Krishnan Pandalai, J.
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 1/8th 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 1/8th 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. 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.
4. In this appeal under the Letters Patent the plaintiffs (appellants) urge that the learned Judge's view as to the second point, i.e., the effect of Section 52(3) is wrong, and the respondents have filed a memorandum of objections urging again the points 1 and 3 mentioned above.
5. For the sake of convenience we will at once dispose of the points 1 and 3 urged by the respondents. We agree with the Lower Coiu'ts in their rejection of these contentions. The first point is that the leases should be taken to continue until the amounts spent by the lessees in respect of the maramath were paid and as the maramath expenses in respect of Mayandi's 7/16ths share had not been paid on the date of suit the plaintiffs are entitled only to the rent provided by Exhibit H as pointed out by the learned Judge. This ignores the fact that the lessees themselves had severed their interests under the leases, including the right to the maramath expenses, and the plaintiffs had become entitled to 9/16ths, and Mayandi and the other ryots to 7/16ths. Govindaswami's shares (9/16ths) of the maramath expenses having been paid to him and all his other interests in the leases having been transferred to the plaintiffs and the leases themselves having run out by expiration of time, it is not clear why the plaintiffs are not entitled to demand from the ryots 9/16ths of the rents if those rents are otherwise due or why the dispute between Mayandi and those whom he represented and the plaintiffs in respect of the maramath expenses 7/16ths share should have any effect on the present claim. We see no substance in this objection. The third point relates to the rights claimed by the ryots under Exhibits I to VIII which they say amount to permanent cowles, .i.e., permanent alienations of the melvaram interest by the melvaramdars reserving only a small quit-rent. The Deputy Collector and the District Judge rejected this argument on the ground that these so-called cowles were never intended to be operative and were never operative. The learned Judge came to the same conclusion but on a different ground. He says that there are no words appropriate to the grant of an inam in those documents and that construing them as instruments permanently settling the rents, at the rates mentioned therein they could not bind the successors of the persons who granted them by reason of Section 26(2) of the Estates Land Act. We have had these documents read to us in the original, and we are clearly of opinion that they are not permanent cowles, i.e., transfers of the melvaram interest in favour of the transferees. These documents were all executed by one or other of the three sharers of the melvaram interest in favour of ryots, permanently fixing a money rent a.t certain rates on their holdings during the pendency of the leases' of rent which were to la.st till faslis 1327 and 1322. At the time these documents were executed therefore, the executants were only entitled to the rents after faslis 1322 and 1327; in the meanwhile they were entitled only to the poruppu or jodi reserved by the lease. What, however, these so-called covvles purport to do is to fix the rents at a money rate permanently. It must be remembered that at that time the rents were payable in kind to the lessees and the melvaramdars were not entitled to the rents either in kind or in money. The rates fixed in these instruments are as stated by the District Judge in paragraph 18 much below the rates fixed in Exhibit H in 1903 by the lessees with the concurrence or on behalf of the ryots. To overcome this difficulty the ryots now say that the rates mentioned in these documents were to come into force only after fasli 1327. We are satisfied that these documents represent attempts by the then ryots to induce the impecunious melvaramdars to permanently fix the rent in money at a lower rate than was the custom of the estate. The melvaramdars had nothing to lose by this transaction so long as the leases then outstanding were in force and as the leases would expire only in fasli 1327 (1917) the melvaramdars were apparently induced to sign away rights which they themselves could never hope to enjoy and upon which they therefore placed no value. This is a kind of transaction which Section 26(3) is aimed against. It says:
Except as provided by Sub-section (1)(that is, where the land in an estate is given on favourable terms for clearing or bringing waste land into cultivation, etc.) no rate of rent at which the land may have been granted by a landholder shall be binding upon the person entitled to the rent after the lifetime of the landholder if such rate is lower than the lawful rate payable by the ryot before the date of the grant upon the land.
