John Wallis, C.J.
1. There has been some discussion as to the meaning of the words 'liability to pay enhanced rent on an alleged contract to pay' in the question referred to us. Whether or not these words are wide enough to cover, not only a fresh contract enhancing the rent already payable under a binding contract, but also an increased demand under an original contract to pay rent at rates varying with the crops, a well-known kind of tenancy recognised in Section 29 of the Madras Estates Land Act, 1908, which may well have become payable under a contract to substitute money rents for the old sharing system of the country, the possibility of there having been a contract of either kind, ought in my opinion to be taken into consideration in deciding whether or not to presume a contract supported by consideration. That an implied contract within the meaning of Section 11 of the Rent Recovery Act, 1865, to pay rent at a certain rate may be inferred from payments for a long series of years was decided in Venkatagopal v. Rangappa (1883) I.L. 7 Mad. 365 which is referred to with approval at the outset of Lord Sumner's judgment in the recent case Raja Jagaveera Rama Venkateswara Ettappa v. Alawarasa Asari (1918) M.W.N. 732 : 36 M.L.J. 49 and in the case of ryots admitted before the passing of the Madras Estates Land Act, 1908, such contracts remain in force in the absence of any provisions in the Act interfering with them.
2. In Arumugam Chetti v. Raja Jagaveera Rama Venkateswara Ettappa I.L.R. (1905) Mad. 444 at an earlier stage of the case last mentioned, Subramania Aiyar, J., after pointing out that to presume a contract you must presume consideration as well as agreement, a ruling which is now confirmed by their Lordships' Judgment, went on to observe : ' if in cases like the present, payments at the higher rate had continued to be made for a great many years so as to make it unfair to the landholder, on account of such lapse of time, to be compelled to prove the existence of some consideration when the payment commenced, it may be a question whether the Courts should not presume a lawful origin for the payment, on the analogy of the lost grant principle availed of to support long possession and enjoyment.' In Venkata Perumal Raja v. Ramudu I.L.R. (1915) Mad. 84 the learned Judges cited this sentence and answered the question in the affirmative, in my opinion rightly, and the District Judge purported to follow their decision in the case which gave rise to this reference. This ruling in my opinion is not affected by the recent decision in Raja Saga Veera Rama Venhateswara Ettappu v. Alawarasa Asari (1918) M.W.N. 732 : 36 M.L.J. 49. There are also other decisions to the same effect referred to in the opinion of Kumaraswami Sastri, J. which I have had the advantage of reading. In that case, as observed by Lord Sumner, this Court in the judgment under appeal had ruled that the question was 'whether a presumption of the fact of an implied contract arose in any particular case on the facts of that case.' Their Lordships accepted this position and also the ruling of this Court that there was not sufficient reason to differ from the District Judge's finding that an agreement might be presumed although in the particular case of Arumugam Chetty, which was treated as typical of the ninety suits, the enhanced rate had only been paid in the year before suit. 'The question' as Lord Stunner observed ' then came to be that of consideration for the subsequent agreement at garden rate thus implied.' As regards this question, as was repeatedly pointed out, the Zemindar's case throughout 'was that of a new promise to pay at the rate of 8 fanams for land, which was already held on a binding contract of tenancy at the rate of 4 fanams per kuli' and not an original contract to pay rent at rates varying with the crops. For such a new contract Lord Sumner agreed with the High Court that there was no consideration in that case, but he went on to say 'If the cases had been examined separately, if distinctions had been drawn between cases where the higher rate was paid for forty years and cases where it was only paid once or twice, if the possibility of presuming a lost pattah at 8 fanams or lost proof of consideration had been mooted, if the origin of these tenancies had been investigated and the terms of the original contracts fully discussed other questions might possibly have arisen.' All these questions were ruled out owing to the course the case had taken, but the judgment in my opinion sufficiently indicates that they are all matters which ordinarily may and ought to be considered. The question referred to us is, whether a Court can infer consideration for a contract to pay rent at an enhanced rate 'solely from a long continued course of payment of the enhanced rate. My answer is that it may if that is the sole fact it has to go upon; but that in dealing with the question of presuming the agrement and the consideration therefor that together make up a contract, the court should not be governed by that fact alone but. should come to a conclusion on all the circumstances of the case.
