# RAMA SHANKAR SINGH & ANR v. MST. SHYAMLATA DEVI AND ORS

- **Citation:** [1969] 2 S.C.R. 360
- **Court:** Supreme Court of India
- **Decided:** 1968-10-10
- **Case number:** Civil Appeal No. 23 of 1966
- **Bench:** S. M. S!Kr!, K S. Bachawat
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/rama-shankar-singh-anr-v-mst-shyamlata-devi-and-ors-4504
- **Pages:** 5

## Headnote

Indian Contmct Ac.t (9. of 1872), s. 43-Liability
to
pay
rentlf joint.
Bihar Tenancy Act, ss. 67(1), 184 and 193-Limitation-Piea not
taken in written statement-Arrears of rent-Rate of interest.
The plaintiffs defendants 5 to 7 and the ancestor of defendants 8 to
13 leased the forest rights in their villages to defendants 1 and. 2 at an
annual rental.
The deed mentioned the share of each lessee and the
annual rent for the purpose of indicating what amount would be contributed by each of them towards the rent jointly payable by them. It
was stated in the lease that the entire lease would be terminable on default of payment of rent for two consecutive years and the lessee shall
pay interest at Re. 1 per cent in case of defualt, and that the lessors
either separately or jointly shall realise the amount according· to their
choice.
Defendant 3 was a transferee of a portion of lessees'
interest
from defendant I.
The plaintiff-lessors filed a suit in September 1954
claiming a decree of their share of rent for 1356 to 1360 Fasli and
interest thereon.
The plea that suit was barred by limitation was
not
taken in the written statement.
Defendant 2 died and his heirs
were
substituted as defendants 2 and Z(a).
The trial court decreed the suit.
On appeal, the High Court held that (i) the defendants 1 to 3 were liable
to pay the amount of the annual rent up to the extent of their respective
shares; (ii) as the lease deed granted a lease of forest rights, the suit was
governed. by Art. Z(b) (1) of Schedule III of the Bihar Tenancy Act,
1885 and consequently the suit in respect of rent for
1356 and
1357
Faslis was barred by limitation; and (iii) in view of s. 67 of the Bihar
Tenancy Act the plaintiffs could claim at the rate of 6{% per annum
only.
In appeal, this Court,
HELD : The defendants 1 to 3 were jointly and severally liable to
pay the plaintiff's share of the rent for 1358, 1359' and 1360 Faslis and
simple inte'rest thereon at 6!% per annum up to date.
(i) The deed mentioned the share of each Jesse!'
and the annual
rent for the purpose of indicating what amount would be contributed by
each of them towards the rent jointly payable bv them. The joint liability
of the lessees was clearly indicated by the pro,;sion that the entire lease
would be terminable on default on payment of rent for two consecutive
years.
Having regard to s. 43 of the Indian Contract Act, 1872 defendants 1 and 2 were jointly and severally liable to pay the rent. and the
liability of defendant 3 stood on the same footing. [362 H-363B]
(ii) Under s. 184 of the Bihar Tenancy Act a suit instituted after the
expiry of the period of limitation is liable to be dismissed though limitation is not pleaded.
The respondent was rightly allowed to raise the
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R, s. SINGH v. SHYAMLATA (Bachawat, J.)
36 J
point of limitation though the plea was not taken in the written statement. [363 CJ
The lease-deed granted a lease in respect of forest rights only. It
gave the lessees the right to cut and appropriate trees of certain types
and the fruits and flowers of certain fruit bearing trees.
The right to
open roads and to construct buildings were incidental to the right to enjoy a forest produce. The suit was for recovery of rent in respect of
forest produce and having regard to s. 193 of the Bihar Tenancy Act
was governed by Art. 2(b)(l) of the Schedule III therefore. The special
period of limitation applied though the claim for arrears of rent
was
claimed on a registered document. [363 D-F]
The suit in respect of rent for 1356 and 1357 was barred by limitation.
C
Abdulu/lah v. Asraf Ali, 7 C.L.J. 152, Bande Ali Fakir v.
