Kripa Sindhu Mukerjee v. Annanda Sundari Debi — 1907 DIGILAW 176 (CAL)

JUDGMENT Rampini, C.J. - The question referred to us in this reference is: Whether to stop interest running, a tender of rent, which is improperly refused, must be followed up by a deposit of rent in Court under sec. 61 of the Bengal Tenancy Act or whether such a tender, so refused, if kept good, that is, if repeated as each installment of rent falls due, is sufficient to stop interest running from the date of the tender. I am of opinion that the first part of this question should be answered in the affirmative and the latter part in the negative, and would follow the decisions of this Court in Raja Ransgit Singha v. Bhagabutty Charon Roy 7 C. W. N. 720 (1900) and in Second Appeal No. 1113 of 1903, dated the 25th November 1904 Vide foot-note, p. 984. 2. Under sec. 54 (5) of the Bengal Tenancy Act, an " arrear " is an unpaid installment of rent. It must continue to be an arrear until paid. There is no provision in the Bengal Tenancy Act to the effect that an arrear, if tendered, shall cease to be an arrear. But sec. 61 provides that in the cases mentioned in that section, among which is the case of a tender of rent being refused, or having been previously refused, the tenant may deposit his rent in Court, and sec. 62 (1) and (2) enact that on his so depositing his rent in Court, the Court shall give him a receipt which will operate as an acquaintance of the rent paid. An arrear of rent so deposited will then cease to be an arrear. Then sec. 67 provides that an arrear, that is, an unpaid instalment of rent, shall bear interest at 12 per cent. per annum (now 12 1/2 per cent. per annum in Bengal) up to the date of the institution of the suit. The terms of the section are imperative. Interest at the rate specified must be decreed. 3. Sec. 67 of the Bengal Tenancy Act made a great change in the law. Under sec. 21, Act VIII of 1869, an arrear of rent was only " liable to interest." This gave the Court a discretion to award interest or not, as it thought fit. No such discretion is allowed by sec. 67. 4. 3. Sec. 67 of the Bengal Tenancy Act made a great change in the law. Under sec. 21, Act VIII of 1869, an arrear of rent was only " liable to interest." This gave the Court a discretion to award interest or not, as it thought fit. No such discretion is allowed by sec. 67. 4. In the case of Jagat Tarini Dasi v. Nabagopal Chaki I. L. R. 34 Cal. 305: s. c. 5 C. L. J. 270 (1907), a rule has been laid down that a tender of rent refused by the landlord, if kept good, is sufficient to stop interest running from the date of tender. It has been said that the tender of rent in this case was not kept good, because the tenant is not shown to have been always able and willing to pay the rent. and because when tendering each installment, he did not tender the arrears due for the previous installments previously refused. In my opinion a tender, even if kept good, as laid down in the case of Jagat Tarini Dasi v. Nabagopal Chaki I. L. R. 34 Cal. 305: s. c. 5 C. L. J. 270 (1907), does not stop interest running. 5. The rule laid down in that case is no doubt an equitable rule, which may be applicable to cases of tender other than that of rent due under the Bengal Tenancy Act, but which would seem to be barred in the case of the tender of rent by the provisions of sec. 67 of the Bengal Tenancy Act. 6. But if the rule laid down in the case of Jagat Tarini Dasi v. Nabagopal Chaki I. L. R. 34 Cal. 305: s. c. 5 C. L. J. 270 (1907) be applicable to cases of tender of rent, then, it is obvious, I consider, that the tender of rent in this case was not kept good for the reasons explained above, and I would accordingly decree this appeal but without costs. Brett, J. 7. The question which has been referred to the Full Bench for decision is whether to stop interest running, a tender of rent, which is improperly refused, must be followed by deposit of the rent in Court under sec. Brett, J. 7. The question which has been referred to the Full Bench for decision is whether to stop interest running, a tender of rent, which is improperly refused, must be followed by deposit of the rent in Court under sec. 61 of the Bengal Tenancy Act, or whether such a tender so refused, if kept good, is sufficient to stop interest running from the date of the tender. 8. The facts of the case are stated in the judgment of the Court of first appeal to be as follows: The Plaintiff tried to enhance the rents of the Defendants and other tenants of the mehal but on their refusing to agree to his terms he declined to accept rents from them at the rates at which they had been paying them all along and instituted these suits and others against the Defendants and some other tenants of the mehal at the enhanced rates of the rent, but on his failure to prove his rights to get them at those rates he has got decrees against some of the. tenants at the rates admitted by them, but in these two suits the Defendants proved that they tendered the admitted rents to the Plaintiff, and that on his refusal to accept them they sent him by money order, kist by kist, all the rents as they fell due, but the Plaintiffs systematically declined to accept the money, and when these suits were about to be instituted, the Defendant's pleader again tendered the rents, first, to the Plaintiff's pleader and then under his instruction to the Plaintiff's Naib who came to Bolepore to institute the suits, and requested them not to institute these suits but on their declining to accept the money it was deposited in Court before, the suits were actually instituted. On these facts the Plaintiff's suit as against the present Respondent was dismissed with costs in both the lower Courts, the Judges of both holding that the Plaintiff was not entitled to interest under sec. 67 of the Act. 9. On these facts the Plaintiff's suit as against the present Respondent was dismissed with costs in both the lower Courts, the Judges of both holding that the Plaintiff was not entitled to interest under sec. 67 of the Act. 9. A statement of the facts found to be proved seems to me of importance, for the purpose of disposing of this reference, as the answer to the question referred in my opinion depends mainly on whether the tender of the rent made by the Defendants was a valid tender and whether it was kept good up to the time of the deposit of the rents in Court when the suit was threatened. As I read the judgment of the lower Court it seems to me that the Judge found the facts stated above to be proved, and that the tender was a valid tender, and that it was kept good. 10. In order to prove that the tender was kept good, it was not in my opinion necessary for the Defendant to prove that it was repeated in respect of prior installments as each subsequent installment fell due and was tendered. It was sufficient to