3. As a member of the referring Bench I must endeavour to make two points clear, concerning both of which there has been a certain amount of misapprehension.
4. The first is this. The case was argued before us, and our reference was made on the following basis of facts : that in each case the payment of the rate of rent now demanded commenced from the digging of the well and the consequent raising of a more valuable crop by its aid by the tenant that the well was dug by the tenant at his sole expense and that prior to the digging of the well, rent was being paid at a lower rate than the rate paid thereafter.
5. It would perhaps have been better if the above facts had been set forth specifically instead of being to some extent implied in my order proposing a reference, but the latter was framed in the light of the arguments addressed to us, and I venture to think it leaves no room for doubt, if carefully perused. That the vanpayiar crops were raised with the water, of the ryots' own wells is distinctly stated, and I think the use of the term ' enhanced rent ' in the question is sufficient to imply the existence of a prior state of affairs, in which rent was paid at a lower rate. Fischer v. Kamakshi Pillai I.L.R. (1897) Mad. 186 is sufficient authority for holding that the imposition of garden assessment where rent had previously been paid at dry rates is an enhancement of rent. The second point relates to the theory of an original contract of tenancy at the time of the commencement of the latter to pay rents varying with the crop raised. This theory in connection with the cases before us appears to have been first brought forward by Mr. K. Srinivasa Iyengar at the present hearing. It was never set up in the argument before Mr. Justice Krishnan and myself and I do not find a single word in the judgments of the lower Courts to suggest that it was raised before them. The contract which we were asked to imply was a fresh contract contemporaneous with the digging of the well in each case, whereby the rate of rent previously paid was to be enhanced. This is the kind of contract contemplated in the order of reference--precisely similar to that which was considered by the Privy Council in the recent case (Raja Jagaveera Venkateswara Ettappa v. Alawarasa Asari (1918) 36 M.L.J. 49.
6. If the question be considered in the light of the above explanation, I think it should be answered in the negative. If we understand ' consideration ' for a contract to imply something moving from the promisee, I fail to see why a continued course of payment of rent at a particular rate however far it may go back, should imply consideration, always provided that a previous state of affairs is proved in which a different and lower rate was paid. A long course of payment no doubt indicates that the tenant agreed to pay. But it throws no light on why he agreed to pay at the higher rate. He may have agreed (1) for some consideration moving from the landlord; but he may have agreed (2) because he was afraid to resist his landlord's demand or (3) simply because he looked around and saw other tenants in similar circumstances paying rent at the higher rate--in other words because it was customary. Such a custom (of charging extra rent for a tenant's own improvements) is, I need hardly say, unenforceable at law both before and after the enactment of the Estates Land Act : vide Section 13 of the Madras Estates Land Act, Section 11 Rent Recovery Act, in Fischer v. Kamakshi Pillai I.L.R. (1897) M. 136 and in Arumugam Chetti v. Raja Jagaveera Rama Venkateswara Ettappa I.L.R. (1905) Mad. 444 It is at the same time extremely despread a fact which, I think, no one will deny.
7. There may be other explanations besides the three I have indicated above : but simply dealing with these three, I fail to see why No. (1) should be taken to be the most probable. No. (2) is, to my mind at least, as likely in view of the conditions which formerly prevailed, and prevail even now to some extent, in Zamindari tracts. But No. (3) seems to me the most probable of all, It is difficult to exaggerate the extent to which custom or mamool governs the action of the tenantry. It is prominently referred to, for example, even in the muchilikas filed in these suits (Exhibits B and E series) in which the tenant undertakes ' I shall in accordance with the custom of the Zamindari pay,' etc.
