Sadasiva Aiyar, J.
1. The defendant is the appellant in these 10 Second Appeals Nos. 356 to 365 of 1913. These second appeals have arisen out of five suits brought by five tenants against their common landlord the defendant. As there were five appeals by the plaintiff and five appeals by the defendant in the lower appellate Court presented against the decisions of the Sub-Collector in the five suits, ten second appeals have been preferred to us against the 10 decrees passed by the lower appellate Court. The suits were brought by the tenants to have the terms of the patta for fasli 1319 ascertained and for directing the defendant to tender proper pattahs for that fasli. The suite have been decreed in favour of the plaintiffs by the lower appellate Court after making certain modifications in the terms of the cadapas tendered to the plaintiff by the defendant's officials in fasli 1319 and which terms the defendant insisted on plaintiff's accepting without any modification or omission.
2. Coming to the grounds in the memorandum of appeal, that is, those grounds which were argued before us, I think that we cannot interfere with the findings of fact by the lower appellate Court on the question whether the plaintiffs accepted with full knowledge the pattahs tendered to them by the defendant in fasli 1319, and on the question whether the plaintiffs did execute muchilikas with full knowledge and consent in favour of the defendant for the same fasli. The next point argued was that though the plaintiffs brought their suits in order to obtain pattahs for fasli 1319, the pattahs, with the terms decreed by the lower appellate Court cannot legally come into face for the fasli 1319 itself. In support of this argument, Clause 3 of Section 52 of the Madras Estates Land Act is relied upon or rather, the proviso at the end of that clause. That proviso relates to a case where a. pattkh or muchilika has continued to be in force for more revenue years than one, and the proviso enacts that in that case 'no fresh pattah or muchjlika for the same holding shall take effect until the commencement of the revenue year next succeeding that in which such fresh pattah is decreed.' In order therefore to attract the terms of this proviso it is necessary for the defendant to show that any pattah has continued to be in force for more revenue years than one. It is argued that the pattah tendered and accepted in fasli 1318, or it may be even fasli 1317, was such a pattah. But so far as the pattah for fasli 1317 is concerned, it must have been tendered under the old Act; and I am of opinion that that pattah tendered for that particular fasli did not continue in force beyond that fasli because under the old Act of 1865 a pattah tendered for one fasli did not continue in force beyond that fasli. It is only under the first sentence of Clause 3 of Section 52 of the new Act that a pattah accepted for a single revenue year continues to remain in force till a fresh pattah is accepted or decreed. If, however, reliance is placed on the facts that a pattah was accepted for fasli 1318 alter the new Act came into force, and that that pattah would continue in force till a fresh pattah is decreed for a subsequent fasli the reply is that the first sentence in Clause 3 to Section 52 itself says that a pattah for a revenue year shall remain in force only until the commencement of the revenue year for which a fresh pattah is decreed. As these suits were brought for fresh pattahs to be decreed for fasli 1319 and as they were decreed for that fasli, the pattah for fasli 1318 even under the rule enacted in Clause 3 remained in force only until the commencement of the revenue year for which the fresh pattah was decreed, i.e., until the commencement of fasli 1319, and hence it was in force for only one year and had not continued in force for more revenue years than one. Accordingly the proviso at the end of Clause 3 of Section 52 is not applicable to the facts of these cases. Then the other contentions of the appellants related to the terms of certain clauses of the Cadapa tendered by; the defendant for fasli 1319, which terms have been disallowed by the decrees of the lower appellate Court. The first clause of the Cadapa provided that the tenant shall pay the land cess at Re. 0-1-0 per Rupee to the defendant's officials, though under Section 73 of the Local Board's Act the defendant can claim only half of the land-cess from the tenant. It was argued that though the clause provides for the payment of the whole land-cess as land-cess by the tenant, we must presume that half of that land-cess was really made payable by the tenant as rent and that for the convenience of both the landlord and the tenant, that portion of the rent which is equivalent in amount to half the land-cess was made payable as if it was half of the landcess itself. No foundation has been laid in the evidence for making such an extraordinary presumption and I must repel this contention.