prove that, after tender, each installment was kept in hand by the Defendant ready to be paid to the Plaintiff on demand. See Gyles v. Hall (1726) 2 P. Wms. 378. That this was in fact done appears to me to be supported by the circumstance, which is found to be proved that as soon as the suit was threatened the full rents due were tendered, and, on refusal, were deposited in Court prior to the institution of the suit. 11. It is not contested on behalf of the Appellant that in the case of an ordinary debt the principle is well established that a valid tender, which is kept good, stops the running of interest from the date when the tender is made. Authorities in support of this proposition are discussed in full in the judgment of this Court in the case of Jagat Tarini Dasi v. Nabagopal Chaki I. L. R. 34 Cal. 305: s. c. 5 C. L. J. 270 (1907). The same principle is embodied in sec. 38 of the Contract Act. 12. But it has been argued for the Appellant, that the effect of secs. 305: s. c. 5 C. L. J. 270 (1907). The same principle is embodied in sec. 38 of the Contract Act. 12. But it has been argued for the Appellant, that the effect of secs. 61 and 67 of the Bengal Tenancy Act is to render that principle inapplicable to the case of a tenant sued for rent, unless the tenant has after the refusal of the tender of his rent deposited it in. Court under sec. 61 of the Bengal Tenancy Act. 13. This contention does not appear to me to be sound. Sec. 61 is in my opinion an enabling section, framed for the benefit of the tenant for the purpose of affording him a method by which he may prove beyond dispute the fact of a tender and its refusal. It is not a mandatory section imposing a penalty for failure to comply with its provisions. Nor can it, being a section framed for the tenant's protection, be taken to deprive him of any right which as a debtor he has under the general law. 14. Under the law as it existed prior to the passing of the Bengal Tenancy Act it was always held that a tenant by proving a valid tender of his rent to his landlord could save himself from liability for interest from the date of the tender. See Shurut Soonduree Debia v. The Collector of Mymensingh 5 W. R. (Act X Rulings) 69 (1866), Eshan Chandra Rai v. Assanoollah 16 W. R. 79 (1871), Wooma Churn Sett v. Huree Prosad Misra 10 W. R. 101 (1868). It is true that the language in sec. 21 of Act VIII, B. C., of 1889 differs from that in sec. 67 of the Bengal Tenancy Act, but it does not appear to me that the law has been substantially altered by the latter Act. The definition of an arrear involves not merely money unpaid, but unpaid at the due time. Sub-sec. 3 of sec. 21 of Act VIII, B. C., of 1889 differs from that in sec. 67 of the Bengal Tenancy Act, but it does not appear to me that the law has been substantially altered by the latter Act. The definition of an arrear involves not merely money unpaid, but unpaid at the due time. Sub-sec. 3 of sec. 54 of the Bengal Tenancy Act runs as follows:- "Any installment or part of an installment of rent not duly paid at or before the time when it falls due shall be deemed an arrear." Can rent which is tendered with the intention of paying to the person to whom it is due at the time when it is due, but which is without good cause not received by the person to whom it is due and to whom it is tendered, be regarded as an arrear within the meaning of the law ? In my opinion it cannot. The term " arrear " involves the existence of some default on the part of the debtor. In the instance before us it has been found that there has been no default by the debtor, who so far as lay in his power has discharged the duty which lay on him to effect a payment. Payment of a debt no doubt requires a tender by the debtor, of the full amount due from him at the due time and place to the person to whom it is due, and the acceptance of the same by the latter. If, however, the latter for no good cause refuses to accept the tender of the money or offer to pay, as made in accordance with the law by the debtor, that sum of money cannot afterwards be regarded in law as an arrear for which the debtor is responsible. The findings of the lower Courts appear to me also to amount to this that the tender on each occasion of the rent after it was made by the Defendant was kept good, for after his refusal to the Plaintiff the money, was kept in hand by the Defendant ready to be made over to the Plaintiff on demand and when the suit was threatened the amount so kept in hand was tendered to the Plaintiff's agents, and, on their refusal to accept it, was paid into Court. 15. 15. It has not been suggested in the present case that the tender was not made at the place and to the person to whom the law requires that it should be made. The effect of a tender not made in compliance with the law does not therefore arise for consideration in this case. 16. On the facts found in the present case I am of opinion that the tender had on each occasion been made by the Defendant and refused by the Plaintiff without good cause, and, after the tender in each instance had been kept good, the rent so tendered and refused did not constitute an arrear of rent within the meaning of sec. 67 of the Bengal Tenancy Act so as to carry interest against the Defendant after the date of tender. I am also of opinion that on the facts as found it was not necessary for the Defendant to follow up his tender by a deposit of the rent in Court under the provisions of sec. 61 of the Bengal Tenancy Act in order to stop interest from running under sec. 67 of the same Act. 17. I would, therefore, answer the first part of the question referred to us in the negative and the latter part in the affirmative. Mitra, J. 18. I have no doubt that a landlord is, under the Bengal Tenancy Act, entitled to receive from his tenant interest on arrears of rent, notwithstanding tender of rent by the latter, if the tender is not followed by a deposit in Court. This is the view Pratt, J., and I took in Srimutty Joy Durga v. Srikanta Boy Vide foot-note, p. 984, decided on the 25th November 1904. We followed Raja Ransgit Singha v. Bhagabutty Charan Roy 7 C. W. N. 720 (1900), and I see no reason now for taking a contrary view. Secs. 54 to 67 of the Act lay down a special law as to contracts between landlord and tenant concerning agricultural lands and indicate that the tenant would not be relieved from his liability to pay interest on arrears unless either the amount is paid to the landlord who is bound to grant a receipt for the same or unless a receipt is granted by the Court in which a deposit is made under sec. 62 of the Act, such receipt operating as an acquaintance, as if payment has been made to the true landlord. Sec. 54, sub-sec. (3) defines an arrear. It is an installment or part of an installment of rent not duly paid at or before the time it falls due. Sec. 67 makes payment of interest on arrears compulsory. I do not think we ought to twist the plain words of the last clause of sec. 54 and of sec. 67 of the Act and hold that tender of rent has the same effect with respect to interest as actual payment. Secs. 61 and 62 of the Act provide ample means for avoiding liability to pay interest and the hardship that may be caused in some cases by a plain interpretation of the words of secs. 54 and 67 is easily removable by the tenant himself. But if the Legislature has expressed its intention in language sufficiently plain, the argument about hardship, even if there be any, can have no weight. 