8. It may be argued (and I am fully alive to the force of the argument) that, where a known result may be due to more than one cause, the determination of which is the true cause is a question of fact. But an implied contract may be a question of law : vide Sankaran Nair, J.', in Nagu Chetty v. Bhaakara Setupathi (1911) 1 M.W.N. 6. Where the data are limited and ascertained it may not be impossible to lay down a rule of law that such data in themselves are not sufficient to justify a particular inference : and where (as here) the cause sought to be inferred is, on the data available, the least probable of three possible causes, I think it may be laid down as a rule of law that such an inference is not to be drawn in the absence of other evidence to support it. As a somewhat analogous case I may mention Raja Parthasarathi Appa Row v. Chevendra China Sundra Ramayya I.L.R. (1904) Mad. 543 in which this Court laid it down that it was not open to courts to infer from the mere circumstance that rent has been paid in money for a series of years but at varying rates an agreement to pay money rent : and this dictum was approved by the Privy Council in Parthasarathi Appa Row v. Chevandra Venkata Narasayya I.L.R. (1910) Mad. 177 : 20 M.L.J. 596. I fail to see why the legitimacy of the inference in the question in the present case is not equally a question of law.
9. It has been suggested by my learned brother Krishnan, J., in consenting to the order of reference that the question is not really one of implying consideration, but of attributing a legal origin to a long continued course of payment. It is argued that this may be done by the application by analogy of the principle of presumption of a lost grant where long continued possession and enjoyment of property are proved. The same aspect of the case was suggested by Subramania Aiyar, J., in Arumugam Chetti v. Raja Jagaveera Rama Venkateswara Ettappa I.L.R. (1905) Mad. 444 though the learned Judge did not examine it. With all respect I do not think this is the class of cases to which the doctrine of legal origin can be safely applied if only because we know too much of the antecedent circumstances before the payment originated. The doctrine of legal origin appears to be this : that where all we know of the origin of a certain disputed right is that it has been enjoyed without interference or interruption from time immemorial if should be presumed to have had a legal origin, if a legal origin was reasonably possible (vide the Lord Chancellor in Goodman v. Mayor of Saltash) (1882) L.R. 7 App Cas 623. Here there is no immemorial enjoyment. We know that the payment of enhanced rent originated with a certain event (the digging of a well) at a date which will in most cases be approximately ascertainable and that before that time a lower rate of rent was paid. There is neither room nor occasion for the application of the doctrine. One party sets up a particular explanation and the question is whether the balance of probability is so much in its favour that it should be presumed to be correct.
10. How carefully the doctrine of legal origin should be applied even in appropriate cases may be gauged from the judgment of the House of Lords in another case (Gann v. Free Fishers of Whitslable) (1864) 11 H.L.C. 193. Their Lordships were ready to presume from a long course of payment of the anchorage fees charged that this payment had been going on from time immemorial. But they declined to infer, in the absence of evidence, the existence of the facts which alone would make a grant by the Crown legal. The Lord Chancellor said ' If the payment be claimed as an ancient anchorage due, some facts must be shown which either prove or from which it can be inferred, that the soil claimed by the respondents was orginally within the precincts of a port or harbour; or that some service or aid to navigation was rendered to the public in respect of which the alleged grant was made; but nothing of the kind appears, and no such case can be presumed or inferred from the mere fact of an immemorial payment.'
11. Lord Wensleydale expressed the same view: 'I perfectly agree, that from long enjoyment of a privilege, in this case of demanding the payment of anchorage, as for a period of ninety years from 1775 to 1864, every reasonable presumption may be made that it has continued from time immemorial; but where the privilege requires more than immemorial enjoyment, in order to be legal and valid, some other facts must exist, and there must be some proof of these facts.
12. For the above reasons, I would answer the question referred to us in the negative.
Coutts Trotter, J.
13. If the word 'enhanced' be exercised from the question referred to us, the answer presents no difficulty and could at once be given in the affirmative. A Court with nothing before it but the fact of a long continued payment by a tenant would be amply justified in presuming a legal origin for that payment. But the word 'enhanced' clearly carries an implication of a further fact, viz., that the tenant had previously paid a lower rent than that sought to be enforced. And when the referring judgments are looked into, other facts emerge that the rent in each case was enhanced when the tenant, by means of water supplies provided by himself at his own expense, changed the mode of cultivation, and that the date of enhancement of rent for this cause differs in each instance, and has not been specifically ascertained with regard to the case of any one of the appellants. In these circumstances the question appears to me to be one entirely of fact, to be determined on the balance of probabilities. For a Court to infer consideration for a long continued course of payment is a totally different thing when that is the sole fact before it, and when it is complicated by other considerations, as in this case. In the latter event it comes in effect to a balancing of probabilities; and no Court should in my opinion presume consideration passing from the landlord, unless it thinks it inherently probable that such consideration could and did exist in fact. It is obvious that the tenants may have paid the enhanced rent merely because they were not strong enough to resist the landlord's demands, or because it had been the custom to pay it without demur and it is not contested here that custom will not do but that a contract supported by consideration moving from the landlord is required. I am conscious that the only answer I am able to give to the question propounded is not likely to be very helpful to the referring Bench: the reason in my opinion is that the question, though apparently one of law, is when analysed one of fact. The Court which has to decide the issue involved in this case should obviously pay the greatest attention to the fact of the long-continued payments of the enhanced rents by the tenants: it is no light matter to overset a state of things which has existed without question for a long period of time. But it must not assume that it is in possession of a single fact when in truth it is in possession of many, and proceed to a finding on that erroneous assumption. I think that that is what happened in this case and that the error has repeated itself in the terms of the reference.
