Judgement Appeal from a decree of the High Court (August 6, 1903), reversing a decree of the second Subordinate Judge of Hooghly (September 20, 1901) so far as it made certain declarations in favour of the appellant. The question decided was whether, according to the true construction of two putni kabulyats or counterparts of leases executed by the respondent in favour of the appellant, one on the 17th day of Jaistha, in the Bengali year 1292, corresponding with May 29, 1885, and the other on the 31st day of Srabun, in the Bengali year 1300, corresponding with August 15, 1893, read with Bengal Regulation VIII. of 1819, the Government revenue of Rs.40,156 14 9 1/2 , payable by the appellant in respect of the zemindari the subject of the putni settlement, which the respondent undertook to pay into the collectorate, is rent within the meaning of the Regulation, and as such recoverable under the summary provisions enacted for the recovery of putni rents by it at the instance of the appellant. The Subordinate Judge held that it was, and made the necessary, declarations in respect to it. The High Court was of opinion that it was not, and disallowed the declarations made by the Subordinate Judge. The Subordinate Judge expressed himself as clear that the Government revenue payable by the respondent under the putni agreement was rent. He discussed various clauses of the two kabulyats, and recognized that a distinction was made in these instruments between the Rs.6000, described as the putni jumma, and the Government revenue. He said " The distinction seems to have been advisedly made in the kabulyat to keep up the difference between the sum of a number of sums which were to be paid to the plaintiff personally, and the other sum which was to be paid to the collectors of the district. He said " The distinction seems to have been advisedly made in the kabulyat to keep up the difference between the sum of a number of sums which were to be paid to the plaintiff personally, and the other sum which was to be paid to the collectors of the district. It was evidently thought that the clause providing for the cancelment of the lease on failure of payment would be a sufficient safeguard to ensure prompt payment of revenue." But he considered that " this clause " (providing for cancelment) " being against the provisions of the Regulation (meaning s. 3, clause 3) cannot have any effect " ; and that, the plaintiff being " entitled to sell the putni tenure in default of payment of rent unless there are words in the grant depriving him of that right," and there being in his opinion " no such words," he was entitled to sell the tenure on default in payment of revenue, notwithstanding the provision for a different remedy, viz., the forfeiture of the tenure. In appeal, the High Court came to the conclusion that it was reasonably clear, upon the construction of the putni kabulyat, that the rent was Rs.6000, and that as regards Rs.40,156, the putnidar covenanted with the zemindar to pay that sum into the collectorate of the district, being the amount of the Government revenue, and in effect to indemnify the zemindar against any liability in respect of it. The Chief Justice said "It would be straining the language of the deed to say that this sum was rent or was ever intended by the parties to be regarded as rent." And after referring to the portions of the putni kabulyat, which speak of the Rs.6000 per annum as rent, and which distinguish between Government revenue and rent, and pointing out that under the putni kabulyat the zemindar is expressly empowered to recover the putni rent and road, public work, and dak-cesses by sale under the provisions of the Regulation, he continued " It is not possible upon this document to say that this sum of Rs.40,156 was rent. The zemindar might, if he had been so minded, and the parties had so agreed, have fixed the rent at Rs.6000, plus the Rs.40,156, but in lieu of that he would appear to have preferred to take a round sum of Rs.6000 for the rent, leaving it to the putnidar to pay the Government revenue. It may very well be that the defendant, when the bargain was made, may have declined to allow the whole sum to be treated as rent, having regard to the summary power of sale given by the Regulation in the event of its falling into arrear. This view is supported by the ekrar of August 15, 1893, by which the putnidar agreed to pay an additional rent Rs.1000, and in which ekrar reference is made to the putni of June, 1885, as having been taken on the condition of paying to you (the Maharajah) a putni jumma of Rs.6000 per year, and Rs.40,156 odd to the collectorate on account of the Government revenue. She then