19. I do not think, however, that it is a real hardship on the tenants as a class to compel them to deposit rents and obtain acquaintances under secs. 61 and 62, if they wish to have the advantage of a tender, of rent in the shape of non-liability to pay interest. One of the objects of legislation is to lay down rules for minimising the length of litigation and to render proof of disputed facts easy. The compulsory registration of deeds and the exclusion of oral evidence in certain cases may be cited as instances. The object of secs. 61 and 62 of the Bengal Tenancy Act seems to me to be that the tender of rent by a tenant to his landlord to be effective must be followed by a deposit in Court. The relation between a landlord and a tenant is generally that between the strong and the weak. Proof of tender and especially valid tender ordinarily involves the introduction of lengthy oral evidence and consideration of nice questions of law, but a deposit in Court following a tender and the grant of a receipt by the Court render under sec. 62 any other proof unnecessary except the production of a receipt. Proof of tender and especially valid tender ordinarily involves the introduction of lengthy oral evidence and consideration of nice questions of law, but a deposit in Court following a tender and the grant of a receipt by the Court render under sec. 62 any other proof unnecessary except the production of a receipt. The rules in the sections about deposit of rent are intended for the benefit of the tenant as well as of the landlord in the same way as compulsory registration of deeds is for the benefit of the grantor as well as the grantee. The object of legislation as to deposit would be frustrated and in most cases to the detriment of the tenant, if the latter was permitted to be involved in a lengthy litigation as to proof of tender. The validity of a tender may be questioned on various grounds, as they used to be before the enforcement of the Bengal Tenancy Act. The rules laid down in sec. 38 of the Indian Contract Act as to an effective offer of performance by the promissory to the promise incorporate general principles of law and equity, but tenants in the majority of cases would be in hopeless difficulty, if in the state of things that exists in the country they were required to strictly comply with these rules. Individual cases of hardship must yield to the general policy of law which aims at the greatest good of the greatest number, and that policy appears to me to be easy of ascertainment from the different provisions of the Act. 20. But the most cogent argument for interpretation in the way sought for by the Appellant in this case is afforded by the history of legislation as to payment of interest by the tenant. Before the enactment of Act X of 1859, the awarding of interest in all cases was not the law followed by the Sudder Court. (S. D. 1832, p. 508). Interest was allowed by Courts' on principles of equity and rules of law laid down in Act XXXII of 1839, though as a matter of fact the zemindars levied interest in all cases. See also Kashee, Nath Roy v. Mynuddeen Chowdry 1 W. R. 154 (1864). (S. D. 1832, p. 508). Interest was allowed by Courts' on principles of equity and rules of law laid down in Act XXXII of 1839, though as a matter of fact the zemindars levied interest in all cases. See also Kashee, Nath Roy v. Mynuddeen Chowdry 1 W. R. 154 (1864). Act X of 1859 laid down that any installment of rent which is not paid on or before the day when the same is payable should be held to be an arrear of rent under the Act, and, unless otherwise provided by written agreement, shall be liable to interest at 12 per cent. per annum. The words " shall be liable to interest " were construed by this Court in a series of cases and it was held that by using the word " liable " the evident intention of the framers of the Act was to leave the Court a discretionary power of awarding interest or not and as to rate thereof if interest was awarded at all. It was uniformly held that the obligation to award interest and that at 12 per cent. was not absolute. Beckwith v. Kishto Jeebun Bukshi Marshall 278 (1863), Raja Satyanand Ghoshal v. Jaher Sekhar 6 B. L. R. App. 119. 21. Radhika Prosunno Chunder v. Urjoon Majhee 20 W. R. 128 (1873) was a case under Act VIII (B. C.) of 1869 which in sec. 21 re-enacted in the same words the provisions contained in sec. 20 of Act X of 1859. The learned Judges who decided it accepted the construction put upon the word "liable" in Act X of 1859. Reliance was placed in argument on the provisions of sec. 44 of the Act of 1869 which corresponded to some extent to sec. 68 of the Bengal Tenancy Act, as having altered the law and compelled deposit in Court to save interest from running. The learned Judges observed " certainly it does appear from sec. Reliance was placed in argument on the provisions of sec. 44 of the Act of 1869 which corresponded to some extent to sec. 68 of the Bengal Tenancy Act, as having altered the law and compelled deposit in Court to save interest from running. The learned Judges observed " certainly it does appear from sec. 44 of the new Act, that it is the duty of the tenant, when the zemindar refuses to receive the amount tendered to him, to pay it into Court, otherwise he renders himself liable to heavy damages; still we cannot come to the conclusion for that reason that the legislature intended when they used the very same words as they used in the former Act, to impose upon the tenant to pay as an absolute obligation, interest at 12 per cent. when the rent was not paid. That was held not to be so under the former Act, and we ought to hold that it is not so under the present." While this was the state of the law, the Bengal Tenancy Act was passed. It has laid down definite but simpler rules as to deposit of rent by tenants. It has given them every facility to do so. It also has laid down that a receipt granted by the Court would have the same effect as a receipt by the landlord. Then to avoid the effect of the rulings on the earlier laws, the legislature changed the language used in secs. 20 and 21 of the repealed Acts and made payment of interest at 12 per cent. compulsory in all cases until payment