SIVANUPANDIA THEVAR Vs. MEENAKSHISUNDARA VINAYAGA VISAKAPERUMAL SETHURAYAR AVERGAL MINOR ZAMINDAR OF URKAD REPRESENTED BYMRRYKRISHNA ROW AVL, MANAGER IN CHARGE OF THE ESTATE UNDER THE COURT OF WARDS

JUDGEMENT

(1.) These eleven second appeals have arisen out of suits brought by the tenants of the Urkad estate to have their rents, which had been mostly paid in grain and partially in cash, consolidated and commuted to a definite money rent under Section 40, Clause 1 of the Madras Estates Land Act. One or more or all of the following six questions arise for decision in these second appeals.

(2.) Firstly, whether the lower courts were right in construing Section 40, Clause 3(a) of the Estates Land Act to mean that the Collector in making the determination as to the proper money rent should have regard to the average value of the rent actually accrued due to the landholder during the 10 years preceding the year of the determination of such commuted rent or whether the true meaning of that section is that the Collector should have regard to the average value of the rent during the 10 years preceding the institution of the suit. I am clear that according to the true construction of the language of the section, it means the ten years preceding the year when the Collector determined the amount of the commuted rent by his decision in the suit. I think that it is unreasonable to hold that an average rent of ten preceding years was intended (ordinarily) to come into force not immediately after the 10 years but with a break or interval occupied by the period during which the suit was pending. Mr. Venkatarama Sastriar mentioned some inconveniences which would be felt by the courts (Caiginal and Appellate) in the trial of such suits if his interpretation of the section, (namely the ten years preceding the institution of the suit) was not accepted. I do not think that those inconveniences are of such a serious nature as to override what I consider to be the plain meaning of the clause. It has further to be remembered that this average of 10 years is only to form one of the considerations for the fixing of the commuted rent and that the court is at liberty to take other facts also into consideration where the circumstances are peculiar, (such as where some of the ten years are extraordinary years). I think that, in the decision of these cases relating to commutation of rent in second appeal, we ought not to interfere with the discretion of the Lower Courts except on very clear grounds as the whole question of commutation permits of and is intended by the legislature to be governed by the experience of Revenue Officers and by equitable considerations (some of a rough and ready character) permitting of the use of large discretion and practical sense.

(3.) Then the 2nd contention of the appellants is, that the year mentioned in the clause means the calendar year beginning with the 1st January and not the fasli year as taken by the Lower Courts. I am unable to find that this contention was raised in the Lower Courts, and I do not think that it is raised even in the grounds of the second appeal to this Court. However, I may shortly state that neither the calendar year nor the fasli year as such, is intended by this clause but the year for which the landlord according to custom or contract is entitled to claim rent, in other words, the year of the lease. The Section 3, Clause 59 of the General Clauses Act (X of 1897) applies only as stated in the beginning of the section itself " where there is nothing repugnant in the subject or context." I think it is very clear from the subject and context of Section 40 of th Madras Estates Land Act that the year mentioned therein means the yearly period for which rent is claimable as between the landlord and tenant and not the calendar year which would break up the year of the lease into two. In the present suits, the year of the lease happens to be the fasli year.