agreed to pay an extra Rs.1000 as rent for the putni, with the same provision as to the application of the Putni Regulation of 1819, as the original lease. Upon the construction of the lease this Rs.40,156 is not, in my opinion, rent, and not being rent, the plaintiff is not entitled to put in force the provisions of the Putni Regulation of 1819 in the event of its falling into arrear. . . ." Cohen, K.C., and W. C. Bonnerjee, for the appellant, contended that the view of the Subordinate Judge was right, and that the judgment of the Chief Justice proceeded upon an incorrect appreciation of the terms of the Regulation VIII. of 1819 and of the Revenue Sale Law (Act XI. of 1859). Under the Act payment of Government revenue is the first charge on a zemindari, and the zemindar is primarily responsible for payment of the same. If the respondent had not undertaken to pay the revenue direct into the collectorate to suit the appellants convenience, she would have been bound to pay it direct to him as part of the rent of the putni. If the respondent had not undertaken to pay the revenue direct into the collectorate to suit the appellants convenience, she would have been bound to pay it direct to him as part of the rent of the putni. Whether paid to the collectorate or to the appellant, it was in either case part of the rent due ; the payment to the collector was on behalf of the appellant, and the place and mode of payment did not alter the character of the debt discharged, which was of rent and not of revenue, the respondent not being liable in any way for the latter. It was rent, moreover, as denned in s. 3 of the Bengal Tenancy Act, 1885 (No. VIII., j Indian). Reference was made to s. 10 of that Act and to Regulation VIII. of 1819, s. 3 and s. 8, clause 1. Under s. 3, clause 3, Government revenue when unpaid is an arrear of rent within its meaning recoverable under the Regulation. The road cess returns filed by the respondent under Bengal Act (IX. of 1880)] were referred to as shewing that she had included the amount of Government revenue in the rent payable by her. Reference was also made to Assanulla Khan Bahadur v. Tirthabashini (( 1895) I. L. R. 22 Calc. 680, 683.); Basanta Kumari Debya v. Ashutosh Chackerbutti. (( 1899) I. L. R. 27 Calc. 67.) Jardine, K.C., and Phillips, for the respondent, contended that the judgment of the High Court was right. On the true construction of the deeds of 1885 and 1893 the parties deliberately fixed the rent of the putni at Rs.6000 only, increased by the later document to Rs.7000. She undertook as a distinct stipulation to pay the Government revenue to the collector on behalf of the appellant. This sum was never payable to the landlord, and was therefore not rent in arrear (when unpaid), and was not therefore recoverable by sale of the putni under the provisions of Regulation VIII. of 1819, s. 8. The parties intentionally annexed to default in payment of the Government revenue a penalty, viz., frfeiture of the putni. This could not under s. 3, clause 3, of the Regulation be applied to default in payment of rent; for by annulling the tenure it would render the prescribed sale of it as a tenure impossible. Bonnerjee replied. The parties intentionally annexed to default in payment of the Government revenue a penalty, viz., frfeiture of the putni. This could not under s. 3, clause 3, of the Regulation be applied to default in payment of rent; for by annulling the tenure it would render the prescribed sale of it as a tenure impossible. Bonnerjee replied. The judgment of their Lordships was delivered by SIR ARTHUR WILSON. This is an appeal from a judgment and decree of the High Court at Calcutta, dated August 6, 1903, which set aside in part a previous decree of the Subordinate Judge of Hooghly. The appeal raises a question as to the construction of two putni kabulyats, read in connection with the Putni Regulation VIII. of 1819. That Regulation, after describing the nature of a putni tenure, and laying down certain rules with regard to it, enacted in s. 3, clause 3— "In case of an arrear occurring upon any tenure of the description alluded to in the first clause of this section, it shall not be liable to be cancelled for the same, but the tenure shall be brought to sale by public auction, and the holder of the tenure will be entitled to any excess in the proceeds of such sale beyond the amount of the arrear of rent due . . . ." and a summary method of sale was provided. Prior to 1885 the defendant, now respondent, held certain properties of the plaintiff-appellant in putni tenure. In May, 1885, a fresh arrangement was made, in substitution for the old, the terms of which were embodied in a