or deposit which has the same effect as payment or institution of a suit, by using the word "shall" instead of "shall be liable." The obvious intention of the Bengal Tenancy Act was to overrule the old cases, especially Radhika Prosunno Chunder v. Urjoon Majhee 20 W. R. 128 (1873). The discretion left to the Revenue Courts under sec. 20 of Act X of 1859 and to the ordinary Civil Courts under sec. 21 of Act VIII (B. C.) of 1869 to apply principles of equity in cases of tender of rent was thus taken away by sec. 67 of the Bengal Tenancy Act. This view of the change effected by sec. 20 of Act X of 1859 and to the ordinary Civil Courts under sec. 21 of Act VIII (B. C.) of 1869 to apply principles of equity in cases of tender of rent was thus taken away by sec. 67 of the Bengal Tenancy Act. This view of the change effected by sec. 67 of the Bengal Tenancy Act was adopted in Raja Ransgit Sinqha, v. Bhagabutty Charan Roy 7 C. W. N. 720 (1900) and it is a distinct authority on the question before us. The ratio decedent in that case was not that the tender was bad because it was a tender to an am-mukhtear but that secs. 54 to 67 of the Bengal Tenancy Act had made deposit after tender imperative to prevent interest from running. 22. The operation of sec. 38 of the Indian Contract Act was obviously restricted in cases between landlord and tenant under the Bengal Tenancy Act, by use of the imperative word "shall" in sec. 67 of the latter Act. There is no corresponding rule as to payment of interest in the Contract Act, and the special rule must prevail against the general. 23. Reference has been made in argument to sec. 84 of the Transfer of Property Act. If sec. 38 of the Contract Act embraces all cases of the effect of valid tender, sec. 84 of the Transfer of Property Act was unnecessary. But sec. 84 following the rules of equity provides a special remedy applicable to mortgages of immoveable property. It lays down that interest shall cease on tender, while sec. 67 of the Bengal Tenancy Act makes interest payable until suit. If the intention of the legislature in the Bengal Tenancy Act was that a rule similar to that laid down in sec. 84 of the Transfer of Property Act or similar equitable rules or the rule in the Contract Act would apply to valid tender of rent by a tenant, it would have said so in plain words as it had done only three years before (1882) in the Transfer of Property Act. On the other hand elaborate rules as to deposit of rent and its effect corresponding in some respect to those in sec. 83 of the Transfer of Property Act were laid down in secs. 61 and 62 of the Tenancy Act, but they were not followed by a rule similar to that in sec. On the other hand elaborate rules as to deposit of rent and its effect corresponding in some respect to those in sec. 83 of the Transfer of Property Act were laid down in secs. 61 and 62 of the Tenancy Act, but they were not followed by a rule similar to that in sec. 84 of the former Act, but were followed by the imperative word "shall" in sec. 67 as to payment of interest. If any conclusion is to be drawn from sec. 84 of the Transfer of Property Act, it must be one against the application of either sec. 38 of the Contract Act or any equitable rule as such as was enacted in sec. 84. 24. With the greatest deference to the learned Judges who decided the case of Jagat Tarini Dasi v. Nabagopal Chaki I. L. R. 34 Cal. 305: S. C. 5 C. L. J. 270 (1907), it seems to me that rules of law laid down by foreign Courts in cases not governed by codified law such as we have in the Bengal Tenancy Act, rules of equity and justice deductible from judgments of foreign Courts or the opinions of foreign jurists are very useful only in deciding cases to which no statute law is applicable. As held in Bank of England v. Vagtiano (1891) A. C. 107 and Norendra Nath v. Kamal Basini I. L. R. 23 Cal. 563: S. C. L. R. 23 I. A. 18 (1896), statute law must supersede all rules and principles previously adopted or applied either in this or in other countries. Our first aim should be in cases governed by statute law to ascertain the law as laid down in it, and to apply it whether it causes hardship or not and if there be ambiguity we should ascertain the intention of its frames by the application of recognised rules of interpretation. The only way of getting over the plain and unambiguous words of sec. 67 of the Bengal Tenancy Act lies in interpreting the words " not duly paid " in the last clause of sec. 54 as including " not duly tendered." But to hold that " valid tender " amounts to payments within the meaning of the clause would, in my opinion, be unduly straining language. I am not aware of any authority for such an interpretation and none was referred to in arguments. 54 as including " not duly tendered." But to hold that " valid tender " amounts to payments within the meaning of the clause would, in my opinion, be unduly straining language. I am not aware of any authority for such an interpretation and none was referred to in arguments. A promissory may not be responsible for non-performance after he has made an offer of performance to the promise if the offer has not been accepted; he may thereby be discharged from liability to perform his promise. But in the case of payment of rent, the liability to pay continues; the debt is not extinguished. Only the liability to pay interest may cease. Tender of rent cannot, therefore, be construed to be payment of rent. 25. There is, it appears to me, a further reason why we should not introduce the law as to the effect of a tender of an ordinary money debt to the interpretation of the word " paid " in sec. 54. There is no law in India enabling a debtor to deposit in Court to the credit of his creditor, the amount payable by him as simple money debt. The law does not provide any machinery for the discharge of such a debt by a deposit in Court. The only means the debtor may adopt to avoid liability to pay interest is to tender and tender is very reasonably held to be sufficient to prevent interest from running, on the principle that a man cannot take advantage of his own wrong. The Transfer of Property Act makes a special provision in cases of mortgages of immoveable property and it allows by sec. 83 deposit of mortgage money. But tender of the mortgage money is not a necessary prelude to a deposit. By sec. 84, tender and deposit are placed on the same footing as to cessation of interest. Sec. 61 of the Bengal Tenancy Act has made tender a necessary antecedent to a deposit under cl. (a). 