6. It is indisputable that in this village rent was payable in kind. It is equally indisputable that the rates mentioned in these documents work out at less than the value pi the share of the produce representing the rent. Therefore those grants cannot bind the successors of the grantors who have all admittedly died. The plaintiffs are claiming not through them but from their successors. We agree with the learned Judge on this point.
7. The real and substantial point in the appeal is that raised by the appellants on the effect of Section 52(3) on these suits. Our first observation on this is that in allowing this contention to be raised at the stage in which the cases were before him the learned Judge lost sight of the fact that the plaintiffs were thereby being called upon to meet an objection in the year 1929 which, if it had been raised in the suits when they were brought in 1922, might have been adequately remedied at least as regards the years subsequent to those for which rents are now-being claimed. But as it is, if the point taken before the Judge prevails, as we are speaking in 1932, the plaintiffs have for ever lost without any hope of recovery, their chance of realising the proper rent for at least 10 years after the suits and this on account of allowing the ryots to take an objection at the last stage which they ought to have taken at first. Speaking for ourselves we would have felt justified in declining to allow the contention which the learned Judge permitted. But as he has permitted it, we must examine it.
8. In short, the learned Judge's view as to the effect of Section 52(3) is that where a patta and a muchilika have been exchanged between a landholder and a ryot the former cannot in any subsequent year demand rent other than what is mentioned in the patta except after getting a fresh patta and muchilika accepted, exchanged or decreed mentioning the new rent claimed. We are of opinion that this view is incorrect and that the learned Judge has given a meaning to the words 'shall remain in force' which they were not intended to bear when in a suit for rent facts are proved which show that the old rent should no longer remain in force.
9. It is well known that under Section 7 of the Rent Recovery Act (VIII of 1865) no terms of the tenancy including rent could be enforced unless pattas and muchilikas had been exchanged for the year for which the rent was claimed. This led to great inconvenience. One of the changes brought about by the Estates Land Act was to alter this. Sections 52 and 53 are the sections by which the alteration was brought about. Section 52, speaking broadly, deals with the time or period during which a patta and a muchilika once exchanged may remain in force. It deals with nothing more. Its provisions are that although pattas and muchilikas may be for more than one year neither party can be compelled to tender or accept a patta for more than one year. The demand for a patta or a muchilika is to be made within the year for which it is intended. Pattas and muchilikas remain in force till the beginning of the next year during which a fresh patta - and muchilika are accepted, exchanged or decreed. But if in the second year no fresh patta and muchilika are brought into effect the previous year's patta runs on and remains in force until the commencement of the year next after that in which a fresh patta is tendered, accepted, exchanged or decreed. In other words, if a 'patta has been allowed to run on for two years and in the third year a fresh patta and muchilika are exchanged, that patta will come into force only at the beginning of the fourth year. These are the provisions designed to do away with the old requisite for a fresh patta during every year when rent was to be sued for. Section 52 says nothing about the effect and consequences of the patta remaining in force. Section 53 to a certain extent deals with this. It says that unless a patta and muchilika have been exchanged for the period or unless there is a previous patta and a muchilika continuing in force under the provisions of Section 52, no landholder can proceed against a ryot for rent by distraint and sale of his moveable property or by sale of his holding under Chapter VI. Sub-section (2) says that even for those limited purposes the patta which is tendered may be partially good even though some of its provisions are not valid, so as to enable the landholder to recover rent by distraint and sale of moveable property and of the holding to the extent to which the rent is due, Raghunatha Rotv Sahib v. Vellamoonji Goundan I.L.R. (1914) 38 Mad. 1140 : 27 M.L.J. 597. Reading these sections together, it seems to us that the consequence of a valid patta continuing in force by reason of Section 53 is only that the landholder cannot distrain on the ryot's moveables or sell his holding except for the amount mentioned in the patta. Nowhere in the Act is it stated that in suits for rent under Section 77 for the purpose of determining the proper rent the rent mentioned in the previous patta is conclusive and that the only way for demanding a different amount except under certain sections, such as 25, 30, 42 and 45, is to have previously exchanged a fresh patta and muchilika. In our opinion the only effect of there being a patta which remains in force by virtue of Section 52(3) so far as suits for rent are concerned is that, except in special cases falling under Sections 25, 30, 42 and 45 which require the order of the Collector for determination of rent, the rent mentioned in the patta will under Sections 27 and 28 be presumed to be the proper rent until the contrary is shown. In other words, except in those excepted cases it is open to the landholder without tendering or exchanging or getting decreed a fresh patta to show to the Court in which the suit for rent is filed that he is legally entitled to a different amount or rate of rent from that mentioned in the old patta.
