This reference has been made to us by a Division Bench of this Board for an authoritative pronouncement about the scope of the provisions of secs. 94, 99 and 104 of the Rajasthan Tenancy Act, 1955 (hereinafter referred to as the Act). This reference has been occasioned by the fact that in case of Devi Sahay and Subh Karan Vs. Bhonria (Case No.29/ 1959/Jaipur) decided on 2.7.1960 by another Division Bench, it has been held that where a sub-tenant has contracted to pay to the tenant a fixed quantity of grains as rent, the provision of the Act that is applicable is sec. 94 and not sec. 104. The relevant observations in judgment may be quoted as follows:— "The rent claimed by the plaintiff is, in fact, not rent in kind based on an estimate or appraisement of the gross produce of the land during a disputed period. Sec. 104 applies only where there is an agreement for the payment of a certain portion of the produce at each harvest depending on an estimate etc. It does not apply to a case where any fixed grain or cash that is agreed upon between the parties. Sec. 94 of the Act is applicable to such (cases where a tenant on being admitted to the occupation of a land is liable to pay such rent as may be agreed upon between him and his land-holder." On a careful examination of the provisions of Chapter IX of the Act, we find ourselves in respectful dis-agreement with the above decision. This Chapter of the Act deals with the initial fixation of rent and its subsequent modification under the circumstances specified therein. It opens with the general provision (sec. 93) that every tenant shall be liable to pay rent in accordance with the provisions of the Act, which means that the rent payable by a tenant will be limited to what is permissible under the provisions of the Act. Sec. 94 deals with the initial fixation of rent. It runs as follows :— "94. Initial rent—Subject to the other provisions of this Act, a tenant on being admitted to the occupation of land is liable to pay such rent as may be agreed upon between him and his land-holder". There is no difficulty about the construction of sec. Sec. 94 deals with the initial fixation of rent. It runs as follows :— "94. Initial rent—Subject to the other provisions of this Act, a tenant on being admitted to the occupation of land is liable to pay such rent as may be agreed upon between him and his land-holder". There is no difficulty about the construction of sec. 94 which merely says that a tenant is liable to pay such rent as may be agreed upon between him and his land-holder, subject to the other provisions of the Act. In other words, rent is a matter of contract between the tenant and his land-holder, but that such a contract must be consistent and not in conflict with the other provisions of the Act. In the sections that follow sec. 94, provision has been made for limiting rent to such limits as were considered reasonable by the legislature. These provisions are of a per-emptory nature and are intended to protect the tenant, which term also includes a sub-tenant. Not only has provision been made for the limitation of the rent chargeable, but also for the recovery of any excess rent that a land-holder may have realised from his tenant. Sec. 96 places a ceiling on what Government may charge by way of cash rent from a tenant holding land direct from Government, Under sec. 97 read with sec. 98 authority has been given to the State Government to prescribe the maximum cash rent recoverable from a tenant by an estate holder, viz. a Jagirdar, a Biswedar or a Zamindar, in an area where land revenue has been settled. Likewise, under sec. 97 read with sec. 99, power has been further given to the State Government to prescribe the maximum cash rent recoverable by a tenant from his sub-tenant in areas where rent has been settled and sub-tenants pay rent in case. But under sec. 99 direction has been given to Government that the cash rent that it may prescribe for payment by the sub-tenant shall not exceed twice the amount payable by the tenant himself at the settled rates. Secs. 100, 101 and 101-A relate to certain circumstances specified therein, in which the maximum limits of rent laid down in the preceding sections will not be applicable or will be relax able. Secs. 100, 101 and 101-A relate to certain circumstances specified therein, in which the maximum limits of rent laid down in the preceding sections will not be applicable or will be relax able. Sec. 102 provides for the recovery from the land-holder of any rent realised by him from his tenant in excess of the maximum rent prescribed under sec. 97, read with secs. 98, 99 and 100. Sec. 103 goes so far as to say that where cash rent rates have not been evolved, determined and sanctioned, but assessment circles have been formed and circle rates have been determined, the Assistant Collector may on an application determine the rents in cash payable by tenants on the basis of such rates. Then follow sec;. 