83 deposit of mortgage money. But tender of the mortgage money is not a necessary prelude to a deposit. By sec. 84, tender and deposit are placed on the same footing as to cessation of interest. Sec. 61 of the Bengal Tenancy Act has made tender a necessary antecedent to a deposit under cl. (a). The provisions as to tender and deposit and cessation or otherwise of interest on such tender or deposit are not quite harmonious in the two Acts passed by the Indian Legislature in the course of three years, and the argument from analogy addressed to us based on the similar provisions of the Transfer of Property Act or the equitable rules from which that Act or the Indian Contract Act is drawn appears to me to be quite inapplicable. On the other hand, substantial difference in procedure indicate distinct remedial effects. We cannot, therefore, derive much assistance from either the Contract or Transfer of Property Act in construing the Bengal Tenancy Act. 26. I therefore agree with the Chief Justice in answering the questions put to us by the reference. Woodroffe, J. 27. I agree with Mr. Justice Brett. Mookerjee, J. 28. The question referred for decision to the Full Bench is, whether to stop interest running a tender of rent which is improperly refused must be followed up by a deposit of rent in Court under sec. 61 of the Bengal Tenancy Act or whether such a tender, so refused, if kept good, that is, if repeated as each installment of rent falls due, is sufficient to stop interest running from the date of the tender. It is necessary to point out, at the outset, that the question assumes that a tender of rent is kept good, if it is repeated, as each instalment of rent falls due. This, however, is not BO. As was observed by this Court in the case of Jagat Tarini Dasi v. Nabagopal Chaki I. L. R. 34 Cal. 305 : S. C. 5 C. L. J. 270 (1907) a tender is kept good, if the person who has made the tender is ready and willing at all times after the tender, to pay the debt in current money when requested. 305 : S. C. 5 C. L. J. 270 (1907) a tender is kept good, if the person who has made the tender is ready and willing at all times after the tender, to pay the debt in current money when requested. The question, therefore, which has to be considered may be stated to be whether to stop interest running a tender of rent which is improperly refused, must be followed up by a deposit of rent in Court under sec. 61 of the Bengal Tenancy Act, or whether such a tender so refused, if kept good, is sufficient to stop interest running from the date of the tender. This matter was fully examined in the case of Jagat Tarini Dasi v. Nabagopal Chaki I. L. R. 34 Cal. 305: S. C. 5 C. L. J. 270 (1907) to the decision in which case I was a party. That case lays down that a valid tender which has been improperly refused but which is kept good, though it does not extinguish the indebtedness, stops the running of interest after the tender. It further lays down that this principle is applicable to the case of rent payable in respect of tenancies to which the provisions of the Bengal Tenancy Act are applicable. Alter a careful consideration of the arguments which have been addressed to us by the learned vakils on both sides, I adhere to the view which I expressed in that case. It cannot be disputed that the principle that a valid tender which has been improperly refused but which is kept good, though it does not extinguish the indebtedness, stops the running of interest after the tender is founded on good sense and is supported by cases of the highest authority. So far back as 1726, it was ruled by Lord Chancellor King in Gyles v. Hall (1726) 2 P. Wms. 378 that if a valid tender has been made and improperly refused, and if the person who has made the tender has, from that time, always kept the money ready, interest on the debt ceases; in other words, if the tender be insisted on, to stop interest, the money must be kept ready from that time, because the party is to be uncorked priest. This was accepted as settled law in Kinnaird v. Trollope 42 Ch. This was accepted as settled law in Kinnaird v. Trollope 42 Ch. D. 610, 616 (1889) and Bank of New South Wales v. O'Connor 14 App. Cas. 273 at p. 284 (1889). In the latter case, Lord Macnaghten in delivering the judgment of their Lordships of the Judicial Committee observed that a proper tender will stop the running of interest, if the mortgagor keeps the money ready to pay over to the creditor. The rule is stated in similar terms by Mr. Justice Hunt in Bissell v. Hayward 6 Otto. 580 where in delivering the unanimous opinion of the nine Judges of the Supreme Court of the United States, he observed that a valid tender to have the effect to stopping interest must be kept good. The rule, however, is based not merely upon cases of the highest authority, it is founded on justice, equity and good conscience. The liability to pay interest is incurred, because money which was payable has been improperly withheld. But where a debtor, to use the language of Mr. Justice Clifford in Colby v. Reed 9 Otto. 560, has always been ready to perform the contract and did perform it, as far as he was able, by tendering the requisite money, it is difficult to see on what principle he can be made liable for interest, if the complete performance has been prevented by the improper refusal of the creditor to accept the tender. The principle applicable to cases of this description is lucidly explained in Hunt on "Tender," sec. 363. The improper refusal of a valid tender does not extinguish the indebtedness, but though the debt remains after the tender and refusal, the effect is, when the tender is lawfully made and maintained, to discharge the debtor from the liability for interest subsequent to the tender, and the recovery of interest is barred whether the rate be stipulated or is fixed by law, and would accrue as damages, ratione detentione debiti. A refusal of a valid tender of debt or duty, if the tender be kept good, defeats the recovery of damages that would accrue subsequent to the tender, by reason of non-payment or non-performance. It was argued, however, that, although this is unquestionably the general rule, it has no application to cases within the purview of the Bengal Tenancy Act. It was contended that sec. It was argued, however, that, although this is unquestionably the general rule, it has no application to cases within the purview of the Bengal Tenancy Act. It was contended that sec. 67 of the Bengal Tenancy Act makes it obligatory upon Courts of Justice to allow interest on arrears of rent, and that the only method by which a tenant can escape the liability to pay such interest, is to make a deposit under sec. 61, and to obtain as acquaintance receipt under sec. 62. In my opinion, the effect sought to be attributed to these provisions of the Bengal Tenancy Act, is not based upon a reasonable construction of that Statute. In the first place, the Bengal Tenancy Act does not purport to be a complete code, even in respect of the law of landlord and tenant. In the second place, the Bengal Tenancy Act does not profess to incorporate the general principles of the law of contract and the doctrines of equity