10. In Sri Rajah Satrucherla Veerabhadra v. Ganta Kumari Naidu : (1912)22MLJ451 it was decided that S.,53 has dispensed with the tender of a patta as a condition for suits for enforcing the terms of the tenancy except by distraint or sale of the holding. The present suits are suits for reverting to what has been proved to be the proper rent of the village, namely, varam rents. All the Courts have held that the plaintiffs are so entitled and it is obvious that this is not a suit for enhancement in the proper sense of the term. In Muthiah Chettiar v. Periyan Kone 1920 M.W.N. 15 it was held that a landlord is entitled to revert to the varam rent if it was the accepted mode and no implied agreement to the contrary could be inferred by payment of money rent varying in amount from year to year for a number of years. In Varada Reddi v. Srinivasa Mudaliar : AIR1924Mad299 it was held that the landholder is entitled to revert to the varam system unless the ryots establish a contract to the contrary and that evidence of payment of money rent under short term pattas which contain clauses to revert to the varam system at the end of the period is not sufficient evidence of a contract to the contrary. It is thus clear that the ryots have no answer in these cases to the plaintiffs' claim to revert'to the varam rents and so far as Sections 27 and 28 are concerned, the Courts have held that the plaintiffs have proved the contrary by proof of their right to revert to the varam system.
11. In Narayana Patrudu, v. Veerabhadra Raju I.L.R. (1927) 51 Mad. 228 : 54 M.L.J. 564 it was held that under Section 77 of the Act in cases not falling within Sections 25, 30 or 45 of the Act', suits for recovery of unascertained rent will lie and the Court must ascertain the amount as there is no previous proceeding provided by the Act for the ascertainment of rent in such cases. To the same effect is the decision in Mallayya v. Narayana Gajapathi Raju (1924) 21 L.W. 42. In Sreenivasa Aiyangar v. Abdul Rahim Sahib (1917) 6 L.W. 108 a landholder sued for increased rent on the ground of increased area discovered on re-survey, and it was held that the increased rate could not be claimed because Section 42 expressly provides for the order of the Collector in such cases. Some remarks of Napier, J., of a wider application which have been relied on by the respondents in this case were expressly dissented from in Solai Pillai v. Vedaji Baskara Tirumala Rao Sahib (1925) 23 L.W. 625 and we think that that dissent was justified.
12. The above decisions and considerations do not appear to have been drawn to the learned Judge's attention. He, however, refers to and relies upon the decision of the Privy Council in Radhakrishna Aiyar v. Sundarasivamier on appeal from this High Court in Radhakrishna Aiyar v. Swaminatha Aiyar (1919) 6 L.W. 16. He draws the inference from the language of their Lordships in that case that the policy underlying the Estates Land Act is to require that only such rents shall be decreed as are mentioned in a previously existing patta which remains in force under Section 52. We think that neither the facts of the case nor the language used by their Lordships is capable of this inference. In that case which also was a case of rent payable in kind there had been pattas and muchilikas enforced under the orders of the Revenue Court when the Rent Recovery Act was in force. The 8th clause in those pattas enabled the landholder if the ryots had removed the harvest without paying the landholder's share or giving him an opportunity of inspecting it to demand rent at a particular rate in kind. It appeared that for several years the ryots had got into the habit of removing the harvest and the landholder had winked at it and accepted rent at a lower rate than that fixed by the above clause. After the Estates Land Act came into force the landholder had tendered pattas with the above clause which were rejected by the ryots. Then suits were brought for rent at the rate mentioned in CI. 8. The principal question was whether pattas decreed by the Revenue Courts under the Rent Recovery Act came within the description of the 'pattas decreed ' in Section 52(3) of the Estates Land Act so as to constitute them pattas remaining in force until fresh pattas are accepted, exchanged or decreed. While the landholder contended that pattas decreed under the old Act are as binding as those decreed under the new Act, the ryots contended that the matter was not res judicata because the jurisdiction of the two kinds' of Courts was different.
