1. The plaintiff, as trustee of a certain temple at Negapatam, sued to recover from defendants certain lands which the plaintiff alleged they held under the temple as tenants, from year to year, under a lease (Exhibit A). The defendants claimed to have a right of permanent occupancy in the lands, subject only to payment of rent to the temple.
2. Both the lower Courts have decreed for plaintiff.
3. Against those decrees the defendants now appeal.
4. The defendants claimed to have had permanent occupancy rights for the past two hundred years, but of this no proof was given. It is, however, clear from Exhibit I that, so long ago as 1813, the then manager of the temple gave a permanent lease of one-half of the lands to Chokkanatha Pillai, an ancestor of the defendants 1 to 14, and of the other half of the lands to Nalla Pillai. It is also clear from Exhibit II that in 1820 Nalla Pillai transferred his half share to Vriddhachala Pillai (the son of Chokkanatha Pillai), and that the manager of the temple then confirmed him as permanent lessee of the whole of the lands. On the 4th December 1831, this Vriddhachala Pillai and one Subbayyan, the ancestor of defendants 15 to 26, addressed a petition, (Exhibit II), to the Collector of Tanjore, who was then the manager of the temple. It runs as follows:
To N.W. Kindersley, Esquire, Principal Collector of Tanjore--Darkhast presented by Vriddhachala Pillai and Subbayyan of Vadagudi, who are Purakudies of the Tarap land situated in that village belonging to Kayarohanasawmi of Negapatam attached to the Mahanam of Anthanapettai, Kivalur taluk. We offer to cultivate for fasli 1241 the 20 velis, 5 mahs and 40 kulies of nanja land and 6 mahs and 81 kulies of punja land situated in the aforesaid village and to pay the Sircar kist and 51 kalams of paddy as Svamibhogam to the temple for one year, and also to furnish cash security for the payment. We pray that darkhast izara may be granted to us for one year.' No reply to this petition is on record, but on the 10th January 1832, Exhibit A was executed by Vriddhachala Pillai and Subbayyan. It is an agreement by them to cultivate the plaint lands, and is in the following terms: 'We, Vriddhachala Pillai and Subbayyan, Ulavadai (act of ploughing or right to cultivate lands) mirasidars of Vadagudi, having agreed to cultivate the said village Vadagudi according to the taram faisal (classification of the lands) thereof, do hereby execute this taram muchilka to N.W. Kindersley, Esquire, Principal Collector of Tanjore, under date 10th January, 1832. We have taken up for cultivation the following lands: Nanja lands yielding one crop a year, consisting of 107 numbers, comprising 134 acres 49/64 kulies, equivalent to 20 velis, 5 mahs and 40 kulies, and punja lands consisting of six numbers, comprising 2 acres and 16 kulies equivalent to 6 mahs and 81 kulies, the total of nunja and punja lands being 20 velis, 12 mahs and 21 kulies. According to the pymash settlement made in fasli 1238, we bind ourselves to pay Sircar in the presence of the pattadar the sum of Rs. 520-7-9 on account of ayan and svamibbogam. If there should fall any arrears in so paying, you shall realize the same by attaching and selling our private property according to law. We shall never pay to any one even a cash in excess of the said tirva fixed for the lands mentioned in this muchilika. If the pattadar, the village karnam and others should demand or collect from us any sum in excess, we shall then and there lodge a complaint to the huzur. If in any year we should plant betel, plantain trees, sugarcane or raise any garden products, such as tobacco, onion, garlic, etc., with the Sircar water in the said village, we shall furnish the Sircar with a true account of the same, and not only pay the taram tirva fixed for so much of the land as is cultivated with the said crops, but also pay tirvajasti in those years. If we should cultivate waste and poramboke lands, etc., in addition to those mentioned in the muchilika, we shall pay the taram tirva fixed on such lands during the years in which they may be cultivated.
5. (Here follow covenants to pay servants, execute repairs, etc.)
If we should raise a second crop or the taladi in excess of the second crop lands mentioned in this muchilika, we shall pay the tirva thereof according to the rules of taladi. If perchance loss should be occasioned in any fasli by drought or inundation through accident, the Sircar should inspect the same and grant a reasonable remission according to mamul. We shall pay the melvaram of the nanja lands of the said village according to the permanent taram tirva which has been fixed at 3-1/16 fanams per kalani. If this price should either rise or fall, the gain or loss thereby accruing is ours and the Sircar shall have nothing to do with it. As the permanent tirva has been fixed, and as we have assented thereto as stated above from fasli 1241, we shall pay to the Sircar the taram tirva fixed on each numberwar field. Thus do we execute this taram muchilika.