jurisprudence, in so far as they may have to be applied in the determination of disputes between landlords and tenants. No doubt, sec. 67 of the Bengal Tenancy Act provides that an arrear of rent shall bear interest at a specified rate, whereas the provision of the law which it replaced (sec. 21 of Act VIII of 1869, B. C.) was more elastic, and laid down that arrears of rent were liable to interest at a prescribed rate. But what is the foundation for the suggestion that rent which has been properly tendered and improperly refused, is an arrear on which interest may be levied under sec. 67 of the Bengal Tenancy Act ? It was argued by the learned vakil for the Appellant that under sec. 54, sub-sec. 3 of the Bengal Tenancy Act, any installment or part of an installment of rent not duly paid at or before the time when it falls due is to be deemed an arrear; and he observed that this section speaks of "rent not duly paid" and not of "rent duly tendered." The learned vakil for the Respondent, on the other hand, contended that the section does not speak of rent not duly paid and accepted, and suggested that, if rent was duly tendered and improperly refused, it was duly paid within the meaning of the section. If provisions of our codes are to be construed in the manner suggested, and if distinctions of such nicety are to be drawn, I consider that the answer given by the learned vakil for the Respondent has the merit of plausibility. But I prefer to put a reasonable construction upon sec. 54, and to my mind it is tolerably plain that if rent has been duly tendered before or at the time when it falls due, and the tender has been improperly refused, the rent cannot legitimately be said to be in arrear. The term "arrear" involves a twofold notion, namely, that there is a debt, and that the time for payment of it has expired; in other words, arrear is that which is behind in payment or which remains unpaid though due; there is no ambiguity about the word. There must be a debt, and it must also be due, because no payment has been made [see Oxford Dictionary, Vol. I, page 459, where the derivative meaning is stated to be "behind," that is, an arrear of rent is rent behind or unpaid at the due time. See also Wiggin v. Knights Pythias 31 F. R. 122]. To put the matter in another way, rent which has been properly tendered and which has been improperly refused, is rent still due, but it is not strictly rent in arrear, as the tenant was not "behind" to make payment when the rent fell due. I am unable to hold that the legislature ever intended that rent which had been properly tendered and improperly refused, was to be treated as an arrear upon which it would be obligatory on the Courts to allow interest. Besides, there is nothing in the language of secs. 61 and 62 to show that the legislature has prescribed that, in order to escape payment of interest upon rent which has been duly tendered and improperly refused, it is compulsory upon the tenant to follow the procedure laid down in sec. 61; in other words, the provision as to the deposit of rent is merely enabling and not obligatory. This, I think, is reasonably plain from the history of the legislation on the subject. Before sec. 61; in other words, the provision as to the deposit of rent is merely enabling and not obligatory. This, I think, is reasonably plain from the history of the legislation on the subject. Before sec. 61 of the Bengal Tenancy Act was placed on the statute book, if a tenant made a valid tender of rent which was improperly refused, he found himself in a position of great difficulty. In a subsequent suit for rent by the landlord, in order to escape the liability to pay interest the tenant had to prove, first, that he had made a valid tender, and, secondly, that the tender had been kept good. Satisfactory proof of these two circumstances might not always be easy and obvious on the part of the tenant, and upon failure to establish the plea of tender, the landlord would recover interest on the rent due. To afford protection to the tenant, sec. 61 was embodied in the Bengal Tenancy Act. If a tenant who has made a valid tender of rent which has been improperly refused, makes a deposit as provided in sec. 61, no question can subsequently arise as to whether the tender has been made, or, whether it has been kept good. But if the tenant does not avail himself of the benefit of the provision of sec. 61, and if he takes the risk of establishing by evidence that the tender was duly made and was subsequently kept good, there is no intelligible reason why he should be in a worse position than he would be in, if he proved a deposit in Court. We ought not to place a construction upon the statute the effect of which would be to throw upon the tenant, who has made a valid tender which has been improperly refused and which has been kept good, the burden of additional interest which must accrue between the date of tender and the date of deposit, as also the cost of an application under sec. 61. It is surprising that sec. 61 which was unquestionably introduced for the benefit of the tenant should now be sought to be so interpreted that it may be used as an instrument against him. In my opinion, sec. 61 gives a privilege to the tenant of which he may avail himself, if he chooses. 61. It is surprising that sec. 61 which was unquestionably introduced for the benefit of the tenant should now be sought to be so interpreted that it may be used as an instrument against him. In my opinion, sec. 61 gives a privilege to the tenant of which he may avail himself, if he chooses. But if he does not make a deposit and proves successfully at the trial in a suit for rent that he made a valid tender which was improperly refused and which was kept good, he is entitled to have the claim for rent dismissed, precisely as if he had made a deposit under the provisions of the statute. It has been repeatedly held in England that the general doctrine of tender is applicable to cases between landlord and tenant, and that the rules relating to tender are the same In rent as in other contract (Roscoe Nisi Prius, 17th Edition, 701, Leake on Contracts, Part IV, Chap. IV, and Foa on Landlord and Tenant, 3rd Edition, pages 145, 510). It has not been, and it cannot be, disputed that in this country the doctrine of tender is applicable to all cases between landlords and tenants in respect of tenancies other than those to which the provisions of the Bengal Tenancy Act are applicable. I cannot imagine any good reason why the doctrine should be excluded from operation in cases of tenancies to which the provisions of that Act apply. It was, however, strenuously contended on behalf of the Appellant, that this view not only does not give effect to the alteration in the provision for payment of interest made by the legislature when the Bengal Tenancy Act was passed, but