1. This second appeal, which comes on for hearing in 1930 on account of the deaths of various parties, arises out of a suit filed in 1915, the plaint itself being filed on 19th August, 1914. The plaintiff got a decree in November, 1915. There was an appeal and the District Judge dismissed the appeal in 1917. There was a second appeal to the High Court, No. 1801 of 1917. The High Court reversed the decree and remanded the case for fresh disposal according to law. The Special Deputy Collector passed his fresh decree in December, 1919 and the District Judge's decree was in February, 1924. The suit was filed by a Nattukottai Chettiar to recover rent in respect of the suit land. He claims the rent at the normal rate which lands of similar quality would be liable to pay. But the defendant resists this claim on account of certain prior transactions and he says he is liable to pay rent only at the rate of Rs. 6 per chei. For the purpose of understanding the defendant's plea we have now to look at the earlier transactions relating to the suit land. The village of Surakkulam in which the suit land is situate and other villages were leased for a period of 30 years, that is, from Fasli 1292 to Fasli 1321 by the then Zamindar of Sivaganga to one Alagirisami Tevar (Exhibit E). There is a clause in the lease deed providing that so far as the waste lands in the village are concerned the lessee might give cowles in any manner he pleases only during the period of the lease and after the termination of the period of the lease they will be liable to half waram. This obviously means that he might enter into any contract of lease he likes in respect of such land provided the cowle is only for the period of the lease. After the expiration of the lease the land will be liable to half waram. In 1886 Alagirisami Tevar made a permanent lease of the suit land to the defendant. The cowle is Exhibit I and the muchilika executed by the defendant is Exhibit F. This lease is a permanent lease according to which a rent of Rs. 25-1-7 was fixed including road cess. This works out at Rs. 6 a chei. The lands are admittedly waste lands at the time. Prima facie Alagirisami Tevan had no right in 1886 to give a lease for a period extending beyond the period of his lease of 1882. But afterwards in March, 1887, he obtained a perpetual lease of the village. Some time later, all his rights in the village were sold in execution of a decree and purchased by the present plaintiff on 27th April, 19(30. The present plaintiff after waiting up to the end of Fasli 1322, that is, up to the termination of the period of thirty years from the date of the first lease, Exhibit E, demanded the defendant to pay him the proper rent to which the land is liable and on the defendants' refusal filed the present suit. On the former occasion the only points taken were : (1) Whether the relationship of landlord and tenant subsists between the parties, and (2) whether the rent claimed is fair and reasonable and, as I have already said, the plaintiff got a decree in the Courts below. In second appeal the High Court was of opinion that the lease of 1886 was a permanent lease, differing in this respect from the Courts below and framed certain new issues which are as follows :(1) Whether the plaintiff (Mappilasami Tevar) made any representation as stated in paragraph 7 of the written statement, (2) whether the defendant was aware that Kulandaisami had only a limited estate, (3) under what circumstances and why a favourable rate of rent was fixed in Exhibit I, and (4) whether by the operation of Section 26 of the Estates Land Act or by the principle of estoppel enunciated by Section 43 of the Transfer of Property Act, the plaintiff is precluded from reverting to waram. The Deputy Collector found on the new first issue that Alagirisami Tevar made no representation to the defendant. On the second issue he found that the defendant knew that Alagirisami had only a thirty years' cowle. On the third issue he found that the reason for fixing a low rate of rent was that the lands were waste at the time. On the fourth issue he found that the contract was not for a loan or a premium or other valuable consideration within the meaning of Section 26 of the Estates Land Act. He also found that Section 43 of the Transfer of Property Act does not apply. He therefore gave a decree to the plaintiff. On appeal the District Judge agreed with the Deputy Collector's finding on the first three issues but on the fourth issue he found that there was consideration for the permanent lease. He says:
The consideration for the permanent cowle was the fixing of rent at Rs. 6 a chei for a land which until then was producing No. income at all for a long period. The fixing of that rate was in the circumstances a sufficient valuable consideration within the meaning of Section 26 of the Estates Land Act and I am unable to agree with the Lower Court that there was no consideration for the permanent cowle to the defendant.
2. In the result he allowed the defendant's appeal and decreed rent only at the rate of Rs. 6 per chei. This second appeal has been filed by the plaintiff.
3. The first point argued before me relates to Section 26 of the Estates Land Act. The section runs thus:
Where for the purpose of clearing and bringing waste land in the estate into cultivation or for the purpose of making any permanent improvement or for planting trees on the holding or where under a contract made prior to the commencement of this Act for any premium, loan or other valuable consideration the ryot has accepted a patta, etc.
