2. The learned Assistant Collector has in framing his accounts deducted from the amount payable to the plaintiff for the year 1336-F a sum of Rs. 1,027 in respect of remissions of rent said to have been granted in that year, and in the year 1338-17 he has similarly deducted a sum of Rs. 3,050. In his judgment the learned Assistant Collector took the view that it was only in cases where the remissions of rent were due, as he put it, 'to earthly or atmospheric reasons' that the thekadar would not be entitled to make any deductions from the amounts payable by him under the lease. He went on to say that it was only just and equitable that the defendant should be allowed to make deductions where the remissions of rent had been allowed by Government on account of abnormally low prices. When the appeal was first before us, we found it necessary to make inquiries as to the grounds on which the remissions of rent were, in fact, made in the years 1336 and 1338-F. The Collector has now sent us a tabular statement, which shows that in 1336-F remissions of revenue and rent were made in some of the villages in question on account of agricultural calamity, and similar remissions were also made in the year 1338-F, in most of the villages concerned on account of the fall in the prices of agricultural produce. In these circumstances, it seems to us to be clear that the deduction made by the learned Assistant Collector in respect of the year 1336-F ought not to have been made, since the remissions of rent and revenue made in that year were due to agricultural calamity, which is a matter specifically covered by para. 6 of the lease. As regards the deductions made in 1338-F, the matter is not so simple. According to Section 73(1), Agra Tenancy Act (Act 3 of 1926):
When for any cause the Local Government, or any authority empowered by it in this behalf, remits or suspends for any period the payment of the whole or any part of the revenue payable in respect of any land, whether such revenue is payable to an assignee or to the Government, a Collector, or, if so empowered by the Local Government an Assistant Collector of the First Class, may order that the rents of the tenants holding such land or any portion thereof, mediately or immediately from the landlord, shall be remitted or suspended for the period of such remission or suspension of payment of revenue, to an amount which shall bear the same proportion to the whole of the rent payable in respect of the land as the revenue of which the payment has been so remitted or suspended bears to the whole of the revenue payable in respect of such land.
3. In Sub-section (3) of this section it is provided that the word 'tenant' includes a 'thekadar.' It is to be observed however that in cases where the Local Government or any authority remits or suspends for any period the payment of the whole or any part of the revenue, a Collector, or an Assistant Collector of the First Class, if so empowered, may order that the rents of the tenants holding such land or any portion thereof, mediately or immediately from the landlord, shall be remitted or suspended, etc. In the present case, we are not shown that there was any order remitting any portion of the rent payable by the thekadar, the defendant-respondent in the present case. His learned Counsel has suggested that as this particular point has not come up for consideration until today, we should remit a definite issue to the learned Court below for a finding as to whether any remission was granted in the rent of this thekadar in the year 1338-F or not. We do not think that at this stage we ought to remit any such issue. It was the duty of the defendant clearly to plead the provisions of Section 73(1), Agra Tenancy Act, and to show that this case was covered by those provisions. He did not do so, and in the circumstances we do not see any reason to give him an opportunity to do so now. The result is that in our opinion the deduction of Rs. 3,050 made by the Assistant Collector from the money due under the theka for the year 1338-F should not have been allowed. A ruling has been produced by learned Counsel for the respondent reported in Fateh Chand v. Murari Lal 1924 22 ALJ 758. That case is distinguished from the present case by two points. It was under Section 51, Agra Tenancy Act, (Act 2 of 1901), which corresponds to the section before us: Section 73, Agra Tenancy Act (Act 3 of 1926). The case differed from the present case because on p. 760 of the ruling it is stated that there was a certificate by the Collector containing an express order that the rent payable by the defendant lessee should be remitted to the extent mentioned therein. There is not any such order in the present case. The second point on which there is a difference is of more general importance, because there has been a change in the law in regard to thekadars. The ruling set out that the contract between the zamindar and the thekadar was overridden by the express provision of law contained in Section 51, Tenancy Act, and that the stipulation in the lease, that rent would be payable irrespective of whether there was any drought or flood or any calamity causing loss of produce in the village, was overridden by the provisions of Section 51. The ruling referred to the definition in Section 4, Tenancy Act (Act 2 of 1901). That definition stated: 'A 'tenant' includes a thekadar,' in Section 4(5). Accordingly, therefore, under that Act Section 3(1) applied to a thekadar, and this sub-section stated:
Notwithstanding anything contained in Section 2, nothing in any lease or agreement made between a landholder and a tenant on or after the first day of April 1900, shall take away or limit any right of the tenant as conferred or recognised by this Act.
Therefore the learned Judges in the ruling were correct in applying Section 3(1) and holding that the provision in the lease was overridden by Section 51 of Act 2 of 1901. We have in the present case a similar provision in the lease but the law is different. Under Act 3 of 1926 there is no doubt in Section 8(1) a provision:
Every agreement which purports, or would operate, to restrict a tenant from enforcing or exercising any right conferred on or secured to him by this Act is void to that extent.
4. But the word 'tenant' in Section 8 no longer includes a thekadar. This is shown by Section 3(6) which states: 'Ten-ant' does not include...save as otherwise expressly provided by this Act, a 'thekadar.' Now Section 8 does not expressly include a thekadar, and therefore that section cannot be applied to the present lease by a zamindar to a thekadar. The covenant in the lease, therefore, is not affected by the provisions of Section 73, Agra Tenancy Act of 1926. That Section 8 does not apply to a thekadar is further shown by the fact that Section 219, which is in the chapter for thekadars, and which sets out certain sections of the Act as applying to thekadars, does not state that Section 8 applies to thekadars. It is also provided in Section 219(1) that the five sections mentioned therein shall apply to thekadars unless there is an express provision to the contrary in the theka.' Therefore the situation has changed with the passing of Act 3 of 1926, and it is now open to a zamindar to grant a 'theka' which contains provisions contrary to the provisions of Act 3 of 1926 in regard to tenants. The ruling, therefore, for these two reasons, has no application to the present case. The result of our findings is that the correct figures for the years in suit are as follows:
Rs.1336-F. due to the plaintiff under the theka: ... ... ... 8,700Deduct the amount acknowledged in the plaint to have been paid by the defendant ... ... ... 8,575------Balance due ... 125------1337-F. theka money ... ... 8,700Balance due from the previous year ... 125------Total ... 8,825 Deduct for payments made by the defendant as acknowledged in the plaint 3,700------Balance due ... 5,125------1338-F. theka money ... ... 8,700Balance due from the previous year ... 5,125------Total ... 13,825------
5. This is the amount we decree, instead of the amount decreed by the learned Court below. Past interest is allowed at 12 per cent per annum, and future interest at 6 per cent per annum with effect from 10th March 1932, the date of the decree of the Court below. The plaintiff-appellant is allowed his full costs here and in the Court below.