JUDGMENT Maclean, C.J. - The question which arises upon this appeal is as to the apportionment of the compensation money awarded for the acquisition of certain land under the Land Acquisition Act, as between the zemindar on the one hand and the Respondents to this appeal on the other, who claim to be the owners of a permanent tenure, heritable and transferable, and with a rental fixed in perpetuity in the land in question. The question, debated before us, is as to the principle upon which the apportionment ought to be made. The case was gone into very fully before the District Judge of the 24-Pergunnahs, who, in an extremely careful judgment, has dealt with the whole matter and with a variety of questions which have not been raised before us upon appeal. 2. Two questions only have been argued before us : (1) whether the Court below was right as to the principle upon which it apportioned the compensation money between the zemindar and the tenure-holders, and (2) whether the rental can be properly regarded as fixed in perpetuity. It will be convenient to deal with the latter point first. 3. I am in accord with the argument of the Appellant that sub-sec. (2) of sec. 50 of the Bengal Tenancy Act does not apply to the present case : it only applies to a suit or proceeding under that particular statute. But that does not dispose of the matter. In my opinion, upon the evidence adduced in the case for the present Respondents, there was sufficient to justify the Court in presuming that the rate of rent had not been changed from the time of the permanent settlement. Without going in detail into that evidence, which is summed up by the learned District Judge in paragraph 38 of his judgment, I think, having regard to the documents in the case, and to the fact that the same rental which is mentioned in the deed of 1799, has been paid without alteration for a period of nearly one hundred years, the Court would be justified in drawing the inference that the same rent existed at the date of the permanent settlement, and that the rate of rent had not since been changed. We may take it then for the purpose of the present discussion that the rental was one fixed in perpetuity. 4. We may take it then for the purpose of the present discussion that the rental was one fixed in perpetuity. 4. I now come to the main question discussed on the appeal. The learned Judge has held that the zemindar is only entitled to such a capitalized sum as represents some twenty years' purchase of the rent which he was receiving under the lease--a very small sum, some Rs. 3-8-1, which rent so capitalized,--the number of years purchase has not been contended, gives a capital sum of Rs 70-1-8. Add the statutory allowance to it, and we get a total of Rs. 80-9-11. In point of fact, for the reasons given in paragraph 52 of the judgment, the landlord has been given a much larger sum, viz., Rs. 273-13-9. But he is not satisfied : he contends that he is entitled to more than the mere capitalized value of his rent; that he is entitled to something for the chances of the lease coming to an end or being forfeited. This contention has not been disregarded by the Court below, for, in paragraph 41 of the judgment, it deals with the suggestion. So far as I understand, no evidence was adduced to show what would be the monetary value of any such chance, and it would, I think, be extremely difficult to appreciate it. If the rent were enhancible he would be entitled to something for that chance of enhancement, but that again would be difficult to estimate by a money value. But in addition to all this the landlord claims not only the capitalized value of his rent, but, after the tenure-holder has been compensated for any loss he may have sustained, to have the balance of the compensation money divided equally between himself and his tenant, and he contends that the proposition is supported by ample authority of this Court. I will deal with the cases in a moment. It seems to me all important, with a view to apportioning the compensation money between the zemindar on the one hand and the tenure-holder on the other, to ascertain what the real interest of each party is in the property, and what is the interest each party parts with. I will deal with the cases in a moment. It seems to me all important, with a view to apportioning the compensation money between the zemindar on the one hand and the tenure-holder on the other, to ascertain what the real interest of each party is in the property, and what is the interest each party parts with. In the present case, if the lease be permanent, and at a fixed rent, as we must take it to be, what are the respective interests of the zemindar and of the tenure-holder ? Subject to those chances to which I have referred, and which are scarcely appreciable by a money payment, the interest of the landlord cannot be put higher than the fixed rent he receives, for which, as he loses it, he is entitled to be compensated at so many years' purchase. The real beneficial owner in the case before us is the tenure-holder, and not the landlord : the property is virtually his, subject to the payment of the small rent I have mentioned. 