14. I do not therefore feel able to say more than this : that if the continued payment of a rent were the sole fact before the Court, it would be entitled to presume consideration from it; but that if, as in the present case, there are other facts before the Court, it must refuse to treat the payment as raising a presumption, and, while giving it such weight as it thinks fit, perhaps a determining weight, treat it merely as a portion of the evidence in the case, subject to be weighed against and perhaps overtopped by the evidence on the other side.
Seshagiri Aiyar, J.
15. It was stated by Mr. Justice Ayling in the course of the hearing of the Full Bench Reference that it was not suggested before the Division Bench that there was or might have been an original contract between the landlord and the tenant to the effect that in case the tenant cultivated garden crops on dry lands from whatever irrigation source it might be, he should pay a different rate of rent different from what he was bound to pay for raising dry crops. It may be open to the Division Bench when the case goes back to permit the landlord to pr6ve such an agreement. They would be guided by the nature of the pleadings, the issues and the opportunities which the parties had to present their case. But apparently until Mr. K. Snnivasa Aiyangar opened the case in this Court, this suggestion was not put forward. The learned Vakil has apparently based his contention upon the statement of Lord Sumner in Raja Jagaveera Rama Venkataswara Ettappa v. Alawarasa Asari (1918) 45 I.A. 196 : 36 M.L.J. 49 : (1918) M.W.N. 782. to the following effect at p. 736. ' It never appears to have been suggested that what was meant was a custom Of the country, with reference to which the ryots or their predecessors must be deemed to have contracted when they began to occupy the land in the first instance, or that the Zemindar's claim was merely to have the original contract applied to new circumstances according to its terms, and, was not a claim to alter those terms, to imply a new contract for that purpose.' No doubt, if that was the contention and if the question referred to us is to be regarded as relating to that argument, I would be prepared to answer the question by saying that the trial court or the lower appellate court would not be acting contrary to law or to any usage having the force of law 'in infering consideration for a long-continued course of payment.'
16. I do not think that Goodman v. Mayor of Saltash (1882) 7 Appeal cases 633 relied on by Mr. K. Srinivasa Aiyangar would compel us or the Division Bench to draw such an inference otherwise. Lord Selbourne at the bottom of page 739 says, 'But an open and uninterrupted enjoyment from time immemorial under a claim of right seems to me to be all that is necessary for a presumption that it had such an origin as would establish the right if a lawful origin was reasonably possible in law.' I understand the Lord Chancellor to have held that the continuance o f an arrangement for however long a period is not evidence that the contract is lawful or supported by consideration. It would only enable the Court to infer that the parties had come to such an arrangement. The Indian Contract Act speaks of agreements or contracts which are void for ' want of consideration,' Therefore, the element of consideration is not an implication which is involved in the inference which attributes a lawful origin for the prevalent practice. Courts in this country are familiar with cases where notwithstanding long payment, the landlord has not been permitted to enforce these payments. In Ramasami v. Appavu I.L.R. (1887) Mad. 9 it was found that the inhabitants of a village contributed to a temple a quantity of grain proportionate to the holding of each ryot. It was held that this was a voluntary one and had no consideration to make it legally enforceable. I can quote a large number of similar instances in Madras and Calcutta. I refer to them to show that a long course of payments standing by itself, although it may refer the payment to a voluntary agreement between the parties, would not suffice to indicate that the agreement was either lawful, reasonable, or had consideration. I am willing to agree that the payment for a long period standing by itself is an element to be taken into account in deciding whether there was consideration for it or not.
