Sadasiva Ayyar, J.
1. The First defendant is the appellant. He is zamindar of the Mirzapuram Estate, and the plaintiff being the person who purchased a holding in the estate from the purchaser in a Court auction-sale held in 1909 in execution of the mortgage decree for sale passed in Original Suit No. 229 of 1906 on the file of the District Munsif's Court of Bezwada against the legal representatives of the original tenant of the holding (by name P. Venkayya), who had executed the mortgage, deed in 1894. This suit was brought for possession of the lands comprised in the holding, as the first defendant's father (then zamindar) obstructed the plaintiff's enjoyment in 1910.
2. The first defendant pleaded (among other defences):
(a) that the original tenant relinquished the land to the defendant's father in 1894 [see paragraph 2 of the written statement. At the trial, Fasli 1307 (or 1897-98) seems to have been mentioned as the date of the relinquishment];
(b) that the land has Been thereafter enjoyed by the zamindar as his home-farm land;
(c) that the zamindar dfd not know of the mortgage of 1894 and was not impleaded in the Suit No. 229 of 1906 instituted long after the relinquishment (of 1897-8) and hence the first defendant was not bound by the decree and sale in execution in that suit.
3. The District Munsif found (among other conclusions) that the lands were the home-farm lands of the first defendant owing to a 'general relinquishment of all the lands in the suit village of Kesarapalli in fasli 1307' by all the ryots of that village and that the mortgage decree was not binding on the first defendant. He therefore dismissed the suit.
4. The Subordinate Judge on Appeal gave the following findings:
(a) It is clear in this case that the land was seri (rjoti) land, and it was relinquished under' the Estates Land Act; the land which was known to be seri land cannot be converted into kamatam land, by the zamindar. I have no doubt that the land is seri land and not the kamatam land of the zamindar.
(b) The relinquishment by Venkayya cannot affect the mortgage created in 1894. I find therefore that the relinquishment by Venkayya (if any) will not affect the right of the mortgagee.
5. On these (and other) findings, the Subordinate Judge substantially decreed the plaintiff's suit. Hence this Second Appeal by the first defendant. Though several grounds are mentioned in the Memorandum of Second Appeal, the arguments urged before us by'the learned vakil for the second appellant were confined to the contention that the lower (Appellate) Court entirely overlooked the fact that the zamindar was not a party to the mortgage suit (of 1906)(sixth ground of Appeal). The learned vakil did not seriously dispute the finding that the land had continued to be ryoti land but argued as follows (expanding, if I may say so, the above sixth ground of Appeal): (1) that the relinquishment of fasli 1307 by Venkayya made the zamindar the owner of the kudivaram interest; (2) that the zamindar therefore was the proper person to be impleaded as defendant in the mortgage suit of 1906 and not Venkayya's legal representatives, the zamindar then representing the owner of the kudivaram right and the right of redemption; (3) that the decree passed and the Court auction-sale held behind the back of the zamindar did not bind him and could therefore be ignored by him and (4) that the plaintiff as Court auction-purchaser (in a suit to which the owner entitled then to possession was not made a party) could not claim larger rights than the original simple mortgagee who had no rights as such to possession; and hence the plaintiff's suit for possession ought to have been dismissed.
6. I think that the lower Appellate Court does seem to have ignored the fact that the zamindar was not a party to the suit of 1906. He was therefore clearly not bound by the decree and sale proceedings therein. On the other hand (as pointed out by the respondent's learned vakil) the lower Appellate Court has not given a definite finding whether the alleged relinquishment of fasli 1307 by P. Venkayya is true and legally valid. The judgment of the lower Appellate Court uses the phrase 'relinquishment if any.' Further, I am unable to understand the sentence in the judgment of the lower Appellate Court that the land 'was relinquished under the Estates Land Act of 1908,' as this Act came into force long after the date (1897-98) of the alleged relinquishment.