5. I will now deal with the various authorities. Our attention has not been directed to any case dealing with this subject in the other High Courts in India, nor am I personally aware of any, which throws any light on the matter. 6. In the case of Gordon Stuart & Co. v. Maharaja Mohatap Chandra Bahadur 1 Marshall's Rep. 490 (1863) it was held that: "where lands are taken compulsorily, the principle upon which the amount of compensation is divisible amongst the zemindar and the holder of several subordinate tenures, is by ascertaining the value of the interest of each holder of a tenure, and to give him a sum equivalent to the purchase-money of such interest." There is nothing in that decision, to support the suggestion that the compensation money ought to be divided between the zemindar and the tenant, as is the present contention of the Appellant. 7. 7. The next case is that, of Raye Kishori Dasi v. Nilcant Dey 20 W.R. 370 (1873) where it was held that:-- "Where land held in putni is taken by Government for public purposes, the proper mode of settling the rights of the parties interested is to give the putnidar an abatement of his rent in proportion to the quantity of the land which has been taken from him, and to compensate the zemindar for the loss of rent which he sustains. Accordingly the compensation awarded was held to have been very fairly distributed, where the zemindar received a title more than sixteen years' purchase of the rent abated, and the putnidar received the remainder." I see no suggestion there of dividing the compensation money between the landlord and the tenant. Chief Justice Couch was a party to that decision and he says : "The compensation ought to be apportioned between the parties according to the value of the interest which each of them parts with. The zemindar has a right to the fixed rent, and the loss be sustains is of so much of his rent. Any other possible injury, such as the chance of the putnidar throwing up the land, and its being diminished in value by what has been taken by Government, and still remaining, as it did, liable to pay the same revenue, is, we think, not appreciable, and cannot be taken into account. If there is no abatement of the rent, and the putnidar continues liable to pay to the zemindar the same rent as he had to pay before, there would be nothing for which the zemindar ought to receive compensation. He would be in the same position as before, except with reference, as we have said, to the possibility of a loss which is scarcely appreciable. But the proper mode of settling the rights of the parties is to give to the putnidar an abatement of his rent in proportion to the quantity of land which has been taken from him. It is not fair that he should be liable to pay the same rent, when a part of the land has been taken away. The decision of the Judge that the Plaintiff is entitled to an abatement of the rent is correct, and is in accordance with the principle laid down in the case of The Maharajah of Burdwan Marshall's Rep. The decision of the Judge that the Plaintiff is entitled to an abatement of the rent is correct, and is in accordance with the principle laid down in the case of The Maharajah of Burdwan Marshall's Rep. 400 (1868). This being so, the zemindar ought to be compensated for the loss of rent which he sustains, and the money ought to be divided between the parties accordingly. The putnidar's getting an abatement of his rent is to be taken into account as partly the way in which he is compensated for the loss of the land." 8. The next case is one which, I think, has created the difficulty--a decision of Chief Justice Garth and Mr. Justice McDonell,--Godadhur Das v. Dhunput Singh ILR 7 Cal. 585 (1881). That case is treated by the Appellant as an authority for the propositions that, as between the zemindar and the putnidar the former is entitled to as much of the compensation money as the latter; and the head-note of that case certainly supports that view, as also certain observations of the learned Chief Justice which tend directly in the same direction. But it can scarcely be regarded as an authority, as the zemindar was not a party to the case, and the contest was between the putnidar and the dur-putnidar. It cannot be put higher than an obiter dictum. The language upon which so much reliance is placed is at page 589, where the learned Chief Justice says:-- "As regards the zemindar, it is a mistake to suppose that his interest in the land is contined entirely to the rent which he receives from the putnidar. He is the owner of it under the Government, and in the event of the putni coming to an end by sale, for future, or otherwise, the property would revert to the zemindar, who might deal with it as he pleased in its improved state; and although, in some cases, and possibly in this, the chances of the putni coming to an end may be more or less remote, there is no doubt that, in all cases, the zemindar is entitled to some compensation (small though it be), for the loss of his rights. At any rate, he would generally be entitled to receive at least as much as the putnidar to whom, in this instance, the whole compensation has been awarded." 