1. In this case the plaintiffs sued to recover Rs. 7,284-12-0 as the price of 2,428 maunds and seven payalis of paddy on the allegation that the plaint property was let in the year 1853 on a permanent lease to two persons Jayaram and Ramchandra, that the right of cultivation was sold and purchased by one Ganpat Sakharam from whom the father of defendants Nos. 1 and 2 and grandfather of defendants Nos. 3 and 4 purchased it subject to the conditions of the lease in 1886, and that the father of defendants Nos. 1 and 2 purchased one-twelfth share in the plaint property. The suit was brought in respect of the eleven-twelfths share of the right belonging to the inamdars.
2. The defendants contended that they were the owners of the property, that the paddy mentioned in the kowl denoted the Dhara due to the inamdars and the plaintiffs can only claim the Dhara in cash, that no relation of landlord and tenant existed between the parties, and that the defendants gave notice to the plaintiffs that they did not wish to continue the laud for cultivation on the terms settled between the parties.
3. The learned Subordinate Judge held that the plaintiffs-inamdars were the owners of the land, that the liability reserved under the kowl was to pay rent, that the predecessors of the defendants acquired the right of a tenant, and that the defendants remained as tenants, but held that the tenancy was put an end to by the Rajinama, Exhibit 79, given by the tenants to the inamdars.
4. The property in suit is a Khar known as Mathekhar in the village of Anjur which was given in inam to the ancestors of the plaintiffs and defendants Nos. 5 to 18. The village is a sharakati village. By the sanad, Exhibit 48, the inamdars were given the management of the entire village with a condition that they should recover the full land revenue and pay Government a lump sum for their one-third share. The system of farming was subsequently changed and the inamdars continued to pay one-third of the actual recoveries to Government.
5. In 1853 the inamdars passed a kowl, Exhibit 47, to two persons, Jayaram Yadavji and Ramchandra Jagannath, under an agreement which is known as 'Mafi Istava Kowl', under which the laud is given for some years as exempt from payment of any revenue or rent. The condition is signified by the word 'Mafi.' After the years of exemption the land is given at an annually increasing assessment or rent, i.e. 'Istava.' The conditions of the kowl in the present case show that the lessee had to spend Rs. 2,001, on the embankments of the Khar, and though the land was capable of yielding 17 Mudas of 24 maunds each, the land was given as Man, i.e., free from payment of assessment for a period of twenty-seven years from 1854 to 1881-82, and on Istava, i.e., annually increasing tax, for a term of five years from 1882-83 to 1886-87 under a graduated rising scale of payment, and after the period of Istava, the tenants were to pay every year Mudas 171/2 and 4 maunds of paddy, each Muda being of 25 maunds. There was further an agreement in Clauses 6 and 7 that the tenant was not to pay any assessment to Government and that in case the Government should in any year recover the vasul forcibly, the Mafi years would be extended by half as much over. It appears from the kowl of 1858 that the land was let to other tenants on similar terms but without success, and the inamdars could not afford to repair the embankments and hence the kowl was given to the persons named above. The effect of such an agreement is to create a permanent tenancy after the period of Mafi and Istava on payment of the sum named in the document as the full assessment: see The Sub-Collector of Colaba v. Ganesh Moreshvar Mehendale (1873) 10 B.H.C.R. 216
6. In 1861, eight years after the date of the kowl, the survey settlement was introduced into the village, prior to which the village had not been surveyed. In 1863, on account of default in payment of Government revenue the right of the permanent tenant was sold and purchased by one Ganpat Sakharam on May 4, 1863, subject to the conditions of the kowl given by the inamdars to the original grantees. In September 1886, Ganpat Sakharam sold his right to the ancestor of defendants Nos. 1 to 4 by Exhibit 62. By the survey of 1861 the land was assessed at Rs. 266-9-0 including the local fund cess. It appears that the auction-purchaser paid one-third of the revenue to Government every year, and as the grantees were obliged to pay the Government assessment, the Mafi period which was to end in 1881 was extended to 1891. It appears that from 1892, Motilal, the father of defendants Nos. 1 and 2 and grandfather of defendants Nos. 3 and 4, commenced paying 17 1/2 Mudas and 4 maunds in kind to the inamdars yearly as provided in the kowl. In 1896-97, the revision survey settlement was introduced into the village and the assessment on the Mathekhar was raised to Rs. 283. In 1900, Motilal appears to have stopped paying the stipulated rent of 171/2 Mudas and 4 maunds to the inamdars but paid survey assessment in cash.