7. I find that the suit of 1906 seems to have been brought not against Pallagani Venkayya but against Pallagani Lakshmigadu, Pallagani Ramudu and Pallagani Sithayya (see Exhibit AI, sale certificate). If they were the undivided sons or male descendants of P. Venkayya, the question arises--whether the alleged relinquishment of 1807 if made by P. Venkayya would bind them, if the kudivaram right was ancestral property. (This question was not argued before us).
8. Again, another legal question (which was argued) has to be considered, namely, whether the relinquishment was not required to be in writing to have legal validity (see Section 12 of the old Rent Recovery Act, VIII of 1865) and if it was orally made, whether the circumstances mentioned in Narasimma v. Lakshmana I.L.R. (1890) Mad. 124, as validating an oral surrender existed in the case. It is a matter for argument whether Narasimma v. Lakshmana I.L.R. (1890) Mad. 124, does not, if I may say so with respect, mix up the rights flowing to the landlord from abandonment of the holding by the tenant with the rights flowing from the surrender or relinquishment of the holding by the tenant to the landlord. I think that 'abandonment' denotes an unilateral act which, does not necessarily imply that the act has been or has to be brought to the notice of any other person, whereas an act of 'relinquishment' or 'surrender' implies that the act is brought to the notice of the landlord; see Venkatesh Narayan Pai v. Krishnaji Arjun (1884) I.L.R. 8 Bom. 160 and Balaji Sitaram Naik Salgavker v. Bhikaji Soyare Prabhu Kanolar I.L.R.(1884) 8 Bom. 164, Dinabhandu v. Lokanadhasami I.L.R. (1883) Mad. 322 , and Mazhar Rai v. Ramgat Singh I.L.R. (1896) All. 290.
9. Yet another question has to be considered, namely, whether the surrender or relinquishment was of a right or interest worth over Rs. 100 and whether such a transaction if in writing required to be registered to give it validity (see Section 17 of the Indian Registration Act), though the Rent Recovery Act (passed in 1865) merely required that it should be in writing, A further question is whether a surrender or relinquishment which is legally valid makes the landlord the owner of a distinct kudivaram right in the land, or whether it merely extinguishes the kudivaram right [just as Sub-section (2) of Section 10 of the Madras Estates Laud Act merely extinguishes the kudivaram right when tenant leaves no heir except the Government and does not vest any distinct positive right in the landlord]. See also Section 8(1) as to the nature of the right which a landlord obtains over a land in his estate when the tenant's interest is merged with the landlord's and Venkalasastrulu v.Sitaramudu I.L.R. (1915) Mad. 891, Zamindar of Chellapalli v. Somaya I.L.R. (1916) Mad. 341 and the Orders of Reference to the Full Bench in Lakshmanaswami v. Venkatadari Appa Rao I.L.R.(1915) Mad. 891. The extinguishment of the kudivaram right by merger or extinction of the tenant's natural heirs does not of course convert ryoti land into private land, and in a real sense 'extinguishment' is only an abeyance of the right till it is revived by the grant of the land to a third person for rent by the landlord. If the landlord does not by the relinquishment of the tenant obtain for himself the tenant's distinct kudivaram right, it seems to follow that he could not also own what is called an equity of redemption in the kudivaram right where the tenant's right had been subjected to a mortgage before the relinquishment or surrender. A landholder as such, has no right to redeem a mortgage created over the kudivaram right by his tenant, as he (the landlord) could not claim to be a person having any interest in or charge upon the property mortgaged (that is, the kudivaram right) and so fall under Section 91, Clause (a) of the Transfer of Property Act (unless rent had fallen into arrears, in which case he has a charge on the land for recovery of arrears under Section 5 of the Act), The other clauses. of Section 91 are 'wholly inapplicable. Section 8 of the Madras Estates Land Act seems to prohibit a landholder from holding ryoti land at any time under any circumstances as if the owned the kudivaram right therein, except of course in the case of one of several co-sharer landholders. Section 10, Clause (2), also makes it clear that even when the owner of the kudivaram right in a ryoti land died leaving no heirs except the Crown, though the Crown was by this Statute prevented from inheriting the tenant's right (as it was entitled to do before this Act came into force) the landlord did not inherit the right of the deceased tenant as a distinct kudivaram right, but the dead man's right was merely extinguished on his death and the landlord's right was only to induct any person he liked into the land as a tenant and that person would obtain the kudivaram right under Section 6 of the Act.