17. But that is not what we are asked to give our opinion upon. It was explained by Mr. Justice Ayling that he and Mr. Justice Krishnan used the word enhancement in the question under reference as it was not disputed before them that there was a prior rate of rent which was enhanced after improvements were effected by the tenant. In this view, I am unable to hold that a course of payment would lead to the presumption that there was consideration for the increased payment. Given these facts, namely, (a) an existing contract to pay at a particular rate, (6) the ryot solely and at his expense effected improvements on the land by digging a well in it, (c) and the increased payment commenced after these operations by the ryot, I can find no circumstances for the operation of any presumption. Consideration, Which has an extended significance in the Indian Law, pre-supposes that something moves from the promisee. But when we know that he has not moved his little finger except it be to extend it to receive the additional payment, there is no room for making a presumption. If I understand the judgment of Lord Sumner rightly, that is what the learned Lord has laid down. His Lordship says at page 737 of the judgment quoted above, ' What is this consideration to be? The mere letting of the land by the landlord will not do, for it was let at the dry rate already, and the ryot was entitled to continue in occupation at that rate, and no fresh consideration therefore moved from the landlord for the ryot's assumed promise to pay at the 8 fanom rate. The District Judge appears to have found consideration in the landlord's abstention from exercising his right to resort to the 'warum' system, if the ryot refused to consent to pay at the rate of 8 fanoms, but, under the Act, if there was an implied contract for the 4 fanom rate, that contract had to be enforced, and there was no question of resorting to the 'warum' system. By the admissions, such an implied contract did exist.' If the letting was previous and if there can be no question of going back to waram payment, because that can only be done if there was no express or implied contract, if there was a specified rate before the improvements, and if the ryot did not cultivate the new crop with the aid of water from the landlord's sources of irrigation, there can be but one answer to the question whether the new rate had consideration. It was faintly suggested and I find that in some of the cases this is accepted, that the landlord might have given up his claim for rent upon that portion of the holding on which the well was dug, and that forbearance might have been the consideration for the extra payment. In the first place, this is a fact to be proved and not a matter depending upon the course of payments. In the second place, it is not ordinarily the case that the landlord excludes this portion from the payment of the rent. In the third place, even if the landlord consented to the exclusion, it very often will be because instead of a precarious payment from the tenant dependent upon rain-supply for the crops, he would have calculated that a good irrigation source would ensure a regular payment of the original rent; because it has been held that if the tenant is unable to cultivate owing to want of water, he is not ordinarily chargeable with rent, unless there is a contract to the contrary. Moreover, I very respectfully adopt the observation of Lord Sumner that it would not be easy ' to say the least of it to suppose that any ryot voluntarily agreed to have his rent enhanced whenever his own outlay should have rendered an improved mode of cultivation.' From my experience of the country, what happens is the tenant when in a prosperous condition owing to his own exertions, does not grudge to pay the landlord a share of the benefits which he is reaping. This is not the only country in which landlords lay claim to unearned increments, but I am unable to hold from the naked circumstance of payment alone that there must have been consideration from the start.
18. As regards cases, my view is supported by Arumugam Chetty v. Rajah Jagaveera Rama Venkateswara Ettappa I.L.R. (1905) Mad. 444 Arumugam Chetty v. Raja Jagaveera Rama Venkateswara Ettappa I.L.R. (1910) Mad. 134 and the recent Privy Council decision. The earlier decisions of this Court which Lord Sumner quotes without disapproval, in Ven-hatagiri Raja v. Pitchana I.L.R. (18S5) Mad. 27 and in Fischer v. Kamakshi Pillai I.L.R. (1897) Mad. 186 though they were based on custom, lay down the law in the same way. In Gopalaswami Chettiar v. Fischer I.L.R. (1904) Mad. 823 there is some doubt thrown on Fischer v. Kamakshi Pillai I.L.R. (1897) Mad. 186 but having regard to its quotation by the judicial Committee, I do not attach much importance to the doubt. In Suppa Pillai v. Nagayasami Thum-bichi Naicker I.L.R. (1907) Mad. 19 to which the present Chief Justice was a party, it was found that the commutation of waram into money was a sufficient consideration for the new payment. The price of paddy is dependent on current prices and when a fixed payment is agreed to, there is sufficient consideration for what may at first sight, appear to be excess rate. I do not think that Parthasarathi Appa Rau v. Chevandra Venkata Narasayya I.L.R. (1910) Mad. 177 has any bearing on the present question. In the other cases cited, including the one to which 1 was a party, it was held without discussion that payments during a particular period would, or would not be evidence of consideration. These decisions ought not to be regarded as authoritative pronouncements on matters which were not discussed and decided upon.