7. It is contended on behalf of the respondents that the amount which was stipulated in the kowl of 1853 was assessment and not rent. The learned Subordinate Judge held that the kowl created the relation of landlord and tenant between the plaintiffs-inamdars and the grantees, and the yearly payment was rent. The inamdars, though grantees of the revenue and not of the soil, would be entitled to place tenants in possession of the unoccupied lands not by virtue of any interest in the soil but as entitled to make the most they can out of it by way of revenue, according to the decisions in Ramchandra v. Venkatrao I.L.R. (1882) Bom. 598 and Ganpatrav Trimbak Patwardhan v. Ganesh Baji Bhat I.L.R. (1885) Bom. 112
8. In the year 1853 the village was not surveyed, and the amount fixed by the kowl was based on the yielding capacity of land. It appears from the recitals in the kowl that the dhep, which was the amount payable in respect of the land according to its yielding capacity, was 17 Mudas of paddy of 24 maunds per Muda. But after the period of the Istava the amount to be paid by the grantees was not the dhep of 17 Mudas of 24 maunds each, but was 17 1/2 Mudas and 4 maunds, each Muda being of 25 maunds. It, therefore, appears that the agreement on the part of the grantees was to pay more than the customary rent in kind leviable on the land. It, therefore, would not represent merely the assessment but rent. Eight years afterwards the survey assessment was fixed at Rs. 266-9-0 including the local fund, and the property was sold for non-payment of the assessment and was purchased by Ganpat Sakharam subject to the conditions of the kowl. It would, therefore, appear that Ganpat Sakharam purchased the right determined by the kowl with the liability to pay the permanent rent of 17 1/2 Mudas of 25 maunds each.
9. It was never effectively contended up to this time that the defendants were liable to pay only the survey assessment of Rs. 266-9-0 which was enhanced to Rs. 288 in the revision survey of 1896-97. Motilal himself paid the amount of 17 1/2 Mudas of paddy as provided in the lease to the inamdars from 1892, after the extension of the Mafi period was over, till 1900. In 1909 Motilal purchased one-twelfth of the share of one of the inamdars by a sale-deed, Exhibit 56, in which reference was made to the receipt by the inamdars of 17 1/2 Mudaa of paddy, each Muda being of 25 maunds, and the one-twelfth share of the dues amounted to 37 1/2 maunds of paddy. That right was purchased by the predecessor-in-title of defendants Nos. 1 to 4, who had also purchased the rights of the grantees under the kowl. They are, therefore, liable to pay eleven-twelfths of the stipulated dues in kind liable to be paid under the kowl.
10. It appears further that the status of Motilal, the predecessor-in-title of the defendants, as tenant was judicially established in previous litigations. In 1910, one of the inamdars, Niloji Moroba, filed suit No. 171 of 1910 in the Bhiwandi Court on behalf of all the inamdars against Motilal for recovery of rents under the kowl, and he succeeded in getting a decree for rent for the years 1907 to 1909 at the stipulated rate of 17 1/2 Mudas. The decree was confirmed in appeal on April 25, 1914. On May 4, 1914, the defendants gave notice, but the inamdars having replied that the lease could not be given up, the defendants gave another notice, Exhibit 79, on November 25, 1914, purporting to be given under Section 83 of the Bombay Land Revenue Code. It appears that Section 83 referred to in the notice was a mistake for Section 74 of the Bombay Land Revenue Code, The notice is given on behalf of the defendants, the heirs of Motilal. The inamdars replied that the lease could not be abandoned in that way.
11. In 1915, the inamdars brought a suit No. 259 of 1915, for arrears from 1909 to 1914. The inamdars succeeded in the suit. On appeal the suit was dismissed on the ground that Section 217 of the Bombay Land Revenue Code applied. In second appeal, the new contention was disallowed and the inamdars' claim was allowed on the principle of res judicata. The present suit was filed in 1922 for the recovery of the arrears of rent for the previous six years.
