GOPALAKRISHNA MUDALIAR AND ORS. Vs. RAJAN KATTALAI OF SRI THIYAGARAJA-SWAMI DEVASTANAM BY ITS TRUSTEE SRI LA SRI SUBRAMANIYA DESIGA GNANASAMBANDA PANDARA SANNADHI AND ORS.

JUDGEMENT

(1.) The defendants in O.S. No. 16 of 1962, on the file of the Court of the Subordinate Judge, Nagapattinam, are the appellants herein. Since the facts are not in controversy and the appeal itself, was argued before us on a very narrow ground, we do not propose to elaborately refer to the pleadings of the parties and the numerous issues raised by the trial Court. Admittedly, the suit lands of an extent of 89.58 acres in Pallankoil Village belonged to the respondent herein. The said lands were leased out to the. appellants herein for five faslis, from fasli 1365 to fasli 1369 under Exhibit A -1 dated 31st December, 1955, a registered lease deed. The annual rent fixed was 711 kalams of paddy and Rs. 200 in cash. On the allegation that the appellants herein were in arrears of rent for the five faslis in different amounts, the suit was instituted for the recovery of a sum of Rs. 20,117.22 with a charge on the secured properties either for the whole amount, or for a sum of Rs. 5,500. The prayer with regard to the charge in the alternative form came to be made in view of the fact that the first appellant alone was the lessee and the second appellant joined in the execution of the lease deed only as a surety and he stood surety only for Rs. 5,500, which represented one year's rent. We are not giving the details of the arrears for the simple reason that they were not disputed. The appellants herein raised various defences such as the lands constituting an estate and therefore the civil Court not having jurisdiction, there having been a severe cyclone in 1953 -56 and thereby they having been relieved of their obligation to pay the entire rent and their not being able to take possession of the lands in view of the fact that the cultivating tenants were in occupation of the lands even on the date of the lease. During the pendency of the suit, Madras Acts XXVI and XXX of 1963 were enacted and brought into force. Therefore, in the additional written statement filed by them the appellants put forward the contention that the civil Court had no jurisdiction in view of the provisions of the Act as well. The Subordinate Judge's Court, by order dated 8th July, 1963, referred the matter to the Estates Abolition Tribunal, Thanjavur, which by its order dated 12th March, 1964, in O.A. No. 1 of 1963, held that the properties leased by the respondent formed only part of a village, that they did not constitute a named village and that Pallankoil in which the properties were situate was not an inam estate or an estate within the meaning of Sec. 3(2)(d) of the Madras Estates Land Act I of 1908 as amended by subsequent Acts and that it was only a minor inam. Finally, the matter was argued before the trial Court only on the basis of the lands being minor inam and the learned Subordinate Judge by judgment and decree dated nth August, 1968, overruled the objections of the appellants and decreed the suit as prayed for by creating a charge over the secured properties for a sum of Rs. 5,500 only. It is against this judgment and decree, the present appeal has been filed.

(2.) Though various defences had been taken before the trial Court, Mr. R.G. Rajan, the learned Counsel for the appellants, addressed only four arguments before us. One was that, having regard to the provisions contained in Sec. 41 of the Madras Minor Inams (Abolition and Conversion into Ryotwari) Act, 1963 (XXX of 1963), the appellants were not liable to pay the arrears of rent for all the five faslis and that if they had paid arrears in respect of any three faslis, the entire arrears must be deemed to have been wiped out. The second argument was that there had been a cyclone in 1955 -56 and the appellants were not able to collect the full rent from the tenants who were in occupation of the lands and consequently they were not bound to pay the entire rent stipulated for. The third argument was that even in 1956 the appellants offered to surrender the lands to the respondent, but he did not accept the surrender and having failed to accept the surrender, it was not open to the respondent to collect the arrears of rent for all the five faslis. The last argument was that the arrears for the period in excess of three years immediately preceding the suit were barred by limitation and that therefore the trial Court could not have passed a decree in respect thereof.

(3.) We shall consider these arguments in the order in which we have referred to them above. As far as the first argument is concerned, as we pointed out already, the suit is of the year 1962. The Acts were of the year 1963 and consequently they came into force only during the pendency of the suit. In view of this alone, an additional written statement was filed before the trial Court and even with reference to Sec. 41 of Act XXX of 1963 the defence was not taken in the form in which it is taken before us. Before us, the contention of the learned Counsel is that the language of Sec. 41 prohibits the respondent -landlord from collecting anything in excess of arrears for three fasli years and that even though the appellant had not offered to pay the arrears for three fasli years before the trial Court, in the grounds of appeal before this Court they have made such an offer and that in view of this, it must be held that the entire arrears must be deemed to have been discharged. For the purpose of considering this argument, it is necessary to extract Sec. 41 of Madras Act XXX of 1963 in full: