JUDGMENT

Bennett, J - This is a second civil appeal against the judgment and decree dated 17th December 1936, passed by the learned Additional Civil Judge, Gonda, modifying the judgment and decree dated 18th July 1936, passed by the learned Munsif of Gonda, decreeing the plaintiff's suit in part. A reduction was made by the Munsif in the amount claimed and the amount so reduced was restored by the Additional Civil Judge in first appeal. The only question which arises in this second appeal is whether the plaintiff-respondent, who is the superior proprietor, is entitled to claim malkana dues on the revenue assessed, irrespective of remissions of land revenue in the year in suit, namely in the years 1334 to 1342 Fasli, It appears that in these years remissions were allowed by Government of varying amounts. The Munsif was of opinion that although the superior proprietor was entitled to 10 per cent. of the land revenue, the defendants under-proprietors were en-titled to claim a corresponding reduction where remissions in the land revenue had been allowed by Government. The Additional Civil Judge took a different view. His decision that the 10 per cent. must be paid to the superior proprietor on the full land revenue was based on the view that when the settlement was made, it meant that 10 per cent. was allowed to the superior proprietor on the land revenue assessed.

2. It is admitted by both counsel that there is no direct authority on this question, although it is doubtless a very important one. I have been referred to the judgment passed by the Assistant Settlement Officer on. 21st September 1872, by which the superior proprietor was allowed 10 per cent. on the land revenue as malkana (Ex. 1). It is pointed out for the appellants that it is not said in this judgment that the malkana is payable on the land revenue assessed, but there is no indication that the amount would be subject to reduction in any circumstances other than a reduction in the land revenue assessment, and I consider that it is clearly implied that the percentage should be levied on the land revenue as assessed. I have been referred by the learned Counsel for the appellants to the case in Rampal Singh v. Surendra Bikram Singh (1987) 24 AIR Oudh 82 in which a Bench of this Court held that where an agreement is executed by a taluqdar to pay a member of his family maintenance at a certain rate and the maintenance allowance is not wholly independent of the income that the taluqdar for the time being is to derive from the taluqa, the taluqdar is entitled in justice, equity and good conscience to be relieved of a portion of the allowance, if subsequently to the agreement the profits of the taluqa diminish. It is argued from this ruling that I should be justified in allowing a reduction in the malkana on grounds of justice, equity and good conscience.

3. For the respondent I have been referred to the provisions of Section 19, Oudh Rent Act, which shows that remissions of rent may be allowed by order of the Court in certain circumstances where the area or the produce of the land has diminished. It is pointed out that even in this case the power of the Court to allow remissions is subject to the previous sanction of the Deputy Commissioner. In my opinion neither the case cited nor the provisions of Section 19, Oudh Rent Act, afford much assistance in deciding the present question. The settlement arrived at in 1872 between the parties was not a matter of contract but resulted from an order of the Settlement Court, and I am very doubtful therefore whether I should be justified in reducing the amount in accordance with the principles laid down in Rampal Singh v. Surendra Bikram Singh (1987) 24 AIR Oudh 82. Section 19, Oudh Rent Act, allows for remissions by order of the Court in certain circumstances, but in the present case admittedly there is no provision of law which would directly justify an order of the Court reducing the malkana by reason of the fact that there has bee