6. It is to be observed that in this document the executants are described as 'the cultivating mirasidars' of the village. On the day after Exhibit A was executed, the executants executed a security bond (Exhibit VII) in which they are again described as 'the cultivating mirasidars' of the village, and it is recited that they have taken the land permanently on 'Darkhast izara.' The rights of the parties admittedly depend upon the construction of these documents and the inferences that are to be drawn from them. The Courts below have held that Exhibit H shows that for some reason or other, not now known, the defendants' ancestors had lost, or had abandoned, their rights under Exhibits I and II, and that their rights now must be held to have originated with, and to depend solely on, the lease of 1832 (Exhibit A). They held, on the authority of the decision in Chockalinga Pillai's case M.H.C.R. 164 that Exhibit A was merely a lease from year to year, and might be terminated at the end of any fasli. The learned Judge of the Lower Appellate Court further held that, even if Exhibit H could be explained away, and if Exhibit A were executed in consequence of the defendants' ancestors having the rights granted under Exhibits I and II, still the latter would be invalid on the ground that a manager of a temple could not alienate temple lands by a permanent lease in the absence of proved necessity for such alienation.
7. We are unable to accept these conclusions; but, before discussing the documents, it is necessary to notice a contention that was strongly pressed upon us by the respondent's vakil. That contention is that both Courts have found that Exhibit H shows that when it was written the defendants' ancestors had lost or abandoned their permanent rights under Exhibits I and II, that that finding is one of fact, and that it is not open to this Court in second appeal to consider whether that finding is right or wrong. If the inference to be drawn from the document were, in truth, a finding of fact, we should consider ourselves bound in this second appeal by the finding of the Lower Appellate Court, however unsatisfactory it might be Ramratan Sukal v. Mussumat Nandu 19 I.A. 1 but the finding as to the inference to be drawn from Exhibit II is one of law, not of fact. It is not any fact that is in question, but the soundness of the conclusion drawn from the terms of the document. This is a matter of law, and, as such, it is a proper subject for consideration in second appeal Ram Gopal v. Shamskhaton 19 I.A. 231.
8. The learned District Judge has pointed out that Exhibit A in the present case is (with one important exception to be presently noticed) in exactly the same words as the document which this Court in Chockalinga Pillai's case 6 M.H.C.R. 164 held to be a lease from year to year. That case has been repeatedly followed by this Court, and we do not question its authority; but in our opinion it is inapplicable to the facts of the present case. In Chockalinga Pillai's case 6 M.H.C.R. 161 the tenancy began under the lease, and all that that case decided was that, when a tenancy rests on contract only, the duration of the tenancy is regulated by the terms of the contract, express or implied, and that neither the Rent Act nor the Regulations operate to extend its duration Krishnasami v. Varadaraja I.L.R. 5 Mad. 354 . In the present case we think there are sufficient grounds for finding that the tenancy began not under Exhibit A, but under Exhibit I, that Exhibit H is not sufficient to prove that the tenancy under Exhibits I and II was ever determined, and, finally, that the transaction evidenced by Exhibit A was not a new lease, but a confirmation of the lease under Exhibits I and II, with a modification as to the mode of paying the rent.
9. We have already referred to the fact that Exhibit A in the present case differs in an important particular from the corresponding document in Chockalinga Pillai's case 6 M.H.C.R. 164 . The difference is this, viz., that in Exhibit A the executants are described as 'Ulavadai mirasidars,' that is, as persons with an hereditary right to cultivate. The Courts below have said that this description is inapplicable to Subbayyan, as he was not a lessee under Exhibits I and II, and they, therefore, treat the description as of little importance; but it seems to us that the description is applied to both the executants, because all the land dealt with in the lease was the subject of permanent rights of cultivation under Exhibits I and II and when Vriddhachala Pillai, who had those rights under Exhibits I and II, allowed Subbayyan to join him in executing Exhibit A, the description was applied to him also in order to mark the character of the tenure on which the land was held. Turning now to Exhibits I and II, it is to be observed that the very same description of the tenure occurs in the operative words of those documents by which the permanent tenure was created, 'you, your sons and grandsons shall, for all time to come, enjoy the land from generation to generation by 'right of Ulavadi Kaui.' 