10. I shall here refer to two matters which related to the course of the trial in the lower Courts. The appellant (first defendant) seems to have relied in those Courts on his contention that the land became his kamatam land by the relinquishment of 1897-98 and he seems not to have put forward, or at least pressed sufficiently, his contention that he became the owner of the equity of redemption by the relinquishment and was entitled to retain possession as such owner till his right was extinguished by a decree passed and execution proceedings taken in a suit to which he was himself made a party. That a mere relinquishment to the landlord cannot put an end to the mortgage already created by the tenant so as to prejudice the mortgagee's rights is now well established : see Chhote Lal v. Sheopal Singh I.L.R. (1911) All. 335 and Ekambara Auyar v. Meenatchi Ammal I.L.R. (1904) Mad. 401.
11. The other matter referred to is that the Court of first or instance did not settle the issues properly on the very complicated questions which I am considering and which were argued before us here. The only issue framed was the general one:
Whether the suit land belongs to the plaintiff or his predecessor-in-title.
12. The third ground of Appeal to the lower Appellate Court was:
The lower Court should have framed the most important issue in the suit regarding the relinquishment of the suit land in their favour pleaded by the defendants, as also with regard to the kamatam nature of the suit land as contended for by the defendants.
13. The lower Appellate Court also did not frame all the necessary questions for consideration and the second point framed by it was:
Whether the land was relinquished and whether the I relinquishment thereby gives the zamindar an absolute right in the land.
14. On that question, while it came to the conclusion that the zamindar did not get the absolute right in the land, it held that he acquired a right in the kudivaram subject to the prior mortgage, and it at once rushed to the conclusion that the decree and the sale proceedings in the suit of 1906 to which the zamindar was not made a party were also binding upon him and hence he could not retain possession. What definite right the zamindar got by the ryot's relinquishment (if true) has not been properly considered and decided by the lower Appellate Court.
15. The respondent's learned vakil (Mr. Ramadas) attempted to support the decree of the lower Appellate Court by raising the contention that the relinquishment itself to the landlord, if true, was wholly invalid, as it was made after the tenant had carved out a mortgage out of the tenancy right in favour of a stranger. He relied upon Sir Bhashyam Ayyangar, J's dictum in Ekambara Ayyar v. Meenatchi Ammal I.L.R.(1904) Mad. 401. The learned Judge was considering the proviso to Section 12 of the old Rent Recovery Act of 1865, enacting that tenants shall be allowed to relinquish their lands at the end of the revenue year by a writing to be signed by them in the presence of witnesses or at any other time if the landlord is willing to accept the relinquishment. I might add here that in the corresponding Section 149 of the Madras Estates Land Act, the words 'by a writing to be signed in the presence of witnesses' does not appear, but Section 150, Clause (1), which speaks of the landholder refusing to receive a notice of the relinquishment given under Section 149, and Section 150, Clause (2), which speaks of tender of such notice, clearly imply that the notice should be in writing, though it need not be attested by witnesses. The omission of the words 'by notice in writing' in Section 149 seems to be a clerical oversight on the part of the legislature. In connexion with the right of the tenant under the Rent Recovery Act of 1865 to relinquish, the land even against the will of the landlord, the learned Judge (Bhashyam Ayyangar, J.) remarked:
When the land relinquished is burdened with such an incumbrance, the relinquishment itself may be inoperative to terminate his liability as tenant to the landholder until the incumbrance ceases by effluxion of time or is otherwise discharged by the tenant; Sham Das v. Batul Bibi I.L.R. (1902) All. 538 and Badri Prasad v. Sheodhian I.L.R..(1896) All. 354.