13. It was on this point that the decision turned. If the landholder's contention was adopted as it was by the High Court and the Privy Council he was entitled to enforce Clause 8. If not, the question would have to be tried afresh what was to happen if the ryots removed the harvest without paying the usual rent. In these circumstances this Court held that though the general doctrine of res judicata is not in question there is no reason for restricting the scope of the general reference to muchilikas decreed in Section 52(3) to those decreed by any particular description of Court. Therefore the pattas decreed under the old Act remained in force under the new Act and with them the disputed Clause 8. This view was upheld by the Privy Council. Their Lordships begin the discussion of this point at page 481 by pointing out that the dispute had to be determined on the terms of the Estates Land Act and this, in view of the ryot's contention that for a period of 20 years the rates mentioned in CI. 8 had not been demanded. Their Lordships held that this was not sufficient to derogate from the landholder's right to enforce Clause 8 if it was otherwise found binding. Their Lordships then consider the argument based on res judicata and state confirming the view of the High Court and indeed quoting it with approval that it was not a case of res judicata in the proper sense but of construction of Section 52(3) of the Estates Land Act where it is said that muchilikas decreed in any revenue year remain in force until fresh ones are exchanged or decreed. They held that muchilikas decreed under the old Act were included within this expression and decided the point. But it is pertinent to remark that they go on to observe that.
it stands to reason and it is in accordance with Sections 27 and 28 that the old rent thus decreed shall continue until reduced or enhanced by special applications under the statute. No such applications have been made.
14. Their Lordships here recognise that the terms of the previous pattas including the rents mentioned therein remained in force until they are shown to be inapplicable by reference to Sections 27 and 28 which raise the presumption that till those rents are shown to be inapplicable they should be presumed to be fair. It is in our opinion wrong to construe this language of their Lordships as' if they were exhaustively enumerating the modes of showing how the old rents have become inapplicable and laying down that enhancement and reduction are the onlytwo methods. That was not the question their Lordships were considering and they cannot be held to have decided what was not necessary to decide, - in what ways the old rent may have become no longer applicable to the period in question which are neither enhancement nor reduction of rent. For instance, a favourable rate of rent granted by a deceased landholder may have ceased to be operative by reason of Section 26(3) after his death or as in this case the lessee of rents in a varapathu village having during his lease accepted money rents from the ryots the lease may have expired and then the proprietor being restored to his rights may be entitled to rent in kind. Their Lordships could not have decided that these are not grounds under Sections 27 and 28 for showing that the rents as mentioned in old pattas are no longer applicable. We think therefore that this decision affords no support to the learned Judge's view on the question before us.
15. We accordingly set aside the decision of the learned Judge on this point. The result is that the decree of the learned Judge will be modified by awarding the plaintiffs the rent as sued for in the several cases in accordance with the above opinion. In other respects the learned Judge's decree is confirmed. The appellants have substantially won throughout.The learned Judge's reason for not awarding either party costs is that the defendants sprung upon the plaintiffs a point in the second appellate Court on which they won. This ground being now shown to be erroneous there is no reason for not maintaining the usual order as to costs which was passed by the District Judge. We confirm the order passed by the District Judge as to costs of the first and the first appellate Court. The respondents'musi' pay the appellants their costs both in this and in the second appellate Court. The memorandum of objections is dismissed without costs.
16. Vakil's fees in the 23 appeals and L.P. appeals are fixed at Rs. 230 in each payable equally by each of the defendants in the twenty-three cases.