kabulyat, dated the 29th of that month, which said — " I take from you in putni the entire interests in the remaining mahals (i.e., eight annas of Mahomed Aminpur) .... by fixing the annual jumma at Rs.6000 on the conditions given below, and by way of security for payment of this jumma, I hypothecate to you the properties mentioned in Schedule No. 2..... "1. The annual jumma of this putni mahal is fixed at Rs.6000. I shall pay to you the same without any variation by four kists as mentioned in the schedule at your house .... by means of chalans, kist by kist, and shall take dakhilas bearing your seal for the same..... " 2. "1. The annual jumma of this putni mahal is fixed at Rs.6000. I shall pay to you the same without any variation by four kists as mentioned in the schedule at your house .... by means of chalans, kist by kist, and shall take dakhilas bearing your seal for the same..... " 2. Besides the said putni rent I take upon myself the duty of depositing into the collectorate of the said district, the Government revenue of Rs.40,156 14 annas 9 ½ pies fixed for the 8-anna share of the said Mahomed Aminpur. Agreeably to the same I shall pay into the collectorate of the said district the said amount of revenue, kist by kist, and shall produce before you at Calcutta the chalan for the same, bearing seal and signature (of the collectorate) two days before the last payment of the kist." Clause 3 provided for the payment of interest on any part of the putni rent of Rs.6000 in arrear. "4. If I fail to produce before you after depositing the Government revenue .... in the collectorate the chalan of the deposit of the money .... two days before the last payment of the lust you will be able to deposit in the collectorate the amount of revenue payable by me within the said two days time; and on your paying into the collectorate the amount of Government revenue payable by me within the said two days time, the putni contract, which is hereby made with you, i.e., between you and me, shall become null and void; and you will be able to take khas possession of this putni mahal; and you will realize by sale of my properties, &c, the amount of Government revenue deposited by you with interest and costs..... "Besides the said putni rent I shall pay to you by four equal instalments, along with the putni rent, the amount of road cess and public works cess payable from my putni mahal," with interest in case of default. "6. I shall pay with the putni rent at intervals of every six months, the amount of dak-cess that will be fixed for the said putni mahal from time to time," with interest in case of default. "6. I shall pay with the putni rent at intervals of every six months, the amount of dak-cess that will be fixed for the said putni mahal from time to time," with interest in case of default. Clause 8 dealt with certain maintenance charges upon the share held in putni, created by a former zemindar, as to which it was said — "These charges are left to be borne by me.....That amount shall have no connection with the putni rent, and if I do not pay to the persons to whom the same may be due and you have to pay them the same, you shall also realize the said amount with the consequential damages that you may sustain by sale at auction of my properties, pledged by way of security for payment of the rent for the putni, in question and of my other properties moveable and immoveable. "9. If the aforesaid putni rent of Rs.6000 and road cess, public works cess, dak-cess and interest on every kind of money due should fall in arrears, you will be able to realize the whole amount due to you with costs by sale at auction of my said putni mahal, on instituting proceedings against me, on the occasion of each of the two six-monthly instalments in course of the year under the provisions of Regulation VIII. of 1819..... "10. If the whole amount due to you be not realized by the sale of my putni mahal, under Regulation VIII. of 1819, you will be able to realize the unrealized balance, on the amount of a defaulted kist by sale of the properties hypothecated .... and of my other properties, moveable or immoveable, on instituting a suit against me under the law in force for realization of arrears of rent." On August 15, 1893, a new agreement was entered into which was embodied in an ekrar kabulyat of that date, by which the respondent agreed to pay a further sum of Rs.1000 a year for the putni holding to which the former kabulyat related. In the fresh kabulyat it was said — " Having according to the said proposal agreed to pay an additional rent of Rs.1000 in respect of the putni which I took .... on the condition of paying to you, Maharaja, a putni jumma of Rs.6000 per year, and of Rs.40,156. In the fresh kabulyat it was said — " Having according to the said proposal agreed to pay an additional rent of Rs.1000 in respect of the putni which I took .... on the condition of paying to you, Maharaja, a putni jumma of Rs.6000 per year, and of Rs.40,156. 