12. From the above facts it is clear that the stipulated amount in the kowl was in excess of the dhep of the land. This circumstance indicates that the amount stipulated was not merely the customary or mamul assessment but something more. This in itself is an indication that the payment stipulated under the kowl was in the nature of rent and not merely assessment. The contention that the amount was merely assessment had always been negatived in the previous litigations, and the relation of landlord and tenant has been held established in the previous litigations. The decisions in the previous cases do not operate as res judicata as the present suit is brought in the First Class Subordinate Judge's Court while the previous suits were instituted in the Second Class Subordinate Judge's Court. Having regard to the fact that Motilal purchased one-twelfth share of the inamdars' right, which was to recover 371 maunds out of the total amount of 17 1/2 Mudas of paddy to be recovered under the kowl, and the fact that the auction-sale in 1863 in favour of the vendors of Motilal was subject to the conditions of the kowl, and the sale-deed, Exhibit 62, in favour of Motilal was subject to the condition on which the vendors purchased the land, it is clear that under the kowl, which created the relation of landlord and tenant between the inamdars and the original grantees, the defendants acquired the right of a permanent tenant under the conditions imposed under the kowl of 1853. I, therefore, agree with the view of the lower Court that the defendants acquired the right of a permanent tenant under the kowl, and that the payment stipulated under the kowl was not assessment but rent in kind.
13. It is, however, contended on behalf of the respondents that after the introduction of the survey settlement in 1861 and the revision survey settlement in 1896-97, the defendants acquired the rights of an occupant under Section 217 of the Bombay Land Revenue Code, and reliance is placed on the decision in the case of Nanabhai v. Collector of Kaira : (1910)12BOMLR707 , where it was held that Section 217 of the Bombay Land Revenue Code was not restricted in its application to registered occupants only; it invested the holders of land in alienated villages with the same rights and imposed upon them the same responsibilities in respect of lands in their occupation that the occupants in unalienated villages had, and that the term 'holders' was wide enough to include even a tenant who had entered into possession under an occupant. That case related to a permanent tenant who was liable to pay the customary rent and the suit was brought for enhancement of the rent, and it was held that the right to cultivate the land vested in the tenant, and the right carried with it a right to hold during the continuance of the settlement at no higher rent than the survey assessment, as soon as by the will of the inamdar the settlement was introduced into the village. That decision related to a permanent tenant who paid the customary rent and not a tenant who had entered into contractual relations with the inamdar. But it appears that the authority of that decision is weakened by the change in Section 217 of the Bombay Land Revenue Code, and the decisions in the cases of Kondi v. Vithalrao (1925) 28 Bom. L.R. 424 and Suryajirao v. Sidhanath : AIR1925Bom435 .
14. In Section 217, the words 'holders of land' have been substituted for occupants. The result of the amendment is that the holders in general have the same rights in alienated villages after the settlement as they have in unalienated villages. It was held in Kondi v. Vithalrao that a person holding lands in an alienated village as a permanent tenant under Section 83 of the Bombay Land Revenue Code becomes, on the introduction of the survey settlement into the village, entitled to the rights and affected with the responsibilities of a holder in an unalienated village by virtue of Section 217 of the Bombay Land Revenue Code, and that he remains, what he was, a tenant, and does not become an occupant, and is liable, therefore, to pay enhanced rent to his landlord.
15. Under Section 3, Clause (16), of the Bombay Land Revenue Code, 'occupant' means a holder in actual possession of unalienated land, other than a tenant, and 'holder of land' under Section 3, Clause (11), means a person who is lawfully in possession of land, whether such possession is actual or not, and therefore, where a person is a permanent tenant, as the defendants are in the present case, he continues to be a holder, that is, a tenant and not an occupant, and, therefore, not entitled to the rights embodied in Section 68 of the Bombay Land Revenue Code including the right to hold the land on payment of land revenue only. The introduction of the survey settlement does not confer on a tenant a right which belongs to an occupant in an unalienated village.
16. In Suryajirao v. Sidhanath, where there was an agreement between the inamdar and the tenant to receive a fixed rent of Rs. 87 and odd, it was held that the inamdar could not, after the introduction of the survey settlement, enhance his rent. It was held that in unalienated villages it is competent to Government to enter into contractual relalationship with tenants or occupants who might acquire fixity of tenure and fixity of rent, and that in an alienated village, where the alienee has entered into a contract with his tenant granting not only fixity of tenure but also fixity of rent, the provisions of Section 217 of the Bombay Land Revenue Code do not enable such alienee to avoid his contractual liability and enforce against his permanent tenants the payment of assessment levied on occupancy of land.