16. The learned Judge did not lay down that the relinquishment was void but he seems only to posit that the right and privilege to relinquish given by the Statute even against the will of the landlord cannot be exercised so as to put an end to the tenancy, if the incumbrance created had not been extinguished before the relinquishment and the landlord refused to recognize the relinquishment owing to the incumbrancer's right to bring the holding to sale and his consequent right to give the purchaser at such sale a claim to repudiate the landlord's dealing with the relinquished holding by letting it to whomever the landlord chooses. I think that all that the learned Judge intended to lay down was that the relinquishment made under circumstances which would not enable the landlord to deal with the relinquished land in its entirety as an unencumbered holding need not be recognized by the landlord. Take a case, where the tenant has sub-let his holding for 20 years as he was entitled to do. His relinquishment of the land when 15 years of the sub-lease term had still to run and the sub-lessee was in possession could not be allowed to prejudice the landlord who ought not to be made to wait for 1'5 years to exercise his power to induct a new tenant. Badri Prasad v. Sheodhian I.L.R. (1896) All. 354 quoted by the learned Judge in support of his dictum lays down only that a sub-lease for a term of years granted by an occupancy tenant is not put an end to by a relinquishment to the landlord by the occupancy tenant. If the landlord' chooses to waive his rights and to recognize the sub-lease (or even a mortgage) and to exercise the landlord's rights accruing under the relinquishment subject to the sub-lease or mortgage rights, I do not see that there is anything to prevent him from so recognizing the relinquishment. When the learned Judge says that the relinquishment may be inoperative to terminate the tenant's liability, it does not necessarily negative the conclusion that if the landlord consented to the termination of the liability of the tenant, the liability may be put an end to notwithstanding the existence of an incumbrance or a sub-lease. In order to simplify matters, Section 56 of the Bengal Tenancy Act while it says in Sub-section (1),
A ryot not bound by a lease or other agreement for a fixed period may at the end of any agricultural year surrender his holding.
adds in Sub-section (6),
When a holding is subject to an incumbrance secured by a registered instrument, the surrender of the holding shall not be valid unless it is made with the consent of the landlord and the incumbrancer.
17. Then Sub-section (7) says
Save as is provided in the last foregoing section nothing in this section shall affect any arrangement by which a ryot and his landlord may arrange for the surrender of the whole or part of the holding.
18. Thus, under Sub-section (6) of Section 86 of the Bengal Tenancy Act, the consents both of the landlord and the incumbrancer are necessary to make valid the surrender of a holding which is subject to an incumbrance secured by a registered instrument. But as Section 149 of the Madras Estates Land Act contains no similar provisions, I do not think that it can be argued that the relinquishment itself is wholly invalid because it is subject to an incumbrance at. the time of the relinquishment which 'is the contention put forward by Mr. Ramadas on the strength of the short obiter dictum of Sir Bhashyam Ayyangar, J., already quoted.
19. In the result, I am of opinion that this Second Appeal cannot be satisfactorily disposed of until some of the material questions arising in the case are definitely formulated and findings obtained from the lower Court on those questions, both parties being at liberty to adduce further evidence. Those questions are:
1. Did Venkayya relinquish the lands to the zamindar? When did he do so? Did he relinquish it in the manner provided for by Section 12 of the Rent Recovery NA Act (VIII of 1865)? Even if there were defects in the mode, time and character of the relinquishment, did the zamindar consent to the relinquishment and to the putting an end of the tenancy?
2. Was such a relinquishment binding on Venkayya and the undivided co-parceners, if any of Venkayya's family? Was it made by a registered instrument? If not, was it invalid on that account?
3. Was the holding not Venkayya's ancestral property?
4. Who were the defendants in the suit (Original Suit No. 229 of 1906)? If they were the undivided coparceners of Venkayya, was the relinquishment binding on them or had they consented to such relinquishment and had their interests in the holding been extinguished before they were made parties to the suit (Original Suit No. 229 of 906)?