Amud
Sarkar, 10 C.W.N. 415 and Mackenzie v. Haji Syed Muhammad
Ali
Khan, l.L.R. 19 Cal. I, approved.
(iii) Interest was payable at the rate of 6}% per annum only.
By
s. 193 of the Bihar Tenancy Act all the provisions of the Act applied to
the suit.
Section 67 (1) provides that arrears of rent shall bear simple

## Text

RAMA SHANKAR SINGH & ANR.
v.
MST. SHYAMLATA DEVI AND ORS.
October 10, 1968
[S. M. S!KR! AND K S. BACHAWAT, JJ.]
Indian Contmct Ac.t (9. of 1872), s. 43-Liability
to
pay
rentlf joint.
Bihar Tenancy Act, ss. 67(1), 184 and 193-Limitation-Piea not
taken in written statement-Arrears of rent-Rate of interest.
The plaintiffs defendants 5 to 7 and the ancestor of defendants 8 to
13 leased the forest rights in their villages to defendants 1 and. 2 at an
annual rental.
The deed mentioned the share of each lessee and the
annual rent for the purpose of indicating what amount would be contributed by each of them towards the rent jointly payable by them. It
was stated in the lease that the entire lease would be terminable on default of payment of rent for two consecutive years and the lessee shall
pay interest at Re. 1 per cent in case of defualt, and that the lessors
either separately or jointly shall realise the amount according· to their
choice.
Defendant 3 was a transferee of a portion of lessees'
interest
from defendant I.
The plaintiff-lessors filed a suit in September 1954
claiming a decree of their share of rent for 1356 to 1360 Fasli and
interest thereon.
The plea that suit was barred by limitation was
not
taken in the written statement.
Defendant 2 died and his heirs
were
substituted as defendants 2 and Z(a).
The trial court decreed the suit.
On appeal, the High Court held that (i) the defendants 1 to 3 were liable
to pay the amount of the annual rent up to the extent of their respective
shares; (ii) as the lease deed granted a lease of forest rights, the suit was
governed. by Art. Z(b) (1) of Schedule III of the Bihar Tenancy Act,
1885 and consequently the suit in respect of rent for
1356 and
1357
Faslis was barred by limitation; and (iii) in view of s. 67 of the Bihar
Tenancy Act the plaintiffs could claim at the rate of 6{% per annum
only.
In appeal, this Court,
HELD : The defendants 1 to 3 were jointly and severally liable to
pay the plaintiff's share of the rent for 1358, 1359' and 1360 Faslis and
simple inte'rest thereon at 6!% per annum up to date.
(i) The deed mentioned the share of each Jesse!'
and the annual
rent for the purpose of indicating what amount would be contributed by
each of them towards the rent jointly payable bv them. The joint liability
of the lessees was clearly indicated by the pro,;sion that the entire lease
would be terminable on default on payment of rent for two consecutive
years.
Having regard to s. 43 of the Indian Contract Act, 1872 defendants 1 and 2 were jointly and severally liable to pay the rent. and the
liability of defendant 3 stood on the same footing. [362 H-363B]
(ii) Under s. 184 of the Bihar Tenancy Act a suit instituted after the
expiry of the period of limitation is liable to be dismissed though limitation is not pleaded.
The respondent was rightly allowed to raise the
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R, s. SINGH v. SHYAMLATA (Bachawat, J.)
36 J
point of limitation though the plea was not taken in the written statement. [363 CJ
The lease-deed granted a lease in respect of forest rights only. It
gave the lessees the right to cut and appropriate trees of certain types
and the fruits and flowers of certain fruit bearing trees.
The right to
open roads and to construct buildings were incidental to the right to enjoy a forest produce. The suit was for recovery of rent in respect of
forest produce and having regard to s. 193 of the Bihar Tenancy Act
was governed by Art. 2(b)(l) of the Schedule III therefore. The special
period of limitation applied though the claim for arrears of rent
was
claimed on a registered document. [363 D-F]
The suit in respect of rent for 1356 and 1357 was barred by limitation.