17. It would, therefore, follow from the changed phraseology in Section 217 that the defendants who had acquired the right of a permanent tenant would continue to be permanent tenants and not occupants, and therefore would not be entitled to the benefit of Section 68 of continuing in possession of the land on payment of only the Government assessment, and that a tenant continues as a tenant liable to pay rent according to the contractual liability between the parties and not as an occupant as was held in the previous case of Nanabhai v. Collector of Kaira : (1910)12BOMLR707 .
18. According to the decision in Rajya v. Balkrishna Gangadhar I.L.R. (1905) Bom. 415 7 Bom. L.R. 439 an inamdar, even if only a grantee of revenue, in case of holding later in its origin than the inam, can place tenants in possession, and lands comprised in such holding would be the Sheri lands of the inamdar, and in respect of such holding direct contractual relations would be established between the inamdar and the holder.
19. Further, the contractual relations between the inamdar and the tenant are not in any way interfered with by the introduction of the survey settlement, and the inamdar is prevented from avoiding his contractual liability and demanding a higher rent according to the survey rates. As the provisions of Section 217 do not enable the alienee inamdar to avoid his contractual liability and enforce against his permanent tenants the payment of assessment levied on the land, which is higher than the fixed rent contracted between the parties, it would follow that the provisions of Section 217 would not enable the permanent tenant to avoid his contractual liability and enforce against the inamdars the right of having only the assessment which is lower than the stipulated rent levied against him.
20. No point has been raised before us as to whether the survey settlement was introduced with or without the consent of the inamdars in the Sharakati village of Anjur so as to attract or prevent the operation of Sections 216 and 217 of the Bombay Land Revenue Code according to the ruling in Gangadhar Hari Karkare v. Morbhat Purohit I.L.R. (1893) Bom. 525 and the decision of the full bench in Sitaram v. Laxman : AIR1921Bom87(1) I have not, therefore, gone into the question as the point was not raised before us.
21. If the defendants are tenants, Section 217 of the Bombay Land Revenue Code could be of no assistance to them, for it does not confer on them the rights of an occupant under Section 68 of the Bombay Land Revenue Code.
22. It is, however, contended that the lands were entered in the khata of the original grantees under the kowl, and also the auction-purchaser and the predecessor-in-title of the defendants, and, therefore, they are occupants of the lands. It appears from the previous dealings between the parties and the circumstances to which I have referred that the defendants continued as tenants and not as occupants. The utmost benefit which the defendants as tenants can derive as against their landlords from being entered as occupants is a right to claim a deduction of the amount of assessment paid by them directly to Government according to the decision in the case of D.R. Bam v. The Survey Commissioner and The Collector of Ratnagiri I.L.R. (1878) Bom. 134
23. The next question is whether the parmanent tenancy has been put an end to by the notice of relinquishment, Exhibit 79. It purports to have been given under Section 83 of the Bombay Land Revenue Code, but it appears that Section 83 is a mistake for Section 74 of the Bombay Land Revenue Code. The defendants are permanent tenants and are inferior holders, the inamdars being superior holders under Section 3, Clause (13), of the Bombay Land Revenue Code. Under Section 74 of the Bombay Land Revenue Code the occupant may relinquish his land subject to any rights, tenures, incumbrances or equities, lawfully subsisting in favour of any person (other than Government or the occupant) by giving notice in writing to the Mamlatdar or Mahalkari before March 31 in any year.