5. Was the late Raja the owner of the kudivaram right in the lands at the time of the suit of 1906 and had he by the relinquishment (supposing it is true and valid), or in any other mode, become the legal owner of the kudivaram and could he legally become such owner notwithstanding his status as zamindar? (The Court would have to consider the effect of the provisions of the Madias Estates Land Act already referred to in coming to a conclusion on this point):
(6) Was the zamindar entitled on the date of the suit of 1906 to redeem the mortgage created by Venkayya?
20. Findings should be submitted within six weeks from receipt of records in the lower Court and ten days are allowed for filing objections.
21. I agree with ray learned brother that we must have findings on the issues settled by him, and. reserve my opinion on the points of law until argument on the findings returned.
22. In compliance with the above order, the Subordinate Judge of Bezwada submitted findings as follows:
On the first issue he found that Venkayya did relinquish the lands to the zamindar on 2nd February 1897; that the relinquishment was in writing but not attested as required by Section 12 of the Madras Rent Recovery Act; but that the zamindar did consent to the relinquishment and put an end to the tenancy.
23. On the second issue, he held that the document was not registered but that it was not invalid on that account, and was binding on the tenant Venkayya and his coparceners.
24. On the third issue, he held that the lands were Yenkayya's ancestral property.
25. On the fourth issue, he found that the undivided sons of Venkayya were parties to the mortgagee's suit, that they were minors at the time of relinquishment, by Venkayya, but that the relinquishment was binding on them.
26. On the fifth issue, the learned Subordinate Judge held that the zamindar did not become the owner of the kudivaram right by reason of the relinquishment.
27. On the sixth issue, the Subordinate Judge found against the defendants, holding that the first defendant had not acquired the right to redeem the lands, though he had been in possession of the lands ever since the relinquishment and was in possession thereof at the date of suit.
Sadasiva Ayyar, J.
28. The first defendant (appellant) is the Zamindar of Mirzapuram and the plaintiff (respondent) is the purchaser in the Court auction-sale of a certain cultivable land in the estate, the sale having been held in execution of a mortgage decree passed against one P. Venkayya who was the ryot-tenant of 'the land till 1897 the mortgage suit having been brought against him in 1906 when he had ceased to be the tenant of the land. In 1897, the said P. Venkayya abandoned the land and the zamindar took possession tif it and yet as Venkayya was the original mortgagor (the mortgage deed being dated 1894) he was impleaded as the defendant in the mortgage suit of 1906 and the zamindar who was in possession was not impleaded. The plaintiff as the Court auction-purchaser brought this suit in 1915 in ejectment of the first defendant, the zamindar who is in possession of the land.
29. The lower Appellate Court held (1) that as the land was admittedly ryoti land till 1897, it could never become converted into private land, because, by the statute law, land which is ascertained to have been at one time, however remote ryoti land could never become converted into kamatam land; (2) assuming even that ryoti land could be so converted by the zamindar into kamatam after relinquishment by the ryot, the mortgage created by the ryot before such relinquishment could not be affected in any way and the sale in execution of the decree obtained on the mortgage conferred on the purchaser at that sale the right to hold that land as ryoti land.