practically destroys the entire effect of the change. It may be conceded, that when the provisions of a statute, as to the scope of which there is room for reasonable doubt, have to be construed, reference may legitimately be made to the previous law on the subject as was done by the Judicial Committee in Ishuree Persad v. Chutterput 3 M. I. A. 100 at 130 (1842) and Brown v. McLachlan L. R. 4 P. C. 543 at 550 (1872) and by this Court in Ram Kanai Ghose v. Hart Narain Singh 2 C. L. J. 546 at 553 (1905). The operation, however, may easily be carried too far, and may in the case of Codification Acts lead to results which have been condemned in decisions of the highest authority. (See the observations of Lord Herschell in Bank of England v. Vagtiano (1891) A. C. 107 and of Lord Macnaghten in Norendra Nath v. Kamal Basini I. L. R. 23 Cal. 563: S. C. L. R. 23 I. A. 18 (1896). The proper course is, in the first instance, to examine the language of the statute, to interpret it, to ask what is its natural meaning, uninfluenced by any considerations derived from the previous state of the law. This I have done, and my conclusion is that the contention of the Appellant, that the provisions of sec. 61 as to deposit, though they are in form expressly permissive, were intended to be obligatory, seeks to force upon the plain language of the section, an interpretation which the words will not bear, except in the light of supposed policy assumed to be indicated by the history of the legislation on the subject. To begin with an examination of the previous state of the law on the point is, in my opinion, to attack the problem at the wrong end. I do not see, however, that the history of the legislation on the subject does really assist the Appellant. What is that history ? Under the law as it stood before Act X of 1859, it was ruled by a Full Bench of the Sudder Court in Neelkunt Banerjee v. Berjo Chunder Banerjee Sevestre 143 (1852), that where there was a contract for payment of interest upon rent in arrear, interest must be allowed, but in the absence of such an agreement, the Courts were to exercise the discretion vested in them by the Interest Act XXXII of 1839. In Act X of 1859, by sec. 20, an arrear of rent was made liable to interest at 12 per cent. per annum, unless it was otherwise provided by written agreement. Act VI of 1862, B. C., which amended Act X of 1859, provided by sec. 4 that the tenant might tender the rent to his landlord, and upon his refusal to receive the amount, deposit the same with the Collector, such deposit to have the same effect as payment. per annum, unless it was otherwise provided by written agreement. Act VI of 1862, B. C., which amended Act X of 1859, provided by sec. 4 that the tenant might tender the rent to his landlord, and upon his refusal to receive the amount, deposit the same with the Collector, such deposit to have the same effect as payment. When Act X of 1869 was repealed by Act VIII of 1869, B. C., these provisions were reproduced in secs. 21 and 46 of the new statute. Under sec. 20 of Act X of 1859, and sec. 21 of Act VIII of 1869, B. C., it was repeatedly ruled by our Courts, that they had a discretion as to whether interest was to be allowed, and if so, at what rate. Most of the cases in the books, however, are very imperfectly reported, and it cannot be ascertained, upon what precise ground, interest was disallowed in any particular case. But it is quite clear that Kashee Nath v. Mynudeen 1 W. R. 154, 2 Rent Rulings 229 (1864) was a case, not of tender but of a deposit in the Collector-ate before Act VI of 1862, B. C., came into force. The cases of Beckwith v. Kishto Jeebun Marshall 278, 2 Hay. 286, 1 Rent Rulings 92 (1863) and Raja Satyananda, Ghosal v. Jaher Sekhar 6 B. L. R. App. 119 were not cases of tender at all, while it is more than doubtful whether the case of Radhika Prosunno v. Urjoon Majhee 20 W. R. 128 (1873) upon which so much reliance is placed, really involved any question of valid tender. The cases of Shurut Soonduree v. Collector of Mymen singh 5 W. R. (Act X Rulings) 69 (1866), Wooma Churn v. Huree Prosad 10 W. R. 101 (1868) and Eshan Chandra v. Assanoollah 16 W. R. 79 (1871) undoubtedly affirmed the principle, that interest could not be claimed, if a valid tender of rent had been improperly refused; but there is nothing to indicate, that this conclusion was founded on the ground, that, as the Court had a discretion in the matter, the discretion ought, to be exercised in favour of the tenant. The judgments are perfectly consistent with the view, that as rent had been tendered, there was strictly no "arrear" due upon which interest could accrue. The judgments are perfectly consistent with the view, that as rent had been tendered, there was strictly no "arrear" due upon which interest could accrue. It may further be pointed out, that of the three cases last mentioned, the only one in which interest was disallowed, was that of Wooma Churn v. Huree Prosad 10 W. R. 101 (1868) in which a valid tender was established, which in the other two cases, interest was decreed, because the tender alleged was not proved. The majority of cases, therefore, did not relate to the effect of tender of rent, but only to the exercise of judicial discretion by the Court to refuse or reduce interest. [Inderjit v. Khaja Abdul Hossein 2 Rent Rulings 210, Ramshunkur v. Ishian Chunder Sevestre 138 (1863), Fuseebun v. Ashrufoonnissa 23 W. R. 463 (1875), Mahatab Chand v. Deb Kumari 7 B. L. R. App. 26 (1871), Johoory Lal v. Bullab Lal I. L. R. 5 Cal. 102 (1879)]. Reference may, however, be made to Bissonath v. Hurro Pershaud 2 W. R. (Act X) 88 (1865) in which a question was raised analogous to the one now before this Court. There the question arose as to the effect of sec. 4 of Act VI of 1862, B. C., which allowed the tenant to make a deposit in the Collector-ate, upon refusal of a valid tender made by him, and provided that such deposit would in all respects operate as and have the full effect of a payment. With reference to this provision, it was ruled in the case to which I have just referred, that, although a tenant may escape liability to pay interest upon tender followed by deposit in Court, the law does not forbid the Court to advert or give effect to a tender not followed by a deposit or payment into Court. This case, therefore, laid down that sec. 4 of Act VI of 1862, B. C., which was subsequently reproduced as sec. 46 of Act VIII of 1869, B. C., was, as its very language showed, merely enabling and not mandatory. Now, what did the legislature do, when the Bengal Tenancy Act was passed, with the decision of Bissonath v. Hurro Pershaud 2 W. R. (Act X) 88 (1865) before them ? They framed sec. 61 which corresponds to sec. 46 of Act VIII of 1869, B. C., was, as its very language showed, merely enabling and not mandatory. Now, what did the legislature