9. At any rate, he would generally be entitled to receive at least as much as the putnidar to whom, in this instance, the whole compensation has been awarded." 9. It is upon the latter sentence that so much stress is laid by the present Appellant. If the chances to which the learned Judge refers are susceptible of a money appreciation they ought to be taken into account, but in the present case no evidence was apparently forthcoming on the point. 10. I now pass on to the case of A.M. Dunne v. Nobo Krishna Mookerjee ILR 17 Cal. 144 (1889). There the question is not discussed in the judgment. The Court only held that the money should be apportioned as was done in an unreported case, appeal from original decree No. 311 of 1886 which is referred to in the note at page 147 of the report, which again seems only to have followed another case where the decree was made by consent. Neither the case before Sir Richard Garth or that before Sir Comer Petheram can under the circumstances be regarded as conclusive decision on the point. 11. The next case was of Rajah Khetter Krista Mitter v. Kumar Dinendra Narain Roy 3 C.W.N. 202 (1897) decided in May 1897 where the Court said: "It occurred to me during the course of the argument, that the proper course would have been to ascertain, first, what was the value of the landlord's interest and, secondly, what was the value of the tenant's interest, and having found the money value of these two interests, to apportion and divide the money accordingly. But I understand that, in this country, it is almost impossible to take that course; it is almost impossible to say what is the value of the interest, that is, the precise money value of the lessees' interest on the one hand, and on the other, what is the precise money value of the landlord's interest'. That being so, the Courts have adopted, what perhaps I may call a rough and ready way of settling the matter,"--and the Court, though apparently with some misgiving, followed the case of A.M. Dunne v. Nobo Krishna Mookerjee ILR 17 Cal. 144 (1889) that which I have just commented upon. 12. The matter was again discussed in the case of Shama Prosunno Bose v. Brakoda Sundari Dasi ILR 28 Cal. 144 (1889) that which I have just commented upon. 12. The matter was again discussed in the case of Shama Prosunno Bose v. Brakoda Sundari Dasi ILR 28 Cal. 146 (1900) and there the Court, after referring to the cases I have last cited, said: "The principle upon which the compensation money in cases of this class ought to be apportioned, as between the landlord and tenant, is as follows :-- First, the Court must ascertain the amount of rent payable to the landlord and capitalize that rent at so many years' purchase, the number of the years' purchase depending upon the particular circumstances of such particular case. The landlord is at the outset entitled to that capitalized value, but I think he is entitled to something more. There is or in many cases may be, the chance of an enhancement of the then existing rent, he is entitled in my opinion to have the value of this chance of enhancement assessed and to have a money value put upon it, and to take that money value out of the compensation awarded. It may in some, perhaps in many, cases, be somewhat difficult to arrive at the true capitalized value to the landlord of this chance of enhancement, but it will be for the landlord, who sets up such a claim, to make it out, and show what the true value is, I do not think the landlord can be entitled to anything more, nor have I heard it suggested that he can be." In the present case we regard the rent as fixed in perpetuity, and no question of the chance of enhancement arises. The case before Chief Justice Couch was apparently not cited in the case I have just mentioned; but it seems that the view there taken by the Court is in conformity with that held by that learned Judge in the case I have quoted from. Upon this review of the authorities, I do not think that the Appellant has substantiated that, as between the zemindar and the tenure-holder, after providing for the capitalized value of the rent due to the zemindar, the compensation money ought to be divided between himself and the tenant. Upon this review of the authorities, I do not think that the Appellant has substantiated that, as between the zemindar and the tenure-holder, after providing for the capitalized value of the rent due to the zemindar, the compensation money ought to be divided between himself and the tenant. I cannot see upon what principle such a result can properly be arrived at I think the Court ought to proceed on the principle of ascertaining what is the value of the interest of the zemindar on the one hand with which he has parted, and that of the tenant on the other, and to apportion the compensation money between them in accordance with those values. In my opinion the decision of the Court below upon this point was right, and the appeal must be dismissed with costs,--two separate sets, one to each Respondent. As regards the suggestion made by Mr. O'Kinealy that the lower Court was wrong in making no order as to costs, I do not think we can interfere, as that has not been made the subject of any cross objection.