19. For all these reasons, my answer is that a course of payment, if nothing else appears, may be an element to be considered in arriving at the conclusion whether there was consideration for it or not; but if there was a fixed payment before and the rate was enhanced slowly because the tenant has cultivated new crops by his own exertions, my answer is that there is no room for presuming consideration under such circumstances.
Kumaraswami Sastri, J.
20. The question referred to the Full Bench is whether the Court can infer consideration solely from a long continued course of payment of enhanced rent in cases where it is sought to base liability to pay enhanced rent on an alleged contract to pay it. The facts of the case and the findings of both the lower Courts have been set out in the order of reference and it is not necessary for me to repeat them here.
21. I am of opinion that it is open to the Court from a long and uniform course of payment to presume that there was an agreement to pay which had a lawful origin and was supported by consideration where it is satisfied that it would be unreasonable from lapse of time or other circumstances to call upon the landlord to give direct evidence as to the terms and circumstances that gave rise to the payment, and when circumstances exist which would render the drawing of the presumption reasonable in law and probable in fact. If all that appears is a long course of payment, I do not see why the presumption should not be drawn.
22. It seems to me that the drawing of the presumption is only an application of the principle that a legal origin should be presumed where there has been a long-continued assertion of a right if such a legal origin were possible and that in such cases courts will presume that those acts were done and those circumstances existed which were necessary to the creation of a valid title (see the judgment of Lord Hershell in Phillips v. Halliday (1891) AppCas 228.) The presumption of a lost grant in cases of long-continued exercise of rights has been recognised in the leading case of. Goodman v. Saltash Corporation (1882) 7 App Cas 633 and the principles governing such cases have been laid down in a series of English decisions. As pointed out by Farwell, J., in Mercer v. Dennie (1904) 2 Ch 534 not only would Courts be slow to draw an inference of fact which would defeat a right which has been exercised for a very long period unless such an inference is irresistible, but will presume everything that is reasonably possible to presume in favour of such a right. In Foley's Charity Trustees v. Dudley Corporation (1910) 1 K.B. 317 where a free farm rent had been paid to certain charity trustees for over 100 years in respect of a piece of land acquired for the widening of a road it was held that the Court ought to presume that land had been granted to the turnpike trustees as land subject to a perpetual rent charge even though no conveyance to the trustees was forthcoming. The Master of the Rolls observed that he did not think it necessary to enlarge upon the duty of the Court to make every presumption in a case like that which can be made to support such a long-continued possession.
23. There seems to me to be nothing in the relations between landlords and tenants in this country to render it necessary or equitable to exclude the principle so clearly enunciated in the English cases though the presumption has to be applied with great care and discrimination in cases of ryots in Zemindaris and a great many circumstances have to be noted and their probability excluded before the Court can proceed to draw the inference that what was being done had its origin in an agreement supported by consideration. For example Courts have to take into careful consideration the fact that very often a tenant pays enhanced rent demanded not because there are any valid grounds for doing so but because he sees his neighbours paying it without demur. The ignorance of ryots of their legal rights and the position and influence of the Zemindar have to be taken into account. The difficulties often experienced and the caution required in dealing with cases of claims based on an enhancement of rent are however no ground for not applying a principle which had so such reason and authority to support it.
24. Enhancement of rent may have been due to various causes and the enhanced rent may have been paid for so long a series of years that it would be unreasonable to expect the landlord to prove the grounds which led to the enhancement and the consideration therefor. When no circumstances exist which would raise a fair inference that rent was enhanced without any consideration moving from the landlord the ordinary presumption that a person and his predecessor-in-title would not have paid for a series of years, more than what was payable, voluntarily and without any legal or binding obligation to do so, might well be raised.