do, when the Bengal Tenancy Act was passed, with the decision of Bissonath v. Hurro Pershaud 2 W. R. (Act X) 88 (1865) before them ? They framed sec. 61 which corresponds to sec. 46, Act VIII of 1869, as still permissive; if they intended to make the section obligatory, the object might have been attained with the utmost ease, by the use of appropriate language, and sec. 62 might have been so worded, as to make it evident, that the only way to escape payment of interest is to tender the rent and then deposit the same in Court. Under these circumstances, a reference to sec. 67, does not, with all respect, seem to be quite relevant; it is undoubtedly not conclusive upon the question raised. It appears to me to be incontestable that the effect of the alteration in the provision as to interest was to take away the discretion formerly vested in the Courts, but that this does not, in any way, affect the case of tender; when a valid tender is established and it is proved to have been kept good, the matter is beyond the domain of the discretion of the Court; the tenant is entitled to claim as a matter of right, that interest should be refused. The law under the Acts of 1862 and 1869 unquestionably was, that the tenant could successfully assert this claim to exemption, even though his tender was not followed by deposit; the tender was essential, the deposit optional. The language of the present Act, to my mind, shows plainly, that the law in this respect has not been altered. A review then of the history of legislation on this subject, not only does not lend any support to the contention of the Appellant, but seems to me to destroy it most effectively. What then is the position of the parties? The Bengal Tenancy Act in this matter is not exhaustive; the provisions of sec. 61 are merely permissive. How does a code, then, which is neither complete nor very explicit, exclude the application of the broad principles of justice, equity and good conscience, according to which, Courts in this country are bound to act under sec. The Bengal Tenancy Act in this matter is not exhaustive; the provisions of sec. 61 are merely permissive. How does a code, then, which is neither complete nor very explicit, exclude the application of the broad principles of justice, equity and good conscience, according to which, Courts in this country are bound to act under sec. 37 of Act XII of 1887, and according to which they have always acted since sec. 21 of Reg. III of 1793 was passed. That these rules of equity, justice and good conscience, are reducible from judgments of foreign Courts or have met with the approbation of foreign jurists, does not take away from their value or throw any discredit on them. A recourse to the first principles of jurisprudence may occasionally be useful in the administration of the law as contained in even an Indian Code, and it is too late now to discard them, after their Lordships of the Judicial Committee have interpreted "equity and good conscience" to mean the rules of English law, if found applicable to Indian society and circumstances. Waghela Rajsanji v. Shekh Masludin L. R. 14 I. A. 89 (1887), Dada Honaji v. Babaji 2 Bom. H. C. R. 36 (1865), Waman Ram Chandra v. Dhondi Ba. I. L. R. 4 Bom. 126 (1879). On these grounds, I am not prepared to disregard the principles of justice, equity and good conscience in the case before us, and in the absence of express legislative provision excluding the application of the. doctrine of tender to cases governed by the Bengal Tenancy Act, 1 must decline to put upon the statute a construction which leads to manifest injustice; and which I am satisfied was never intended by the legislature. My answer, therefore, to the question proposed for decision by the Full Bench, modified as I have indicated, is, as to the first part in the negative, and as to the second part, in the affirmative; in other words, that, if a valid tender has been made and improperly refused, it is not obligatory upon the tenant to follow up the tender by a deposit in Court under sec. 61 : if the tender is kept good, it is sufficient to stop interest from the date of the tender. 61 : if the tender is kept good, it is sufficient to stop interest from the date of the tender. As regards the facts of the particular case which is now before us at one stage of the hearing of the appeal I was inclined to the view that the facts found by the Subordinate Judge were not sufficient to show that the tender was kept good. In the course of the able argument, however, which was addressed to us by the learned vakil for the Respondent, he has, I think, shown that a different interpretation is possible. It is true that the Subordinate Judge does not state expressly in so many words that the tender was kept good. But he has found that the rent due was tendered, to the Plaintiff, that on his refusal to accept the amount tendered, it was sent by money order, installment by installment as it fell due, that even up to the date on which the suit was instituted, the Defendant tendered money which was not accepted, and that when the suit was about to be instituted, the pleader for the Defendant again tendered the rent, first, to the pleader for the Plaintiff, and then to his Naib, but as they declined to accept the money, it was deposited in Court before the suit was actually commenced. From all these facts, the inference does seem to be legitimate that the Defendant made a valid tender, and was always ready and willing to pay the money, if only the Plaintiff expressed his willingness to accept it. It was in substance a continuous tender which was kept open by a continuing readiness, not a mere willingness, to pay to the landlord. The facts found by the Subordinate Judge, may, therefore, be taken as equivalent to a finding that the tender was kept good. If so, in the view I take of the law on the subject the claim for interest cannot be sustained and the suit has been rightly dismissed by the Courts below. This conclusion, I may add, is consistent with the manifest justice of the case; upon the facts disclosed, there cannot be the remotest doubt that the Plaintiff repeatedly refused valid tenders of rent, solely with a view to harass the Defendant, and to put pressure upon him so as to force him to consent to an enhancement of rent. This conclusion, I may add, is consistent with the manifest justice of the case; upon the facts disclosed, there cannot be the remotest doubt that the Plaintiff repeatedly refused valid tenders of rent, solely with a view to harass the Defendant, and to put pressure upon him so as to force him to consent to an enhancement of rent. If there is any case in which the plea of tender ought to be applied and allowed, the case before us is eminently of that description. In my opinion, there are no merits in the appeal, and it ought to be dismissed with costs.