24. It was held in the case of Shidhraj v. Dari (1920) 23 Bom. L.R. 272 that where the survey settlement has been introduced into an alienated village and where the powers contemplated in Section 88, Clause (e), of the Bombay Land Revenue Code, have been given to the inamdar, the inamdar is entitled to receive notices of relinquishment under Section 74 of the Code from the persons in occupation of the inam land, and that such notices are exempt from registration under Section 90 of the Indian Registration Act, 1908. The question of registration is not of any importance. The only question is, whether the notice of relinquishment given by the defendants is valid. If it is valid, then no registration is necessary. If it is not valid, registration would not validate the notice under the Bombay Land Revenue Code. The only question is, whether the notice of relinquishment, Exhibit 79, is a valid notice. Under Section 74 of the Bombay Land Revenue Code such a valid notice of relinquishment can be given by an occupant in an unalienated village to a Mamlatdar or a Mahalkari. But the defendants being tenants remain as tenants and do not acquire the right of an occupant in an unalienated village under Section 217 of the Bombay Land Revenue Code. Under Section 76 the provisions of Section 74 have been made applicable to holders of alienated land. But it was held by Fawcett J. in that case that the expression 'holders of alienated land' in Section 76 would ordinarily mean superior holders as inamdars or may include holders of small inams, but it would not include tenants under the inamdars, and in the opinion of Fawcett J., Section 88 clearly shows the intention of the legislature that the holder of an alienated village or a group of alienated lands shall not receive relinquishments from his inferior holders as if he were a Mamlatdar or Mahalkari receiving relinquishments from occupants under Section 74 unless his village or lands have been surveyed and he has been specially authorised to receive such relinquishments.
25. The proviso to Section 88 of the Bombay Land Revenue Code indicates that the power under Section 88, Clause (e), shall bo conferred only on the inamdars, i.e., holders of lands to which a survey settlement has been extended under the provisions of Section 216. There must, therefore, be introduction of survey settlement and conferment of power under Section 88(e) on the inamdar to receive notices of relinquishment. I may in this connection also refer to Anderson's Land Revenue Code Manual, page 43, note (iv) to Rule 74, chapter XII Apart from the question whether the defendants as tenants in an alienated village could give up their tenancy by relinquishment under Section 74 of the Bombay Land Revenue Code, it appears that the inamdar cannot accept such relinquishment from inferior holders as if he were a Mamlatdar or Mahalkari unless the village has been surveyed and he has been specially authorised to receive such relinquishments.
26. It is contended on behalf of the appellant that he has not been authorised to receive such relinquishments under Section 88, Clause (e), of the Bombay Land Revenue Code, and has put in an affidavit to the effect that none of the co-sharers, who are inamdars, has been authorised under Section 88(e) to receive relinquishments. An opportunity was given to the other side to contest this point, but no affidavit has been filed contradicting the affidavit on behalf of the appellant. It would, therefore, appear, according to the ruling in Shidhraj v. Dari, that the relinquishment, Exhibit 79, is not effectual to extinguish the tenancy.
27. There is no accurate definition of holders of land in alienated villages. According to Mecleod C.J. in the case of Shidhraj v. Dari (1920) 23 Bom. L.R. 272 the meaning varies according to the context, that in Section 217 the word 'holders' refers to inferior holders, in Section 88 it refers to superior holders, and in Section 76 it refers to superior holders. According to Fawcett J. it refers in Section 76 also to a holder of small inams who is either a superior or an inferior holder. It is desirable that the legislature should express its intention clearly as to the effect of the introduction of survey settlement in ordinary and Sharakati inam villages on the rights of different kinds of holders and tenants in alienated villages paying either stipulated rent or old assessment.
28. The Transfer of Property Act is not applicable to an agricultural tenancy under Section 117 of the Transfer of Property Act, and therefore, Section 111, Clause (e), of the Transfer of Property Act, would not apply, under which a lease of immoveable property can be determined by express surrender, that is to say, in case the lessee yields up his interest under the lease to the lessor by mutual agreement between them. There is besides no evidence in this case of mutual agreement between the parties,
29. It is contended on behalf of the respondents that the liability of an assignee does not arise from privity of contract but only on account of privity of estate, and reliance has been placed on Halsbury's Laws of England, Vol. XVIII, paras. 1131 to 1133, and it is contended that since the land is relinquished, the liability to pay the rent is put an end to. It is possible for the defendants to extinguish their liability by assigning even though the new assignee be a person of no substance, but unless the defendants get rid of their title in themselves as permanent tenants by assigning it to some other persons, their liability as an assignee of the right of the permanent tenancy to pay the rent reserved under the kowl is not extinguished.
30. Lastly, it is contended on behalf of the respondents, relying on the decisions in the cases of Bhutia Dhondu v. Ambo I.L.R. (1888) Bom. 294 Muneeruddeen v. Mahomed Ali (1866) 6 W.R. 67 and Ram Chung v. Gora Chanel Chung (1878) 24 W.R. 344 that the relinquishment by notice was sufficient and extinguished the liability of the defendants. But in those cases the relinquishment was accepted by the landlord and the lands were let to other tenants. The conduct of the landlord in accepting the relinquishment and letting the lands to another would amount to an implied surrender or acceptance of the relinquishment.
