1. None of the grounds sought to be urged before us were raised in the Lower Appellant Court. Therefore the appeal is dismissed with costs.
MEMO OF OBJECTIONS.
2. Two points are raised by Mr. T. R. Ramachandra Iyer in his memorandum of objections in this case. The first is that the lower courts were wrong in allowing commutation at the rate of annas 4 only for the punja lands in question on the ground that plaintiff in his pLalnt admitted he was liable to pay Rs. 1-4-0 per acre. We are not inclined to allow this objection as we do not think the plaintiff did so admit his liability, He says in para 8 of the pLalnt that he has been paying Rs. 1-4-0 for A schedule lands and 'cannot afford to pay more than the said rates with regard to B schedule lands also.' This does hot in our opinion amount to an admission that he is liable to pay Rs, 1-4-0 for B. schedule lands. This objection is therefore dismissed.
3. The second objection is that the Lower Courts were wrong in deducting from the total outturns of the various fields 4 percent for kanganam, in order to arrive at the amount of yield on which the money rent was to be calculated.
4. Kanganam is a portion of the produce set aside for the landlord for his supervision at the time of division of the harvest. The plaintiff says he has been paying waram in respect of the suit lands for 30 and 40 years and he was presumably being paying the kanganam for a like period. Rent is defined by Section 3(11) of the Madras Estates Land Act as ' 'whatever is lawfully payable in money or in kind or in both to a landholder for the use or occupation of land. ' Rent also includes for the purpose of certain specified sections 'any local tax, cess fee, or sum payable by a ryot as such in addition to the rent due in respect of land according to law or usage having the force of law, and commutation of rent payable in kind to a money rent is controlled by Section 40. Section 51 gives the contents of the patta and muchilika and includes tht aforesaid tax, cess, fee etc., payable with the rent.
5. The learned vakil for the appellant argues that as the former rent in kind was only payable out of the balance of the outturn after the kanganam has been divided and given over to the landlord, commutation must be confined to trie amount or value of that balance. In other words the contention is that the average monetary value of the crop after deducting the kanganam is the money rent payable, on the ground that it is only the balance that has been paid as rent for use and occupation of the land. This I think involves a fallacy. The wording of Section 3(11) is 'lawfully payable' not what has been paid. Moreover this argument overlooks the fact that while the sharing system prevailed the portion of the produce constituting the Kanganam belonged exclusively to the Respondents and further if this is left out of account in assessing the money rent payable, there will be a portion of the produce of the land which is not assessed to rent, after the kanganam has ceased to be payable. This does not se#em reasonable or right. The patta would under Section 51 contain the kanganam unless it was a mere volountary payment. We have examined the record and the judgment in second appeals Nos. 2057 and 2066 of 1912 where Seshagiri Iyer and Kumaraswami Sastri JJ held that Kanganam in respect of Samudayam lands was not recoverable in a rent suit, as it was in reference to land of that cha%racter merely a voluntary payment. That was a case of communal lands, as stated paying a money rent, and kanganam being incident to a waram tenure was held not payable there being as pointed out by the collector, no necessity for any supervision at harvest in the case of those lands.
6. In the case before us, the village is a shrotriem village and the ryots have the occupancy holdings therein, and have been paying varam for a very long time past.
7. We do not think therefore that the unreported case has any bearing on the present and we would allow the contention of the respondents and vary the decrees below by directing the calculations to be revised by restoring the 4 p.c. deductions made on account of kanganam. We make no order for costs on the memorandum of objections.