C
Abdulu/lah v. Asraf Ali, 7 C.L.J. 152, Bande Ali Fakir v.
Amud
Sarkar, 10 C.W.N. 415 and Mackenzie v. Haji Syed Muhammad
Ali
Khan, l.L.R. 19 Cal. I, approved.
(iii) Interest was payable at the rate of 6}% per annum only.
By
s. 193 of the Bihar Tenancy Act all the provisions of the Act applied to
the suit.
Section 67 (1) provides that arrears of rent shall bear simple
interest at the rate of 6}% per annum. The section overrides the conD
tractual stipulation that the interest be payable at· I%
per
annum.
E
F
[363 F-G]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 23 of
1966.
Appeal from the judgment and decree dated May 11, 1962
of the Patna High Court in Appeal from Original Decree No. 169
of 1958.
U. P. Singh, for the appellants.
Sarjoo Prasad and R. C. Prasad, for respondents Nos.
1
and 2 .
The Judgment of the Court was delivered by
Bacbawat J. The plaintiffs, defendants 5 to 7 and the ancestor of defendants 8 to 13 were the sixteen anna proprietors
of certain villages in district Shahbad. By a registered deed
dated October 3, 1944 they leased the forest rights in the villages
to the defendants 1 and 2 for a period of 9 years ending Bhado
30, 1360 Fasli corresponding to September 2, 1953 at an annua:
-0
rent of Rs. 16,000. The plaintiffs had 6 annas share in the proprietary rights in the villages and Rs. 6,000 was fixed as their
share of the annual rent. The defendant No. 3 was a transferee
of a portion of a lessees' interest from defendant 1. On September 3, 1954 the plaintiffs instituted a suit claiming a decree
against defendants 1 and 2 for Rs. 36,405 on account of their
H
share of the rent for 1356 to 1360 Faslis and interest thereon at
1 % per annum. During the pendency of the suit, defendant 2 died
and his heirs were substituted as defendants 2 and 2 (a). The
Trial Court decreed the suit on contest against defendants 2 and
L3 Sup./69-6
362
SUPREME COURT REPORTS
[1969) 2 S.C.R.
2 (a) and ex-parte against defendants 1 and 3 with future interest
and costs. On appeal, the High Court held that ( 1 J as defen-
<iant 2 had only 4 anna share in the lessees' interest as ment1m1ed
in the lease deed and as he had acquired another one anna share
in the lessees' interest subsequently, defendants 2 and 2(a) were
liable to pay only 5 annas share in the annual rent, that is to say,
Rs. 1,875 per annum and defendants 1 and 3 were liable to pay
the balance rent; ( 2) as the lease deed granted a lease of forest
rights, the suit was governed by Art. 2(b)(i) of Schedule III of
the Bihar Tenancy Act, 1885 and consequently the suit in respect of rent for 1356 and 1357 Faslis was barred by limitation,
and ( 3) in view of sec. 67 of the Bihar Tenancy Act the plaintiffs
could claim interest at the rate of 6±% per annum only. Accordingly the High Court allowed the appeal in part and passed a decree against defendants 2 and 2(a) for 5 annas share of the rent for
1358 to 1360 Faslis and a separate decree against defendant:; 1
and 3 for the balance rent for those years with interest at 6t%
per annum. The plaintiffs have filed the present appeal after obtaining a certificate. from the High Court. The appellants challenge the correctness of all the findings of the High Court.
Clause 3 of the lease deed provided :
"that the lessees shall pay an annual Zama of
Rs. 16,000 in respect of the thika property on 1st Kuar
of every year. If for any reason, the rent for two consecutive years shall fall into arrears in that case the
lessors shall be competent to enter into khas possession and occupation of the thika property and to
this the lessees shall have no objection and in case of
making default the lessees shall pay an interest at the
rate of Re. 1 per cent till the date of payment. The
lessors either separately or jointly
shall
realise (the
amount) to the extent of their respective shares according to their choice by instituting in conrt with interest
thereon mentioned above from the persons and oroperties of the lessees."