14 into the collectorate, year by year, kist by kist, as Government revenue for the said 8-anna share, I hereby promise and declare in writing, that from the present year I shall pay Rs.1000 in excess as jumma for my said putni taluk." Before the kabulyat of May 29, 1885, the Bengal Tenancy Act (VIII. of 1885) was passed, and it came into operation later in the same year. That Act contained a definition of rent (s. 3) — "Rent means whatever is lawfully payable or deliverable in money or kind by a tenant to his landlord on account of the use or occupation of the land held by the tenant." This definition seems to express very clearly the meaning of the word " rent" as it would be understood without any statutory definition. The respondent made default in payment of two kists of Government revenue and in some instalments of the Rs.7000 rent and cesses. In or before May, 1901, the appellant petitioned the Collector of Hooghly for sale of the putni, under the pro visions of the Regulation, in order to recover the arrears due, including therein the amount of the Government revenue, as to which the respondent had made default, and which the appellant had been obliged to pay. On May 3, 1901, the respondent filed an objection to the petition, on the ground that the Government revenue formed no part of the rent of the putni, and therefore was not recoverable under the Regulation, and the objection was sustained by the Collector. On June 7, 1901, the appellant instituted the present suit in the Court of the Subordinate Judge. In his plaint he stated the facts and asked (1.) for a money decree; (2.) that the Court should construe the documents and declare which of the sums in arrear were to be taken as rent, for which the putni might be sold under the Regulation. In his plaint he stated the facts and asked (1.) for a money decree; (2.) that the Court should construe the documents and declare which of the sums in arrear were to be taken as rent, for which the putni might be sold under the Regulation. The Subordinate Judge made the money decree as asked for, and declared, amongst other things, that the Government revenue payable by the putnidar was a part of the jumma of the putni and was recoverable as such by sale under the Regulation. Against this decree the present respondent appealed to the High Court, and that Court set aside so much of the decree as contained the declaration above referred to. Against that decision of the High Court the present appeal has been brought. Had the question turned entirely upon the kabulyat of 1885, the matter would, in their Lordships opinion, have been clear. The payment by the putnidar of the Government revenue is no doubt a part of the consideration to be rendered by her for the enjoyment of the tenure, but it is not money payable to the landlord. Nor is it provided in that document that it is to be dealt with in the same manner as rent, as is provided in the case of cesses. And what is most significant of all, a special mode of enforcing the obligation to pay Government revenue is provided, namely the cancellation of the tenure in case of default; and that is the precise sanction which the law has forbidden by the terms of the Regulation in the case of rent. But the argument for the appellant was based mainly on the second kabulyat, that of 1893. It was contended that the words " on the condition of paying to you a putni jumma of Rs.6000 per year, and of Rs.40,156 14. into the collectorate, year by year, kist by kist, as Government revenue for the said 8-anna share," had the effect of making the Government revenue a part of the jumma. But even if those words had been used of the new arrangement then being entered into, they would not, in their Lordships opinion, have properly borne the construction contended for. But in fact those words form part of a mere recital of the arrangement previously existing, and the nature of that previous arrangement is properly to be ascertained from the kabulyat of 1885. But in fact those words form part of a mere recital of the arrangement previously existing, and the nature of that previous arrangement is properly to be ascertained from the kabulyat of 1885. For these reasons their Lordships are of opinion that the contention of the appellant cannot be maintained. They will humbly advise His Majesty that the appeal should be dismissed. The appellant will pay the costs.