Sadasiva Aiyar, J.
1. The 1st defendant (appellant) is the Zemindar of Mirzapuram and the plaintiff (respondent) is the purchaser in the Court-auction sale of a certain cultivable land in the estate, the sale having been held in execution of a mortgage decree passed against one P. Venkayya who was the ryot tenant of the land till 1397 the mortgage suit having been brought against him in 1906 when he had ceased to be the tenant of the land. In 1897, the said P. Venkayya abandoned the land and the Zemindar took possession of it and yet as Venkayya was the original mortgagor ('the mortgage deed being dated 1894) he was impleaded as the defendant in the mortgage suit of 1906 and the Zamindar who was in possession was not impleaded. The plaintiff as the Court auction-purchaser brought this suit in 1915 in ejectment of the 1st defendant the Zaraindar who is in possession of the land.
2. The Lower Appellate Court held ([) that as the land was admittedly ryoti land till 1897, it could never become converted into private land, because by the statute law land which is ascertained to have been at one time, however remote, ryoti land could never become converted into Kamatam land; (2) assuming even that ryoti land could be so converted by the Zamindar into Kamatam after relinquishment by the ryot, the mortgage created by the ryot before such relinquishment could not be affected in any way and the sale in execution of the decree obtained on the mortgage conferred on the purchaser at that sale the right to hold that land as ryoti land.
3. As regards the first point, it must be admitted that there is a strong body of judicial opinion in the decisions of this Court in support of the view that if a land is proved to have once been ryoti land, it could never be treated afterwards as having (by any dealings by the Zamindar or by the tenant or by both) been converted into Kamatam land except in the single case mentioned in the proviso to Section 185 of the Madras Estates Land Act, namely, except where the land-holder has by his own servants or by hired labour with his own or hired stock cultivated the land as private land for 12 years immediately before the commencement of the Act, In Zamindar of Chellapalli v. Soniaya I.L.R. (1914) Mad. 341 that very learned Judge Seshagiri Aiyar, J. has given reasons in pages 349, 350 and 351, in support of the above view. This view of Seshagiri Aiyar, J. seems to have been accepted by Abdur Rahim, J. and Burn, J. in Sreemanta Raja Yartagadda Mallikarjuna Prasada Naidu Bahadur v. Subbayya : (1920)39MLJ277 . The learned Chief Justice however in Zamindar of Chellapalli v. Soniaya 1 held the view that a ryoti land can be shown to have been converted into private land by evidence of other acts than the acts mentioned in the proviso to Section 185 but added that such evidence should be 'very clear and satisfactory.' The learned Chief Justice held further in that particular case that the calling of the lands as Kamatam and the letting of them out on terms negativing occupancy right with a view to prevent the, assertion of such right (even if such letting had gone on from 1875 till 1910) were insufficient to convert them into private lands if such conduct of the Zamindar could be held to have been merely colourable for the purpose of defeating the rights of the occupancy tenants. The inclination of my own view is to follow with respect the opinion of Seshagiri Aiyar, J. In the present case as the cultivation by hired servants of the Zamindar could not have begun prior to 12 years before July 1908 when the Madras Estates Land Act came into force (the abandonment having been only in 1897), the land must be deemed to have continued to be ryoti land.
4. On the other question whether there has been a valid relinquishment, valid at least to the extent that the tenant lost all interest in the land relinquished, I have nothing to add to what my learned brother has said in the judgment prepared by him in this case.
5. The next question for consideration is whether if the relinquishing tenant had created a mortgage right over the Kudivaram interest in the land, before his abandonment and relinquishment, that mortgage interest also came then to an end. On principle, it is difficult to see how a person after having carved out an interest in favour of another for valuable consideration could destroy by his unilateral act the interest so created in the other person's a favour, that is, without the consent of the assignee of that interest. In Ekambara Iyer v. Meenatchi Ammal I.L.R. (1908) Mad. 404 , Bhashyam Iyengar, J. says : 'It is unnecessary to consider and decide in this case the effect of a relinquishment under Section 12' (Rent Recovery Act) 'at the end of the revenue year of his holding by a ryot as it is not analogous to an ejetment on forfeiture, The operation of such relinquishment on mesne encumbrances created by the tenant may stand altogether on a different footing and the relinquishment itself when the land relinquished is burdened with such an incumbrance may be inoperative to terminate his liability as tenant to the land-holder until the encumbrance ceases by effluxion of time or is otherwise discharged by the tenant. (Sham Das v. Batul Bibi I.L.R. (1902) . All. 538 and Badri Prasad v. Sheo Dhian I.L.R. (1896) All. 354, The learned Judge was evidently considering the case of a relinquishment which the land-holder refused to accept, the refusal being based on the ground that a mortgage interest had already been created over the holding and the landlord could not let the land to another tenant free from that mortgage. The observation of the learned Judge rather shows that while on forfeiture for non-acceptance of pattah, a mortgage interest created prior to the forefiture failed (which was the direct decision in Ekambara Aiyar v. Meenatchi Animal I.L.R.(1904) Mad. 410 a mere relinquishment would not put an end to a prior mortgage.
