1. The only question that arises in these appeals is whether a usufructuary mortgagee of a post-settlement inam is a landholder within the meaning of the Madras Estates Land Act. There is abundant authority in support of an affirmative answer (vide Appalanarasimhulu v. Sanyasi I.L.R. (1912)Mad. 33. Subramania v. Muthiah Chettiar (1915) I.L.W. 1004. Kallalagar Devasthanam v. Anthony Moopan (1924) 48 M.L.J. 147 and Vallachami v. Thiruvaroor Devasthanam : AIR1935Mad452 . The learned District Judge refers only to the third of these decisions and his attention does not appear to have been drawn to the other three which are decisions of Division Benches. After referring to Kallalagar Devasthanam v. Anthony Mooppan (1924) 48 M.L.J. 147 which is the decision of a single Judge, the learned District Judge says that he is unable to follow it, in view of a later decision, also of a single Judge, in Nallakakkan Ambalam v. Sri Kallalagar Devasthanam : AIR1926Mad156 . This last decision, however, is clearly distinguishable. It arose under Section 46 of the Madras Estates Land Act which has since been repealed by the Amendment Act of 1934. Under Section 46(5) the sum payable in respect of 'old waste' for the acquisition of occupancy right had to be paid to the land-holder ' who is the owner of the estate.' In view of this special provision, Davadoss, J., held in Nallakakkan Ambalam v. Sri Kallalagar Devastanam : AIR1926Mad156 , that a person who was not the owner of the estate (in that case it was a trustee) could not accept the amount tendered and grant occupancy right. This decision has no bearing on the definition of landholder and turns merely on the special provision just mentioned.
2. Mr. K. Venkataramaraju, counsel for the plaintiffs-respondents in these appeals, has attempted to argue that the sale-deeds executed by the tenants in favour of the appellant, Sri Datla Sanyasi Seetharama Raju, were taken benami for the benefit of the usufructuary mortgagee, Pusapati Venkataranayana Raju. As the learned District Judge rightly points out, this question was not raised in the pleadings and no issue was framed in regard to it. It cannot therefore be permitted to be raised. The result is that the civil miscellaneous appeals must be allowed, the judgment and decrees of the learned District Judge must be set aside and the orders of the learned District Munsiff restored with costs here and in the lower appellate-Court. (Advocate's fee, Rs. 100).