30. As regards the first point, it must be admitted that there is a strong body of judicial opinion in the decisions of this Court in support of the view that if a land is proved to have once been ryoti land, it could never be treated afterwards as having (by any dealings by the zamindar or by the tenant or by both) been converted into kamatam land except in the single case mentioned in the proviso to Section 185 of the Madras Estates Land Act, namely, except where the landholder has, by his own servants or by hired labour with his own or hired stock, cultivated the land as private land for 12 years immediately before the commencement of the Act. In Zamindar of Chellappalli v. SomayaI.L.R. (1916) Mad. 341, that very learned Judge, Seshagiri Ayyar, J., has given reasons in pages 349, 350 and 351, in support of the above view. This view of Seshagiri Ayyar, J., seems to have been accepted by Abdur Rahim, J., and Burn, J., in Sreemantha Raja Yarlagada Mallikarjuna Prasada Naidu v. Subbiah : (1920)39MLJ277 . The learned Chief Justice however in Zamindar of Chellappalli v. Somaya I.L.R. (1916) Mad. 341 held the view that a ryoti land can be shown to have been converted into private land by evidence of other acts than the acts mentioned in the proviso to Section 185 but added that such evidence should be 'very clear and satisfactory.' The learned Chief Justice held further in that particular case that the calling of the lands as kamatam and the letting of them out on terms, negativing occupancy right with a view to prevent the assertion of such right (even if such letting had gone on from 1875 till 1910) were insufficient to convert them into private lands, if such conduct of the zamindar could be held to have been merely colourable for the purpose of defeating the rights of the occupancy tenants. The inclination of my own view is to follow with respect the opinion of Seshagiri Ayyar, J. In the present case, as the cultivation by hired servants of the zamindar could not have begun prior to 12 years before July 1908 when the Madras Estates Land Act came into force (the abandonment having been only in 1897), the land must be deemed to have continued to be ryoti land.
31. On the other question, whether there has been a valid relinquishment, valid at least to the extent that the tenant lost all interest in the land relinquished, I have nothing, to add to what my learned brother has said in the judgment prepared by him in this case.
32. The next question for consideration is whether if the relinquishing tenant had created a mortgage right over the kudivaram interest in the land before his abandonment and relinquishment, that mortgage iuterest also then came to an end. On principle, it is difficult to see how a person after having carved out an interest in favour of another for valuable consideration could destroy by his unilateral Act the interest so created in the other person's favour, that is, without the consent of the assignee of that interest. In Ekambara Ayyar v. Meenatchi Ammal I.L.R(1904) . Mad. 401 Bhashyam Ayyangar, J. says:
It is unnecessary to consider and decide in this case the effect of a relinquishment under Section 12, '(Rent Recovery Act)' at the end of the revenue year of his, holding by a ryotas it is not analogous to an ejectment on forfeiture. The operation of such relinquishment on mesne encumbrances created by the tenant may stand altogether on a different footing and the relinquishment itself when the land relinquished is burdened with such an incumbrance may be inoperative to terminate his liability as tenant to the landholder until the encumbrance ceases by effluxion of time or is otherwise discharged by the tenant Sham Das v. Batul Biti I.L.R(1902) . All. 538 and Badri Prasad v. Sheodhian I.L.R. (1896) All. 354.
33. The learned Judge was evidently considering the case of a relinquishment which the landholder refused to accept, the refusal being based on the ground that a mortgage interest had already been created over the holding and the landlord could not let the land to another tenant free from that mortgage. The observation of the learned Judge rather shows that while on forfeiture for non-acceptance of patta, a mortgage interest created prior to the forfeiture failed [which was the direct decision in Ekambara Ayyar v. Meenatchi Ammal I.L.R. (1904) Mad. 401 a mere relinquishment would not put an end to a prior mortgage.