'This right of 'Ulavadi Kani' originated in the grants evidenced by Exhibits I and II, for prior to Exhibit I, Chokkanatha Pillai was a resident in another village, but under Exhibit I he was brought with a following of cultivators to the village of Vadagudi belonging to the temple to build houses there and cultivate the temple lands. When, then, we find that the right of 'Ulavadi Kani' was created under Exhibits I and II, and that the grantees under those, documents are, a few years afterwards, when executing Exhibit A in regard to the very same lands, described as 'Ulavadi mirasidars,' the inference is strong that the tenure under Exhibit A was intended to be the same as under Exhibits I and II. Nor is this all. In the security bond (Exhibit VII) executed the next day the same description of the executants as 'Ulavadai mirasidars' is given and the transaction evidenced by Exhibit A is recited as a taking of the land 'permanently on darkhast lease from fasli 1241.' Lastly, we find that for the next sixty years the defendants and their ancestors enjoyed the lands on the strength of those documents. The question then naturally suggests itself, what was the occasion for Exhibits H and A if there was already an existing permanent tenancy under Exhibits I and II. The answer is, we think, to be found in the fact that under Exhibits I and II the rent was to be a share of the produce paid in kind, viz., 35 kalams in every 100 kalams nett, whereas in Exhibit H an offer is made to pay not a percentage share of the crop, but a fixed quantity, viz., 51 kalams, and in Exhibit A it is agreed that the rent shall be fixed permanently in money at Rs. 520 each year. It is well known that the English Revenue authorities always preferred a fixed rent to a share of the produce, and constantly aimed at obtaining a fixed rent paid, if possible, in money, rather than in kind. Exhibit H stands by itself, and we have not before us either the order passed upon it, or any correspondence which took place prior to it; but in Exhibit VIII, dated the 14th February 1832, the Collector, in writing to the Tahsildar regarding this land, refers to a report of the Tahsildar, dated the 18th January 1832, in which that officer reported that Venkatachala Pillai and Subbayyan had 'according to order' applied to cultivate the plaint land for one year at a fixed rent of 51 kalams of paddy. It would appear from this that when the temple came under the Collector's management, he issued some order requiring or urging the tenants to agree to fix the rent on their lands instead of letting it depend on the varying outturn from year to year.. Exhibit H appears to have been the proposal made by Vriddhachala Pillai and Subbayyan in reply to this order, but they carefully restricted their offer to one fasli, and wished still to pay in kind as they had been accustomed to do. What negotiations took place after this we do not know, but that some negotiations took place seems to be clear, for Exhibit A cannot have been executed as a compliance with the proposal in Exhibit H. All the expressions used in Exhibit A indicate that the parties intended the arrangement to last for many years, whereas Exhibit H contains a proposal for one year only, and the rent offered in Exhibit II is in kind, while that finally agreed to in Exhibit A, six weeks later, is a sum permanently fixed in money. Thus Exhibits H and A do not indicate that the rights under Exhibits I and II had been lost or abandoned, but rather that they had been confirmed with a modification by the substitution of a fixed money rent for percentage share of the crop. That the original grants remained in force is rendered almost certain from the fact that the original documents evidencing the grants have remained in the hands of the grantees, and there is not before us a trace of any evidence in the temple or revenue accounts or otherwise to suggest that the land has ever been in the possession of any one but the grantees during the eighty years which have elapsed since the date of the first grant. The lower Appellate Court has, however, held that, even on the above finding as to the documents and the transactions evidenced by them, the defence must fail, inasmuch as the manager for the time being had no power to make a permanent alienation of temple property in the absence of proved necessity for the alienation. That no doubt is the ordinary rulebut in the present case there are special circumstances from which the propriety of the alienation may rightly be presumed. There is no suggestion that the grant under Exhibit I was tainted with any fraud. It was made not to a member of the grantor's family, but to a stranger of different caste and from a different village. In consideration of the grant being permanent, the grantee was to come with a following of cultivators and build houses and cultivate the lands of the temple. It is well known that at the time when the grant was made the country was but slowly recovering from the depopulation and impoverishment resulting from centuries of internecine war, and the difficulty generally was not to provide land for the cultivators, but cultivators for the land. To cultivate wet lands, as these were, requires capital as well as labour, and these the grantees were to supply. It may well be that the trustee of the temple could not arrange for the cultivation of the temple lands on less onerous terms than those agreed to. That the terms were fair may be presumed from the fact that they were confirmed in 1820 (Exhibit II) and again in 1832 (Exhibit A) by the Collector, and have remained in force now for eighty years. In these circumstances, we do not think it is reasonable or equitable to throw on the defendants the onus of showing that the original grants were for a necessity, binding on the temple. We think that, after so great a lapse of time and under the circumstances which we find in this case, such necessity may rightly be presumed.
10. The result of our findings, then, is that the grants under Exhibits I and II are valid and still in force, and that the plaint land is still held under those grants as modified by Exhibit A.
11. On these findings the plaintiff's suit must fail, and it is unnecessary for us to discuss the pleas of limitation and want of notice raised by the appellants.
12. We reverse the decrees of the Courts below and dismiss the plaintiff's suit with costs throughout.