·
At the end of the ]ease it was stated iliat defendant 1 had twelve
anna share i.il ilie lessees' interest and his share of the rent was
Rs. 12000. It was also stated that defendant 2 had 4 anna share
in the lessees' interest and his share of ilie rent was Rs. 4000.
Clause 3 of the deed clearly shows that the lessees were jointly
liable to pay the annual rent of Rs. 16000. The deed mentioned
the share of each lessee and the annual rent for the purpose of
indicating what amount would be contributed by each of them
towards the rent jointly payable by them. The joint liability of
the les,ees is clearly indicated by the provision iliat entire lease
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R. s. SINGH V, SHYAMLATA (Bachawat, J.)
363
w,1uld be te1minable on default of payment of rent for two cons~
cutive years.
Having regard to sec. 43 of the Indian Contract
Act 1872 defendants I and 2 were jointly and severally !table
to pay the rent. It was not disputed before the High Comt that
the liabiJity of defendant 3 stood on the same footmg..
Th~ High
C,iurt was in error in holding that defendant 2 was hable to pay
only 5 anna share in the rent.
The High Court was right in allowing the defendant to iaise
the point of limitation, though the plea was not taken in the
written statement.
Under s. 184 of the Bihar Tenancy Act a
suit instituted after the expiry of the period of limitation is liable
to be jim1issed though limitation has not been pleaded. I.earned
C'oun<el for the appellants could not tell us what further e\idence
his clients could adduce on this point. In the circumstances, the
absei.~e of the plea of limitation in the written statement did not
cause the appellants any prejudice.
On a careful reading of the lease deed, we are ~atisfied that
it granted a lease in respect of forest rights only. It gave
the
lessees the right to cut and appropriate trees of certain types and
the fruits and flowers of certain fruit bearing trees. The righ1 to
open roads and to construct buildings were incidental to the right
to enjoy the forest produce. The suit is for recovery of rent in respect of forest produce and having regard to sec. 193 of the Bihar
Tenancy Act is governed by Art. 2(b)(i) of the Schedule III
there10. This view is supported by the decisions of the C:.Jcutta
High Court in Abdulullah v. Asraf Ali(') and Bande Ali Fakir v.
Amud Sarkar(').
The special
period
of
limitation
~pplies
though the claim for arrears of rent is founded on a
re~istered
instrument, (see Mackenzie v. Haji S)•cd Muhammad Ali Khan.(')
The High Court was right in holding that the suit in resDect of
rent for Fasli years 1356 and 1357 was barred by limitution.
Having regard to sec. 193 all the provisions of the Act applied
to a suit. Section 67 (1) provides that arrears of rent shall bear
simple interest at the rate of 6f% per annum. The section overrides the contractual stipulatio~ that the interest would be payable at 1 % per annum. The High Court was right in holding that
interest was payable at the rate of 6f% per annum only.
In the result, the appeal is allowed in part and it is declared
that defendants 1, 2, 2(a) and 3 are jointly and severallv liable
to pay to the plaintiffs Rs. 6000 per annum on account of the
plaintiffs' share of rent for Fasli years 1358, 1359 and 1360 and
simpI: interest thereon at the rate of 6!% per annum upto date.
We direct that a decree be drawn up accordingly. The decree
will carry future interest on the principal sum at the rate of I)%
(1) 7C.L.J.152.
(2) J9C.W.N. 415.
(3) l.L.R. 19 CCI. 1.
364
SUPREME COURT REPORTS
[1969] 2 S.C.R.
per annum.
The aforesaid defendants will pay to the plaintifis
A
proportionate costs of the suit in the Trial Court. The parties will
bear their own costs of the appeal in the High Court and in this
Court. This decree will be without prejudice to the payments, if
any, made by the defendants to the plaintifis after the institution
of the suit.
B
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Y.P.
Appeal partly allowed.
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