T P KANTHIMATHINATHA PILLAI Vs. MUTHUSAMIA PILLAI

JUDGEMENT

(1.) With respect to the rent for fasli 1315 we agree with the lower Court that the claim is barred by limitation. Time runs, not from the end of the fasli but from the time that the rent became due according to the terms of the tenancy. Reliance was placed on the decision, or the Privy Council in Rangayya Appa Rao v. Bobba Sriramulu (1904) I.L.R. 27 Mad. 143 (P.C.) by the learned vakil for the appellant but that case does not help him. In Arunachellam Chettiar v. Kadir Rowthen (1906) I.L.R. 29 Mad. 556 which was decided after the Privy Council case, the rule laid down in Chinnipakam Rajagopalachari v. Lakshmidoss (1904) I.L.R. 27 Mad. 241 was reaffirmed. The Second Appeal must therefore bedismissed so far as the claim for fasli 1315 is concerned.

(2.) With regard to faslis 1316 and 1317 the lower Appellate Court has found that patta was not properly tendered. This finding is binding on us in Second Appeal as we are-unable to seo any legal objection to it. But it is contended that as the suit was instituted after the Estates Land Act I of 1908 came into force and as tender of patta is not a condition precedent to the maintainability of a suit for rent according to the provisions of that Act, the plaintiff s claim is sustainable notwithstanding the finding of the Appellate Court. This contention, in our opinion, should be upheld, In a case to which one of us was a party--Veerabhadra Raju v. Kumari Naidu the point was expressly decided. That case was subsequently followed in another case. We do not consider it necessary therefore to deal with the question at any length. We may add, to the reasons given in that judgment, that it was laid down in Appa Rao v. Ratnam (1890) I.L.R. 13 Mad. 249 that tender of patta was not necessary to complete the landholder s right to rent but was only a condition to be fulfilled if a suit had to be instituted or legal proceedings taken, for the enforcement of the landholder s right. In Venkata Narasimha Naidu v. Seethayya (1910) 9 M.L.T. 131 the question was, whether a distraint made while Act VIII of 1865 was in force without tender of patta was lawful or not. The lawfulness of a distraint must be judged by the law in force when it is made. What was unlawful then is not made lawful by any provision in the Estates Land Act. In Archakam Seshachella Dikshutulu v. Kallur Subba Reddy Civil Revision Petition No. 64 of 1911 the suit was one for rent. When the case was tried by the Court of first instance Act VIII of 1865 was in force. When the suit was instituted it was not maintainable. There is nothing in Act I of 1908 rendering a suit not maintainable at its institution, maintainable subsequently. In Javanmal Jitmal v. Muktabai (1890) I.L.R. 14 Bom. 516 all that was decided was that a document which for want of execution before a village munsif could not be acted on by the Courts, could not be put in evidence in a suit instituted after the provision requiring execution before a village munsif was removed. That decision has, in our opinion, no application to this case, if. the document was incompetent to affect the rights of its parties at its inception, an express provision of law would be required to make it valid subsequently: and there was no such provision in the later enactment which was relied on in that case. There is nothing in Gopalasawmy Mudali v. Mukkee Gopalier (1874) 7 M.H.C.R. 312, which supports the respondent s contention. The learned Counsel for the respondent argues that retrospective effect should not be given to Section 53 of the Estates Land Act. But the appellant s case does not require any such thing being done. When his suit was instituted, the law did not require that he should have previously tendered a patta to his tenant before suing him for rent. It is the respondent that wishes to enforce a condition which the law did not impose at the time of the institution of the suit, following the judgment in Veerabhadra Raju v. Kumari Naitiu we hold that the suit for the rent of faslis 1316 and 1817 is maintainable.

(3.) The decree of the District Judge will, therefore, be modified and the plaintiff will have a decree for the amount claimed as rent for the faslis 1316 and 1317, with interest at 6 per cent. from, the date of plaint up to date of payment. The parties will pay and. receive proportionate costs in all the Courts.