R FOULKES Vs. KANDASAMI PILLAI ALIAS KARUPPIAH PILLAI

JUDGEMENT

(1.) These Letters Patent Appeals are from decisions of our learned colleague Anantakrishna Aiyar, J., in second appeals brought from a batch of suits brought in 1922 by the present appellants (plaintiffs) under Section 77 of the Estates Land Act for rent for faslis 1328, 1329 and 1330 against various ryots of a village called Puliyur in the Sivaganga zemindari of which the appellants (plaintiffs) are now by transfers, to which it is not necessary to refer, entitled to the melvaram and in which the respondents (defendants) are ryots. The suits were for 9/16ths of the rents due on each holding, to which share of rents the plaintiffs had become entitled by the said transfers; as to the other 7/16ths at the time of these suits there was a question between the plaintiffs and one Mayandi who had held the right to that share of rent under a farm lease executed by the predecessors-in-title of the plaintiffs, and that question had not been fully settled although we are informed that it was subsequently settled. The village had been a varapathu village, i.e., one in which the customary rent was a share of the produce. The former owners of the melvaram, who had themselves got it by a grant from the zemindar in or about 1771, had become impoverished and had split up their interest into three shares and had farmed out the rent periodically. The first set of leases, Exhibits C and A, were to expire in 1905 and 1897; but even before their expiry the melvaramdars farmed out the rent for a further period by leases, Exhibits A-5 and C-3, two of which (as to 2/3) were to expire in fasli 1327 (1917) and the other (as to 1/3) in fasli 1322 (1912). These leasehold interests in the rent were all acquired by one Veeramani and from him by two of the ryots of the village, Govindaswami and Mayandi. In 1896, while the lease of rents was still outstanding, Govindaswami became the purchaser in Court auction of 1/8 of the melvaramdars remaining interest. Govindaswami and Mayandi, who had in March, 1903, acquired the leasehold interest in the rent s, entered into an agreement (Ex. H) in April, 1903, as to the division between themselves of the rents. It is admitted and clear from the document that Mayandi was acting on behalf of himself and alb the other ryots of the village in these transactions. The arrangement was that including the 1/8 share in the melvaramdars interest of which Govindaswami had become owner, the share in the rents to which he was entitled was 9/16ths and Mayandi and those whom he represented were to receive the other 7/16ths according to the schedule attached to the document. By this agreement it was stipulated that the rents were to be collected and paid at certain money rates mentioned in the document and that payment at those rates was to be made whether the lands were or were not cultivated. Govindaswami was to collect his own 9/16ths share of the rents separately, and tender separate pattas in respect of that share. It was not necessary to tender pattas in respect of the other 7/16ths as Mayandi and his fellow-ryots were themselves to pay and receive the rent. The present appellants (plaintiffs) in 1905 purchased Govindaswami's ownership of 1/8th of the melvaramdars right and also his interest in 9/16ths of the rents (Exhibits G and F) and in 1908 also bought from the melvaramdars themselves their ownership in the remaining 7/8ths.

(2.) Although there were other and minor matters in dispute, the main question in the suits was that arising from the plaintiffs claim to varam rates. The plaintiffs (appellants ) case was that whatever arrangements as to converting the varam into money rents may have been entered into between the rent lessees, those arrangements terminated with the period of the rent leases in fasli 1327 and that thereafter the proprietor was entitled to rent according to the custom in the village. The ryots opposed this claim. Eighteen issues were framed. Only a 5ew of them are now material, and that relating to the plaintiffs claim for varam rents was the third issue. The Special Deputy Collector found that the defendants contention that the village was never a varapathu one was at once false and frivolous and decided the issue in plaintiffs favour. On his finding on the other issues he gave a decree to the plaintiffs subject to small modifications. The ryots took the matter in appeal to the District Judge of Ramnad. In the appeal the ryots questioned the right of the plaintiffs (appellants) to claim varam rates on several grounds, namely, (1) that the plaintiffs according to the agreement of 1903 (Ex. H) could only claim varam rates after the whole of the maramath expenses due to the ryots had been paid off. (This was based on the fact as stated above that the maramath expenses due on Mayandi's 7/16ths share were still in litigation) ; (2) that the plaintiffs were not entitled to varam rates at least on about 35 cheis of land in respect of which the ryots claimed permanent cowle rights under certain instruments, Exhibits I to VIII, which the original proprietors had executed ; and (3) that the plaintiffs were not so entitled without having previously brought suits for enforcing pattas at the new rates claimed and for this the decision in Sreenivasa Aiyangar V/s. Abdul Rahim Sahib (1917) 6 L.W. 108 was relied upon. The District Judge rejected these contentions and confirmed the decree of the Deputy Collector. The plaintiffs memorandum of objections was also disallowed, except as to lands included in certain othis for which the Deputy Collector had allowed exemption and the Judge thought that that exemption was not due.

(3.) The ryots took up the matter in second appeal. From the judgment of A.nantakrishna Aiyar, J., it is seen that only four points were discussed at the hearing. Of these the fourth point concerned the othis which the Deputy Collector had allowed in favour of the ryots but which were disallowed by the District Judge. It was admitted in second appeal that the disallowance by the District Judge was wrong and that on this point the judgment of the Deputy Collector should be restored. That point is not now before us. The remaining three points were : first, that by virtue of the agreement of 1903 (Exhibit H) the landholder was not entitled to demand any rent over and above the rates mentioned therein until after the whole of the maramath expenses had been paid off. This was the point which had been disallowed by both the Deputy Collector and the District Judge. The learned Judge also disallowed it and confirmed the opinion of both the Lower Courts on the ground that the agreement, Exhibit H, was in fact and in substance between the lessees for their own convenience and intended to last only during the period of the lease, that it had effected a severance of the leasehold interest as between the lessees, that, though the landholder was not bound to recognise the severance, he was entitled to recognise it and that the plaintiffs having in fact become entitled to 9/16ths of the leasehold interest and also to the proprietorship of the landholder's interest and paid off the maramath expenses to Govindaswami, who was entitled thereto, were entitled to demand rent from the ryots in respect of that share. The second point was an entirely new point which had not been taken in either of the Courts below and turned upon the effect of Section 52(3) of the Estates Land Act. The contention was that the plaintiffs having till fasli 1327 tendered pattas on the basis of the rates of rent in Exhibit H, those rates continued to be in force until fresh pattas and muchilikas were accepted, exchanged or decreed. It was admitted that the plaintiffs had tendered pattas till fasli 1327 as urged by the ryots. The learned Judge, while recognising that this point had not been taken in either of the two Courts below, allowed it to be taken as it was a point of law depending on admitted facts. On it he decided in favour of the ryots holding that the effect of Section 52(3) is. that where pattas and muchilikas are exchanged for any revenue-year, the landholder cannot bring a suit for rent other than the rent mentioned in the pattas for. any subsequent year unless and until he has exchanged or obtained decrees for fresh pattas at the new rate. The consequence of this opinion was that the plaintiffs (landholders) were entitled to rents only at the rate mentioned in Exhibit H. The learned Judge accordingly modified the decrees to that extent. The third point was that the plaintiffs are not entitled to any rent at all in the lands covered by Exhibits I to VIII (35 cheis) as they had been granted away on permanent cowle by the original proprietors. This was the same point which had been unsuccessfully urged in both the Lower Courts. The learned Judge rejected this contention of the ryots and confirmed the opinion on that subject of the Lower Courts. The result was that the decrees were modified to the extent required by the learned Judge's opinion on points 4 and 2.