25. The balance of authority is in favour of the view that a legal origin may be presumed. In Venkatagopal v. Rangappa I.L.R. (1882) Mad. 365 Turner, C.J., observed : 'Payment of rent in a particular form or at a certain rate for a number of years is not only presumptive evidence of the existence of a contract to pay a rent in that form or at that rate for those years, but is also presumptive evidence that the parties have agreed that it is obligatory on the one party to pay and the other to receive rent in that form or at that rate so long as the relations of landlord and tenant may continue. Either party is of course at liberty to rebut the presumption.'
26. In Krishna v. Venkataswami I.L.R. (1883) Mad. 164 it was held following the above decision that an implied contract to pay rent at waram rates within the meaning of Section 11 of the Rent Recovery Act may be inferred where a landlord accepted rent at waram rates for a number of years,
27. In Arumuga Chetti v. Raja Jagaveera Rama Venkateswara Ettappa I.L.R. (1905) Mad 444 Subramania Aiyar, J., in dealing with presumptions to be raised for a long course of payment observed 'If in cases like the present payment at the higher rate had continued to be made for a great many years so as to make it unfair to the landholder on account of such lapse of time to be compelled to prove the existence of some consideration when the payment commenced it may be a question whether the Courts should not presume a lawful origin for the payment on the analogy of the lost grant principle availed of to support long' possession and enjoyment. That even in the case of immemorial usage the doctrine of quid pro quo is not altogether to be ignored will be seen from the observations of Lord Chelmsford in Gann v. Free Fisheries of Whitstable (1864) 11 H.L. 192. He did not pursue the argument further as he was of opinion that the facts proved in the case he was dealing with gave no room for any such inference.
28. In Venkata Perumal Raja v. Ramudu I.L.R. (1916) Mad. 84 SadasivaAiyar and Napier, JJ., held that the Court can presume a lawful origin for a contract to pay enhanced rent where it has been paid for a long time though they differed as to whether the provisions of Section 13 of the Estates Land Act were retrospective. In Prayag-dosjee Vary v. Venkama Naidu (1918) 7 L.W. 477 Sadasiva Aiyar and Bakewell,JJ. held that an implied contract to pay an enhanced rent may be presumed from continued payment for a number of years. In Lodd Govindoss v. Chennappa Naidu (1914) 28 M.L.J. 136 Sadasiva Aiyar and Napier,JJ., followed their decisions in Venkata Perumal Raja v. Ramudu I.L.R. (1916) Mad. 84 as to the power of the Court to presume a. valid contract to pay enhanced rates.
29. In Devaru v. Raghunatha Rao (1913) M.W.N. 886 Sundara Aiyar and Sadasiva Aiyar, JJ., were inclined to the view that Courts may presume that there was some reason which made it obligatory on the payee to make the payment when periodical payments were made for a long time though they pointed out that much caution was required in the application of this principle when cesses were concerned.
30. In Second Appeals Nos. 1639 to 1644 of 1916, Spencer and Krishnan, JJ., were of opinion that payments for a sufficiently long period would entitle the Court to raise a presumption that they are based on an agreement between the parties and that there must have been some consideration for that agreement.
31. A contrary view was taken in Arunachalam Chetty v. Syed Ahmed Ambalam (1915) 2 L.W. 1117 where Ayling and Phillips, JJ. were of opinion that though an agreement to pay enhanced rent may be inferred from payment for a long series of years yet independent proof of consideration was necessary to render it a binding contract. With all respect I fail to see why if circumstances exist for drawing the presumption that there was an agreement they should not equally be used to draw a presumption that there was consideration. As observed by Ayling, J., in Arumugam Chetty v. Raja Jagaveera Rama Venkateswara Ettappa I.L.R. (1910) Mad. 134 consideration may be of the same implied nature as the contract to pay. In Prayagdossjee Varu v. Venkama Naidu (1918) 7 L.W. 477 Sadasiva Aiyar and Bakewell, JJ., dissented from the decision in Arunachalam Chetty v. Syed Ahmed Ambalam (1916) 2 L.W. 1117 and I entirely agree with the reasons given by them.