34. Holding then that the mortgage of 1894 subsisted in favour of the mortgagee after the date of and notwithstanding the relinquishment of 1897, the question is in whom did the right to redeem vest on that relinquishment? It seems to me clear that it must vest in the person who became the owner of the kudivaram interest in the land on such relinquishment. In Venkata Sastrulu v. Sitaramudu I.L.R. (1915) Mad. 891 the question of the right of an inamdar in the lands in which he owned only a melwaram interest after the kudivaram owner abandoned or relinquished his kudivaram interest was considered by me. My conclusion was that a landholder though he owned the waste and abandoned lands in his village, in a certain sense, could not be considered to enjoy the kudivaram in the ordinary mode without direct contact, by the cultivation of the soil through his hired or farm servants. I further held that when a ryoti land is abandoned by a tenant, it might be legally permissible to state that the kudivaram thereupon became vested in a certain sense in the landholder because the landholder became vested with the right to grant the kudivaram right to any other person he liked after the abandonment by the former tenant of the said lands. I, however, added that the vesting of the kudivaram in that sense in the landholder till he granted it to a new tenant could not convert ryoti land into private land. Having further considered the matter I see no sufficient reason to change my above view, that the kudivaram in the abandoned holding might be deemed to become vested in the landholder for some legal purposes till the landholder inducted a new tenant into the land. It follows from what I have above stated that the mortgage suit which was brought in 1906 against a person who had ceased to be the owner of the right to redeem, namely, P. Venkayya, was wholly misconceived, that the zamindar, who was then the only person who could in a limited sense represent the kudivaram interest (though he may not be said to be its owner in its full sense) and who was therefore entitled to redeem the mortgage, was the proper party to have been impleaded as the defendant in the suit for sale by the mortgagee, and that as he was not made a party to that suit the decree for sale and the sale in execution held thereunder bound neither the lands nor the zamindar and that the plaintiff (purchaser in the Court auction-sale) could not therefore maintain the present suit for possession, having obtained no title to the kudivaram right by his purchase in the decree passed in the said misconceived suit. The Subordinate Judge's decree must therefore be reversed and that of the District Munaif restored with costs here and in the lower Appellate Court.
35. The Rent Recovery Act of 1865, Section 12, gives to a tenant a right to relinquish his holding, and I am clear that he cannot create an interest in his estate that will operate to destroy that right, but that all such interests are subject to such right. But in dealing with the facts of this case we have first to decide whether there was a valid relinquishment. The lower Appellate Court has found that there was no writing in the presence of witnesses as provided for in the first sentence of the proviso to Section 12 of the Rent Recovery Act and we must accept that finding. He finds, however, that there was in fact a relinquishment accepted by the zamindar, and acted on by him and by Venkayya and his co-parceners, which amounts to an abandonment in pursuance of the relinquishment. In dealing with similar facts Shepherd, J., held, in Narasimma v. Lakshmana I.L.R.(1890) Mad. 124, that relinquishment, acceptance and abandonment operate to terminate the estate of a tenant, while Mottuswami Ayyar, J., went even further and held that a mutual contract from which a surrender in fact might reasonably be inferred was a valid relinquishment. I see no reason to differ from this ruling, given many years ago, and hold that there was a valid relinquishment.
36. The important question remains, however, what was the effect of that relinquishment and the subsequent dealings with the land by the landlord on the mortgage right of the original mortgagee in the hands of the present plaintiff suing in 1915. The plaintiff is the assignee of the auction purchaser of the land sold in execution of the mortgage decree in 1909 and claims as owner of the land to recover possession of it from the zamindar to whom it was relinquished. The relinquishment was in 1897. In the same year the zamindar purported to lease the land to the same tenant as kamatam for a term of three years. In 1900 it was leased to a stranger for five years as kamatam. In 1905 the land was cultivated by the landlord as private land. In 1906 the mortgagee brought his suit against the original mortgagor ignoring the zamindar who was in possession and the mortgagor's interest was sold in 1909. On those facts, the first question seems to me to be, what became of the kudivaram interest after the relinquishment and on the lease as kamatam in the same year. It was decided in Ekambara Ayyar v. Meenatchi Ammal I.L.R. (1904) Mad. 401 that ejectment of a tenant by a landlord for refusal to accept a proper patta extinguished all mesne incumbrances just as forfeiture of a lease-hold interest extinguishes all incumbrances under Section 115 of the Transfer of Property Act, though the Court is careful to point out (vide page 403) that a ryot with a right of occupancy is not a mere lease-holder, but the Court expressed no opinion as to the efficacy of a relinquishment under Section 12 where mesne incumbrances have been created by the tenant. I have already expressed my opinion that the statutory right of relinquishment cannot be made inoperative, but the other question still remains. It was held by my learned brother in Venkata Sastrulu v. Sitaramudu I.L.R.