1. The appellant is the Zemindar of Vallur and the respondents are his tenants. The respondents refused the patta tendered by the appellant for Fisli 1315 and the appellant distrained the respondents' property for arrears of rent for that Fasli. The respondents sued to set aside the distraint. Both the lower courts have found that the tendered patta was improper in that it provided for rent at the rate of Rs. 5 per acre instead of Rs. 4-8-0 the proper rate; and have accordingly given the respondents the decree sued for.
2. It is now argued on behalf of the appellant that in spite of the tendered patta being improper, the distraint should nevertheless be held valid to the extent of the rent actually due and that the decrees of the lower courts setting it aside altogether are wrong. This contention, which was considered and rejected by the District Judge, is the only one now put forward in support of the appeal.
3. The question has to be disposed of with reference to the provisions of Act VIII of 1865 as retrospective effect cannot be given to Section 53 of the Act I of 1908. Section 7 of Act VIII of 1865 enacts that no suit shall be brought and no legal proceedings taken to enforce the terms of a tenancy unless patta and muchilika have been exchanged or agreed to be dispensed with, or unless a proper patta has been tendered. There has been no exchange or agreement to dispense with patta and muchilika in the present case and the only patta tendered has been found to be improper. The provisions of this section would therefore appear to be conclusive against the appellant. The appellant, however, relies on the rulings reported in Karnam Venkatakrishna Pillai v. A. Muthiyalu Reddi : (1910)20MLJ821 , Periakaruppa Pillai v. The Manager of the Lessees of the Sivaganga Zemindari I.L.R. (1907) M. 22 and Ramachandra v. Narayanaswami I.L.R. (1887) M. 229. On the other hand Muniswami Naidu v. Perumal Reddi I.L.R. (1900) M. 616, Bashyakarlu Naidu v. Gurudappaneni Subanna I.L.R. (1903) M. 4 and Vama Deva Desikar v. Murugesa Mudaly I.L.R. (1905) M. 75 are quoted by the respondent. In considering the first named cases, it is to be noted that the learned judges in Karnam Venkatakrishna Pillai v. A. Muthiyalu Reddi : (1910)20MLJ821 do not profess to discuss the point but merely remark 'it has been held by this Court in recent cases that the attachment is good for the amount actually due.' The only recent case to which we are referred is Periakaruppa Pillai v. The Manager of the Lessees of the Sivaganga Zemindari I.L.R. (1907) M. 22. But here also, although there is some discussion of adverse rulings, their Lordships' decision appears to be chiefly based on the ground that the question was concluded by the express authority of a still earlier case Ramachendra v. Narayanaswami I.L.R. (1901) M. p. 613. Turning again to this, the earliest of the cases relied on by the appellant, it will be found that the effect of Section 7 of the Rent Recovery Act is not considered at all in connection with the conclusion arrived at. The legality of the distraint in that case was questioned not on the ground that the requirements of Section 7 as to the tender of a proper pattah had not been complied with but on the ground that the distraint had been effected for arrears of two faslis, the claim for one of which was time-barred under Section 2 of the same Act.
4. This is a totally different point. Section 7 is not even alluded to in the judgment in that case and there is nothing to indicate that its provisions were infringed.
5. On the other hand Varna Deva Desikar v. Murugesa Mudaly I.L.R. (1887) M. 229 appears to us to be a distinct authority for the contrary view which is also in general accord with the principles enunciated by the Pull Bench in Shunmuga Mudaly v. Palnatti Kuppu Chetty I.L.R. (1903) M. 75 and Bashyakarlu Nadu V. Gurudappaneni Subbanna I.L.R. (1901) M. p. 613. We may also refer to the remarks of Sheppard J. in another Full Bench case Munisami Naidu v. Perumal Reddi I.L.R. (1903) M. 4 to the effect that any landlord who elects to distrain in preference to suing for acceptance of patta 'takes his chance of some flaw being discovered in the patta'. Pichuviengar v. Oliver I.L.R. (1900) M. 616 is another case which is mentioned in Peria Karuppa Piilai v. The Manager of the Lessees of the Sivaganga Zamindari I.L.R. (1902) M. 260 but distinguished on the ground that it relates to a sale and not to a distraint. But a tenant is certainly aggrieved even by a mere distraint of his property. He can only procure its release by payment of the amount demanded, i.e., more than what is really due, and although he may be entitled to recover damages by a summary suit he should not be driven to such a troublesome remedy.
6. In these circumstances we feel justified in following the last noted series of decisions which appear to us to be in accordance with the true meaning of Section 7. We therefore agree with the District Judge in holding the distraint to be altogether illegal and we dismiss these second appeals with costs.