MUTHANAN SERVAI ALIAS TIRUNEELAKANTAN SERVAI Vs. BRAJA RAJESWARA SETHUPATHI ALIAS MUTHU RAMALINGA SETHUPATHI AVERGAL, RAJA OF RAMNAD

JUDGEMENT

(1.) This is a claim by the Rajah of Ramnad against the farmers or tenants of villages in that Zamindari to recover from them the money value of certain annual payments received by them from the ryots of those villages. In 1894 two cowles were executed by the then Rajah in favour of those farmers. Before the cowles the Rajah or Zemindar received 48 per cent, of the total produce, the ryots or actual cultivators of the land keeping the other 52 per cent. Of that 48 per cent one-fourth or 12 per cent of total was received by the Rajah for certain purposes 3 per cent for charities and 9 per cent for the payment of village officers whom the Rajah was liable to pay. By the cowles the Rajah let for a term of years, all his interest in the villages to the farmers. The villages are defined by boundaries and most of the land in them was in the occupation of ryots, but there were offices, buildings, tanks, trees and possibly waste land and jungle, which were in the occupation of the Rajah himself. Therefore, what was let was his interest in the lands in the occupation of the ryots in respect of which he received the 48 per cent melwaram and such buildings, lands, trees and etc., as were in his own occupation. There was an obligation on the part of the farmers to do certain repairs. After the cowles the farmers, in fact, received the whole 48 per cent melwaram and paid the village-officers in kind. They agreed by trie cowles to pay to the zemindar in addition to the rent-reserved the 3 per cent for the charities and an amount which they collected for road cess for which the zemindar remained liable as between him and the government though between him and the farmers they took over this obligation.

(2.) Sir John Wallis, C.J., with whose judgment I entirely agree, holds that the effect of the cowles was that the farmers took over with the village and the waram, the obligation to pay thereout what were in fact, charges on that warm, that is, payments to be made to the village-officers out of the waram. Sadasiva Aiyar, J. held that the obligation was taken over by the farmers by custom. This is probably also correct, but, if there is, as I hold, an implied term as found by Wallis, C.J., it is unnecessary to rely upon the custom, At a later date, by the Madras Act II of 1894, the payment of these officers in kind was abolished, and it would follow, if the matter rested there/that the farmers would be freed from liability to make these payments but could keep that part of the melwaram which was leased to them in order that they could make these payments, that is, the 9 per cent. It is argued that they were receiving and paying away the 9 per cent to the village officers as agents of, or trustees for, the Rajah, I am unable to accept this view or to say that there was an implication of the term in the cowle that the farmers should collect the 9 per cent on behalf of the Rajah and that, if at any time the whole or any part were not required for the payment of the village officers, they should account to him for any unused amounts, Now, it is a well established rule that a term will only be implied when the court is driven to the conclusion that the parties must necessarily have intended that stipulation. This is generally kown as the rule in The Moor (1889) 14 P.D. 64 cook page 64, which was followed and clearly enunciated in Hamlyn V/s. wood (1891) 2 Q.B. p. 488, I can find no such necessity, for the cowle is equally consistent with the farmers taking over the whole waram and taking the risk of what they might have to pay to these village servants. It would be a perfectly intelligible contract and this in my view, is the proper interpretation of this contract. Acting under the statute in question, the Government which had taken over that liability to pay the village servants and relieved the Rajah from that liability, increased the peishkusli payable by the Rajah with the result that, but for a further provision in the statute in a case like this, the Rajah would have to pay the extra peishkush, whereas the farmers would receive and keep what was still being received from the ryots to provide for the payment of the village officers, that is, the 9 per cent. This would be most inequitable and hence Section 27(4) of the Act provides as follows: "If, in any case, the rent payable to al proprietor in respect of any land has been fixed under an agreement subsisting on the date of this Act coming into force, to the effect that any portion of the remuneration of the village officers shall be borne by the tenant or the proprietor, as the case may be, it shall be lawful for the proprietor or tenant to apply to the Collector for sanction to increase the said rent or to demand its reduction; and the Collector shall, upon receipt of such application and upon satisfactory proof of the justice of the claim, grant such sanction and increase or reduce the rent to the amount at which it would have been fixed had no such agreement been entered into." This applies to this case, unless it can be successfully contended that the fanners in question are not tenants within the meaning of that section, as was held by Sadasiva Aiyar, J., and was also held in an un-reported case, S.A. No. 510 of 1918, by Oldfield and Krishnan, JJ. I cannot attach importance to the latter case - we do not know what was argued or whether this question was necessary for the decision in that case. I do not agree with Sadasiva Aiyar, J. on this point or with that other judgment, if it so held. In my view, these farmers were tenants in the proper ordinary sense of the word for the reasons I have pointed out above. Further, I am quite clear that they are tenants within the meaning of this section; for on any other construction of this section, persons in the position of these farmers, who were many and known to be many at the time when the Act was passed, would have been left in possession of the produce of land to which morally they have no sort of right, and I do not think I am driven to such an absurd construction. I do not attach any importance to the fact that it has been held under another or other statutes, such as the Madras Rent Recovery Act, that "farmers" - I use the word in the sense of persons farming the rents - are not "tenants" within the meaning of certain sections of those acts. It follows that, in my Judgment, the Rajah is entitled to apply under that section to the proper authority to have the rent payable by the farmers adjusted in accordance with the terms of that section, namely, by increasing the rent to the amount at which it would have been fixed had no agreement been entered into providing that the farmers should pay the village officers. As far as I can see, the result will be that the Rajah will obtain all that he is asking for in this action. But in my view, this action was entirely misconceived and accordingly the appeal must be allowed with costs, and the decree of the Subordinate Judge will be modified by disallowing the value of the manibham and swatantram with interest. The parties will pay and receive proportionate costs both in the Subordinate Judge's court and before the Division Bench.

(3.) I agree with the observations of Coutts-Trotter, J as regards the decision in Nallayappa Pillai V/s. Ambalavana Pandara Sannadhi (1904) I.L.R. 27 Mad. 465. Coutts-Trotter, J.