(1915) Mad. 891, that on abandonment by a ryot with occupancy right, the kudivaram did not vest in the landlord in such a manner as necessarily to convert the land into private land (vide page 895) and in Suryanarayana v. Patanna I.L.R. (1915) Mad. 608 that surrender and abandonment were not a method by which the kudivaram interest can be acquired by virtue of the exception to Section 8 of the Madras Estates Land Act. Agreeing with this view I would hold that the kudivaram right in this land was in abeyance until it came into existence again by admission of a new ryot, and continued in abeyance as long as the landlord did and could in accordance with law, treat the land as private land. Under Section 6, Sub-section (2), of the Madras Estates Land Act, if occupancy right land is surrendered after the Act and a tenant is admitted to possession within ten years of such surrender, he acquires a right of occupancy. That is to say, the kudivaram interest is revived in him irrespective of the fact that the land might have been cultivated by the landlord himself for nine years; but we have to consider the case of land which was treated as kamatam prior to the Act. It was held by Seshagiri Ayyar, J., as I understand the learned Judge, in Venkata Sastrulu v. Sitaramudu I.L.R(1915) . Mad. 891, and in Zamindar of Chellappalli v. Somayya I.L.R. (1916) Mad. 341, that except in the case specified in the proviso to Section 185, no land can after the passing of the Madras Estates Land Act ever have been converted into private land because of the retrospective operation of Section 8, Sub-section (1), and that view has been pressed strongly on us. The learned Chief Justice has distinctly negatived it in the latter case and sitting with Layling, J., had declined to accept it in Chintam Reddi Sanyasi v. Sri Rajasagi Appala Narasimha Raja Garu (1914) M.W.N. 766 . I agree with the Chief Justice that the words 'but shall-hold it as a landholder' do not necessarily imply that it remains ryoti land and I am also of opinion that surrender is not an operation by which the entire interests become united 'otherwise.' I might add that where so large a proposition is contended for as that the conversion of occupancy land into private land since the permanent settlement is, since the Madras Estates Land Act, retrospectively inoperative, very definite language must be relied on, and the language used in this section falls far short of that requisite. In my opinion, the view expressed by Seshagiri Ayyar, J., in the two cases referred to should not be followed. I now turn to Section 185. This land clearly does not come within the proviso to Section 185. So, it is presumably not private land: but at the date of the suit in 1915 it was being cultivated by the landlord himself and had been so cultivated for ten years. Even at the date of the mortgage suit, the land was being cultivated by the landlord. It is found that the lands are surrounded by the kamatam lands of the zamindar and it is admitted that in 1897, eleven years prior to the passing of the Act they were let as kamatam lands and continued to be so let until 1905 when the landlord took them under personal cultivation. In my opinion it is now too late to contend successfully that the lands are not the private lands of the zamindar, whatever might have been the result if the mortgagee had brought his suit on his mortgage against his mortgagor in 1897 when the latter took the lands on lease in 1897 directly after his surrender. What would be the effect on the mortgage right if the lands ever became ryoti again is a question I do not propose to consider. I think it enough to say that the landlord not having been a party to the mortgage suit (1 do not decide that he could have been made a party) is not bound by the decree and being himself in possession of his kamatam lands cannot be ejected. I would therefore dismiss this suit with costs throughout.
37. When pronouncing judgment, we omitted by oversight to mention what we had resolved and expressed our intention to do during the course of the arguments, namely, to allow the Memorandum of Objections in respect of decreeing possession of item 2 with mesne profits (Rs. 36) against the defendants who are in possession thereof, and we intended that the suit was to be dismissed and the District Munsifs decree restored only as regards item No. 1. This omission in the judgment will be considered as supplied on the above lines, and the Memorandum allowed to that extent. The District Munsif will, of course, be entitled to pass supplementary decree after inquiry as regards future mesne profits.