3. Then it is said that Clause 4 of the cadapa was wrongly dis-allowed by the lower appellate Court. That clause provides that cist on the land shall be the first charge on the produce of the land. If that clause merely intended to give a charge to the landlord to the same extent as is given by Section 5, Clause 1 of the Madras Estates Land Act, then the clause is superfluous. But if that clause is intended to give the landlord a higher charge, say, a charge upon the produce of the land, even after the produce had passed into the possession of a purchaser from the tenant, then it is a charge which is unreasonable and the lower Court acted in my opinion, rightly in refusing to give such an extended charge to the landlord. The next contention relates to Clause 5. That again makes some provision in favour of the landlord which is also provided for by Section 42, Clause 1 (a) of the Estates Land Act. If the landlord (defendant) was intended to obtain the same benefit under this Clause 5, as he is given by Section 51 of the Estates Land Act, then Clause 5 is superfluous. If he wants some more extended benefit (the extension to be of a vague and undetermined character as I understand Clause 5), then the lower appellate Court was justified in refusing to give him such a larger privilege. The last contention relates to Clause 10 of the Cadapa. That clause is to the effect that the tenant shall deliver at the house of the landlord the Sankramanam mamool, namely, 3 seers of ghee, and one cartload of fuel, 1 cartload of dry hay, Jaggery and one cock. It is argued that this is part of the rent. I am unable to accept this contention. It is a clause which comes at the very end the penultimate 9th clause evidently being intended to be the last clause appropriate to a muchilika as such. In the case in Krishna Chandra Sen v. Sushila Soondary Dassee I.L.R. (1899) C. 611 it was held that where there was a stipulation for payment of Rs. 4 in lieu of certain quantities of jack fruit, bamboos and fish and where that stipulation was contained in a clause perfectly distinct from that containing the payment of rent, which was payable in instalments (in this case) also the rent was payable in instalments), that the provision for such a payment was not a provision for payment of rent but for payment of presents. Further on comparing all the 5 different Cadapas in these appeals, it will be seen that while the rent varies, this Sankramanam mamool payable by each tenant is exactly the same. This also indicates that Sankramanam mamool is not part of the rent as it does not vary with the extent of the holding or the amount of the proper rent payable. It has also been pointed out by the lower appellate Court that the land-cess which is calculated at the rate of one anna in the rupee on the amount of the rent is not calculated upon the value of these Sankramanam mamool presents. Hence I am clear that these payments are no part of the rent. But then it is argued that even if it is not part of the rent, it is a sum which has been lawfully payable under the contract between the land-lord and the tenant before the new Act came into force, and that such a payment has not been rendered unlawful by any provision contained in the New Act. I am not quite sure that even under the old Act, the promise to make these presents was a lawful contract which could be legally enforced. I think that even as the agreement to make such presents does not come under the definition of a contract which requires consideration to support it (for however long such payments might have been made by the tenant out of respect to the landlord), it was not a legally enforceable payment even when the old Act was in force. Even if for argument's sake it be assumed that it was an enforceable agreement under the old Act, it seems to me, that Section 143 of the present Act debars the land-lord from exacting from his tenants 'under any name or any pretence anything in addition to the rent lawfully payable'. As I have found that this is not rent, it cannot be recovered by the land-lord even if it is something other than the rent which is lafwully payable under the provisions of the new Act.
4. In the result I would dismiss all these 10 second appeals with one set of costs in each of the 5 pairs of connected appeals.
Seshagiri Aiyar, J.
5. I entirely agree; I wish to add a few words only with reference to two of the points argued before us. Reading Clauses 2 and 3 of Section 52 of the Estates Land Act, it seems clear to me that the object of the legislature was where there has been a consolidated contract for more than a year, that there should be no sudden change in the relationship of the parties, and that there should be a year of grace before the new conditions come into force. In this case, the only year for which pattah was tendered, was fasli 1318 after the Act came into force. This is not a case where under Clause 2 there had been a contract for more than one revenue year and therefore the proviso to Clause 3 of Section 52 has no application; and the District Judge was right in his conclusion. As regards Clause 10 in the pattah Mr. Sarma has strenously argued that the items mentioned therein were lawfully recoverable by the Mokhasadar under the old Act; and as the Mokhasa is in a hilly tract these payments entered in Clause 10 must be taken to have been part of the rent which was stipulated between the tenant and the Mokhasadar, and as such, it is claimable as rent. Mr. Sarma concedes that unless he can bring these payments under the designation of ' rent lawfully payable' mentioned in Section 143 his argument must fail. In the first place, the fact that he himself never paid to the Government road cess calculated upon this amount is against his claiming this amount as rent. Nor does he levy from the tenant the local cess under Section 73 of the Madras Local Boards Act on these items. Therefore it is clear that these items have never been regarded as rent. I think that these payments originated in a mamool to grant supplies to the Mokhasadar or his officials who came to inspect the holding each year; they have continued to be paid voluntarily by the tenant to the Mokhasadar. As pointed out by the learned Chief Justice and Sir T. Muthuswami Aiyar J. in Subramaniam Chetti and Anr. v. The Prince of Arcot I.L.R. (1880) M. 146 payments of this nature cannot be regarded as rent; if they are not rent, Section 14,3 is a complete bar and the plaintiff is not entitled to recover them.
6. I therefore concur in holding that the second appeals should be dimissed with costs.