6. Holding then that the mortgage of 1894 subsisted in favour of the mortgagee after the date of and notwithstanding the relinquishment of 1897, the question is in whom did the right to redeem vest on that relinquishment? It seems to me clear that it must vest in the person who became the owner of the kudivaram interest in the land on such relinquishment. In Venkata Sastntlu v. Sitaramudu 26 M.L.J. 585 'the question of the right of an inamdar in the lands in which he owned only a melwaram interest after the kudivaram owner abandoned or relinquished his kudiVaram interest was considered by me. My conclusion was that a land-holder though he owned the waste and abandoned lands in his village in a certain sense could not be considered to enjoy the kudivaram in the ordinary mode without direct contact by the cultivation of the soil through his hired or farm servants. I further held that when a ryoti land is abandoned by a tenant, it might be legally permissible to state that the kudivaram thereupon became vested in a certain sense in the land-holder because the land-holder became vested with the right to grant the kudivaram right to any other person he liked after the abandonment by the former tenant of the said lands. I, however, added that the vesting of the kudivaram in that sense in the land-holder till he granted it to a new tenant could not convert ryoti land into private land. Having further considered the matter I see no sufficient reason to change my above view that the kudivaram in the abandoned holding might be deemed to become vested in the landholder for some legal purposes till the land-holder inducted a new tenant into the land. It follows from what I have above stated that the mortgage suit which was brought in 1906 against a person who had ceased to be the owner of the right to redeem, namely, P. Venkayya, was wholly misconceived, that the Zamindar who was then the only person who could in a limited sense represent the kudivaram interest (though he may not be said to be Us owner in its full sense) and who was therefore entitled to redeem the mortgage was the proper party to have been impleaded as the defendant in the suit for sale by the mortgagee, and that as he was not made a party to that suit the decree for sale and the sale in execution held thereunder bound neither the lands nor the Zamindar and that the plaintiff (purchaser in the Court-auction-sale) could not therefore maintain the present suit for possession having obtained no title to the kudivaram right by his purchase in the decree passed in the said misconceived suit. The Subordinate Judge's decree must therefore be reversed and that of the District Munsif restored with costs here and in the lower Appellate Court.
7. The Rent Recovery Act of 1865, Section 12 gives to a tenant a right to relinquish his holding and I am clear that he cannot create an interest in his estate that will operate to destroy that right, but that all such interests are subject to such right. But in dealing with the facts of this case we have first to decide whether there was a valid relinquishment. The Lower Appellate Court has found that there was no writing in the presence of witnesses as provided for in the first sentence of the proviso to Section 12 of the Rent Recovery Act and we must accept that finding. He finds however that there was in fact a relinquishment accepted by the Zemindar and acted on by him and by Venkayya and his co-parceners which amounts, to an abandonment in pursuance of the relinquishment. In dealing with similar facts Shepherd, J. held in Narasimma, v. Lakshmana I.L.R. (1889) Mad 124 that relinquishment, acceptance and abandonment operate to terminate the estate of a tenant while Muthusami Iyer, J. went even further and held that a mutual contract from which a surrender in fact might reasonably be inferred was a valid relinquishment. I see no reason to differ from his ruling, given many years ago and hold that there was a valid relinquishment. The important question remains, however, what was the effect of that relinquishment and the subsequent dealings with the land by the land-lord on the mortgage right of the original mortgagee in the hands of the present plaintiff suing in 19l5. The plaintiff is the assignee of the auction-purchaser of the land sold in execution of the mortgage decree in 1909 and claims as owner of the land to recover possession of it from the Zemindar to whom it was relinquished. The relinquishment was in 1897. In the same year the Zemindar purported to lease the land to the same tenant as kamatam for a term of three years. In 1900 it was leased to a stranger for 5 years as kamatam. 