32. In Narasimmulu Nayudu v. Ramesam I.L.R. (1891) Mad. 44 and Raja Parthasa-rathi Appa Rao v. Chevendra Chinna Sundra Ramayya I.L.R. (1904) Mad. 543 it was assumed that it was open to the Courts to draw the inference that there was a valid and enforceable agreement from long course of payment though on the facts of those cases it was held that period was not long enough.
33. It was argued by the Vakil for the appellant that in cases of permanent tenancy there is an express contract at the time of letting and that there consequently arises no room for presuming any implied contract with a fresh consideration and great reliance has been placed on the decision of their Lordships of the Privy Council in Raja Jagaveera v. Alavarasa Asari (1918) M.W.N. 732 : 36 M.L.J. 49. I do not think the decision is authority for this proposition. All that was decided was that the expression 'implied contract' was an English term of art 'involving the legal incident of some consideration moving from the landlord as that incident is understood in English Law.',On the facts found in the cases before their Lordships (namely that enhanced rent was claimed soley because tenants dug wells at their own expense) it was held that there was no room for presuming any implied contract. The question as to the presumption of a lost pattah or lost proof of consideration was considered and the observations of Lord Simmer at the end of the judgment leaves the question open.
34. I am unable to see why a legal origin should not be presumed in cases where rent has at some remote period been enhanced. Enhancement of rents in the case of wet or garden crops raised on dry land may be due to various causes some of which would not necessarily negative the idea of fresh consideration and some of which would exhypothesi do so. Where it is possible to infer a legal origin from a long course of payment I do not see why the necessary presumption should not be made. Like all presumptions their strength or weakness will depend upon the facts of the ease to which they are to be applied.
35. There may be as pointed out in Venkatagiri Raja v. Pichana I.L.R. (1885) Mad. 27 cases where the, land has not been classified as wet or dry or garden but the rent varied with the crops and where the fiscal accounts were prepared on this principle. In such cases the landlord will be entitled to enhance the rent if garden crops are raised irrespective of whether the crops are raised with water from wells dug by the tenant or not. There may be cases where the tenant dug wells or tanks with the help of the landlord and where the landlord gave poromboke lands for the purpose. In such cases there is nothing to prevent the parties from agreeing to pay enhanced rent. (See Govinddoss v. Chennappa Naidu (1914) 28 M.L.J. 136). There may be cases where rent at a certain rate appears to have been paid at some remote period and enhanced subsequently the reason not being apparent on the evidence. In such cases there is nothing to militate against the presumption of lawful origin for the enhancement being drawn. On the other hand where there is nothing to show that there was any agreement that the rates should vary with the crops and where all the facts point to a fixed rent having been agreed upon at the time of the letting it is clear that an enhancement cannot be claimed merely because the tenant raised garden crops with the aid of water from wells dug at his expense or water which was not the landlord's. There is obviously no consideration in such cases and no room for the drawing of any presumption because of certain known facts which exclude he possibility of any consideration. See Venkatagiri Raja v. Pichana I.L.R. (1885) Mad. 27. Raja Venkata Narasimha v. Venkayya (1914) I.L.W. 676 Arumugam Chetti v. Raja Jagaveera Rama I.L.R. (1910) Mad. 134 Seetaram Raju Singam Raju v. Raja Venkatagiri Appa Row (1913) M.W.N. 645 Kasidoss Subraya v. Narayana Reddi (1915) M.W.N. 209 and Srimantu Raja Mallikarjuna Prasad Naidu v. Subbayya I.L.R. (1911) Mad 4.
36. The cases above referred to which decide that no consideration can be inferred merely by payment for a series of years where the only ground shown is the improvements of the land at the tenant's sole expense do not militate against the general proposition that the Court can infer a lawful origin where a long course of conduct is proved. They only illustrate the limitation that such an inference cannot be drawn where the facts proved show that there cannot be any consideration for the enhanced payment. The rule as to the presumption of a legal origin from long course of conduct is always subject to the inference being legally possible. As the reference to us is general and is not limited to enhancement of rent owing to any particular reason I would answer the reference as proposed by me in the opening of my judgment.