104 and 105 which deal with rent in kind. Sec. 104 lays down the limit of rent that is payable in kind, and sec. 105 provides for a higher rate of kind rent in certain circumstances The tenor and intent of sec. 93 clearly is that the tenant should be protected against rack-renting by the land-holder. Where the contract between the land-holder, who is the tenant-in-chief, and his pub-tenant is that the latter will pay by way of annual rent, a fixed quantity of grain whether he cultivates the land or not, it has to be seen whether such a contract is enforceable as it is or whether it is subject to any restrictions. Sec. 93 is quite clear that the sub-tenant is liable to pay rent only to the extent permissible under the provisions of the Act. Sec. 94, as we have stated before; permits of rent being fixed by contract between the two parties, but subject to the other provisions of the Act. Section 99 refers in terms to area where rent has been settled and sub-tenants pay rent in cash. Otherwise, in unsettled areas, sec. 104 will apply. Sec. 104 (1) reads :— "104. Maximum rate of rent in kind: (1) Notwithstanding any contract, custom, usage or practice to the contrary, where rents are payable in kind the maximum recoverable from a tenant by the land-holder shall not exceed one-sixth of the gross produce thereof for each harvest". (Italic ours). We have not reproduced the proviso to this sub-section because it is not germane to the present case. (Italic ours). We have not reproduced the proviso to this sub-section because it is not germane to the present case. On a plain reading of this provision, it is quite clear that it applies to all cases where rents are payable in kind, irrespective of the manner in which the kind rent is arrived at. To be more explicit, its application is not limited to cases where kind rent is based on an estimate or appraisement of the crop, or where the gross produce is divided in certain proportions between the land-holder and the tenant. No room for doubt is left on this point, when we examine sub-section 2 (a) of this section which is reproduced below :— "104. (2) (a) Nothing in sub-section (1) shall operate to effect an increase in the amount or proportion, as the case may be, payable by a tenant as rent agreed upon under section 94 or fixed under section 115". (Italic ours). In the above clause, a distinction has been made between kind rent paid as fixed quantity and kind rent paid as a fixed proportion of the produce, both being subsumed as types of kind rent under sub-section (1) of the same section. This is further borne out by the language of section 117 (4) and section 118 (1). We thus arrive at the conclusion that by virtue of the provision of section 104 (1) kind rent by whatsoever mode determined, whether as a fixed amount or as a proportion, shall not exceed 1/6th of the gross produce for each harvest. This provision over-rides any contract, custom, usage or practice that may otherwise sanction rent in excess of 1/6th of the gross produce for each harvest. But, as we have held earlier, section 104 would be applicable only when rent is payable in kind because of the area not having come under settlement. In case a settlement has taken place and settled rent rates have been enforced, it would be section 99 which would become operative. That is to say, the subtenants in a settled area would be required to pay rent in cash only, such cash rent being subject to the maximum prescribed by the State Government under Sec. 99 so as not to exceed twice the amount of such rent payable at the settled rates, by the tenant-in-chief. That is to say, the subtenants in a settled area would be required to pay rent in cash only, such cash rent being subject to the maximum prescribed by the State Government under Sec. 99 so as not to exceed twice the amount of such rent payable at the settled rates, by the tenant-in-chief. This maximum would be inapplicable only in the type of cases specified in section 100. We would, therefore, answer the reference as under : — (1) Section 94 of the Act is qualified and governed by sec. 96 to 105 of the Act, and any contract between a tenant and his sub-tenant or a landlord and his tenant will not be enforceable in so far as is seeks to determine rent in excess of the limits laid down in section 96 to 105. (2) Except in the circumstances set out in Sec. 105, the maximum permissible kind rent in an area which has not been settled is 10th of the gross produce for each harvest, no matter whether kind rent is payable as a fixed quantity of produce or as a proportion of the produce. (3) In settled areas tenants and sub-tenants are liable to pay rent only in cash subject to the maxima laid down in Sec. 98 and 99 read with Sec. 100.