1905 the land was cultivated by the landlord as private land. In 1906 the mortgagee brought his suit against the original mortgagor ignoring the Zemindar who was in possession and the mortgagor's interest was sold in 1909. On those facts the first question seems to me to be what became of the kudivaram interest after the relinquishment and on the lease as kamatam in the same year. It was decided in Ekambara Aiyar v. Meenatchi Ammal I.L.R(1904) . Mad. 401 that ejectment of a tenant by a land-lord for refusal to accept a proper patta extinguished all mesne incumbrances just as forfeiture of a lease-hold interest extinguishes all incumbrances under Section 115 of the Transfer of Property Act, though the Court is careful to point out (vide page 408) that a ryot with a right of occupancy is not a mere lease holder but the Court expressed no opinion as to the efficacy of a relinquishment under Section 12 where mesne incumbrances have been created by the tenant. I have already expressed my opinion that the statutory right of relinquishment cannot be made inoperative, but the other question still remains. It was held by my learned brother in Venkata Sastrulu v. Sitaramudu 26 M.L.J. 585, that on abandonment by a ryot with occupancy right, the kudivaram did not vest in the land-lord in such a manner as necessarily to convert the land into private land (vide page 895) and in Suryanarayana v. Patanna 26 M.L.J. 99, that surrender and abandonment were not a method by which the kudivaram interest can be acquired by virtue of the exception to Section 8 of the Madras Estates Land Act. Agreeing with this view I would hold that the kudivaram right in this land was in abeyance until it came into existence again by admission of a new ryot, and continued in abeyance as long as the land-lord did and could in accordance with law, treat the land as private land. Under Section 6, Sub-section 2 of the Madras Estates Land Act if occupancy-right-land is surrendered after the Act and a tenant is admitted to possession within 10 years of such surrender, he acquires a right of occupancy. That is to say the kudiwaram interest is revived in him irrespective of the fact that the land might have been cultivated by the land-lord himself for 9 years; but we have to consider the case of land which was treated as kamatam prior to the Act. It was held by Seshagiri Aiyar, J., as I understand the learned Judge, in Venkatasastrulu v. Sitardmudu : (1914)26MLJ585 , and in Zamindar of Chellapalli v. Soifiayya I.L.R.(1914) Mad. 341 that except in the case specified in the proviso to Section 185, no land can after the passing the Madras Estates Land Act ever have been converted into private land because of the retrospective operation of Section 8, Sub-section (1) and that view has been pressed strongly on us. The learned Chief Justice has distinctly negatived in the latter case and sitting with Ayling, J. had declined to accept it in Chipurapalli Appayyar v. Kakarlapudi Ramachandra Raju Bahadur Garu 1914 M.W.N. 766. I agree with the Chief Justice that the words 'but shall hold it as a land-holder' do not necessarily imply that it remains ryoti land and I am also of opinion that surrender is not an operation by which the entire interests become united 'otherwise'. I might add that where so large a proposition is contended for as that the conversion of occupancy land into private land since the permanent settlement is since the Madras Estates Land Act retrospectively inoperative, very definite language must be relied on and the language used in this section falls far short of that requisite. In my opinion, the view expressed by Seshagiri Aiyar, J. in the two cases referred to should not be [followed. I now turn to Section 185. This land clearly does not come within the proviso to Section 185. So, it is presumably not private land : but at the date of the suit in 1915 it was being cultivated by the land-lord himself and had been so cultivated for 10 years. Even at the date of the mortgage suit, the land was being cultivated by the land-lord. It is found that the lands are surrounded by the kamatam lands of the Zemindar and it is admitted that in 1897 eleven years prior to the passing of the Act they were let as kamatam lands and continued to be so let until 1905 when the landlord took them under personal cultivation. In my opinion it is now too late to contend successfully that the lands are not the private lands of the Zemindar, whatever might have been the result if the mortgagee had brought his suit on his mortgage against his mortgagor in 1897 when the latter took the lands on lease in 1897 directly after his surrender. What would be the effect on the mortgage right if the lands ever became ryoti again is a question I do not propose to consider. I think it enough to say that the land-lord not having been a party to the mortgage suit (I do not decide that he could have been made a party) is not bound by the decree and being himself in possession of his kamatam lands cannot be ejected. I would therefore dismiss this suit with costs throughout.
8. This Second Appeal having been posted for being spoken to this day. The Court delivered the following.
Sadasiva Aiyar, J.
9. When pronouncing Judgment, we omitted by oversight to mention what we had resolved and expressed our intention to do during the course of the arguments, namely to allow the memorandum of objections in respect of decreeing possession of item 2 with mesne profits (36 Rs.) against the defendants who are in possession thereof, and we intended that the suit was to be dismissed and the District Munsif's decree restored only as regards item No 1. This omission in the Judgment will be considered as supplied on the above lines and the memorandum allowed to that extent. The District Munsif will, of course, be entitled to pass supplementary decree after inquiry as regards future mesne profits.