Alfred Henry Lionel Leach, C.J.
1. The appellant sued in the Court of the District Munsiff of Palni to recover a sum of Rs. 990 claimed to be due by the third respondent as the equivalent of rent in kind of certain agricultural land. He also claimed a decree for this amount against the 1st and 2nd respondents on the ground that he had a charge on the produce of the land for the amount due for rent and that they had wrongly removed the produce in collusion with the 3rd respondent. The District Munsiff held that the appellant was entitled to a decree against all the respondents and this decision was concurred in by the Subordinate Judge of Dindigul on appeal. A second appeal followed to this Court and the case came before Varadachariar, J., who held that the appellant was not entitled to a decree against the 1st and 2nd respondents, as in his opinion there was no charge. The appeal depends entirely on the construction to be placed on the lease, Ex. B, which is dated 1st September, 1925. I will quote the relevant passages in the lease:
As I have taken on lease the undermentioned nanja land belonging to you, for a period of three years commencing from this date, agreeing to deliver 60 (sixty) salagais of paddy of peria samba or Nellore samba per year, each salagai consisting of 40 vallams calculated on the basis of your vallam containing Madras Pucca 3 1/4 measures, I shall plough in proper seasons and cultivate the said nanja and irrigate the same whenever water is required therefor. After the crops are fit to be harvested, I shall give you information, harvest them under your supervision, thrash them at the thrashing floor chosen by you, winnow them free from moisture, chaff, etc., measure out at your door good and dry paddy in respect of the said lease before the 30th Masi of every year without there being any need on your part to re measure it and obtain receipt from you. I shall also deliver 30 bundles of straw and obtain receipt. I shall myself bear the cart hire for carrying the said leased paddy, that is, 60 salagais of paddy and 30 bundles of straw from the thrashing floor to your house.... If I thrash the crops without your permission or your watchmen according to the said terms, I shall be liable criminally and for loss on the civil side.
2. It is conceded, as it must be conceded, that there is here no separate covenant that the rent would be paid in kind out of the crops, but it is said that reading the document as a whole the undertakings of the tenant do amount to a covenant to pay out of the produce of the land. I find myself unable to read the lease in this way.
3. That it was expected that the rent would be paid out of the produce of the land cannot be disputed. This is expected in all cases where land is let on a rental payable in kind. The form of lease in this case is the form which is commonly used in certain parts of the Madras Presidency, and what the 3rd respondent undertook to do was to cultivate the land, reap the crop and deliver to his landlord the stipulated amount of paddy. But this does not mean that the lessee covenanted that the rent would be paid out of the crop actually reaped by him. I regard the undertakings given by the lessee as being given by way of assurance that the rent would be paid.
3. The learned advocate for the appellant has been unable to point to any authority in support of his contention, that the words used amounted to a charge. Leases of this nature being common and having been used for many years it is significant that there is no authority to be found for the proposition now advanced. The learned advocate has referred us to a line of cases which say that if a man undertakes to make payment out of a particular fund there is a charge on that fund, and that line of cases might apply if the 3rd respondent had covenanted to make payment out of the paddy grown on this land. There was no such covenant and therefore there can be no charge. I agree entirely with the view of Varadachariar, J. and would dismiss this appeal with costs in favour of the 1st and 2nd respondents.
Krishnaswami Aiyangar, J.
4. I agree.