HONOURABLE THE RAJAH OF RAMNAD (THROUGH HIS AUTHORISED DEWAN RAO SAHIB S THIRUMALAI AYYANGAR) Vs. GNANAMUTHU BOTHAGAR

JUDGEMENT

(1.) The defendant (the Raja of Raranad) who is a landholder under the Estates Land Act is the appellant before us. The plaintiff is a ryot under him and for Fasli 1323, i. e., 1913-14, the defendant tendered a patta to the plaintiff in which he charged the plaintiff with; a higher rent than the rent which the plaintiff had been till then paying for the land in his holding on the ground that Vanpayir crops were cultivated in that fasli for the first time with the help of a well which the plaintiff excavated in the land at an expense of Rs. 600 in 1912-13 after the Estates Land Act came into force. As the plaintiff paid only the usual dry rate and refused to pay the difference between the Vanpayir rate and the dry rate the defendant attached the lands. Hence the plaintiff brought the suit in the Collector's Court for raising the attachment as illegal contending that he was not bound to pay a higher rate for raising the Vanpayir crops as the improvements were effected at his own expense after the passing of the Estates Land Act, and as there never existed any contract to pay such a higher rate of rent. Both the lower courts, as I understand their judgments, held (1) that there was no usage proved to pay the higher rent claimed and (2) that no contract express or implied to pay it has been proved and (3) that so far as the alleged usge is concerned, Section 13 (3) of the Estates Land Act precluded such usage being relied on for claiming a higher rate of refit. They did not go into the question whether, if a contract before the passing of the Act was proved, higher rent could be claimed even after the passing of the Estates Land Act notwithstanding Section 13(3), nor did they consider the question whether, even if Section 13(3) did not apply retrospectively to the case of a contract made before the Act came into force where the improvements also had been made before the Act came into force, that section may not apply in the case where the improvements were effected after the Act came into force though the contract was before the Act.

(2.) Several decisions alleged to bear on the question in dispute were quoted before us. But most of them were decided; with reference to the provisions of Act 8 of 1865, I do not think it necessary to refer to most of them. The question whether retrospective effect should be given to Section 13(3) was considered by myself and Napier, J in Venkata Perumal Raja V/s. Ramudu (1915) I.L.R. 39 M. 84, 28 M.L.J. 81. Owing to the difference of opinion between us on it, the case went before Mr. Justice Kumaraswami Sastri. I gave my opinion definitely that after the passing of the Estates Land Act a landlord cannot claim enhanced rent on account of the increased outturn of the crops due to the improvements made by the ryot (1) whether the improvements were made before or after the passing of the Act (2) whether or not there was a contract to the contrary and (3) whether such contract was made before or after the passing of the Act. In the opinion pronounced by Mr. Justice Kumaraswami Sastri which prevailed ultimately, it is stated in one place: "Clauses 1 and 2 to the section, i.e. Section 13, can only refer to improvements to be effected in future and if the legislature intended Clause 3 to be retrospective it would have given some indication of such intention. On the contrary the use of the words " shall not by reason of making an improvement become liable" indicate that only future improvement are intended." If this passage alone is taken from the learned Judge's opinion, it might be plausibly argued that he held that where the improvements were effected after the Act came into force, Section 13(3) would prevent the claiming of a higher rent in respect of such lands on account of increased or more valuable crops through future improvements even if the contractHo pay a higher rate had been made before the Act. But at page 95, the learned Judge proceeded to state: "I am of opinion that the words " contract1 to the contrary "refer only to contracts made after the passing of the (Act and that Section 13(3) has no retfdspective operation in cases where rent claimed was payable under a contract which would have been legally enforceable under the Rent Recovery Act or any other law in force at the time of the passing of the Estates Land Act." I therefore take it that the learned. Judge intended that even in cases where the improvements were made after, the passing of the Act if there was a contract before the passing ,of the Act enhanced rent could be cfaimed under it and that contract would not be affected by Section 13(3).

(3.) Mr. L.A. Govindaragava Aiyar for the appellant therefore strenuously contended that the contract found against by both the lower courts ought to have been found by both the courts as existing. He argued alternatively that, at any rate, in deciding against the existence of such a contract, they misdirected themselves on some questions of law and hence their finding should not be accepted and that we should call for a fresh finding.