31. I think, therefore, that in the present case the defendants have acquired a right of permanent tenancy under the kowl, Exhibit 47, and that the relinquishment, Exhibit 79, is insufficient to put an end to the liability to pay the rent imposed by Exhibit 47, and therefore, the plaintiffs are entitled to a decree for the amount claimed.
32. I would, therefore, reverse the decree of the lower Court and pass a decree in favour of the plaintiffs for the amount of Rs, 7,284-12-0 with costs throughout.
33. The question raised in this appeal is, whether the plaintiffs, who are the superior holders of the defendants and the alienees of the village where the land for the rent of which the suit has been brought is situated, are entitled to recover it in the given circumstances. The village is a sharakati inam one, that is, partly alienated-here to the extent of two-thirds, and partly owned by Government, and the revenue management is entrusted to the alienees. It has been surveyed and its land is assessed, including that for which rent is claimed, but the claim is not for assessment, but for the rent fixed as payable under a permanent lease granted to two persons on August 20, 1853, by the alienees of the village. The original lessees lost their rights in 1863, when owing to their failure to pay the assessment their rights under the lease were sold by the revenue authorities and purchased by a third person, who in turn sold to the predecessor in interest, the father of defendants Nos. 1 and 2 and grandfather of defendants Nos. 3 and 4-who had also bought a one-twelfth share of the inamdars' rights over the same land. The rent sued for is for six years, with interest, and the liability to pay it is denied on the ground mainly that notice of relinquishment has been duly given under the Land Revenue Code in 1915, and alternatively that it is not rent but assessment which is claimable. The learned Subordinate Judge has found in the defendants' favour on the point of relinquishment and has dismissed the suit. The lease is of a peculiar character. The land is called a 'khar' and grows salt paddy, and its cultivation requires the erection and maintenance of embankments, to save the crop from being Hooded by salt water. In 1858 the embankments had been neglected and required re-erection. The terms of the lease were on the 'mafi istava' basis, that is, the tenant undertook to make good the embankments and pay a fixed rent in kind, but for a term of years was free of all rent, and thereafter for another term paid a gradually increasing rent till the highest rate was reached, from which point there was no variation, except for some minor agreements which are not disputed, as to what should happen if Government assessed the land, and which Were carried out. Rent has been paid as agreed on for many years, and has also been collected by suits, in the Bhiwandi Court twice up to 1915, when notice of relinquishment was given and possession was apparently abandoned. The real reason for the dispute apparently is that owing, either to neglect or to natural causes, the land has become unprofitable to cultivate on the terms fixed.
34. In an ordinary non-alienated village an estate may be relinquished to Government by giving notice to the Mamlatdar at a prescribed time. In an alienated village the rule varies. When a survey settlement has been introduced, the occupancy tenants come under it and pay the assessment fixed, though tenants continue to pay rent in certain cases. If the 'alienee in such a village is empowered to accept relinquishments, an occupancy tenant may relinquish to him; otherwise though there is no specific rule, presumably to the Mamlatdar. This is because the Land Revenue Code comes into operation. A survey assessment has been introduced in the village in question, and the land has been assessed, but the alienees are not apparently empowered to accept relinquishments. The defendants should, therefore, have sent their notice of it to the Mamlatdar and not to the alienees; that is, on the footing of their being occupancy tenants. But this character is one which they do not seem to have. As the Land Revenue Code now stands, they are 'holders of land', which expression would include tenants, and looking to the origin of this tenancy, which is known and evidenced by a registered document, they are clearly permanent tenants on an agreed rent. The conditions on which a tenancy may be given up in the Transfer of Property Act do not apply to agricultural leases, and a mere notice to the landlord is not enough here, as there is no provision in the agreement for such a relinquishment. I do not know if liability might have been escaped by pleading the impossibility of further cultivating the 'khar.' It was not pleaded and there was no evidence to this effect, and if the difficulty is due to neglect of embankments, it would not avail the defendants. I think that on the facts, though it may be a hard case, the lower Court's decision is not correct and that the decree challenged must be reversed and the appeal allowed on the terms stated in my learned brother's judgment.