4. The section deals with three cases. The first case is where a patta is granted for the purpose of clearing or bringing waste land into cultivation. The second case is where it is granted for making any permanent improvement or for planting trees. The third case is where it was made for any premium, loan or other valuable consideration under a contract made prior to the commencement of the Act. It is the third case that was discussed by the Courts below. Now so far as this is concerned it seems to me that the construction of the section by the first Court is right and that of the District Judge is erroneous. The section refers to premium, loan or other valuable consideration. According to the District Judge the rent fixed in the lease deed itself, however low, is some consideration, seeing that nothing was derived from the land prior to the lease; but on this reasoning all leases of waste lands for a rent, however low it may be, would be for consideration though made perpetually and would be binding on the landlord. It is just to avoid this that the Legislature has enacted Section 26. Instead of saying 'all leases of waste lands for some rent, however low it may be, are binding' as in the first clause, the Legislature refers to premium, loan or other valuable consideration. It seems to me that the premium, loan or other valuable consideration must be something other than the rent reserved by the lease and the rent itself cannot be regarded as such valuable consideration on the ground that nothing was being derived from the land previously. I therefore differ from the learned District judge's conclusion as to the construction of Section 26. Mr. Sitarama Rao appearing for the respondent then fell back on the first clause of Section 26 which refers to clearing and bringing waste land in the estate into cultivation but it seems to me that the first clause of Section 26 is not retrospective in its operation. Apart from the general principle that no Act can be retrospective unless the intention is very clear, the Estates Land Act itself makes such intention abundantly clear in many of its sections. For instance, in Section 6 the words 'now in possession' show that it is intended to be retrospective as held by a Full Bench. Again in Section 26 (1) itself the third clause uses the words 'made prior to the commencement of this Act.' If the first clause was also intended to be retrospective, it might have used similar language. It is not a reply to this argument to say that the object of the first clause is that it is intended to apply to leases both before and after the Act. If so, it would have expressly said so. For instance, in Section 3(7) in the definition of old waste in Sub-clause (i) we have 'such period being either after or partly before and partly after the passing of the Act or within twenty years before the passing of this Act.' In Clause (ii) we have the words 'after the passing of this Act.' Again in Section 8, Clauses (i) and (ii) we have 'whenever before or after the commencement of this Act, etc.' I think it is clear that if the first clause of Section 26 was intended to apply to leases before the passing of this Act, it would have expressly said so. Prima facie the section speaks from the date of the enactment and it refers to cases of pattas granted for the purpose of clearing and bringing waste lands into cultivation only after it. In 1886 the law bearing upon this question, namely, how far leases for a low rate granted by a landholder should bind his successor was contained in Section 11 of the Rent Recovery Act. Under that section leases granted by a landholder are binding on the successor only if granted bona fide. Now, as I have already mentioned, under Exhibit E the lessee was prohibited from giving cowles of waste lands except for the period of his lease and any permanent lease granted by him in contravention of this provision of this lease, cannot be regarded as bona fide. I am therefore of opinion that neither the third clause of Section 26 of the Estates Land Act nor Section 11 of the Rent Recovery Act can help the respondent; and as both the Lower Courts have found that the necessary facts for the application of Section 43 of the Transfer of Property Act do not exist in this case, that section too does not help the respondent according to the view uniformly held by the Madras High Court (see Krishnamachariar v. Tiruvenkatachariar (1920) 12 L.W. 149).
5. In this view it is unnecessary to consider the further point raised by the learned advocate for the appellant, viz., that Section 26 only applies to leases for certain periods and not perpetual leases. I think there is a good deal to be said in favour of this contention. I think the word 'period' refers to a section of time and cannot cover a case of perpetuity. Clause (2) makes this stronger. It refers to the expiration of the period for which such a low rent is payable. I am therefore inclined to uphold this contention also. The case in Raman Nayar v. Kunhi Kolandan Musaliar (1915) 2 L.W. 941 cannot help the respondent. The decision simply refers to forfeiture of the term contracted for whether there is a specific period or a perpetual term. In that case, the Judges had not to construe the word 'period' in any enactment.
6. Mr. Sitarama Rao raises two other questions : (1) that even if Section 43 of the Transfer of Property Act does not help his client, Section 109 of the Act helps him. This point was never raised before and it is unfair to allow new questions to be raised at the end of sixteen years of litigation. But apart from this the chapter on leases in the Transfer of Property Act does not apply to agricultural leases.
7. Another point raised by him is based upon the proviso to Section 52(3) of the Estates Land Act. Apart from the obvious unfairness of allowing a new point like this at the end of sixteen years of litigation there is another reason why this contention should be disallowed. If the point was raised in 1915, the plaintiff might have cured it by taking proper steps immediately. I therefore disallow both the new points raised for the first time.
8. The result is the Second Appeal is allowed and the Deputy Collector's judgment restored with costs here and in the Lower Appellate Court.